1
EXHIBIT 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (the "Escrow Agreement") is entered into as of
September 13, 2000, by and among Packeteer, Inc., a Delaware corporation
("Packeteer"), Xxxxx X'Xxxxx (the "Workfire Stockholder Agent") on behalf of
himself as the Workfire Stockholder Agent and the stockholders identified on
Attachment A (the "Workfire Stockholders"), and U.S. Bank Trust National
Association (the "Escrow Agent").
RECITALS
A. Packeteer, a Delaware corporation, Workfire Acquisition Corp., a
wholly owned subsidiary of Packeteer ("Merger Sub"), Xxxxxxxx.xxx, a Nevada
corporation ("Holdings") and Workfire Technologies International, Inc., a Nevada
corporation ("Workfire"), have entered into that certain Agreement and Plan of
Merger and Reorganization dated as of July 13, 2000, as amended by that certain
Amendment No. 1 to Agreement and Plan of Merger and Reorganization dated
September 8, 2000 (as amended, the "Merger Agreement"), pursuant to which Merger
Sub is merging with and into Workfire and the Workfire Stockholders are
receiving shares of common stock of Packeteer.
B. The Merger Agreement contemplates the establishment of an escrow
arrangement to secure the indemnification obligations of the Workfire
Stockholders under the Merger Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Escrow Agreement and
not otherwise defined shall have the meanings given to them in the Merger
Agreement.
2. ESCROW AND INDEMNIFICATION.
(a) SHARES AND STOCK POWERS PLACED IN ESCROW. At the Closing: (i)
Packeteer shall issue such number of shares of Packeteer Stock determined by
Section 1.8 of the Merger Agreement, evidenced by one stock certificate of
Packeteer issued in the name of the Escrow Agent, evidencing the shares of
Packeteer Stock to be held in escrow in accordance with this Agreement. The
shares of Packeteer Stock being held in escrow pursuant to this Agreement (the
"Escrow Shares") shall constitute an escrow fund (the "Escrow Fund") with
respect to the indemnification obligations of the Workfire Stockholders under
the Merger Agreement. The Escrow Fund shall be held as a trust fund and shall
not be treated as the property of Packeteer nor subject to any lien, attachment,
trustee process or any other judicial process of any creditor of any Workfire
Stockholder or of any party hereto. The Escrow Agent agrees to accept delivery
of the Escrow Fund and to hold the Escrow Fund in an escrow account (the "Escrow
Account") subject to the terms and conditions of this Agreement.
(b) VOTING OF ESCROW SHARES. The Escrow Agent shall agree to vote
the Escrow Shares as directed by the Workfire Stockholder Agent.
1.
2
(c) 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 Escrow Shares shall be held by the Escrow Agent in the
Escrow. At the time any Escrow Shares are required to be released from the
Escrow to any Person pursuant to this Escrow Agreement, any cash, securities or
other property previously distributed in respect of or in exchange for such
Escrow Shares shall be released from the Escrow to such Person.
(d) TRANSFERABILITY. No transfer of any of interests in the Escrow
Shares by operation of law or otherwise shall be recognized or given effect
until Packeteer and the Escrow Agent shall have received written notice of such
transfer.
(e) FRACTIONAL SHARES. No fractional shares of Packeteer Stock shall
be retained in or released from the Escrow pursuant to this Escrow Agreement. In
connection with any release of Escrow Shares from the Escrow, Packeteer and the
Escrow Agent shall be permitted to "round down" or to follow such other rounding
procedures as Packeteer or the Escrow Agent reasonably determines to be
appropriate in order to avoid retaining any fractional share in the Escrow and
in order to avoid releasing any fractional share from the Escrow.
