Exhibit 2.2
ESCROW AGREEMENT
This Escrow Agreement (this "Escrow Agreement") is made and entered into as
of March 4, 2003, by and among (i) Itron, Inc., a Washington corporation
("Itron"); (ii) JMI Equity Fund III, L.P. as the Stockholders' Representative
(the "Stockholders' Representative"); (iii) the stockholders of Silicon Energy
Corp., a Delaware company (the "Company"), listed on Schedule A hereto, as such
Schedule A shall be updated as of the Closing Date, as that term is defined
below (such stockholders collectively, the "Company Stockholders") by and
through the Stockholders' Representative and (iv) Mellon Investor Services LLC,
a New Jersey limited liability company, as escrow agent of the Escrowed Property
(as defined below) (the "Escrow Agent").
RECITALS
A. The Company, Shadow Combination, Inc., a Delaware Corporation, (the
"Combination Company") and Itron have entered into an Agreement and Plan of
Merger, dated as of January 18, 2003 (the "Merger Agreement") setting forth
certain terms and conditions pursuant to which the Combination Company is being
merged with and into the Company (the "Merger").
B. Pursuant to Section 3.1(b) of the Merger Agreement, shares of Company
capital stock will be converted into cash at the Effective Time of the Merger
(as such term is defined in the Merger Agreement).
C. The parties to the Merger Agreement have agreed to establish an escrow
account (the "Escrow Account") and to authorize Itron to deliver to the Escrow
Agent for deposit into the Escrow Account the aggregate amount of up to Seven
Million One Hundred Twenty Thousand Dollars ($7,120,000.00) (the "Escrowed
Cash").
D. Itron, the Stockholders' Representative and the Company Stockholders
desire to appoint Mellon Investor Services LLC to act as Escrow Agent for the
Escrowed Cash and any other funds or cash deposited or held in the Escrow
Account from time to time in accordance with this Escrow Agreement, including
without limitation any interest, income or earnings thereon (collectively the
"Escrowed Property").
NOW THEREFORE, for and in consideration of the premises and mutual
covenants and agreements contained in this Escrow Agreement, the parties agree
as follows:
AGREEMENT
1. ESTABLISHMENT OF ESCROW.
1.1 Deposits of Cash on Behalf of the Company Stockholders
On the date hereof, Itron hereby agrees to deliver the Escrowed Cash to the
Escrow Agent for deposit in the Escrow Account.
1.2 Treatment of Escrowed Cash and other Escrowed Property
1.2.1 Upon receipt of the Escrowed Cash, the Escrow Agent shall
promptly deposit the Escrowed Cash into the Escrow Account.
1.2.2 So long as the Escrow Agent is holding the Escrowed Cash or
any other Escrowed Property in the Escrow Account in accordance with this Escrow
Agreement, the Escrow Agent is hereby instructed to invest such Escrowed Cash
and any other Escrowed Property in Class B Shares of the Dreyfus General Money
Market Fund. All income and earnings from the investment of the Escrowed
Property shall be credited to, and become a part of, the Escrow Account and/or
the Escrowed Property, and any losses on any such investments shall be debited
to the Escrow Account and/or the Escrowed Property. The Escrow Agent shall have
no duty, responsibility or obligation to invest any part of the Escrow Account
and/or the Escrowed Property held in the Escrow Account other than in accordance
with this Section 1.2.2. The Escrow Agent shall have no liability or
responsibility for any investment losses, including without limitation any
market loss on any investment liquidated (whether at or prior to maturity) in
order to make a distribution or other payment required under this Escrow
Agreement. The Escrow Agent may, in making or disposing of any investment
permitted by this Escrow Agreement, deal with itself, in its individual
capacity, or any of its affiliates, whether or not it or such affiliate is
acting as a subagent of the Escrow Agent or for any third person or dealing as
principal for its own account.
