INDEMNITY AND ESCROW AGREEMENT
This Indemnity and Escrow Agreement (the "Escrow Agreement") is made and
entered into effective as of June 22, 1998, by and among: Micron Technology,
Inc., a Delaware corporation ("Micron"); Xxxx Xxxxxx (who, together with any
successor or successors, whether acting singly or in concert, is referred to
herein as the "Rendition Shareholder Representative") as the legal
representative, attorney-in-fact and agent of the shareholders (the "Rendition
Shareholders") of Rendition, Inc., a California corporation ("Rendition"),
including the "Principal Rendition Shareholders," as defined following; each of
the undersigned Rendition Shareholders (each a "Principal Rendition Shareholder"
and collectively the "Principal Rendition Shareholders") who are identified as
Principal Rendition Shareholders on the signature pages hereof; and Norwest Bank
Minnesota, National Association (the "Escrow Agent").
RECITALS
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A. This Escrow Agreement is entered into pursuant to that certain
Agreement and Plan of Reorganization dated as of June 22, 1998 (the "Plan of
Reorganization"), entered into by and between Micron and Rendition. The Plan of
Reorganization provides, among other things, for the statutory merger of
Rendition with and into Micron (the "Merger"). Upon the consummation of the
Merger (the date and time that the Merger becomes effective is referred to
herein as the "Effective Time"), the Rendition Shareholders will become
shareholders of Micron, and all outstanding shares of the capital stock of
Rendition will be exchanged for and converted into shares of Micron Common Stock
(the "Micron Shares").
B. Pursuant to Section 1.5 of the Plan of Reorganization, a portion of the
shares of Micron Common Stock to be issued to each of the Rendition Shareholders
at the Effective Time of the Merger is to be withheld from the Rendition
Shareholders and held in escrow as described in this Escrow Agreement, for the
purpose of securing certain indemnification obligations arising under Section 10
of the Plan of Reorganization and this Escrow Agreement.
C. The indemnity obligations of the Principal Rendition Shareholders will
extend beyond the contributions to the escrow established hereby, in accordance
with the terms, conditions and limitations set forth below and in Section 10 of
the Plan of Reorganization.
D. The Rendition Shareholder Representative and the Principal Rendition
Shareholders are willing to enter into and to perform their respective
obligations arising under this Escrow Agreement as a condition, incentive and
inducement to Micron's execution of, and performance of its obligations arising
under, the Plan of Reorganization.
E. The Escrow Agent has agreed to receive and hold in custody the Micron
Shares and other property to be placed in escrow as provided herein, until such
shares or other property are to be released as provided herein, all in
accordance with the terms and conditions set forth below.
AGREEMENT
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NOW THEREFORE, in consideration of the foregoing premises, the mutual
covenants and obligations contained herein, and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties hereto agree as follows:
1. Escrow of Shares.
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(a) Establishment of Escrow. At the Effective Time of the Merger,
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and as contemplated by Section 1.5 of the Plan of Reorganization, Micron will
withhold ten percent (10%) of the Micron Shares to be issued to each of the
Rendition Shareholders in accordance with Section 1.2 of the Plan of
Reorganization, and will deliver such withheld shares (collectively the "Escrow
Shares") to the Escrow Agent, in the form of a certificate registered in the
name of the Rendition Shareholder Representative or its nominee, to be held in
custody by the Escrow Agent and to constitute an escrow fund (the "Escrow Fund")
until such time as the Escrow Shares are released in accordance with the terms
hereof, as collateral for, and a non-exclusive source of payment of, the
indemnification obligations arising under Section 10 of the Plan of
Reorganization and the terms of this Escrow Agreement. The Rendition Shareholder
Representative shall from time to time execute (with signature guaranteed by a
medallion level national bank or member of the New York Stock Exchange) and
deliver to the Escrow Agent stock powers in the form of Exhibit A attached
hereto, as may be necessary, in the Escrow Agent's opinion, to permit the Escrow
Agent to effect transfers of Escrow Shares and other securities deposited into
the Escrow Fund, in accordance with the terms of this Escrow Agreement. Any
dividends or distributions of any kind (including, without limitation, any
shares received upon a stock split) made in respect of any securities in the
Escrow Fund shall be added to the Escrow Fund and become a part thereof. Each
Rendition Shareholder shall have voting rights with respect to the Escrow Shares
contributed to the Escrow Fund by such Rendition Shareholder (and on any voting
securities added to the Escrow Fund in respect of such Escrow Shares), so long
as such Escrow Shares or other voting securities are held in the Escrow Fund.
