Exhibit 4.3
Assignment and Assumption
Agreement by and between the
Company, BEC and the Selling Shareholder
ASSIGNMENT AND ASSUMPTION AGREEMENT
ASSIGNMENT AND ASSUMPTION AGREEMENT (this "Agreement"), dated as of
March 11, 1998, among Banque Edouard Constant, a Swiss corporation ("Assignor"),
KA Investments LDC, a Cayman Islands corporation ("Assignee"), and Sigma
Designs, Inc., a California corporation (the "Company").
WHEREAS, the Company and Assignor entered into a certain Subscription
Agreement (the "Subscription Agreement"; capitalized terms used and not
otherwise defined herein shall have the respective meanings set forth in the
Subscription Agreement), dated as of June 25, 1997;
WHEREAS, in connection with the transactions contemplated by the
Subscription Agreement, the Company delivered to Assignor 40,000 shares of
Series A Preferred Stock (the "Shares") and a common stock purchase warrant
pursuant to which the Assignor is currently entitled to acquire 57,142 shares of
Common Stock of the Company at an exercise price of $9.425, as set forth
thereunder (the "Warrant") (the shares of Common Stock underlying the Warrant
are referred to as the "Warrant Shares");
WHEREAS, the Assignor wishes to hereby sell, transfer, convey and
assign to the Assignee its right, title and interest in 15,000 Shares (the "Sold
Shares") and 21,428 Warrant Shares (the "Sold Warrants," together with the Sold
Shares, the "Securities") and to retain its right, title and interest in the
remaining 8,000 Shares and the remaining 35,714 Warrant Shares;
WHEREAS, in connection with the transactions contemplated by the
Subscription Agreement, the Company granted the Assignor certain registration
rights regarding the Common Stock underlying the Shares (the "Underlying
Shares") and the Warrant Shares pursuant to the Registration Rights Agreement,
dated as of June 25, 1997 between the Company and the Assignor (the
"Registration Rights Agreement");
WHEREAS, pursuant to the Registration Rights Agreement, on August 7,
1997, the Company filed a registration statement on Form S-3 with the Securities
and Exchange Commission (the "SEC") covering the resale of the Underlying Shares
and Warrant Shares (the "Registration Statement") and, in connection with the
closing of the transactions contemplated hereunder, the Company will file a new
registration statement (the "New Registration Statement") in order to register
an additional 900,000 shares of Common Stock pursuant to the terms of the
Registration Rights Agreement (the "Additional Registrable Securities") and to
include the Assignee as a selling shareholder thereunder with respect to its
Underlying Shares and Warrant Shares (the "Assignee's Underlying Share"); and
WHEREAS, the Company has agreed to permit the sale, transfer,
conveyance and assignment of the Securities, subject to the terms and conditions
set forth below.
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NOW, THEREFORE, in consideration of the promises and of the mutual
covenants herein set forth and for other good and valuable consideration, the
receipt of which is hereby acknowledged, the parties hereto agree as follows:
1. Assignment of the Securities. Subject to the terms and conditions
set forth in this Agreement and the Escrow Agreement among the Company, Assignor
and Assignee, dated the date hereof (the "Escrow Agreement"), the Assignor
hereby sells, transfers, conveys and assigns to Assignee the Securities, the
Assignee accepts such sale, transfer, conveyance and assignment in reliance upon
the Assignor's representations and warranties set forth in Schedule A and the
Company's representations and warranties set forth in Schedule B and the Company
agrees to permit such sale, transfer, conveyance and assignment of the
Securities in reliance upon the Assignee's representations and warranties set
forth in Schedule C.
2. Purchase Price. The purchase price for the Securities shall be
$1,500,000 (the "Purchase Price").