1.3 Delivery to the Escrow Agent; Release by the Escrow Agent
The Escrow Agent is hereby appointed, and hereby agrees, to act as the
Escrow Agent hereunder upon the express terms and conditions set forth herein,
and to accept the Escrowed Cash and any other Escrowed Property, deposit the
Escrowed Cash and any other Escrowed Property in the Escrow Account, release the
Escrowed Cash and any other Escrowed Property from the Escrow Account pursuant
to the express terms and conditions of this Escrow Agreement and otherwise
perform the duties of the Escrow Agent expressly set
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forth in this Escrow Agreement. The Escrow Agent shall hold and safeguard the
Escrowed Cash and any other Escrowed Property deposited or held from time to
time in the Escrow Account during the term of this Escrow Agreement.
1.4 Power to Transfer Escrowed Property
The Escrow Agent is hereby granted the power to effect any transfer of the
Escrowed Cash and any other Escrowed Property from the Escrow Account as
provided in this Escrow Agreement.
2. DISBURSEMENT FROM ESCROW ACCOUNT
2.1 The Escrow Agent shall make disbursements from the Escrow Account
as follows:
(i) If from time to time on or before March 4, 2005 (the "Escrow
Termination Date"), the Escrow Agent receives joint written instructions from an
Appropriate Officer of Itron and the Stockholders' Representative instructing
the Escrow Agent to distribute the Escrowed Property or any part thereof
(including, without limitation, income or earnings thereon), and specifically
setting forth the exact amount of Escrowed Property to be distributed, the
identity of the person or entity to which a distribution is to be made, and the
manner for which the distribution is to be made, then the Escrow Agent shall
forthwith transfer from the Escrow Account and distribute the Escrowed Property
or such part thereof in accordance with such joint written instructions, to the
extent such Escrowed Property is available in the Escrow Account. For purposes
of this Escrow Agreement an "Appropriate Officer" of Itron shall include XxXxx
Xxxxxxx, Chief Executive Officer, Xxxxx Xxxxxxxxx, Vice President and Chief
Financial Officer, and Xxxxxxx Xxxxxxxxx, Vice President and General Counsel, or
any such other officers as may be appointed by the Itron Board of Directors,
written notice of which shall be promptly provided by Itron to the Escrow Agent
and the Stockholders' Representative.
(ii) Any dispute between Itron and the Stockholders' Representative
under this Escrow Agreement shall be submitted to final and binding arbitration.
Arbitration or mediation shall be the sole and exclusive remedy of Itron and the
Stockholders' Representative for any dispute between Itron and the Stockholders'
Representative arising out of this Escrow Agreement and the Escrow Agent is
hereby authorized and instructed to comply with any written judgment, order,
ruling or decision of such arbitration (including, but not limited to,
distributing the Escrowed Property in accordance therewith). Unless otherwise
agreed to in writing by an Appropriate Officer of Itron and the Stockholders'
Representative, such arbitration shall be conducted under the same procedures
specified in Section 10.3(b) of the Merger
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Agreement, provided, however, that the Escrow Agent shall have no duty or
obligation to inquire or investigate whether such arbitration was conducted
under the procedures specified in the Merger Agreement.
(iii) Promptly after the Escrow Termination Date and receipt by the
Escrow Agent of written instructions from the Stockholders' Representative;
(which instructions shall set forth the amounts and identity of the persons or
entities to which a distribution is to be made and the manner for which such
distribution is to be made), the Escrow Agent shall distribute any and all of
the Escrowed Cash and other Escrowed Property which remains in the Escrow
Account and which had not previously been disbursed pursuant to Section 2.1(i)
or 2.1(ii), pursuant to the written instruction of the Stockholders'
Representative; provided, however, that if either an Appropriate Officer of
Itron or the Stockholders' Representative provide the Escrow Agent with written
notice of a dispute between Itron and the Stockholders' Representative under
this Escrow Agreement, and the Escrow Agent receives such notice prior to the
Escrow Termination Date, the Escrow Agent is hereby instructed to continue to
hold the Escrowed Cash and other Escrowed Property in the Escrow Account under
this Escrow Agreement until the Escrow Agent receives written instructions or a
written judgment, order, ruling or decision of an arbitrator to disburse such
Escrowed Cash and other Escrowed Property as contemplated by Section 2.1(i) or
2.1(ii) hereof.