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(b) Escrow Period. The Escrow Fund shall remain in existence during the
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period of time (the "Escrow Period") commencing upon the Effective Time of the
Merger and continuing until the first anniversary of the Effective Time (the
"Escrow Release Date"). Termination of the Escrow Fund shall not affect the
continuing liability of the Principal Rendition Shareholders as set forth below.
(c) Protection of Escrow Fund. The Escrow Agent shall treat the Escrow
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Fund as a trust fund in accordance with the terms of this Escrow Agreement and
not as the property of Micron, and shall hold, administer, safeguard, release
and dispose of the Escrow Fund only in accordance with the terms hereof.
Neither the Rendition Shareholders nor the Rendition Shareholder Representative
may sell, transfer or otherwise encumber any of the Escrow Shares or other
securities held in the Escrow Fund during the Escrow Period, except as
specifically provided for herein.
(d) Release of Escrow Fund at Escrow Release Date. Promptly following
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termination of the Escrow Period, the Escrow Agent shall deliver to the
Rendition Shareholder Representative, for delivery to the Rendition
Shareholders, all of the Escrow Shares and other property then remaining in the
Escrow Fund in excess of any amount of such Escrow Shares or other property
sufficient, in the reasonable judgment of Micron, to satisfy any unsatisfied
claims specified in any Indemnity Notice previously delivered to the Escrow
Agent. As soon as all such claims have been resolved, the Escrow Agent shall
deliver to the Rendition Shareholder Representative, for delivery to the
Rendition Shareholders, all Escrow Shares and other property remaining in the
Escrow Fund and not required to satisfy such claims. The remaining Escrow
Shares and other property shall be allocated among and distributed to the
Rendition Shareholders pursuant to this paragraph in proportion to their
contributions to the Escrow Fund. Any delivery under this paragraph (d) will,
in the case of Escrow Shares, be in the form of stock certificates registered in
the respective names of the Rendition Shareholders entitled thereto. Escrow
Agent will coordinate with Micron's transfer agent (currently Norwest Shareowner
Services) who will cause such stock certificates to be registered in the
appropriate names as determined by the Escrow Agent in accordance with this
Escrow Agreement. Micron will cooperate to assist Escrow Agent in working with
Micron's transfer agent. Micron and the Rendition Shareholder Representative
will undertake to deliver a prompt written notice to Escrow Agent identifying
the number of Escrow Shares and other property to be released to the Rendition
Shareholders. Escrow Agent will use good faith efforts to have such stock
certificates for Escrow Shares be promptly delivered to its possession by
Micron's transfer agent to permit a reasonably timely delivery of the remaining
amount of the Escrow Fund (if any) to the Rendition Shareholders.
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2. Indemnification.
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(a) Indemnification Obligation. The obligations of the Rendition
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Shareholders and Principal Rendition Shareholders to indemnify the Indemnified
Persons (as defined in the Plan of Reorganization) from specified Damages (as
defined in the Plan of Reorganization) shall be as set forth in Section 10 of
the Plan of Reorganization.
(b) Notice of Indemnification Claims. An Indemnified Person shall
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give the Rendition Shareholder Representative and the Escrow Agent written
notice (an "Indemnity Notice") of any matter which such Indemnified Party has
determined has given or could give rise to a right of indemnification under
Section 10 of the Plan of Reorganization. The Indemnity Notice shall state the
basis for the claim for indemnification and the amount thereof (the "Claim
Amount") in reasonable detail to enable the Rendition Shareholder Representative
to evaluate the claim and the amount thereof. With respect to third-party
claims, the indemnifying parties shall be entitled to participate in any defense
of such claims, in accordance with the provisions of Section 10 of the Plan of
Reorganization.