3. WORKFIRE STOCKHOLDER AGENT.
(a) POWER OF ATTORNEY. Effective as of the Closing, Xxxxx X'Xxxxx is
hereby appointed as agent and attorney-in-fact (the "Workfire Stockholder
Agent") for each Workfire Stockholder, for and on behalf of Workfire
Stockholders, to give and receive notices and communications, to authorize
delivery to Packeteer of shares of Packeteer Stock from the Escrow Fund in
satisfaction of claims by Packeteer, to object to such deliveries, to agree to,
negotiate, enter into settlements and compromises of, and demand arbitration and
comply with orders of courts and awards of arbitrators with respect to such
claims, and to take all actions necessary or appropriate in the judgment of the
Workfire Stockholder Agent for the accomplishment of the foregoing. Such agency
may be changed by the Workfire Stockholders prior to the Closing, and after the
Closing by the former Workfire Stockholders as of the Closing from time to time
upon not less than thirty (30) days prior written notice to Packeteer; provided
that the Workfire Stockholder Agent may not be removed unless holders in
interest of two-thirds of the Escrow Fund agree to such removal. Any vacancy in
the position of Workfire Stockholder Agent may be filled by approval of the
holders of a majority in interest of the Escrow Fund. No bond shall be required
of the Workfire Stockholder Agent, and the Workfire Stockholder Agent shall not
receive compensation for his or her services. Notices or communications to or
from the Workfire Stockholder Agent shall constitute notice to or from each of
the Workfire Stockholders.
(b) INDEMNIFICATION OF THE WORKFIRE STOCKHOLDER AGENT. The Workfire
Stockholder Agent shall not be liable for any act done or omitted hereunder as
Workfire Stockholder Agent while acting in good faith and in the exercise of
reasonable judgment. The Workfire Stockholders on whose behalf the Escrow Amount
was contributed to the Escrow Fund shall severally indemnify the Workfire
Stockholder Agent and hold the Workfire Stockholder Agent harmless against any
loss, liability or expense incurred in good faith on the part of the Workfire
Stockholder Agent and arising out of or in connection with the acceptance or
administration of the Workfire Stockholder Agent's duties hereunder, including
the reasonable fees and expenses of any legal counsel retained by the Workfire
Stockholder Agent.
2.
3
(c) ACTIONS OF THE WORKFIRE STOCKHOLDER AGENT. A decision, act,
consent or instruction of the Workfire Stockholder Agent shall constitute a
decision of all the Workfire Stockholders for whom a portion of the Escrow
Amount otherwise issuable to them are deposited in the Escrow Fund and shall be
final, binding and conclusive upon each of such Workfire Stockholders, and the
Escrow Agent and Packeteer may rely upon any such decision, act, consent or
instruction of the Workfire Stockholder Agent as being the decision, act,
consent or instruction of each and every such Workfire Stockholder. The Escrow
Agent and Packeteer 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 Workfire Stockholder Agent.
4. ADMINISTRATION OF ESCROW ACCOUNT. Except as otherwise provided
herein, the Escrow Agent shall administer the Escrow Account as follows:
(a) If any Indemnitee has or claims to have incurred or suffered
Damages for which it is or may be entitled to indemnification, compensation or
reimbursement under Section 9 of the Merger Agreement, such Indemnitee may, on
or prior to the Termination Date, deliver a claim notice (a "Claim Notice")
signed by any Authorized Officer (as defined below) of Packeteer (an "Officer's
Certificate") to the Workfire Stockholder Agent and to the Escrow Agent. Each
Claim Notice shall state that such Indemnitee believes that there is or has been
a breach of a representation, warranty or covenant or other provision contained
in the Merger Agreement or that such Indemnitee is otherwise entitled to
indemnification, compensation or reimbursement under the Merger Agreement and
contain a brief description of the circumstances supporting such Indemnitee's
belief that there is or has been such a breach or that such Indemnitee is so
entitled to indemnification, compensation or reimbursement and shall, to the
extent possible, contain a non-binding, preliminary estimate of the amount of
Damages such Indemnitee claims to have so incurred or suffered (the "Claimed
Amount"). For purposes hereof, the term Authorized Officer shall refer to each
of Packeteer's Chief Executive Officer, President and Chief Financial Officer.