2.2 The Escrow Agent shall disburse the Escrowed Property only in
accordance with this Section 2.
2.3 The transfer of any of the Escrowed Cash and other Escrowed
Property by the Escrow Agent from the Escrow Account to any party pursuant to
this Section 2 shall be made by such means as shall be set forth in the written
instructions or judgment, order, ruling or decision, as the case may be, and
which are satisfactory to the Escrow Agent.
3. ESCROW AGENT
3.1 Duties
The duties of the Escrow Agent hereunder shall be entirely administrative
and not discretionary. The Escrow Agent shall have no duties, responsibilities
or obligations as the Escrow Agent except those which are expressly set forth
herein, and in any modification or amendment hereof to which the Escrow Agent
has consented in writing, and no duties, responsibilities or obligations shall
be implied or inferred. The Escrow Agent shall not have any responsibility as to
the accuracy of, and shall incur no liability with respect to, any statement,
representation, warranty, agreement, or
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covenant made by any party hereto. Without limiting the foregoing, the Escrow
Agent shall not be subject to, nor be required to comply with, or determine if
any person or entity has complied with, the Merger Agreement or any other
agreement between or among the parties hereto, even though reference thereto may
be made in this Escrow Agreement, or to comply with any notice, instruction,
direction, request or other communication, paper or document other than as
expressly set forth in this Escrow Agreement. With respect to the Escrowed
Property and the Escrow Agent's duties and obligations hereunder, the Escrow
Agent is hereby authorized and instructed to comply with any written orders,
judgments, or decrees of any court or arbitrator, with or without jurisdiction,
and shall not be liable as a result of its compliance with the same.
3.2 Advice; Instructions
The Escrow Agent may consult with and obtain advice from counsel (who may
be counsel to a party hereto or an employee of the Escrow Agent) and shall be
fully protected in taking, suffering or omitting to take any action in reliance
on said advice; the Escrow Agent may rely absolutely upon the joint instruction
of Itron and the Stockholders' Representative and shall be fully protected in
taking, suffering or omitting to take any action in reliance on such joint
instruction; the Escrow Agent shall be fully protected in acting upon any
written notice, instruction, direction, request or other communication, paper or
document which the Escrow Agent believes to be genuine, and shall have no duty
to inquire into or investigate the validity, accuracy or content thereof.
3.3 Signatures
The Escrow Agent may rely absolutely upon the genuineness and authorization
of the signature and purported signature of any party (including arbitrator(s)
hereunder) upon any instruction, notice, release, receipt, or other document
delivered to it pursuant to this Escrow Agreement and shall incur no liability
acting in reliance thereon.
3.4 Receipts
The Escrow Agent may, as a condition to the disposition of the Escrowed
Property as provided herein, require from the recipient a receipt therefor.
3.5 Refrain from Action
The Escrow Agent may (but shall not be obligated to) refrain from taking
any action contemplated by this Escrow Agreement in the event it becomes aware
of any
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dispute between any of the Company, the Company Stockholders, the Stockholders'
Representative or Itron as to any material facts or as to the happening of any
event precedent to such action.
3.6 Interpleader
If any dispute or controversy arises between Itron and the Stockholders'
Representative or with any third person, the Escrow Agent shall not be required
to determine the same or to take any action until such dispute or controversy is
resolved pursuant to this Escrow Agreement, but the Escrow Agent in its sole
discretion may (but shall not be obligated to) institute an interpleader or
other proceedings in connection therewith as the Escrow Agent may deem proper,
and in following either course, the Escrow Agent shall not be liable to any
person or entity.