(c) Period for Dispute of Claims; Releases From Escrow Fund. If an
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Indemnity Notice is given, then for the twenty (20) business day period
following delivery of such notice to the Escrow Agent, the Escrow Agent shall
make no delivery of Escrow Shares or other property out of the Escrow Fund
unless the Escrow Agent shall have received written authorization from the
Rendition Shareholder Representative to make such delivery. After the
expiration of such twenty (20) business day period, the Escrow Agent shall
promptly make delivery of Escrow Shares or other property in the Escrow Fund in
accordance with the provisions of this Agreement, in an amount equal to the
Damages specified in the Indemnity Notice, as indemnity, subject to the
limitations set forth herein, and provided that no such payment or delivery may
be made if prior to the expiration of such twenty (20) business day period the
Rendition Shareholder Representative has objected in a written statement
delivered to the Escrow Agent to the claim made in the Indemnity Notice. For
the purpose of determining the number of Escrow Shares to be transferred to
satisfy an indemnification claim hereunder, the Escrow Shares shall be valued at
a price per share equal to the average of the closing price per share of Micron
Common Stock on the New York Stock Exchange during the twenty day period
immediately preceding (but not including) the "Closing Date" (as defined in
Section 6.1 of the Plan of Reorganization). Deliveries from the Escrow Fund
shall be made to Micron, for and on behalf of the claiming Indemnified Party or
Parties.
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3. Limitations.
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(a) Basket. The indemnification obligations owed to the Indemnified
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Persons will arise only if the aggregate Damages for which one or more
Indemnified Persons seeks or has sought indemnification exceeds a cumulative
aggregate amount of $250,000 (the "Basket"), in which event the Rendition
Shareholders and/or the Principal Rendition Shareholders, as applicable, shall,
subject to the limitations set forth herein, be liable to indemnify the
Indemnified Persons for all Damages, including the Basket amount.
(b) Sources of Satisfaction of Indemnification Claims. In seeking
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indemnification for Damages, the Indemnified Persons will first exercise their
rights and remedies hereunder with respect to the Escrow Shares and any other
assets included in the Escrow Fund. For the purposes of satisfying
indemnification claims arising hereunder, the Escrow Shares shall be valued as
provided in paragraph 2(c) above. Once the Escrow Fund has been exhausted
recourse may be taken directly against the Principal Rendition Shareholders, on
a joint and several basis, to the extent of each Principal Rendition
Shareholder's respective "Additional Liability Amount" as defined below, in
accordance with paragraph 3(c) following.
(c) Procedure for Payment of Additional 5% Liability Amount. If
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recourse against the Rendition Principal Shareholders is sought by Indemnified
Persons under paragraph 3(b) above, or by the Rendition Shareholder
Representative under paragraph 5(e) below, the Rendition Shareholder
Representative shall apportion the total amount sought among the Principal
Rendition Shareholders on a pro-rata basis, in accordance with the number of
shares of Rendition Stock (as defined in the Plan of Reorganization) held by
each Principal Rendition Shareholder immediately prior to the Closing (as
defined in the Plan of Reorganization) (assuming the conversion to Rendition
Common Stock of all shares of Rendition Preferred Stock), and shall notify each
Principal Rendition Shareholder in writing of such person's obligation promptly
to remit such person's pro rata amount as calculated above. If any Principal
Rendition Shareholder fails to pay such person's pro rata amount as calculated
above within thirty (30) days of such notice, the Rendition Shareholder
Representative may proceed against such Principal Rendition Shareholder or any
other Principal Rendition Shareholder for payment of part or all of the balance
(subject to the limitations on each Rendition Principal Shareholder's total
aggregate liability as set forth herein), and may exercise all other remedies
that may be available at law or in equity.
(d) Limitation on Rendition Shareholder Liability. Except for
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intentional fraud or willful misconduct: (i) no Rendition Shareholder other than
the Principal Rendition Shareholders shall have any liability to an Indemnified
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Person with respect to or arising from the Plan of Reorganization except to the
extent of such Rendition Shareholder's Escrow Shares and any other assets
contributed to the Escrow Fund; and (ii) once the Escrow Fund has been exhausted
the Rendition Shareholders other than the Principal Rendition Shareholders shall
have no further obligations arising hereunder.