3. Filing of the New Registration Statement. The Company acknowledges
and confirms that within five (5) business days of its receipt of a
fully-executed copy of this Agreement (the "Filing Date"), it will file the New
Registration Statement to include the Additional Registrable Securities and name
the Assignee as a selling shareholder thereunder with respect to the Assignee's
Underlying Shares, provided, however, that not less than three (3) business days
prior to the Filing Date, the Company shall (i) furnish to the Assignee and its
counsel, copies of all such documents proposed to be filed in connection with
the New Registration Statement, which documents (other than those incorporated
or deemed to be incorporated by reference) will be subject to the review of the
Assignee and its counsel, and (ii) cause its officers and directors, counsel and
independent certified public accountants to respond to such inquiries as shall
be necessary, in the opinion of respective counsel to the Assignee, to conduct a
reasonable investigation within the meaning of the Securities Act. The Company
shall not file the New Registration Statement if the Assignee is reviewing the
New Registration Statement and shall reasonably object on a timely basis.
Notwithstanding anything to the contrary contained herein, in the event that
either (i) the Company and the Assignee are unable to agree on the language to
be used in the New Registration Statement, or (ii) the New Registration
Statement has not been filed with the SEC by the Filing Date, the Assignee shall
have the right to terminate this Agreement at any time after the Filing Date
(the "Assignee's Termination Right").
4. Closing of the Sale of the Securities.
(a) The closing for the sale of the Securities (the "Closing")
shall, subject to the terms of the Escrow Agreement, take place two (2) business
days following the date on which the Escrow Agent has received a copy of the New
Registration Statement, together with proof reasonably satisfactory to the
Assignee that such New Registration Statement has been filed with the SEC.
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(b) At the Closing, the Escrow Agent, in accordance with and
subject to the terms and conditions of the Escrow Agreement, shall deliver (i)
to the Assignee, (x) a copy of the New Registration Statement which has been
filed with the SEC, (y) now stock certificate(s) registered in the name of the
Assignee reflecting the ownership of 15,000 shares of Series A Preferred Stock
by the Assignee, and (z) a new common stock purchase warrant registered in the
name of the Assignee (the "Assignee Warrant") in the form of the Warrant, to
acquire 21,428 shares of Common Stock, which Assignee Warrant shall contain the
same terms as the Warrant, except that the exercise price of the Assignee
Warrant shall be 130% of the average closing bid price of the Common Stock for
the five days trading days immediately preceding May 1, 1998, provided, that
such exercise price shall not exceed $9.425, (ii) to the Assignor, (x) the
Purchase Price, and (y) a new common stock purchase warrant registered in the
name of the Assignor (the "Assignor Warrant"), in the form of the Warrant, to
acquire 35,714 shares of Common Stock, which Assignor Warrant shall contain the
same terms as the Assignee Warrant, (iii) to the Company, the old warrant,
representing the Warrant, previously delivered to the Assignor in connection
with the Subscription Agreement, and (iv) to the party entitled thereto, all
other documents, instruments and writings, if any, required to have been
delivered at or prior to such Closing by any party hereto pursuant to this
Agreement or the Escrow Agreement.
5. Certain Agreements of the Company.
(a) The Company acknowledges and confirms that (i) the
Assignee is an intended beneficiary hereof and shall be entitled to enforce all
of the rights and benefits of a Purchaser under the Purchase Agreement as if it
were a party thereto, and (ii) the Assignee's Underlying Shares shall be deemed
to be "Registrable Securities" (as defined in the Registration Rights
Agreement), and that the Assignee shall have the same registration rights with
respect to the Assignee's Underlying Shares as all other owners of "Registrable
Securities" have under the Registration Rights Agreement as if it were a party
thereto.
(b) The Company acknowledges and confirms that if the New
Registration Statement is not declared effective by the SEC on or prior to the
60th day following the date of the Closing (the "Effectiveness Date") the
Company shall pay to the Assignee $15,000 on the Effectiveness Date as
liquidated damages and not as a penalty. Thereafter, the Company shall pay to
the Assignee, as liquidated damages and not as a penalty, $45,000 on each
monthly anniversary following the Effectiveness Date in which the New
Registration Statement has not been declared effective by the SEC. The
Effectiveness Date will be extended, as applicable, by the number of days, in
excess of two (2), during which the proposed registration statement was reviewed
by the Assignee and its counsel pursuant to Section 3 hereof.