3.7 Tax Issues
The parties acknowledge that the Escrow Agent does not have any interest in
the Escrowed Cash, the Escrowed Property or the Escrow Account, but is serving
only as escrow holder hereunder. Without limiting the foregoing, Itron, each of
the Stockholders' Representative, the Company and each of the Company
Stockholders shall be responsible for any respective taxes relating to the
Escrowed Cash, the Escrowed Property, the Escrow Account and funds on deposit
therein and the income and earnings thereon as provided herein. Any
disbursements of the Escrowed Cash, the Escrowed Property or payments from the
Escrow Account shall be subject to applicable information reporting and
withholding taxes under the United States Federal Income Tax Code and applicable
provisions of state, local, or foreign tax laws, and Itron shall provide written
instructions, executed by an Appropriate Officer of Itron to the Escrow Agent
regarding the deduction and withholding of applicable federal, state and local
taxes from any payments from the Escrow Account and the reporting thereof. For
the period prior to the Escrow Agent's delivery of all of the Escrowed Property
pursuant to Section 2, the Escrow Agent shall report all income and earnings
from the investment of the Escrowed Cash, and the other Escrowed Property held
by the Escrow Agent in the Escrow Account, as income of Itron for income tax
purposes. Notwithstanding anything to the contrary contained herein, each person
or entity entitled to receive a disbursement from the Escrow Account hereunder
shall provide the Escrow Agent with a properly completed W-9 IRS tax form (or
such other forms for tax certifications, as requested by the Escrow Agent or its
agents) prior to the Escrow Agent making any such disbursement. This Section
shall survive the termination of this Escrow Agreement and the resignation or
removal of the Escrow Agent.
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3.8 Miscellaneous
The Escrow Agent:
(i) shall act hereunder as an escrow agent only and shall not be
responsible or liable in any matter whatever for the sufficiency, collection,
correctness, genuineness or validity of any revenues, cash, payments,
securities, property, funds, investments, income, earnings or other amounts
deposited with or held by it or for the identity, authority or rights of any
person or entity executing and delivering or purporting to execute or deliver
any thereof to the Escrow Agent;
(ii) shall not be liable for any error of judgment or for any action
taken, suffered or omitted to be taken except in the case of its own gross
negligence or bad faith, as such gross negligence or bad faith is determined by
a final non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction. Notwithstanding anything to the contrary contained herein, in no
event shall the Escrow Agent be (A) liable for acting in accordance with a
notice, instruction, direction, request or other communication, paper or
document from Itron or the Stockholders' Representative or (B) liable or
responsible for special, punitive, indirect, consequential or incidental loss or
damages of any kind whatsoever to any person or entity (including without
limitation lost profits), even if the Escrow Agent has been advised of the
likelihood of such loss or damage. Any liability of the Escrow Agent under this
Escrow Agreement will be limited to the amount of fees paid to the Escrow Agent,
provided, however, that if it is determined by a final non-appealable order,
judgment, decree or ruling of a court of competent jurisdiction that the Escrow
Agent acted with bad faith or willful misconduct, any liability of the Escrow
Agent resulting therefrom shall be limited to the amount of the Escrowed
Property;
(iii) may execute or perform any duty, responsibility or obligation
hereunder either directly or through agents, attorneys, accountants or other
experts, and the Escrow Agent shall not be answerable or accountable for any
act, default, neglect or misconduct of any such agent, attorneys, accountants or
other experts of for any loss to any of the Company, Combination Company,
Company Stockholders, the Stockholders' Representative or any other person or
entity, or any other party hereto or affiliate thereof resulting from any such
act, default, neglect or misconduct;
(iv) may engage or be interested in any financial or other transaction
with the Company, Combination Company, Company Stockholders, the Stockholders'
Representative or any other person or entity or any other party hereto or
affiliate thereof, and may act on, or as depositary, trustee or agent for, any
committee or body
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of holders of obligations of such party or affiliate, as freely as if it were
not the Escrow Agent hereunder;
(v) shall not be obligated to expend or risk its own funds or to take
any action which it believes would expose it to expense or liability or to a
risk of incurring expense or liability, unless it has been furnished with
assurances of repayment or indemnity satisfactory to it;
(vi) shall not take instructions or directions except those given in
accordance with this Escrow Agreement;
(vii) shall not incur any liability for not performing any act, duty,
obligation or responsibility by reason of any occurrence beyond the control of
the Escrow Agent (including without limitation any act or provision of any
present or future law or regulation or governmental authority, any act of God,
war, civil disorder or failure of any means of communication); and
(viii) shall not be called upon to advise any person or entity as to any
investments with respect to any security, property or funds held in escrow
hereunder or the dividends, distributions, income, interest or earnings thereon.
