ESCROW AGREEMENT
EXHIBIT
2.6
THIS
ESCROW AGREEMENT (the “Escrow Agreement”) is made and entered into as of
this ____ day of _______, 2006, by and among the
shareholders listed on Schedule
A
who are
all of the shareholders of Netintact, AB (each a “Seller”
and
collectively referred to as “Sellers”)
Procera Networks, Inc., a Nevada, USA, corporation, (“Procera”),
and
____________________ (the “Escrow
Agent”).
RECITALS
WHEREAS,
Sellers, and Procera entered into a Stock Exchange Agreement and Plan of
Reorganization, dated June ___, 2006 (the “Exchange
Agreement”),
which
provides for, among other things, Procera’s acquisition of one hundred percent
(100%) of the issued and outstanding shares of Netintact AB, a Swedish
corporation (“Netinact”)from
Sellers (the “Exchange”).
WHEREAS,
Section 1.3 of the Exchange Agreement provides that the parties thereto shall
enter into an Escrow Agreement with respect to a portion of the Procera’s Common
Stock shares (as that term is defined in the Exchange Agreement), to be issued
to Sellers in connection with the transaction.
WHEREAS,
by their approval of the Exchange Agreement, Sellers shall have approved the
terms of this Escrow Agreement and the deposit of the Escrow Shares into the
Escrow Fund created pursuant hereto, each as defined below.
WHEREAS,
the Sellers have selected ___________ to act as representative of the Sellers
and their suc-cessors under this Escrow Agreement, with the powers and authority
herein provided until his or her successor is named as herein-after
provided.
WHEREAS,
the Escrow Agent has agreed to receive, hold and deliver the Escrow Shares
upon
and subject to the conditions set forth below.
AGREEMENT
NOW,
THEREFORE, in consideration of the promises contained herein and in the Exchange
Agreement and other good and valuable consideration, the receipt of which is
hereby acknowledged, the parties hereto agree as follows:
1. Exchange
Agreement. The Escrow Agent hereby acknowledges receipt of a copy of the
Exchange Agreement, but, except for reference to the Exchange Agreement for
definitions of certain terms not defined herein, and for specific references
to
the Exchange Agreement, the Escrow Agent is not charged with any duties or
responsibilities with respect to the Exchange Agreement. Capitalized terms
used
and not defined herein shall have the meanings set forth in the Exchange
Agreement unless the context requires otherwise.
2. Purpose;
Effectiveness. This Escrow Agreement has been executed and delivered, and the
deposit of the Escrow Shares hereunder will be made, for the purpose of
providing security to Procera for claims of indemnification pursuant to Section
11 of the Exchange Agreement. This Escrow Agreement is conditioned upon Closing
having occurred and shall become effective on the Closing Date. Sellers shall
promptly notify the Escrow Agent of the Effective Date and the Escrow Agent
shall have no duties or obligations hereunder unless and until it has received
such notice.
3. Escrow
Fund. At the Closing, Procera shall deliver or cause to be deliv-ered to the
Escrow Agent certificates regis-tered in the names of Sellers as set forth
on
Schedule
A
attached
hereto and incorporated herein by reference, representing One Million Nine
Hundred Thousand (1,900,000) shares of Procera Common Stock (the “Escrow
Shares”)
together with stock powers endorsed in blank for the stock certificates
delivered (the “Escrow
Fund”).
Sellers shall have the rights set forth in Section 8 hereof with respect to
the
Escrow Shares, provided that the Escrow Agent shall at all times during the
term
of this Escrow Agreement have the right and power to dispose of the Escrow
Shares (and take such other actions with respect to such Escrow Shares) as
required by this Escrow Agreement. The Escrow Agent shall not be required to
inquire as to, or examine, the number of Escrow Shares it receives as the Escrow
Fund; nor shall it be required to verify
the
names of any of the Sellers. The Escrow Fund shall be held by the Escrow Agent
subject to the terms and conditions hereinafter set forth.
4. Intentionally
Left Blank.