(e) Limitation on Liability of Principal Rendition Shareholders. Except
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for intentional fraud or willful misconduct, no Principal Rendition Shareholder
will be liable for Damages exceeding: (i) such Principal Rendition
Shareholder's Escrow Shares and any other assets contributed to the Escrow Fund;
and (ii) the amount determined by multiplying $______________ (being an amount
equal to five percent (5%) of the aggregate market value of the Micron Shares
issued to all Rendition Shareholders at the Effective Time of the Merger, as
determined pursuant to paragraph 10.4(c) of the Plan of Reorganization) by a
fraction, the numerator of which of which is the number of Micron Shares issued
to such Principal Rendition Shareholder at the Effective Time of the Merger, and
the denominator of which is the number of Micron Shares issued to all Principal
Rendition Shareholders at the Effective Time of the Merger (the amount so
determined for each Principal Rendition Shareholder is referred to herein as
such Principal Rendition Shareholder's "Additional Liability Amount"). The
indemnification obligations of the Principal Rendition Shareholders with respect
to their Additional Liability Amounts shall continue until the Escrow Release
Date.
(f) Scope of Indemnification. The effect of the indemnification
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provisions set forth herein and in Section 10 of the Plan of Reorganization is
to provide (i) a one year indemnification obligation owed by all Rendition
Shareholders, to the extent of, and secured by, ten percent (10%) of the Micron
Shares issued to the Rendition Shareholders at the Effective Time of the Merger,
and (ii) a one year unsecured indemnification obligation owed by the Principal
Rendition Shareholders, up to a maximum aggregate amount equal to five percent
(5%) of the value of all Micron Shares issued to the Rendition Shareholders at
the Effective Time of the Merger.
(g) Liability Outside of Escrow Fund. To the extent that the Claim
--------------------------------
Amount of a claim for indemnity as set forth in an Indemnity Notice exceeds the
amount available in the Escrow Fund, the Principal Rendition Shareholders shall
be jointly and severally responsible for the payment of such excess amounts,
subject to the limitations set forth herein, and the Escrow Agent shall give
notice to the Rendition Shareholder Representative of any such excess amount
included within any Indemnity Notice received by the Escrow Agent prior to the
Escrow Release Date.
(h) Apportionment of Claims Against Escrow Fund. Claims against the
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Escrow Fund shall be apportioned among the Rendition Shareholders
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in proportion to the number of Escrow Shares contributed by each of them to the
Escrow Fund. Such apportionment shall be effected by a proportionate
distribution of the remaining Escrow Fund upon termination of the Escrow Period,
as provided in paragraph 1(d) above.
4. Resolution of Conflicts; Arbitration.
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(a) Resolution by Agreement. If the Rendition Shareholder
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Representative objects in writing to the indemnification of any Indemnified
Party in respect of any claim made in any Indemnity Notice, or if Micron objects
in writing to the reimbursement or payment of any fees and expenses of the
Rendition Shareholder Representative pursuant to paragraph 5(e) below, the
Rendition Shareholder Representative and the claiming Indemnified Parties (or
Micron, as applicable) shall attempt in good faith to agree upon the rights of
the respective parties with respect to each of such claims, pursuant to and
consistent with the terms of this Escrow Agreement and the Plan of
Reorganization. If the Rendition Shareholder Representative and the claiming
Indemnified Parties (or Micron, as applicable) should so agree while the Escrow
Fund is still available to satisfy all or a portion of the claim in question, a
memorandum setting forth such agreement shall be prepared and signed by each of
such parties and shall be furnished to the Escrow Agent. The Escrow Agent shall
be entitled to rely on any such memorandum and distribute Escrow Shares or other
property from the Escrow Fund in accordance with the terms of such memorandum
and this Escrow Agreement.
(b) Arbitration. If agreement regarding resolution of a disputed
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claim is not reached within the thirty day period commencing from delivery of
the Rendition Shareholder Representative's objection to the claiming Indemnified
Parties (or Micron, as applicable), the dispute may at any time thereafter be
submitted by either the claiming Indemnified Parties (or Micron, as applicable)
or the Rendition Shareholder Representative to binding arbitration in Boise,
Idaho, before either a single arbitrator reasonably acceptable to each of the
parties to the arbitration, or before three arbitrators, with the claiming
Indemnified Parties (or Micron, as applicable) selecting one arbitrator, the
Rendition Shareholder Representative selecting one arbitrator, and the two
arbitrators so selected mutually selecting the third arbitrator. The arbitration
shall be conducted in accordance with the Commercial Arbitration Rules of the
American Arbitration Association then in effect, or in accordance with such
other rules and procedures as the parties to the arbitration may mutually agree
upon. The Indemnified Parties or Micron, as applicable, on the one hand, and the
Rendition Shareholder Representative, on the other hand, shall pay the fees and
expenses of their respectively designated arbitrators and shall bear equally the
fees and expenses of the third arbitrator (or of the sole arbitrator, in the
event a single arbitrator decides the matter). The parties shall cause the
arbitrators to decide the matter to be arbitrated hereto within sixty
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(60) days after the appointment of the last arbitrator. The arbitrator's
determination and award with respect to the dispute shall be final and binding
upon the parties, and judgment may be entered thereon in any court having
jurisdiction thereof. The Escrow Agent is to act in accordance with any such
determination and award in handling the Escrow Fund.