3.9 Ambiguity or Uncertainty
In the event the Escrow Agent reasonably believes any ambiguity or
uncertainty exists hereunder or in any notice, instruction, direction, request
or other communication, paper or document received by the Escrow Agent
hereunder, the Escrow Agent shall promptly provide written notice of such
ambiguity or uncertainty to the parties hereto and the Escrow Agent may, in its
sole discretion, refrain from taking any action, and shall be fully protected
and shall not be liable in any way to Itron, the Stockholders' Representative,
the Company, the Company Stockholders or any other person or entity for
refraining from taking such action, unless the Escrow Agent receives written
instructions signed by an Appropriate Officer of Itron and the Stockholders'
Representative which eliminates such ambiguity or uncertainty to the
satisfaction of the Escrow Agent.
4. WAIVER AND INDEMNIFICATION
Itron, the Stockholders' Representative, and the Company Stockholders agree
to and hereby do waive any suit, claim, demand, or cause of action of any kind
which they may have or may assert against the Escrow Agent arising out of or
relating to the execution or performance by the Escrow Agent of this Escrow
Agreement, unless such suit, claim, demand, or cause of action is based upon the
gross negligence or bad faith
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of the Escrow Agent, as such gross negligence or bad faith is determined by a
final, non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction. Itron and the Company Stockholders further agree to jointly and
severally, indemnify, defend, protect, save and keep harmless the Escrow Agent
and its affiliates and their respective successors, assigns, directors,
officers, managers, employees, agents, attorneys, accountants and experts
(collectively the "Indemnitees"), from and against any and all losses, damages,
claims, liabilities, penalties, judgments, settlements, actions, suits,
proceedings, litigation, investigations, costs or expenses, including, without
limitation, reasonable fees and disbursements of counsel (collectively
"Losses"), that may be imposed on, incurred by, or asserted against any
Indemnitee, at any time, and in any way relating to or arising out of the
execution, delivery or performance of this Escrow Agreement, the enforcement of
any rights or remedies under or in connection with this Escrow Agreement, the
establishment of the Escrow Account, the acceptance or administration of the
Escrowed Cash and any other Escrowed Property and any payment, transfer or other
application of the Escrowed Cash, any other Escrowed Property or other funds
pursuant to this Escrow Agreement, or as may arise by reason of any act,
omission or error of the Indemnitee; provided, however, that no Indemnitee shall
be entitled to be so indemnified, defended, protected, saved and kept harmless
to the extent such Loss was proximately caused by its own gross negligence or
bad faith, as such gross negligence or bad faith is determined by a final,
non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction. Notwithstanding the foregoing, the obligation of GE Capital Equity
Investments, Inc. to indemnify any Indemnities pursuant to this Section 4 shall
not in any case exceed, in the aggregate, an amount equal to twice GE Capital
Equity Investments, Inc.'s pro rata share of the Escrowed Cash. The Escrow Agent
agrees to give prompt notice to the parties hereto of any filed claim that could
give rise to an obligation to indemnify the Escrow Agent or any Indemnitee
hereunder upon the Escrow Agent's actual knowledge thereof, provided, however,
that the failure to give such notice shall in no way limit the indemnification
of Escrow Agent or any Indemnitee hereunder. The obligations contained in this
Section 4 shall survive the termination of this Escrow Agreement and the
resignation or removal of the Escrow Agent. Notwithstanding the foregoing, as
between Itron and the Company Stockholders, the liability of each Company
Stockholder pursuant to this Section shall be limited to the interest of such
Company Stockholder in any remaining Escrowed Property.