5. Representative.
(a) Each
of
the Sellers hereby appoints ______________, his agent and attorney-in-fact,
as
the Sellers’ representative (the “Representative”)
for
and on behalf of the Sellers, to give and receive notices and communications,
to
authorize payment to Procera of Escrow Shares from the Escrow Fund in
satisfaction of claims by Procera, to object to such payments, to agree to,
negotiate, enter into settlements and compromises of, and demand arbitration
and
comply with orders of courts and awards of arbitrators with respect to such
claims, and to take all other actions that are either (i) necessary or
appropriate in the judgment of the Representative for the accomplishment of
the
foregoing, or (ii) specifically mandated by the terms of this Agreement. Such
agency may be changed by the Sellers from time to time upon not less than thirty
(30) days prior written notice to Procera; provided,
however,
that the Representative may not be removed unless holders of a two-thirds
interest of the Escrow Fund agree to such removal and to the identity of the
substituted agent. Any vacancy in the position of Representative may be filled
by the holders of a majority in interest of the Escrow Fund. No bond shall
be
required of the Representative, and the Representative shall not receive
compensation for his services. Notices or communications to or from the
Representative shall constitute notice to or from the Sellers. The Escrow Agent
shall have no duty to recognize a successor Representative, and shall incur
no
liability and shall be fully protected in failing to recognize the actions
of
the successor Representative, unless and until it has received written notice
of
the identity of such successor Representative as well as a specimen signature
of
such successor Representative.
2
(b) The
Representative shall not be liable for any act done or omitted hereunder as
the
Representative while acting in good faith and in the exercise of reasonable
judgment. The Sellers on whose behalf the Escrow Shares was contributed to
the
Escrow Fund shall indemnify the Representative and hold the Representative
harmless against any loss, liability or expense incurred without negligence
or
bad faith on the part of the Representative and arising out of or in connection
with the acceptance or administration of the Representative’s duties hereunder,
including the reasonable fees and expenses of any legal counsel retained by
the
Representative. After all claims for losses by Procera have been satisfied,
or
reserved against, the Representative, with the consent of the majority in
interest in the Escrow Fund, may recover from the Escrow Fund at the end of
the
Escrow Period, by Representative’s written request to the Escrow Agent, payments
and reimbursement for any expenses incurred by Representative in connection
with
the Representative’s representation of the Sellers in connection with this
Escrow Agreement. The Escrow Agent may absolutely rely on such written request
and shall have no duty to determine the authority of the Representative in
making such request.
(c) A
decision, act, consent or instruction of the Representative, including but
not
limited to an amendment, extension or waiver of this Agreement pursuant to
Section 16 hereof, shall constitute a decision of the Sellers and shall be
final, binding and conclusive upon the Sellers; and the Escrow Agent and Procera
may rely upon any such decision, act, consent or instruction of the
Representative as being the decision, act, consent or instruction of the
Sellers. The Escrow Agent and Procera 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 Representative.
6. Escrow
Period; Distribution Upon Termination of Escrow Period. The Escrow Fund shall
be
in existence immediately following the Closing Date and shall terminate at
the
end of twelve (12) months from the Closing date at 5:00 p.m., California Time
(the “Escrow
Period”);
provided, however, that the Escrow Period shall not terminate with respect
to
any Escrow Shares necessary to satisfy any then pending and unsatisfied claims.
Any such claims shall be specified in an Officer’s Certificate delivered to the
Escrow Agent on or anytime prior to the expiration of the Escrow Period with
respect to facts and circumstances existing prior to the expiration of such
Escrow Period. Following the expiration of the Escrow Period and as soon as
all
such claims have been resolved, the Escrow Agent shall deliver to the Sellers,
upon receipt by the Escrow Agent of written instructions from Representative
regarding the distribution (including the number of Escrow Shares to be
distributed to each Seller), the relevant portion of the Escrow Fund, if any,
to
be distributed and not required to satisfy such claims (the “Remaining
Portion”).
Delivery of the Escrow Shares to the Sellers pursuant to this Section 6 shall
be
made in proportion to their respective Pro Rata Percentages of the Escrow
Fund.
7. Assertion
of Claims.