(b) Within 30 business days after delivery of a Claim Notice, the
Workfire Stockholder Agent may deliver to the Indemnitee who delivered the Claim
Notice and to the Escrow Agent a written response (the "Response Notice") in
which the Workfire Stockholder Agent: (i) agrees that Escrow Shares having a
"Stipulated Value" (as defined below) equal to the full Claimed Amount may be
released from the Escrow Account to the Indemnitee; (ii) agrees that Escrow
Shares having a Stipulated Value equal to part, but not all, of the Claimed
Amount (the "Agreed Amount") may be released from the Escrow Account to the
Indemnitee; or (iii) indicates that no part of the Claimed Amount may be
released from the Escrow Account to the Indemnitee. Any part of the Claimed
Amount that is not to be released to the Indemnitee shall be the "Contested
Amount." If a Response Notice is not delivered by the Workfire Stockholder Agent
to the Indemnitee and the Escrow Agent within such 30 business-day period, the
Workfire Stockholder Agent shall be deemed to have agreed that Escrow Shares
having a Stipulated Value equal to the full Claimed Amount may be released to
the Indemnitee from the Escrow Account.
(c) If the Workfire Stockholder Agent in the Response Notice agrees
that Escrow Shares having a Stipulated Value equal to the full Claimed Amount
may be released from the Escrow Account to the Indemnitee, or if a Response
Notice is not delivered in accordance with Section 3(b), the Escrow Agent shall
promptly following the receipt of the Response Notice (or, if a Response Notice
is not duly delivered, promptly following the
3.
4
expiration of the 30 business-day period referred to in Section 3(b)), deliver
to such Indemnitee such Escrow Shares.
(d) If the Workfire Stockholder Agent in the Response Notice agrees
that Escrow Shares having a Stipulated Value equal to part, but not all, of the
Claimed Amount may be released from the Escrow Account to the Indemnitee, the
Escrow Agent shall promptly following the receipt of the Response Notice deliver
to such Indemnitee Escrow Shares having a Stipulated Value equal to the Agreed
Amount.
(e) If any Response Notice indicates that there is a Contested
Amount, the Workfire Stockholder Agent and the Indemnitee shall attempt in good
faith to resolve the dispute related to the Contested Amount. If the Indemnitee
and the Workfire Stockholder Agent shall resolve such dispute, a settlement
agreement shall be signed by the Indemnitee and the Workfire Stockholder Agent
and sent to the Escrow Agent, who shall upon receipt thereof, release Escrow
Shares from the Escrow Account in accordance with such agreement.
(f) If the Workfire Stockholder Agent and the Indemnitee are unable
to resolve the dispute relating to any Contested Amount within 30 business days
after the delivery of the Claim Notice, then the claim described in the Claim
Notice shall be settled by binding arbitration in the County of Santa Xxxxx in
the State of California in accordance with the Commercial Arbitration Rules then
in effect of the American Arbitration Association (the "AAA Rules"). Arbitration
will be conducted by three arbitrators; one selected by Packeteer, one selected
by the Workfire Stockholder Agent and the third selected by the first two
arbitrators. The parties agree to use all reasonable efforts to cause the
arbitration hearing to be conducted within 60 calendar days after the
appointment of the last of the three arbitrators and to use all reasonable
efforts to cause the arbitrators' decision to be furnished within 95 calendar
days after the appointment of the last of the three arbitrators. The
arbitrators' decision shall relate solely to whether the Indemnitee is entitled
to recover the Contested Amount (or a portion thereof), and the portion of such
Contested Amount the Indemnitee is entitled to recover and to which party is the
prevailing party in the arbitration. The final decision of the arbitrators shall
be furnished to the Workfire Stockholder Agent, the Indemnitee and the Escrow
Agent in writing and shall constitute a conclusive determination of the issue in
question, binding upon the Workfire Stockholder Agent, the Workfire
Stockholders, the Indemnitee and the Escrow Agent and shall not be contested by
any of them. The non-prevailing party (as determined by the arbitrator) in any
arbitration shall pay the reasonable expenses (including attorneys' fees) of the
prevailing party and the fees and expenses associated with the arbitration
(including the arbitrators' fees and expenses), provided, however, that if the
non-prevailing party is the Workfire Stockholders such expenses may only be
recovered from the Escrow Fund.