5. RESIGNATION OR REMOVAL OF THE ESCROW AGENT; SUCCESSOR
5.1 Resignation and Removal.
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5.1.1 Notice
(a) The Escrow Agent or any successor Escrow Agent may resign and
be discharged from its duties under this Escrow Agreement upon thirty (30) days'
prior written notice to the other parties hereto. Similarly, the Escrow Agent or
any successor Escrow Agent may be discharged and removed from its duties under
this Escrow Agreement following thirty (30) days' prior written notice to the
Escrow Agent from the Stockholders' Representative and an Appropriate Officer of
Itron. In either event, the duties of the Escrow Agent shall terminate thirty
(30) days after the date of such notice (or as of such earlier date as may be
mutually agreeable), and the Escrow Agent shall then deliver the balance of the
Escrowed Cash and other Escrowed Property then in the Escrow Account to a
successor Escrow Agent or any other person or entity pursuant to joint written
instructions from the Stockholders' Representative and an Appropriate Officer of
Itron or pursuant to a court of competent jurisdiction as set forth in Section
5.1.2.
(b) Any person or entity into which the Escrow Agent may be
merged or converted or with which the Escrow Agent may be consolidated, or any
person or entity resulting from any merger, conversion or consolidation to which
the Escrow Agent shall be a party, or any person or entity to which
substantially all the stock transfer or shareholder services business of the
Escrow Agent may be transferred, shall automatically be the Escrow Agent under
this Escrow Agreement without any further act.
5.1.2 Court Appointment
If the parties hereto are unable to agree upon a successor Escrow
Agent or shall have failed to appoint a successor Escrow Agent prior to the
expiration of thirty (30) days following the date of the notice of resignation
or removal, then the acting Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor Escrow Agent or other
appropriate relief, and any such resulting appointment or determination of other
appropriate relief shall be binding upon all of the parties hereto.
5.2 Successors
Except as provided in Section 5.1.1(b) or for successor Escrow Agents or
other appropriate relief appointed and/or determined pursuant to Section 5.1.2,
as the case may be, every successor Escrow Agent appointed hereunder shall
execute, acknowledge, and deliver to its predecessor Escrow Agent, and also to
the Stockholders' Representative and Itron, an instrument in writing accepting
such appointment hereunder, and thereupon such successor Escrow Agent, without
any
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further act, shall become fully vested with all the rights, duties,
responsibilities, and obligations of its predecessor Escrow Agent; but such
predecessor Escrow Agent shall, nevertheless, on the written request of its
successor Escrow Agent or any of the parties hereto, deliver all property,
securities, and monies held by it pursuant to this Escrow Agreement to its
successor Escrow Agent. Should any instrument be required by any successor
Escrow Agent for more fully vesting in such successor Escrow Agent the rights,
duties, responsibilities, and obligations hereby vested or intended to be vested
in the predecessor Escrow Agent, any and all such reasonable instruments in
writing shall, on the request of any of the other parties hereto, be executed,
acknowledged, and delivered by the predecessor Escrow Agent at the expense of
Itron.
6. FEE
(a) Itron hereby agrees to pay the Escrow Agent as billed for services
hereunder in accordance with the fee schedule attached hereto as Schedule B (the
"Fee Schedule") and for all its reasonable out-of-pocket costs and expenses
(including without limitation reasonable fees and disbursements of counsel) in
connection with the preparation, negotiation, amendment, modification, waiver,
execution, delivery, performance or enforcement of this Escrow Agreement. The
obligations contained in this Section shall survive the termination of this
Escrow Agreement and the resignation or removal of the Escrow Agent.
(b) In the event that the Escrow Agent is made a party to litigation with
respect to the Escrowed Cash or any other Escrowed Property, or the Escrow Agent
brings an action in interpleader, or in the event that the conditions to this
Escrow Agreement are not promptly fulfilled, or the Escrow Agent is required to
render any service not provided for in the Fee Schedule, or there is any
assignment of the interests of this Escrow Agreement or any modification hereof,
the Escrow Agent shall be entitled to reasonable compensation for such services
and reimbursement for all fees, costs, liability, and expenses, including
reasonable attorneys' fees in addition to that which is scheduled on the Fee
Schedule. Notwithstanding the foregoing, the Escrow Agent shall not be entitled
to attorneys' fees in litigation between the parties under this Escrow Agreement
if it is determined by a final non-appealable order, judgment, decree or ruling
of a court of competent jurisdiction that the Escrow Agent acted with bad faith
or gross negligence and therefore either (i) is not entitled to indemnification
under this Escrow Agreement, or (ii) is liable for damages under this Escrow
Agreement.