(a) Upon
receipt by the Escrow Agent of an Officer’s Certificate (as defined below) at
any time on or prior to the last day of the Escrow Period, subject to the
provisions of Section 7(b) hereof, the Escrow Agent shall deliver to
Procera out of the Escrow Fund, as promptly as practicable, shares of Procera
Common Stock held in the Escrow Fund equal to losses specified in an Officer’s
Certificate (“Losses”),
delivered by Procera to the Escrow Agent. For purposes hereof, “Officer’s
Certificate”
shall
mean a certificate signed by any officer of Procera: (i) stating that Procera
has paid, incurred or properly accrued or reasonably anticipates that it will
have to pay, incur or accrue Losses, (ii) the number of Escrow Shares to be
delivered to it as a result of such Losses (as determined in accordance with
Subsection 7(b)), and (iii) specifying in reasonable detail the individual
items
of Losses included in the amount so stated, the date each such item was paid,
incurred or properly accrued, or the basis for such anticipated liability,
and
the nature of the misrepresentation, breach of warranty or covenant to which
such item is related.
3
(b) At
the
time of delivery of any Officer’s Certificate to the Escrow Agent, a duplicate
copy of such certificate shall be delivered to the Representative by the Escrow
Agent, and for a period of thirty (30) days after receipt of such delivery,
the
Escrow Agent shall make no delivery to Procera of the Escrow Funds pursuant
to
Section 7(a) hereof unless and until the Escrow Agent shall have received
written authorization from the Representative to make such delivery. After
the
expiration of such thirty (30) day period, the Escrow Agent shall make
delivery of the shares from the Escrow Fund in accordance with Section 7(a)
hereof; provided, however, that no such payment or delivery may be made if
the
Representative shall object in a written statement to the claim made in the
Officer’s Certificate, and such statement shall have been delivered to the
Escrow Agent prior to the expiration of such thirty (30) day period.
Promptly upon receipt, the Escrow Agent shall deliver a copy of such written
statement of the Representative to any officer of Procera. Procera shall have
thirty (30) days to respond in a written statement to the Representative’s
objection. If after such thirty (30) day period there remains a dispute as
to
any claim, the Representative and Procera shall attempt in good faith for a
period of time not to exceed thirty (30) days, to negotiate a written resolution
of such dispute. Such negotiations shall be conducted by representatives of
each
party who have authorization to resolve any such dispute or claim. In case
of
such negotiations, the Escrow Agent shall not make delivery of the shares from
the Escrow Fund, subject to negotiations, unless pursuant to a written notice
given jointly by Procera and the Representative, specifying that delivery shall
be made and specifying the date of delivery and number of shares to be
delivered.
(c) For
the
purposes of determining the number of shares of Procera Common Stock to be
delivered to Procera out of the Escrow Fund pursuant to Section 7(a)
hereof, each share of Procera Common Stock shall be deemed to have a value
equal
to the average of the bid prices appearing on the Over The Counter Bulletin
Board during the five (5) day period prior to the date Procera makes a claim
for
the Escrow Shares and delivers such written claim to the Escrow Agent. In order
to satisfy a claim, Procera may receive a distribution of Escrow Shares on
a Pro
Rata Percentage basis as set forth in Schedule
A.
The
Escrow Agent shall have no duty or obligation to confirm or verify whether
the
number of Escrow Shares to be delivered to Procera as set forth in the Officer’s
Certificate comply with this paragraph or have any relation to the Losses set
forth in such Officer’s Certificate.
4
(d) Any
dispute arising out of or relating to the distribution of the Escrow Funds
(pursuant to Sections 6) or the assertion of a claim (pursuant to this Section
7), shall be resolved in accordance with the procedures specified in this
Section 7, which shall be the sole and exclusive procedure for the resolution
of
any such disputes. If no agreement can be reached after good faith negotiation
between the parties pursuant to Subsection 7(b), the settlement of such dispute
shall be as described in Section 12.7 of the Exchange Agreement. In case of
such
dispute, the Escrow Agent shall not make delivery of the shares from the Escrow
Fund, subject to dispute, unless (a) pursuant to a written notice given jointly
by Procera and the Representative, specifying the date of delivery and the
number of shares to be delivered, or (b) upon receipt from either Procera or
the
Representative of a final arbitration award for release of shares from the
Escrow Fund.