(g) The Escrow Agent shall release Escrow Shares from the Escrow
Account in connection with any Contested Amount within five (5) business days
after the delivery to it of: (i) a copy of a settlement agreement executed by
the Indemnitee and the Workfire Stockholder Agent setting forth instructions to
the Escrow Agent as to the number of Escrow Shares, if any, to be released from
the Escrow Account, with respect to such Contested Amount; or (ii) a copy of the
award of the arbitrators referred to and as provided in Section 3(f) setting
forth instructions to the Escrow Agent as to the number of Escrow Shares, if
any, to be released from the Escrow Account, with respect to such Contested
Amount.
4.
5
5. RELEASE OF ESCROW FUND. If any Escrow Shares are to be released to
any Indemnitee pursuant to this Escrow Agreement, the Escrow Agent shall be
entitled to use a Stock Power held in the Escrow, and to take such other actions
as the Escrow Agent determines to be necessary or advisable, to release and
transfer Escrow Shares to such Indemnitee. Within five business days after the
Termination Date, the Escrow Agent shall distribute to Boston Equiserve, or such
other transfer agent specified by Packeteer in writing (the "Transfer Agent"),
all of the Escrow Shares then held in escrow, for distribution by the Transfer
Agent to the Workfire Stockholders pro rata in proportion to the number of
Escrow Shares set forth on Attachment A; provided, however, that notwithstanding
the foregoing, if, prior to the Termination Date, any Indemnitee has given a
Claim Notice containing a claim which has not been resolved prior to the
Termination Date in accordance with Section 3, the Escrow Agent shall retain in
the Escrow Account after the Termination Date Escrow Shares having a Stipulated
Value equal to 100% of the Claimed Amount or Contested Amount, as the case may
be, with respect to all claims which have not then been resolved. As soon as
practicable upon resolution of such claim(s) under the terms of this Agreement,
all Escrow Shares not distributed by the Escrow Agent pursuant to the preceding
sentence shall be distributed according to the terms of this Agreement and in
accordance with such resolution.
6. VALUATION OF ESCROW SHARES, ETC.
(a) STIPULATED VALUE. For purposes of this Escrow Agreement, the
"Stipulated Value" of each Escrow Share means the Parent Average Stock Price as
defined in the Merger Agreement.
(b) STOCK SPLITS. All numbers contained in, and all calculations
required to be made pursuant to, this Escrow Agreement shall be adjusted as
appropriate to reflect any stock split, reverse stock split, stock dividend or
similar transaction effected by Packeteer after the date hereof.
7. FEES AND EXPENSES. The fees of the Escrow Agent, including (i) the
normal costs of administering the Escrow as set forth on the Fee Schedule
attached hereto as Attachment B and (ii) all fees and costs associated with the
Escrow Agent's administration of Indemnification Claims, shall be paid by
Packeteer. In the event that the Escrow Agent renders any service hereunder not
provided for herein or there is any assignment of any interest in the subject
matter of the Escrow or modification hereof, the Escrow Agent shall be
reasonably compensated for such extraordinary services by the party that is
responsible for or requests such services.
8. LIMITATION OF ESCROW AGENT'S LIABILITY.
(a) The Escrow Agent undertakes to perform such duties as are
specifically set forth in this Escrow Agreement only and shall have no duty
under any other agreement or document notwithstanding their being referred to
herein or attached hereto as an exhibit. The Escrow Agent shall not be liable
except for the performance of such duties as are specifically set forth in this
Escrow Agreement, and no implied covenants or obligations shall be read into
this Escrow Agreement against the Escrow Agent. The Escrow Agent shall incur no
liability with respect to any action taken by it or for any inaction on its part
in reliance upon any notice, direction, instruction, consent, statement or other
document believed by it to be genuine and duly authorized, nor for any other
action or inaction except for its own willful misconduct or
5.