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7. STOCKHOLDERS' REPRESENTATIVE
To the extent that the Stockholders' Representative is replaced, an
Appropriate Officer of Itron and the Stockholders' Representative shall promptly
provide written notice to the Escrow Agent of the successor Stockholders'
Representative(s). Each successor Stockholders' Representative shall execute,
acknowledge, and deliver to the parties hereto an instrument in writing
accepting the responsibilities of a Stockholders' Representative hereunder, and
thereupon such successor Stockholders' Representative, without any further act,
shall become fully vested with all the duties, responsibilities, and obligations
of his or her predecessor Stockholders' Representative. Itron and the
Stockholders' Representative agree that, as between such parties, a
Stockholders' Representative shall only be replaced in accordance with the
provisions of Section 10.7 of the Merger Agreement, provided, however, that the
Escrow Agent shall have no duty or obligation to inquire or investigate as to
whether such replacement was effected under the procedures specified under
Section 10.7 of the Merger Agreement and the Escrow Agent will not be deemed to
have knowledge of such replacement unless and until it shall have received
actual written notice thereof from an Appropriate Officer of Itron and the
Stockholders' Representative.
8. REPRESENTATIONS
Itron represents and warrants that it is a corporation duly organized,
validly existing in good standing under its respective jurisdiction of
organization. Itron and the Stockholders' Representative each represents and
warrants, as to itself, that (i) it has all requisite power and authority to
execute, deliver and perform its obligations under the Merger Agreement (in the
case of Itron) and this Escrow Agreement, (ii) each of the Merger Agreement (in
the case of Itron) and this Escrow Agreement has been duly authorized, executed
and delivered by it and constitutes its legal, valid, binding and enforceable
obligation and (iii) the execution, delivery and performance by it of the Merger
Agreement (in the case of Itron) and this Escrow Agreement do not and will not
violate or require consent under any of its organizational documents, any law,
statute, rule, regulation or ordinance or contract, agreement, instrument,
indenture or other undertaking to which it is a party or by which it or its
property may be bound. The Stockholders' Representative further represents and
warrants that it has the irrevocable right, power and authority to act on behalf
of and bind all of the Company Stockholders, to give and receive notices,
instructions, directions, requests or other communications hereunder and to make
determinations that may be necessary or appropriate under this Escrow Agreement.
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9. TERMINATION
Except as provided in Sections 3.7, 4 and 6, this Escrow Agreement shall
terminate following Escrow Agent's delivery of all of the Escrowed Property
pursuant to Section 2.
10. MISCELLANEOUS PROVISIONS
10.1 Parties in Interest
Except as expressly provided in Section 4, this Escrow Agreement is not
intended, nor shall it be construed, to confer any enforceable rights, remedies,
interests or claims on any person or entity not a party hereto. This Escrow
Agreement and all rights and obligations hereunder in and to the Escrowed Cash
and the other Escrowed Property and the Escrow Account and any and all written
instruments evidencing investments made from the funds held in the Escrow
Account shall be binding upon and shall inure to the benefit of the parties
hereto and their respective successors and assigns.
10.2 Entire Escrow Agreement
This Escrow Agreement, including the schedules delivered pursuant to this
Escrow Agreement, constitutes the final and entire agreement among the parties
with respect to the subject matter hereof and supersedes all prior arrangements
or understandings.
10.3 Notices
All notices, requests, instructions, demands, or other communications which
are required or may be given pursuant to the terms of this Escrow Agreement will
be in writing and will be deemed to have been duly given: (i) on the date of
delivery, if personally delivered by hand; (ii) upon the third day after such
notice is deposited in the United States mail, if mailed by registered or
certified mail, postage prepaid, return receipt requested, (iii) upon the first
day after such notice is sent by a nationally recognized overnight express
courier for next-day delivery; or (iv) if by facsimile, upon written
confirmation (other than the automatic confirmation that is received from the
recipient's facsimile machine) of receipt by the recipient of such notice:
If to the Stockholders' Representative: JMI Equity Fund III, L.P.