(e) For
purposes of this Section 7, in any legal action hereunder in which any
claim or the amount thereof stated in the Officer’s Certificate is at issue, the
party seeking indemnification shall be deemed to be the Non-Prevailing Party
unless a court or arbitrator awards the party seeking indemnification more
than
one-half (1/2) of the amount in dispute, plus any amounts not in dispute;
otherwise, the person against whom indemnification is sought shall be deemed
to
be the Non-Prevailing Party. The Non-Prevailing Party shall pay its own
expenses, the fees and the expenses, including attorneys’ fees and costs,
reasonably incurred by the other party to the arbitration.
(f) In
the
event Procera becomes aware of a third-party claim which Procera reasonably
believes may result in a demand against the Escrow Fund, Procera shall notify
the Representative of such claim, and Representative shall be entitled on behalf
of the Sellers, at its expense, to control the defense of such claim. No claim
relating to a demand against the Escrow Fund shall be settled or compromised
without the consent of Representative, unless he or she shall have failed,
after
the lapse of a reasonable time, but in no event more than thirty (30) days,
after notice of a proposed settlement, to express a written objection to the
terms thereof. In the event that the Representative has consented to any such
settlement, the Sellers shall have no power or authority to object under any
provision of this Section 7 to the amount of any claim by Procera against the
Escrow Fund with respect to such settlement.
8. Protection
of Escrow Fund; Adjustments to Escrow Shares; Dividends; Voting.
(a) The
Escrow Agent shall hold and safeguard the Escrow Fund during the Escrow Period,
shall treat such fund in accordance with the terms of this Escrow Agreement
and
not as the property of Procera and shall hold and dispose of the Escrow Fund
only in accordance with the terms hereof. Each Seller shall be liable for any
taxes with respect to dividends earned on such Seller’s Pro Rata Percentage of
the Escrow Fund.
(b) If
the
Escrow Agent shall receive any securities in respect of or in exchange for
any
of the Escrow Shares held by it, whether by way of dividends, stock splits,
recapitalizations, liquidations, mergers, consolida-tions, split-ups, spin-offs,
redemp-tions, exchanges or conversions of shares and the like (“New
Shares”),
the
Escrow Agent shall hold in escrow such securities and the same shall be subject
to all of the provisions of this Escrow Agreement and shall be deemed part
of
the Escrow Fund. Notwith-standing the fore-going, the Sellers shall retain
the
rights to receive any cash dividends or distributions, and such cash dividends
or distributions shall be currently distributed directly to the Sellers (and
not
by way of the Escrow Agent) in proportion to the respec-tive Pro Rata Percentage
of each Seller, rounded down to the nearest whole number of shares or to the
nearest whole cent, as the case may be. New Shares issued in respect of Escrow
Shares which have been released from the Escrow Fund, if any, shall not be
added
to the Escrow Fund, but shall be distributed directly to the holders of such
released Escrow Shares (and not by way of the Escrow Agent). Any reference
herein to a number of Escrow Shares shall be deemed to include all New Shares
issued in respect of such number of Escrow Shares (e.g., in the context of
a
release of Escrow Shares to Procera in reimbursement for any Loss as provided
in
Section 7(a) hereof, in the event that one Escrow Share is to be released to
Procera as provided therein, as part of that one Escrow Share, all New Shares
that have been issued in respect of such one Escrow Share shall also be released
to Procera as if they were part of and included in such one Escrow
Share).
5
(c) Each
Seller shall have all voting rights with respect to the Escrow Shares
contri-buted to the Escrow Fund on behalf of each such Seller (and on any New
Shares constituting voting securities added to the Escrow Fund in respect of
such Escrow Shares) so long as such Escrow Shares or New Shares are held in
the
Escrow Fund. The Escrow Agent shall have no duty to take any action under,
or to
enforce or monitor any compliance with respect to, this paragraph.