(c) At the Closing, the Company shall pay one half (1/2) of
the legal fees and expenses of the Assignee incident to the preparation and
negotiation of documents relating to the transactions contemplated by this
Agreement, up to a maximum of $5,000.
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(d) At the Closing, the Company agrees to pay to the Assignor
accrued and unpaid dividends up to and including the date of the Closing and a
special payment of 1.5% of the aggregate Original Issue Price of the Sold
Shares.
(e) The Assignee and the Company agree that the Assignee's
right to receive dividends on the Sold Shares shall begin on the day immediately
following the Closing.
6. Certain Agreements of the Assignee.
(a) The Assignee agrees that it will not exercise its right to
convert the Sold Shares into shares of Common Stock prior to 90 days following
the date of the Closing.
(b) The Assignee agrees further that until the day the
Assignee validly exercises its right to convert the Sold Shares into shares of
Common Stock (the "Lock-up Period"), it will not, without the express prior
written consent of the Company, offer, sell, make any short sale of, loan,
encumber, grant any option for the purchase of, or otherwise, dispose of (the
"Resale Restrictions"), any securities of the Company beneficially owned or
otherwise held by the Assignee as of the date hereof or hereafter acquired by
the Assignee (collectively, the "Restricted Securities"). The foregoing Resale
Restrictions are expressly agreed to preclude the holder of the Restricted
Securities from engaging in any hedging or other transaction which may lead to
or result in a sale of Restricted Securities during the Lock-up Period, even if
such Restricted Securities would be sold by someone other than the Assignee.
Such prohibited hedging or other transactions would include, without limitation,
any short sale (whether or not against the box), any pledge or any purchase,
sale or grant of any right (including, without limitation, any put or call
option) with respect to any of the Restricted Securities. The Resale
Restrictions shall not apply to the conversion of the Sold Shares into Common
Stock as contemplated by this Agreement but shall apply to the Common Stock
issued upon such conversion. The Assignee agrees and consents to the entry of
stop transfer instructions with the transfer agent for the Company's Common
Stock against any transfer of shares of Common Stock by the undersigned in
contravention of the Resale Restrictions.
(c) The Assignee agrees not to effectuate or cause a third
party to effectuate a sale of, offer for sale, or solicit a purchase or offer to
purchase the Common Stock with the intention of causing a reduction in the
Conversion Price.
7. Miscellaneous.
(a) Authority. Each of the Company, the Assignor and the
Assignee hereby represent and warrant to the other that each has the requisite
power and authority to enter into and to consummate the transactions
contemplated by this Agreement, that the execution and delivery of this
Agreement and the transactions contemplated by this Agreement have been duly
authorized by all necessary action, that this Agreement has been validly
executed and delivered, and that this Agreement constitutes its valid, legal and
binding obligation, enforceable against it in accordance with its terms, except
as such enforceability may be limited by applicable bankruptcy, insolvency,
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reorganization, moratorium, liquidation or similar laws relating to, or
affecting generally the enforcement of, creditors' rights and remedies or by
other equitable principles of general application.
(b) Further Assurances. The parties hereto agree to execute
such other documents and instruments as may be reasonably required to effectuate
the sale, transfer, conveyance and assignment contemplated by this Agreement.
(c) Amendment and Modification. This Agreement may be amended,
modified and supplemented only in a written agreement executed by each of the
parties hereto.
(d) Successors and Assigns. This Agreement shall inure to the
benefit of and be binding upon the respective successors and permitted assigns
of the parties hereto. Assignment of the rights and obligations hereunder shall
be governed by the terms thereof set forth in the Registration Rights Agreement.
The assignment by a party of this Agreement or any rights hereunder shall not
affect the obligations of such party under this Agreement.
(e) Governing Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York without
regard to conflicts of law principals thereof.