6
negligence. In all questions arising under this Escrow Agreement, the Escrow
Agent may rely on the advice of counsel, and for anything done, omitted or
suffered in good faith by the Escrow Agent based upon such advice the Escrow
Agent shall not be liable to anyone. The Escrow Agent shall not be required to
take any action hereunder involving any expense unless the payment of such
expense is made or provided for in a manner reasonably satisfactory to it.
(b) Packeteer hereby agrees to indemnify the Escrow Agent for, and
hold it harmless against, any loss, liability or expense incurred without
negligence or willful misconduct on the part of Escrow Agent, arising out of or
in connection with its carrying out of its duties hereunder. This right of
indemnification shall survive the termination of this Escrow Agreement, and the
resignation of the Escrow Agent. The costs and expenses of enforcing this right
of indemnification shall also be paid by Packeteer.
(c) If any controversy arises between the Parties to this Agreement,
or with any other Party, concerning the subject matter of this Agreement, its
terms or conditions that are not resolved pursuant to Section 4 hereof, Escrow
Agent will not be required to determine the controversy or to take any action
regarding it. Escrow Agent may hold all documents and funds and may wait for
settlement of any such controversy by final appropriate legal proceedings or
other means as, in Escrow Agent's discretion, Escrow Agent may require, despite
what may be set forth elsewhere in this Agreement. In such event, Escrow Agent
will not be liable for interest or damage. Furthermore, Escrow Agent may at its
option, file an action of interpleader requiring the Parties to answer and
litigate any claims and rights among themselves. Escrow Agent is authorized to
deposit with the clerk of the court all documents and funds held in escrow,
except all costs, expenses, charges and reasonable attorney fees incurred by
Escrow Agent due to the interpleader action and which the Parties jointly and
severally agree to pay. Upon initiating such action, Escrow Agent shall be fully
released and discharged of and from all obligations and liability imposed by the
terms of this Agreement.
9. TERMINATION. Packeteer's right to make claims for indemnification
under this Escrow Agreement shall terminate one year from the date of the
Closing (the "Termination Date").
10. SUCCESSOR ESCROW AGENT; AUTOMATIC SUCCESSION.
(a) In the event the Escrow Agent becomes unavailable or unwilling
to continue as escrow agent under this Escrow Agreement, the Escrow Agent may
resign and be discharged from its duties and obligations hereunder by giving its
written resignation to the parties to this Escrow Agreement. Such resignation
shall take effect not less than 30 calendar days after it is given to all
parties hereto. Packeteer may appoint a successor Escrow Agent only with the
consent of the Workfire Stockholder Agent (which consent shall not be
unreasonably withheld or delayed). The Escrow Agent shall act in accordance with
written instructions from Packeteer as to the transfer of the Escrow Fund to a
successor escrow agent.
(b) Any company into which the Escrow Agent may be merged or with
which it may be consolidated, or any company to whom Escrow Agent may transfer a
substantial amount of its global escrow business, shall be the successor of
Escrow Agent without the execution or filing of any paper of any further act on
the part of any of the parties hereof, anything herein to the contrary
notwithstanding.
6.
7
11. MISCELLANEOUS.
(a) NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this 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 the Workfire Stockholder Agent:
c/o Workfire Holdings, Inc.
0000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, XX Xxxxxx X0X 0X0
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
with a copy to:
Xxxx, Dill, Carr, Xxxxxxxxxx & Xxxxxxxxx, P.C.
000 Xxxxxxx Xxxxxx, Xxxxx 000
Xxxxxx, XX 00000
Telephone No. (000) 000-0000
Facsimile No.: (000) 000-0000
if to Packeteer:
Packeteer, Inc.
00000 Xxxxx XxXxxx Xxxx.
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxxx
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Phleger & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxxxxxxxx and Xxx Xxxxxx
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
7.