5. Appointment and Powers of Rendition Shareholder Representative.
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(a) Appointment. As set forth in Section 1.5 of the Plan of
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Reorganization, the Rendition Shareholder Representative has been appointed as
the legal representative, attorney-in-fact and agent of the Rendition
Shareholders in connection with the execution and performance of this Escrow
Agreement. Pursuant to the authority therein granted, the Rendition Shareholder
Representative is empowered, for and on behalf of the Rendition Shareholders,
to: authorize delivery to Micron or any other Indemnified Persons of Escrow
Shares in satisfaction of claims by any Indemnified Persons; agree to, accept,
negotiate, and enter into settlements and compromises of and demand arbitration
and comply with orders of courts and awards of arbitrators with respect to such
claims; resolve any claim made pursuant to this Escrow Agreement and Section 10
of the Plan of Reorganization; amend or waive any terms of this Escrow
Agreement; and take all actions necessary in the judgment of the Rendition
Shareholder Representative for the accomplishment of the foregoing. Such agency
relationship shall be governed by the terms of Section 1.5 of the Plan of
Reorganization. As provided in Section 1.5 of the Plan of Reorganization, the
term Rendition Shareholder Representative shall include any successor or
additional person appointed by persons who hold a majority of the shares of
Rendition Stock outstanding immediately prior to the Closing (assuming the
conversion to Rendition Common Stock of all shares of Rendition Preferred
Stock).
(b) Additional Appointment. In addition, the Principal Rendition
----------------------
Shareholders (to the extent they have responsibilities and liabilities other
than in their capacities as Rendition Shareholders) hereby appoint the Rendition
Shareholder Representative as the legal representative, attorney-in-fact and
agent of the Principal Rendition Shareholders to: do any and all things and
execute all documents and papers, for and on behalf of and in the names of such
Principal Rendition Shareholders (to the extent they have responsibilities and
liabilities other than in their capacities as Rendition Shareholders) in
connection with the execution and performance of this Escrow Agreement; and take
any and all actions and make any decision required or permitted to be taken by
or on behalf of the Principal Rendition Shareholders pursuant to the terms of
the Escrow Agreement (to the extent they have responsibilities and liabilities
other than in their capacities as Rendition Shareholders) (including, without
limitation, the actions and decisions listed in the second sentence of the
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preceding paragraph 5(a), as well as to apportion any liability outside the
Escrow Fund among the Principal Rendition Shareholders and follow appropriate
notice and collection procedures in accordance with paragraphs 3(c) above and
5(d) below). In performing the functions described in the Plan of
Reorganization and the Escrow Agreement with respect to the Principal Rendition
Shareholders (to the extent they have responsibilities and liabilities other
than in their capacities as Rendition Shareholders), the Rendition Shareholder
Representative will not be liable to any Rendition Principal Shareholder in the
absence of gross negligence or willful misconduct and further, the Rendition
Principal Shareholders will jointly and severally defend and hold harmless the
Rendition Shareholder Representative for any acts or omissions in performing
such functions and will pay any out-of-pocket costs and expenses reasonably
incurred by the Rendition Shareholder Representative in connection with such
actions on a pro-rata basis, in accordance with the number of shares of
Rendition Stock (as defined in the Plan of Reorganization) held by each
Principal Rendition Shareholder immediately prior to the Closing (assuming the
conversion to Rendition Common Stock of all shares of Rendition Preferred
Stock).