9. Notices.
All notices, requests, demands, or other communications with respect to this
Agreement shall be in writing and shall be (i) sent by facsimile transmission,
with proper confirmation (ii) sent by each party’s national postal services,
return receipt requested, or (iii) personal delivery by an internationally
recognized express overnight courier service, charges prepaid, to the following
addresses (or such other addresses as the parties may specify from time to
time
in accordance with this Section 9).
|
(a)
|
To
Procera:
|
Procera
Networks
|
|
|
|
|
000X
Xxxxxx Xxxxx
|
|
|
Xxx
Xxxxx, XX 00000
|
|||
|
Phone
No: (000) 000-0000
|
|||
|
|
Fax
No: (408) _________
|
||
|
Attention:
Xxxx Xxxxxx
|
|||
|
with
copy to:
|
Silicon
Valley Law Group
|
||
|
00
Xxxxx Xxxxx, Xxxxx 000
|
|||
|
Xxx
Xxxx, XX 00000
|
|||
|
Phone
No: (000) 000-0000
|
|||
|
Fax
No: (000) 000-0000
|
|||
|
Attention:
Xxxxx X. Xxxxxxx
|
|||
6
|
(b)
|
To
Escrow Agent:
|
____________________________
|
|
|
|
|
____________________________
|
|
|
____________________________
|
|||
|
Phone
No: (___) _______________
|
|||
|
Fax
No: (___) _________________
|
|||
|
(c)
|
To
Representative:
|
____________________________
|
|
|
|
____________________________
|
||
|
____________________________
|
|||
|
Phone
No: (___) _______________
|
|||
|
Fax
No: (___) _________________
|
Any
such
notice shall, when sent in accordance with the preceding sentence, be deemed
to
have been given and received on the earliest of (i) the day delivered to such
address or sent by facsimile transmission, (ii) the seventh (7th) business
day
following the date deposited with each country’s respective postal service, or
(iii) 24 hours after shipment by such courier service.
10. Escrow
Agent’s Protection.
(a) The
Escrow Agent shall be obligated only for the performance of such duties as
are
specifically set forth herein (and no implied duties), and as set forth in
any
additional written escrow instructions which the Escrow Agent may receive after
the date of this Agreement which are signed by an officer of Procera and the
Representative (and which are acceptable to the Escrow Agent), 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) Except
as
otherwise provided in Section 7 hereof, the Escrow Agent is hereby expressly
authorized to disregard any and all warnings given by any of the parties hereto
or by any other person, excepting only orders or process of courts of law,
and
is hereby expressly authorized to comply with and obey orders, judgments or
decrees of any court. In case the Escrow Agent obeys or complies with any such
order, judgment or decree of any court, the Escrow Agent shall be fully
protected and shall not be liable to any of the parties hereto or to any other
person by reason of such compliance, notwithstanding any such order, judgment
or
decree being subsequently reversed, modified, annulled, set aside, vacated
or
found to have been entered without jurisdiction.
(c) The
Escrow Agent shall not be liable in any respect on account of the identity,
authority or rights of the parties executing or delivering or purporting to
execute or deliver this Agreement or any documents or papers deposited or called
for hereunder.
(d) The
Escrow Agent shall not be liable for the expiration of any rights under any
statute of limitations with respect to this Escrow Agreement or any documents
deposited with the Escrow Agent.
7
(e) In
performing any duties under this Escrow Agreement, the Escrow Agent shall not
be
liable to any person or entity for damages, losses, liabilities, penalties,
claims, settlements, judgments, costs or expenses, except for gross negligence
or willful misconduct on the part of the Escrow Agent (each as determined by
a
final, non-appealable order, judgment, decree or ruling of a court of competent
jurisdiction). Any liability of the Escrow Agent under this Agreement shall
be
limited to the amount of fees paid to the Escrow Agent in connection herewith.
The Escrow Agent shall not incur any such liability for any action taken,
suffered or omitted in reliance upon any instrument, including any written
statement of affidavit provided for in this Agreement that the Escrow Agent
shall believe to be genuine, nor will the Escrow Agent be liable or responsible
for forgeries, fraud, impersonations, or determining the scope of any
representative authority. In addition, the Escrow Agent may consult with legal
counsel in connection with performing the Escrow Agent’s duties under this
Escrow Agreement and shall be fully protected in any action taken, suffered,
or
omitted by it in accordance with the advice of counsel. The Escrow Agent is
not
responsible for determining and verifying the authority of any person acting
or
purporting to act on behalf of any party to this Escrow Agreement. Anything
to
the contrary notwithstanding, in no event shall the Escrow Agent be liable
for
special, punitive, indirect, consequential or incidental loss or damage of
any
kind whatsoever arising from this Agreement (including, but not limited to,
lost
profits), even if the Escrow Agent has been advised of the likelihood of such
loss or damage.