8
if to the Escrow Agent:
U.S. Bank Trust National Association
Escrow Services
Xxx Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attention: Xxx Xxxxxx
Fax: (000) 000-0000
Tel: (000) 000-0000
(b) COUNTERPARTS. This Escrow Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
(c) GOVERNING LAW; VENUE. This Escrow Agreement shall be construed
in accordance with, and governed in all respects by, the laws of the State of
California without giving effect to principles of conflicts of laws. Any legal
action or other legal proceeding relating to this Escrow Agreement or the
enforcement of any provision of this Escrow Agreement may be brought or
otherwise commenced in any state or federal court located in the County of Santa
Clara, California. Each party to this Escrow Agreement: (i) expressly and
irrevocably consents and submits to the jurisdiction of each state and federal
court located in the County of Santa Clara, California (and each appellate court
located in the County of Santa Clara, California) in connection with any such
legal proceeding; (ii) agrees that each state and federal court located in the
County of Santa Clara, California shall be deemed to be a convenient forum; and
(iii) agrees not to assert (by way of motion, as a defense or otherwise), in any
such legal proceeding commenced in any state or federal court located in the
County of Santa Clara, California, any claim that such party is not subject
personally to the jurisdiction of such court, that such legal proceeding has
been brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Escrow Agreement or the subject matter of this Escrow
Agreement may not be enforced in or by such court. Nothing contained in this
Section 10(c) shall be deemed to limit or otherwise affect the right of any
party hereto to commence any legal proceeding or otherwise proceed against any
other party hereto in any other forum or jurisdiction.
(d) SUCCESSORS AND ASSIGNS. This Escrow Agreement shall be binding
upon: the Workfire Stockholders and their respective personal representatives,
executors, administrators, estates, heirs, successors and assigns (if any); and
Packeteer and its successors and assigns (if any). This Escrow Agreement shall
inure to the benefit of: the Workfire Stockholders; Packeteer; the other
Indemnitees; and the respective successors and assigns (if any) of the
foregoing. Packeteer may freely assign any or all of its rights under this
Escrow Agreement, in whole or in part, to any other Person without obtaining the
consent or approval of any other party hereto or of any other Person. None of
the Workfire Stockholders or the Workfire Stockholder Agent shall be permitted
to assign any of his rights or delegate any of his obligations under this Escrow
Agreement without Packeteer's prior written consent.
(e) WAIVER. 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
8.
9
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.
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.
(f) 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 Packeteer, the Workfire Stockholder Agent
and the Escrow Agent.
(g) SEVERABILITY. In the event that any provision of this Escrow
Agreement, or the application of any such provision 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.
(h) ENTIRE AGREEMENT. This Escrow Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof and thereof
and supersede all prior agreements and understandings among or between any of
the parties relating to the subject matter hereof and thereof.
(i) CONSTRUCTION. For purposes of this Escrow Agreement, whenever
the context requires: 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. 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. 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." Except as otherwise indicated, all references in
this Escrow Agreement to "Sections" and "Attachments" are intended to refer to
Sections of this Escrow Agreement and Attachments to this Escrow Agreement.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
9.
10
IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement
as of the day and year first above written.
PACKETEER, INC.
By:
-----------------------------------
Title:
---------------------------------
WORKFIRE STOCKHOLDER AGENT
---------------------------------------
Name: Xxxxx X'Xxxxx
ESCROW AGENT
U.S. BANK TRUST NATIONAL ASSOCIATION
---------------------------------------
By:
-----------------------------------
Title:
---------------------------------
10.
11
SIGNATURE PAGE TO THE
ESCROW AGREEMENT AMONG PACKETEER , INC.,
THE WORKFIRE STOCKHOLDER AGENT, THE ESCROW AGENT
AND THE WORKFIRE STOCKHOLDERS
WORKFIRE STOCKHOLDERS:
--------------------------------------------------
Signature
By:
----------------------------------------------
Title:
--------------------------------------------
Print or Type Name:
-------------------------------
Address:
-----------------------------------------
-----------------------------------------