(c) Limitation on Liability. The Rendition Shareholder Representative
-----------------------
shall not be liable for any act done or omitted hereunder as the Rendition
Shareholder Representative while acting in good faith and in the exercise of
reasonable judgment. That actions are taken or omitted pursuant to the advice
of counsel shall be conclusive evidence of such good faith and exercise of
reasonable judgment. The Rendition Shareholder Representative's liability to
the Rendition Shareholders and/or the Principal Rendition Shareholders in
connection with the performance of the functions specified in this Escrow
Agreement shall be limited as provided in Section 1.5 of the Plan of
Reorganization.
(d) Actions of Rendition Shareholder Representative. A decision, act,
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consent or instruction of the Rendition Shareholder Representative shall
constitute a decision of all of the Rendition Shareholders (or Principal
Rendition Shareholders, as applicable), and shall be final, binding and
conclusive upon each of the Rendition Shareholders (or Principal Rendition
Shareholders, as applicable), and the Escrow Agent and Indemnified Parties may
rely upon any decision, act, consent or instruction of the Rendition Shareholder
Representative as being the decision, act, consent or instruction of each and
all of the Rendition Shareholders (or Principal Rendition Shareholders, as
applicable). The Escrow Agent and the Indemnified Parties 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 Rendition Shareholder
Representative.
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(e) Fees and Expenses. The fees and out-of-pocket expenses incurred
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by the Rendition Shareholder Representative in performing the functions
specified in this Escrow Agreement and in defending third party claims under
Section 10 of the Plan of Reorganization shall be payable as set forth below.
The Rendition Shareholder Representative will notify the Escrow Agent of any
such fees and expenses incurred prior to making payment thereof, with a copy of
such notice to Micron. On the eleventh business day after the delivery of such
notice, and to the extent sufficient Escrow Shares remain in the Escrow Fund,
Micron will redeem the number of Escrow Shares necessary to raise an amount
necessary to pay such fees and expenses, and shall disburse such amounts to the
party to whom such amount is owed in accordance with the instructions of the
Rendition Shareholder Representative; provided that if Micron delivers to the
Escrow Agent (with a copy to the Rendition Shareholder Representative), within
five business days after delivery of such notice by the Rendition Shareholder
Representative, a written notice contesting the legitimacy or reasonableness of
such fees and expenses, then the Escrow Agent will not make such disbursement
and such dispute shall be resolved by Micron and the Rendition Shareholder
Representative in accordance with the procedures set forth in Section 4 above.
After the exhaustion of the Escrow Fund, the Rendition Shareholder
Representative will notify Micron of any such fees and expenses, and will seek
reimbursement from the Principal Rendition Shareholders in accordance with the
procedure set forth in Section 3(c) above.
6. Escrow Agent.
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(a) Performance of Duties. The Escrow Agent shall be obligated only
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for the performance of such duties as are specifically set forth herein and may
rely and shall be protected in relying or refraining from acting on any
instrument reasonably believed to be genuine and to have been signed or
presented by the proper party or parties.
(b) Limitation on Liability. The Escrow Agent shall not be liable
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for any act done or omitted hereunder as the Escrow Agent while acting in good
faith and in the exercise of reasonable judgment. That actions are taken or
omitted pursuant to the advice of counsel shall be conclusive evidence of such
good faith and exercise of reasonable judgment.
(c) Resignation; Successors. The Escrow Agent (and any successor
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Escrow Agent) may at any time resign as such by delivering the property held in
the Escrow Fund to any successor Escrow Agent jointly designated by the other
parties hereto in writing, or to any court of competent jurisdiction, whereupon
the Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Escrow Agreement. The resignation of the Escrow
Agent will become effective upon the earlier of:
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(i) the appointment of a successor (including by a court of
competent jurisdiction); or
(ii) the day which is 30 days after the date of delivery of its
written notice of resignation to the other parties hereto. If at that time the
Escrow Agent has not received a designation of a successor Escrow Agent, the
Escrow Agent's sole responsibility after that time shall be to safekeep the
Escrow Fund until receipt of a designation of successor Escrow Agent or a joint
written disposition instruction by the other parties hereto or a final order of
a court of competent jurisdiction.