(f) Counterpart Signatures; Facsimile. This Agreement may be
executed in counterparts, which will, when taken together, be deemed for all
purposes to be one and the same Agreement. For all purposes, a signature
delivered by facsimile shall have the same force and effect as the original of
such signature.
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IN WITNESS WHEREOF, the parties hereto have caused this Assignment and
Assumption Agreement to be duly executed as of the day and year first above
written.
SIGMA DESIGNS, INC.
By:_________________________
Name:_________________
Title:________________
BANQUE EDOUARD CONSTANT
By:_________________________
Name:_________________
Title:________________
KA INVESTMENTS LDC
By:_________________________
Name:_________________
Title:________________
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Schedule A
Representations and Warranties of Assignor
1. The Shares and the Warrant were acquired by the Assignor in a
transaction exempt from the registration requirements of the Securities Act.
2. The Assignor holds of record and owns beneficially the Securities.
3. The Assignor is not a party to any option, warrant, purchase right,
or other contract or commitment (other than this Agreement) that requires the
Assignor to sell, transfer, or otherwise dispose of any of the Securities or the
Underlying Shares.
4. The Assignor has all right, power and authority to transfer the
Securities to the Assignee in accordance with the terms of this Agreement.
5. Upon the Closing, such Securities will be transferred to the
Assignee free and clear of all liens, claims and encumbrances.
6. No consent, approval or other authorization is required for the
Assignor to assign the Securities to the Assignee pursuant to the terms of this
Agreement.
7. Immediately prior to the date of this Agreement, the Assignor was
listed as a selling shareholder in the Registration Statement with respect to
the Underlying Shares.
Schedule B
Representations and Warranties of the Company
1. The Shares and the Warrant were acquired by the Assignor in a
transaction exempt from the registration requirements of the Securities Act.
2. The Registration Statement remains effective with respect to the
resale of the Warrant Shares and shares of Common Stock underlying the
Assignor's Shares.
Schedule C
Representations and Warranties of Assignee
1. The Assignee represents that it is an "accredited investor" as such
term is defined in Rule 501(a) promulgated under the Securities Act.
2. The Assignee either alone or with its representatives has such
knowledge and experience in financial and business matters that it is capable of
evaluating the merits and risks of the investment contemplated by this
Agreement.
3. The Assignee is able to bear the economic risk of the investment
contemplated by this Agreement and, at the present time, is able to afford a
complete loss of such investment.
4. The Assignee has no present intention to sell the Securities to or
through any person or entity.
5. The Assignee is acquiring the Securities for its own account and
does not intend to be a "distributor" of the Securities.
ESCROW AGREEMENT
ESCROW AGREEMENT (this "Agreement"), dated as of March 11, 1998, among
Sigma Designs, Inc. (the "Company"), Banque Edouard Constant (the "Assignor"),
KA Investments LDC (the "Assignee") and Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx &
Xxxxxx LLP ("RSPA&B") as escrow agent (the "Escrow Agent").
Recitals
A. Simultaneously with the execution of this Agreement, the Company,
the Assignor and the Assignee have entered into an Assignment and Assumption
Agreement, dated as of the date hereof (the "Assignment Agreement"; capitalized
terms used herein without definition shall have the meanings assigned to such
terms in the Assignment Agreement), pursuant to which the Assignor is assigning
the Securities to the Assignee.
B. The Escrow Agent is willing to act as escrow agent pursuant to the
terms of this Agreement with respect to the delivery of the Purchase Price to be
paid for the Securities and the delivery of one or more stock certificates
representing the Sold Shares and the Sold Warrant (collectively, the
"Consideration").
C. Upon the closing of the transaction contemplated by the Assignment
Agreement (the "Closing"), and the occurrence of an event described in Section 2
below, the Escrow Agent shall cause the distribution of the Consideration in
accordance with the terms of this Agreement.