(f) If
any
controversy arises between the parties to this Escrow Agreement, or with any
other person or entity, concerning the subject matter of this Escrow Agreement,
its terms or conditions, the Escrow Agent will not be required to determine
the
controversy or to take any action regarding it. The Escrow Agent may hold all
documents and the Escrow Shares and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in the
Escrow Agent’s discretion, may be required, despite what may be set forth
elsewhere in this Escrow Agreement. In such event, the Escrow Agent shall be
fully protected and shall not be liable for damages arising from acting in
accordance with the immediately preceding sentences. Furthermore, the Escrow
Agent may at its option, file an action of interpleader requiring the parties
to
answer and litigate any claims and rights among themselves. The Escrow Agent
is
authorized to deposit with the clerk of the court all documents and the Escrow
Amounts held in escrow, except all costs, expenses, charges and reasonable
attorney fees incurred by the Escrow Agent due to the interpleader action and
which Procera and the Representative jointly and severally agree to pay. Upon
initiating such action, the Escrow Agent shall be fully released and discharged
of and from all obligations and liability imposed by the terms of this Escrow
Agreement.
(g) Procera,
and the Sellers, and their respective successors and assigns agree jointly
and
severally to indemnify and hold the Escrow Agent harmless against any and all
losses, damages, liabilities, penalties, claims, settlements, judgments, costs
and expenses, including reasonable costs of investigation, counsel fees,
including allocated costs of in-house counsel and disbursements that may be
imposed on Escrow Agent or incurred by Escrow Agent in connection with the
performance of its duties under this Escrow Agreement, including but not limited
to any litigation arising from this Agreement or involving its subject matter,
other than those arising out of the gross negligence or willful misconduct
of
the Escrow Agent (each as determined by a final, non-appealable order, judgment,
decree or ruling of a court of competent jurisdiction). The costs and expenses
incurred by Escrow Agent in enforcing this right of indemnification shall be
paid by the parties.
8
(h) In
the
event the Escrow Agent believes any ambiguity or uncertainty exists hereunder
or
in any notice, instruction, direction, request or other communication received
by the Escrow Agent hereunder, the Escrow Agent may, in its sole discretion,
refrain from taking any action, and shall not be liable in any way to any person
or entity for refraining from taking such action, unless the Escrow Agent
receives written instructions signed by Procera and the Representative that
eliminates such ambiguity or uncertainty to the reasonable satisfaction of
the
Escrow Agent.
11. Escrow
Agent Fees. All fees of the Escrow Agent for performance of its duties
hereunder, as well as all of 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,
performance or enforcement of this Agreement, fifty percent (50%) shall be
paid
by Procera and fifty percent (50%) shall be paid by Sellers. It is understood
that the fees and usual charges agreed upon for services of the Escrow Agent
shall be considered compensation for ordinary services as contemplated by this
Agreement. In the event that the conditions of this Agreement are not promptly
fulfilled, or if the Escrow Agent renders any service not provided for in this
Agreement, or if the parties request a substantial modification of its terms
(which modification is expressly consented to by the Escrow Agent), or if any
controversy arises, or if the Escrow Agent is made a party to, or intervenes
in,
any litigation pertaining to the Escrow Fund or its subject matter, the Escrow
Agent shall be reasonably compensated for such extraordinary services and
reimbursed for all costs, attorney’s fees, including allocated costs of in-house
counsel, and expenses occasioned by such default, delay, controversy or
litigation. The provisions of this Section 11, and Section 10 above shall
survive the termination of this Agreement, the expiration of the Escrow Period
and the resignation or removal of the Escrow Agent.
12. Successor
Escrow Agent. The Escrow Agent may resign at any time upon giving at least
thirty (30) days written notice to Procera and the Representative;
provided, however, that no such resignation shall become effective until the
appointment of a successor escrow agent which shall be accomplished as follows:
Procera and the Representative shall use their best efforts to mutually agree
on
a successor escrow agent within thirty (30) days after receiving such notice.