(d) Indemnification of Escrow Agent. Each of the parties hereto
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(other than the Escrow Agent) hereby jointly and severally agrees to indemnify
and hold harmless the Escrow Agent from and against any and all loss, liability,
cost, damage and expense, including, without limitation, reasonable counsel
fees, which the Escrow Agent may suffer or incur by reason of any action, claim
or proceeding brought against the Escrow Agent arising out of or relating in any
way to this Escrow Agreement or any transaction to which this Escrow Agreement
relates unless such action, claim or proceeding is the result of the willful
misconduct of the Escrow Agent. The Escrow Agent may consult counsel in respect
of any question arising under this Escrow Agreement and the Escrow Agent shall
not be liable for any action taken or omitted in good faith upon advice of such
counsel.
(e) Fees and Expenses. Micron agrees to pay or reimburse the Escrow
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Agent for all fees and expenses (including legal fees and expenses) incurred by
Escrow Agent in performing its responsibilities hereunder.
7. Miscellaneous.
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(a) Notices. All notices, requests, demands, claims and other
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communications hereunder will be in writing and shall be deemed given if
delivered personally, telecopied, sent by nationally-recognized overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
(i) If to Micron:
Micron Technology, Inc.
0000 X. Xxxxxxx Xxx
Xxxxx, Xxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx, Vice President of Legal Affairs
Telecopier: (000) 000-0000
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(ii) If to the Rendition Shareholder Representative:
Xxxx Xxxxxx
Rendition, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: (000) 000-0000
(iii) If to Principal Rendition Shareholders, to the Rendition
Shareholder Representative, as set forth above.
(iv) If to Escrow Agent:
Norwest Bank Minnesota, N.A.
Attn: Xxxx Xxxxxxxxx
Xxxxx Xxxxxx xxx Xxxxxxxxx Xxxxxx
Xxxxxxxxxxx, XX 00000-0000
Telecopier: (000) 000-0000
All such notices and other communications shall be deemed to have been
received (a) in the case of personal delivery, on the date of such delivery, (b)
in the case of a telecopy, when the party receiving such copy shall have
confirmed receipt of the communication, (c) in the case of delivery by
nationally-recognized overnight courier, on the business day following dispatch,
and (d) in the case of mailing, on the third business day following such
mailing.
(b) Counterparts. This Escrow Agreement may be executed in
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counterparts, all of which taken together shall be deemed one original.
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(c) Entire Agreement. This Agreement and the Plan of Reorganization
----------------
contain the entire agreement and understanding among the parties with respect to
the subject matter hereof. This Escrow Agreement may not be amended or
supplemented, and no provision hereof may be waived, except by an instrument
signed by all of the parties hereto. No waiver of any provision hereof by any
party shall be deemed a continuing waiver of any matter by such party.
(d) Governing Law and Submission to Jurisdiction. Except as
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otherwise expressly provided herein, this Escrow Agreement shall be governed by
and construed under the laws of the State of Idaho applicable to contracts
entered into and to be performed entirely within such State. In the event of any
claim or dispute arising hereunder, the parties consent to the exclusive
jurisdiction and venue of the federal and state courts residing in Boise, Idaho.
(e) Severability. In the event that any part of this Escrow
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Agreement is declared by any court or other judicial or administrative body to
be null, void, or unenforceable, said provision shall survive to the extent it
is not so declared, and all of the other provisions of this Agreement shall
remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Escrow Agreement
as of the date first set forth above.
MICRON:
By: /s/ Xxxxxx X. Xxxxxxxx
Name: Xxxxxx X. Xxxxxxxx
Title: President
RENDITION SHAREHOLDER
REPRESENTATIVE (on behalf
OF THE RENDITION SHAREHOLDERS):
/s/ Xxxx Xxxxxx
---------------
Xxxx Xxxxxx
13
PRINCIPAL RENDITION
SHAREHOLDERS:
APA EXCELSIOR IV, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXXXX & CO. (CAYMAN) LTD,
Custodian for APA Excelsior IV/Offshore
By: Patricof & Co. Ventures, Inc.
its Investment Adviser
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Managing Director
THE P/A FUND III, L.P.
By: APA Pennsylvania Partners III, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice-President
14
PATRICOF PRIVATE INVESTMENT CLUB, L.P.
By: APA Excelsior IV Partners, L.P.,
its General Partner
By: Patricof & Co. Managers, Inc.,
its General Partner
By: /s/ Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxx
Vice President
XXXX XXXX
/s/ Xxxx Xxxx
-------------
MATRIX PARTNERS III, L.P.