NOW, THEREFORE, IT IS AGREED:
1. Deposit of Consideration.
(a) Concurrently with the execution hereof (i) the Assignee
shall deposit the Purchase Price with the Escrow Agent, (ii) the Assignor shall
deliver to the Escrow Agent (x) the stock certificate(s), representing the
15,000 Shares, previously delivered to the Assignor in connection with the
Subscription Agreement (the "June Stock Certificates"), and (y) the common stock
purchase warrant, representing the Warrant, previously delivered to the Assignor
in connection with the Subscription Agreement (the "June Warrant" and together
with the June Stock Certificate, the "June Securities"), and (iii) the Company
shall deliver to the Escrow Agent (w) stock certificate(s) registered in the
name of the Assignee reflecting the ownership of 15,000 Shares by the Assignee
(the "Assignee March Stock Certificate"), (x) a common stock purchase warrant
registered in the name of the Assignee, in the form of the Warrant, to acquire
21,428 shares of Common Stock, which, except as otherwise set forth in the
Assignment Agreement, shall contain the same terms as the Warrant (the "Assignee
March Warrant" and together with the Assignee March Stock Certificate, the
"Assignee March Securities") and (y) a common stock purchase warrant registered
in the name of the Assignor, in the form of the Warrant, to acquire 35,714,
shares of Common Stock, which, except as otherwise set forth in the Assignment
Agreement, shall contain the same terms as the Warrant (the "Assignor March
Securities").
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(b) The Assignor shall also deliver to the Escrow Agent wiring
instructions for transfer of the Purchase Price by the Escrow Agent into an
account specified by the Assignor for such purpose. In addition, the Company,
the Assignee and the Assignor shall deposit with the Escrow Agent all other
certificates and documents required under the Assignment Agreement to be
delivered by them at the Closing (such certificates and other documents being
hereinafter referred to as the "Ancillary Closing Documents").
(i) The Purchase Price shall be delivered by the
Assignee to the Escrow Agent by wire transfer to the following account:
Citibank, N.A.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
ABA No.: 000-000-000
For the Account of
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx
& Xxxxxx LLP
Attorney Trust Account
Account No.: 00-000-000
Reference: 11161-7
(ii) The Assignor March Securities, the Assignee
March Securities, the June Securities and the Ancillary Closing Documents, if
any, shall be delivered to the Escrow Agent at its address for notice indicated
in Section 5(a).
(c) Until termination of this Agreement, any additional
Consideration to be paid or delivered pursuant to the Assignment Agreement shall
be deposited with the Escrow Agent.
(d) The Assignee and the Assignor understand that all monetary
Consideration delivered to the Escrow Agent pursuant to this Agreement shall be
held in escrow in the Escrow Agent's interest bearing business account until it
is released in accordance with this Agreement.
(e) At the Closing:
(i) the Purchase Price shall be reduced by all
wire transfer fees incurred thereupon; and
(ii) the Company shall pay to the Escrow Agent
one half (1/2) of the Assignee's legal fees, up to a maximum of $5,000, pursuant
to Section 5(c) of the Assignment Agreement.
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2. Terms of Escrow.
(a) The Escrow Agent shall continue to follow the provisions
of this Agreement until the earlier to occur of (i) the date of the Escrow
Agent's receipt of the New Registration Statement as filed with the SEC, or (ii)
the earlier to occur of (x) the exercise by the Assignee of the Assignee's
Termination Right, or (y) the date on which the Escrow Agent receives a written
notice, executed by the Company, the Assignor and the Assignee, stating that the
Assignment Agreement has been terminated in accordance with its terms and
instructing the Escrow Agent with respect to the Purchase Price, the Assignee
March Securities, the Assignor March Securities, the June Securities and the
Ancillary Closing Documents, if any.