00000 Xxxx Xxxxx Xxxxx
Xxxxx 000
Xxx Xxxxx, XX 00000
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Attn: Xxxxx Xxxxxxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
If to Itron: Itron, Inc.
0000 X. Xxxxxxxx Xxxx
Xxxxxxx, XX 00000
Attn: CFO
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to: Xxxxxxx Coie LLP
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Attention: Xxxxxx Xxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to The Escrow Agent: Mellon Investor Services LLC
00 Xxxxxxxxxx Xxxx
Xxxxxxxxxx Xxxx, XX 00000
Attention: Xxx Xxxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10.4 Amendments, Modifications, Waivers
No amendment, modification or waiver of any provision of this Escrow
Agreement, nor any consent to any departure therefrom, by any party hereto shall
be valid or effective for any purpose unless the same shall be in writing and
signed by each of the parties hereto, and then such amendment, modification,
waiver or consent shall be effective only in the specific instance and for the
specific purpose given. Any notice to, or demand on, any party for any purpose
not specifically required of another hereunder shall not entitle the first party
to any other or further notice or demand in the same, similar or other
circumstances unless specifically required hereunder.
10.5 Conflicts and Severability
With respect to the rights, duties and obligations of the Escrow Agent
hereunder, in the event of any conflict between the terms and provisions of this
Escrow Agreement and those of the Merger Agreement, the terms and conditions of
this Escrow Agreement shall control. If any provision of this Escrow Agreement
is
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determined to be prohibited or unenforceable by reason of any applicable law of
a jurisdiction, then such provision shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions thereof, and any such prohibition or
unenforceability in such jurisdiction shall not invalidate or render
unenforceable such provisions in any other jurisdiction. Where, however, the
conflicting provisions of any such applicable law may be waived, they are hereby
irrevocably waived by the parties hereto to the fullest extent permitted by law,
to the end that this Escrow Agreement shall be enforced as written.
10.6 Counterparts
This Escrow Agreement may be executed by facsimile or in two or more
partially or fully executed counterparts each of which shall be deemed an
original and shall bind the signatory, but all of which together shall
constitute but one and the same instrument. The execution and delivery of an
Escrow Agreement - Signature Page in the form annexed to this Escrow Agreement
by any party hereto who has been furnished the final form of this Escrow
Agreement shall constitute the execution and delivery of this Escrow Agreement
by such party.
10.7 Headings
The headings of the various sections of this Escrow Agreement have been
inserted for convenience of reference only and shall not be deemed to be a part
of this Escrow Agreement.
10.8 Governing Law
This Escrow Agreement and all amendments, modifications and waivers thereof
shall, in all respects, be governed by and construed and enforced in accordance
with the internal laws (without regard to principles of conflicts of law) of the
State of New York. Each party hereto irrevocably waives the right to trial by
jury in any action, suit or proceeding relating to or arising under this Escrow
Agreement.
10.9 Cumulative Remedies
The rights and remedies of the Escrow Agent set forth in this Escrow
Agreement shall be cumulative, and not exclusive, of any rights and remedies
available to it at law or equity or otherwise.
[remainder of page intentionally blank]
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ESCROW AGREEMENT - SIGNATURE PAGE
IN WITNESS WHEREOF, the parties have duly executed this Escrow Agreement as
of the day and year first above written.
Itron, Inc.
By: /s/ Xxxxx Xxxxxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxxxxx
Title: CFO
JMI Equity Fund III, L.P.
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxxxxx
Title: Partner
Mellon Investor Services LLC,
as Escrow Agent
By: /s/ Xxxx Xxxxxxx
--------------------------------------------
Name: Xxxx Xxxxxxx
Title: Event Manager
Stockholders of Silicon Energy Corp., listed on
Schedule A
By: /s/ Xxxxx X. Xxxxxxxxxx
--------------------------------------------
Title: Stockholder Representative
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SCHEDULE A
COMPANY STOCKHOLDERS
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SCHEDULE B
ESCROW AGENT'S FEES
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