By: /s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title: General Partner
Company: Matrix Partners III, L.P.
XXXXXX X. XXXXX
/s/ Xxxxxx X. Xxxxx
-------------------
OCEAN PARK VENTURES, L.P.
By: /s/ Xxx Xxxxx
Name: Xxx Xxxxx
Title: General Partner
ENTERPRISE PARTNERS III, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
15
ENTERPRISE PARTNERS III ASSOCIATES, L.P.
By: /s/ Xxxxxxx Xxxxxx
Name: Xxxxxxx Xxxxxx
Title: General Partner
Company: Enterprise Management Partners III
Its: General Partner
XXX XXXXX
/s/ Xxx Xxxxx
-------------
INTERWEST PARTNERS V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
INTERWEST INVESTORS V, L.P.
By: /s/ Xxxxxx X. Xxxxxx
Name: Xxxxxx X. Xxxxxx
Title: General Partner
Company: InterWest Management Partners V, L.P.
Its: General Partner
XXXXXX X. XXXXXX
/s/ Xxxxxx X. Xxxxxx
--------------------
XXXXXXX X. XXXXX
/s/ Xxxxxxx X. Xxxxx
--------------------
16
XXXX XXXXXX
/s/ Xxxx Xxxxxx
---------------
XXXXXX XXXXXX
/s/ Xxxxxx Xxxxxx
-----------------
XXXXXXX XxXXXXXX
/s/ Xxxxxxx XxXxxxxx
--------------------
XXXXX X. XXXXXXXX
/s/ Xxxxx X. Xxxxxxxx
---------------------
XXX X. XXXXXXXXX
/s/ Xxx X. Xxxxxxxxx
--------------------
XXXXX XXXXXXX
/s/ Xxxxx Xxxxxxx
-----------------
XXXX XXXXX
/s/ Xxxx Xxxxx
--------------
XXXX-XXXXX TRUST 10-8-91
By: /s/ Xxxx Xxxxx
Name: Xxxx Xxxxx
Title: Trustee
17
MITSUBISHI ELECTRONICS AMERICA
By:__________________________
Name:________________________
Title:_______________________
THE CIT GROUP/EQUITY INVESTMENTS, INC.
By:__________________________
Name:________________________
Title:_______________________
UNTERBERG HARRIS INTERACTIVE MEDIA LIMITED
By:__________________________
Name:________________________
Title:_______________________
SIGMA PARTNERS III, L.P.
By: /s/_____________________
Name:________________________
Title: General Partner
SIGMA ASSOCIATES III, L.P.
By: /s/_____________________
Name:________________________
Title: General Partner
SIGMA INVESTORS III, L.P.
By:__________________________
Name:________________________
Title: General Partner
18
XXXXXXX XXXXXX
___________________________
ESCROW AGENT:
NORWEST BANK MINNESOTA, N.A.
BY:_________________________
TITLE:______________________
19
EXHIBIT A
STOCK TRANSFER POWER
--------------------
SEPARATE FROM CERTIFICATE
-------------------------
FOR VALUE RECEIVED, and pursuant to that certain Indemnity and Escrow
Agreement dated as of ________, 1998 (the "Escrow Agreement"), _________________
("Stockholder") hereby sells, assigns and transfers unto _______________________
(_______) shares of the Common Stock of Micron Technology, Inc., _______________
a Delaware corporation, (the "Company"), standing in the undersigned's name on
the books of the Company and represented by Certificate(s) No._______ herewith,
and does hereby irrevocably constitute and appoint ______ as the Stockholder's
attorney-in-fact to transfer the foregoing shares on the books of the Company,
with full power of substitution in the premises. This Stock Transfer Power may
only be used as authorized by the Escrow Agreement.
Dated effective as of ______________________.
STOCKHOLDER:
Name:___________________________________
By:_________________________________, as
Shareholder Representative
SIGNATURE GUARANTEED:
____________________________
Name of Medallion Level National
Bank or a member of the New York
Stock Exchange
By:_____________________________________
Title:__________________________________
Instruction: Please do not fill in any blanks other than the signature line.
The purpose of this stock transfer power is to enable the Escrow Agent named in
the Escrow Agreement to effect a transfer of shares in accordance with the terms
of the Escrow Agreement, without requiring additional signatures on behalf of
the Stockholder.