(b) If the Escrow Agent receives the items referenced in
clause (i) of Section 2(a) prior to its receipt of the notice referenced in
clause (ii) of Section 2(a), then, promptly thereafter, the Escrow Agent shall
deliver (i) to the Assignee the (x) Assignee March Securities, and (y) any
interest earned on account of the Purchase Price that shall have accrued from
the date hereof through the date of the Closing, (ii) to the Assignor, (x) the
Purchase Price (net of amounts described under Section l(e)(i)), and (y) the
Assignor March Securities, (iii) to the Company, the June Securities, and (iv)
to the appropriate party, the Ancillary Closing Documents.
(c) If the Escrow Agent receives the notice referenced in
clause (ii) of Section 2(a) prior to its receipt of the items referenced in
clause (i) of Section 2(a), then the Escrow Agent shall promptly upon receipt of
such notice return (i) the Purchase Price (together with any interest earned
thereon through such date) to the Assignee, (ii) the June Securities to the
Assignor, (iii) the Assignor March Securities and the Assignee March Securities
to the Company, and (iv) any Ancillary Closing Documents to the party that
delivered the same.
(d) If the Escrow Agent, prior to delivering or causing to be
delivered the Consideration in accordance herewith, receives notice of
objection, dispute, or other assertion in accordance with any of the provisions
of this Agreement, the Escrow Agent shall continue to hold the Consideration
until such time as the Escrow Agent shall receive (i) written instructions
jointly executed by the Assignor, the Assignee and the Company, directing
distribution of such Consideration, or (ii) a certified copy of a judgment,
order or decree of a court of competent jurisdiction, final beyond the right of
appeal, directing the Escrow Agent to distribute said Consideration to any party
hereto or as such judgment, order or decree shall otherwise specify (including
any such order directing the Escrow Agent to deposit the Consideration into the
court rendering such order, pending determination of any dispute between any of
the parties). In addition, the Escrow Agent shall have the right to deposit any
of the Consideration with a court of competent jurisdiction pursuant to Section
1006 of the New York Civil Practice Law and Rules without liability to any party
if said dispute is not resolved within 30 days of receipt of any such notice of
objection, dispute or otherwise.
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3. Duties and Obligations of the Escrow Agent.
(a) The parties hereto agree that the duties and obligations
of the Escrow Agent are only such as are herein specifically provided and no
other. The Escrow Agent's duties are as a depositary only, and the Escrow Agent
shall incur no liability whatsoever, except as a direct result of its willful
misconduct.
(b) The Escrow Agent may consult with counsel of its choice,
and shall not be liable for any action taken, suffered or omitted by it in
accordance with the advice of such counsel.
(c) The Escrow Agent shall not be bound in any way by the
terms of any other agreement to which the Company, the Assignee and the Assignor
are parties, whether or not it has knowledge thereof, and the Escrow Agent shall
not in any way be required to determine whether or not any other agreement has
been complied with by the Company, the Assignee and the Assignor, or any other
party thereto. The Escrow Agent shall not be bound by any modification,
amendment, termination, cancellation, rescission or supersession of this
Agreement unless the same shall be in writing and signed by each of the Company,
the Assignee and the Assignor, and agreed to in writing by the Escrow Agent.
(d) In the event that the Escrow Agent shall be uncertain as
to its duties or rights hereunder or shall receive instructions, claims or
demands which, in its opinion, are in conflict with any of the provisions of
this Agreement, it shall be entitled to refrain from taking any action, other
than to keep safely all Consideration then held in escrow, until it shall
jointly be directed otherwise in writing by the Assignee and the Assignor or by
a final judgment of a court of competent jurisdiction.
(e) The Escrow Agent shall be fully protected in relying upon
any written notice, demand, certificate or document which it, in good faith,
believes to be genuine. The Escrow Agent shall not be responsible for the
sufficiency or accuracy of the form, execution, validity or genuineness of
documents or securities now or hereafter deposited hereunder, or of any
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein; nor shall the Escrow Agent be responsible or liable in any
respect on account of the identity, authority or rights of the persons executing
or delivering or purporting to execute or deliver any such document, security or
endorsement.
(f) The Escrow Agent shall not be required to institute legal
proceedings of any kind and shall not be required to defend any legal
proceedings which may be instituted against it or in respect of the
Consideration.