If
the parties fail to agree upon a successor escrow agent within such time, the
Escrow Agent shall have the right to (i) appoint a successor escrow agent
authorized to do business in the State of California, United States of America
or (ii) apply to a court of competent jurisdiction for appointment of a
successor escrow agent. The successor escrow agent shall execute and deliver
an
instrument accepting such appointment and it shall, without further acts, be
vested with all the estates, properties, rights, powers, and duties of the
predecessor escrow agent as if originally named as escrow agent. Upon
appointment of a successor escrow agent, the Escrow Agent shall be discharged
from any further duties and liability under this Escrow
Agreement.
9
13. Successors
and Assigns. This Escrow Agreement and all actions taken hereunder in accordance
with its terms shall be binding upon and inure to the benefit of Procera, its
subsidi-aries, the Escrow Agent and their respective successors and assigns,
the
Sellers and their respective successors, assigns, heirs, executors,
administrators and legal representatives, and the Representative and his
successors.
14. Counterparts.
This Escrow Agreement may be executed in several counterparts, each of which
shall be deemed an original, but such counterparts shall together constitute
one
and the same instrument.
15. Governing
Law. This Escrow Agreement shall be governed by and construed in accordance
with
the laws of the State of California, United States of America, without regard
to
conflicts of law principles; provided that, all provisions regarding the rights,
duties and obligations of the Escrow Agent shall be governed by and construed
in
accordance with the laws of the State of California, United States of America,
applicable to contracts made and to be performed entirely within such
state.
16. Amendments.
This Escrow Agreement may be amended by the parties hereto at any time by
execution of an instrument in writing signed on behalf of each of the parties
hereto. For purposes of this Section 16, the Sellers agree that any amendment
of
this Escrow Agreement signed by the Representative shall be binding upon and
effective against the Sellers whether or not they have signed such
amendment.
[The
remainder of this page is intentionally left blank]
10
IN
WITNESS WHEREOF, the parties hereto have executed or caused this Escrow
Agreement to be duly executed as of the day and year first above
written.
|
PROCERA:
|
PROCERA
NETWORKS, INC.
|
|
|
By:
|
||
|
Xxxxxxx
Xxxxxx, Chief Executive Officer
|
||
|
SELLERS:
|
|||
|
Xxxxx
Xxx
|
|||
|
Joakim
Xx
|
|||
|
Xxxxxxxxx
Havang
|
|||
|
Olle
Hallnas
|
|||
|
Sven-Xxxx
Xxxxxxx
|
|||
|
Xxx
Xxxxxx
|
|||
|
Xxxxxx
Xxxxxxxxxx/
Xxxx
Xxxxxxx by P/A
|
|||
|
Xxxxxx
Xxxxxxxxx /
Xxxx
Xxxxxxx by P/A
|
|||
|
REPRESENTATIVE:
|
|||
|
Representative
|
|||
|
ESCROW
AGENT:
|
|||
| , Escrow Agent |
|
||
11
Schedule
A
Pro
Rata
Percentages
|
Seller
|
%
of
Total
|
Shares
to Seller
|
Total
Shares
|
Shares
to
Escrow
|
||||
|
Xxxxx
Xxx
|
18,5
|
2,555,500
|
2,907,000
|
351,500
|
||||
|
Joakim
Ek
|
18,5
|
2,555,500
|
2,907,000
|
351,500
|
||||
|
Alexander
Havang
|
18,5
|
2,555,500
|
2,907,000
|
351,500
|
||||
|
Olle
Hallnas
|
18,5
|
2,555,500
|
2,907,000
|
351,500
|
||||
|
Sven-Xxxx
Xxxxxxx
|
18,5
|
2,555,500
|
2,907,000
|
351,500
|
||||
|
Xxx
Xxxxxx
|
5,5
|
759,743
|
864,243
|
104,500
|
||||
|
Xxxxxx
Xxxxxxxxxx
|
1
|
138,135
|
157,135
|
19,000
|
||||
|
Xxxxxx
Xxxxxxxxx
|
1
|
138,135
|
157,135
|
19,000
|
||||
|
TOTAL
|
100
|
13,813,513
|
15,713,513
|
1,900,000
|
12