(g) If the Escrow Agent at any time, in its sole discretion,
deems it necessary or advisable to relinquish custody of the Consideration then
held by it, it may do so by delivering the same to any other escrow agent
mutually agreeable to the Assignee and the Assignor and, if no such escrow agent
shall be selected within three days of the Escrow Agent's notification to the
Assignee and the Assignor of its desire to so relinquish custody of the
Consideration then held by it, then the Escrow Agent may do so by delivering
such Consideration (a) to any bank or trust company in the
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Xxxxxxx xx Xxxxxxxxx, Xxxx and State of New York, which is willing to act as
escrow agent thereunder in place and instead of the Escrow Agent, or (b) to the
clerk or other proper officer of a court of competent jurisdiction as may be
permitted by law within the State, County and City of New York. The fee of any
such bank or trust company or court officer shall be borne by the Assignor. Upon
such delivery, the Escrow Agent shall be discharged from any and all
responsibility or liability with respect to the Consideration and the Assignor
shall promptly pay to the Escrow Agent all monies which may be owed it for its
services hereunder, including, but not limited to, reimbursement of its
out-of-pocket expenses pursuant to paragraph (i) below.
(h) This Agreement shall not create any fiduciary duty on the
Escrow Agent's part to the Company, the Assignee or the Assignor, nor disqualify
the Escrow Agent from representing either party hereto in any dispute with the
other, including any dispute with respect to the Consideration. The Company and
the Assignor understand that RSPA&B has acted and will continue to act as
counsel to Assignor.
(i) The reasonable out-of-pocket expenses paid or incurred by
the Escrow Agent in the administration of its duties hereunder, including, but
not limited to, all counsel and advisors' and agents' fees and all taxes or
other governmental charges, if any, shall be paid by the Assignor.
4. Indemnification. The Company, the Assignee and the Assignor, jointly
and severally, hereby indemnify and hold the Escrow Agent harmless from and
against any and all losses, damages, taxes, liabilities and expenses that may be
incurred, directly or indirectly, by the Escrow Agent, arising out of or in
connection with its acceptance of appointment as the Escrow Agent hereunder
and/or the performance of its duties pursuant to this Agreement, including, but
not limited to, all legal costs and expenses of the Escrow Agent incurred
defending itself against any claim or liability in connection with its
performance hereunder and the costs of recovery of amounts pursuant to this
Section 4.
5. Miscellaneous.
(a) All notices, requests, demands and other communications
hereunder shall be made in accordance with the notice provisions of the
Assignment Agreement at the addresses set forth therein. Notices to the Escrow
Agent shall be sent to the following address:
Xxxxxxxx Xxxxxxxxx Xxxxxx Xxxxxxxx & Xxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attention: Xxxx X. Xxxxx, Esq. and
Alexandre T. Speaker, Esq.
(b) This Agreement shall be construed and enforced in
accordance with the law of the State of New York applicable to contracts entered
into and performed entirely within New York.
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(c) This Agreement may be executed in two or more
counterparts, all of which when taken together shall be considered one and the
same agreement and shall become effective when counterparts have been signed by
each party and delivered to the other party, it being understood that both
parties need not sign the same counterpart. In the event that any signature is
delivered by facsimile transmission, such signature shall create a valid and
binding obligation of the party executing (or on whose behalf such signature is
executed) the same with the same force and effect as if such facsimile signature
page were an original thereof.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be signed the day and year first above written.
SIGMA DESIGNS, INC.
By:______________________________________
Name:_____________________________________
Title:_____________________________________
BANQUE EDOUARD CONSTANT
By:______________________________________
Name:_____________________________________
Title:_____________________________________
KA INVESTMENTS LDC
By:______________________________________
Name:_____________________________________
Title:_____________________________________
XXXXXXXX XXXXXXXXX XXXXXX
ARONSOHN & XXXXXX LLP
By:______________________________________
A Member of the Firm
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