Exhibit 10.2
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") is entered into as of
January 4, 2002 (the "Effective Date") by and among ViaSat, Inc., a Delaware
corporation (the "Buyer"), Xxxx X. Xxxx, Xxxxx X. Xxxxxx, and Xxxxxxx X.
Xxxxxxxxxx, in their respective capacities as the representatives of the Sellers
(the "Seller Representatives") under that certain Unit Purchase Agreement dated
as of December 14, 2001 by and among the Buyer and the Sellers (the "Purchase
Agreement"), and Computershare Trust Company, Inc., a Colorado corporation, as
escrow agent (the "Escrow Agent"). Capitalized terms used and not otherwise
defined in this Escrow Agreement shall have the meanings assigned to them in the
Purchase Agreement.
RECITALS
A. The Buyer and the Sellers have entered into the Purchase Agreement,
pursuant to which the Buyer is purchasing from the Sellers all of the
outstanding Class A Units in U.S. Monolithics, LLC, an Arizona limited liability
company.
B. As a condition precedent to the consummation of the transactions
contemplated by the Purchase Agreement and as security for the satisfaction of
the indemnification obligations of the Sellers pursuant to the Purchase
Agreement, the Buyer has required that the Seller Representatives, on behalf of
the Sellers, enter into this Escrow Agreement pursuant to which the Buyer, on
behalf of each of the Sellers, is depositing with the Escrow Agent the cash (the
"Escrow Cash") or number of shares of Buyer Common Stock (the "Escrow Shares")
identified across from such Seller's name on Schedule I hereto (the Escrow Cash
and the Escrow Shares collectively, the "Escrow Amount").
AGREEMENT
The parties to this Escrow Agreement, intending to be legally bound,
agree as follows:
Section 1. ESCROW.
1.1 On the Effective Date, (a) the Buyer shall deliver to the Escrow
Agent, on behalf of each Seller, such Seller's portion of the Escrow Amount in
Escrow Cash or a certificate registered in the name of "Computershare Trust
Company, Inc. as Escrow Agent for the ViaSat/U.S. Monolithics Escrow dated
January 4, 2002" representing such Seller's Escrow Shares, as set forth in
Schedule I. The Escrow Amount, together with any cash, interest, securities or
other property issued in respect thereof (including, without limitation, any
capital stock issued pursuant to any stock dividend, stock split, reverse stock
split, combination or reclassification of any kind) shall become part of, and is
hereinafter referred to collectively as, the "Escrow Fund."
The Escrow Agent shall maintain an escrow account for each Seller
showing the number of Escrow Shares or the amount of Escrow Cash held by the
Escrow Agent for that Seller (the "Escrow Account"). Escrow Account statements
shall be mailed to the Seller Representatives
following any distribution of the Escrow Fund in accordance with Section 2 of
this Escrow Agreement.
The Escrow Fund shall be held as a trust fund and shall not be subject
to any lien, attachment, trustee process or any other judicial process of any
creditor of any party hereto. The Escrow Agent shall accept delivery of the
Escrow Fund and hold and dispose of the Escrow Fund in escrow (the "Escrow"),
subject to the terms and conditions of this Escrow Agreement. Subject to the
requirements hereof, the Escrow shall be in existence immediately upon execution
of this Escrow Agreement and shall terminate at 5:00 p.m. Pacific Time on the
date the entire Escrow Fund has been completely disbursed in accordance with the
terms of this Escrow Agreement (the "Termination Date").
1.2 The Escrow Agent shall invest and reinvest the Escrow Cash or any
other cash portion of the Escrow Fund (including, without limitation, any cash
dividends on the Escrow Shares) at the direction of the Seller Representatives
and the risk of the Sellers during the term of the Escrow. Upon written
instructions signed by the Seller Representatives, the Escrow Agent shall invest
and reinvest the Escrow Fund in one or more of the following investments (the
"Obligations") from time to time:
(a) Direct obligations of, or obligations the principal of and interest
on which are unconditionally guaranteed by, the United States of America;
(b) Buyer Common Stock; or
(c) A money market fund that invests solely in the securities set forth
in Section 1.2(a) or repurchase agreements fully collateralized by the
securities set forth in Section 1.2(a) (the "Money Market Fund").
No Obligation shall have a maturity that exceeds ninety (90) calendar
days from the date of purchase. Interest and other earnings on the Obligations
shall be added to and included in the definition of the Escrow Fund and shall be
added to the Escrow Account of the applicable Sellers. Any loss incurred from an
investment shall be borne by the Escrow Fund. Investment and reinvestment of the
Escrow Fund shall be made only in Obligations.
If no instructions are received by the Escrow Agent from the Seller
Representatives, the Escrow Agent shall be deemed to have received instructions
to invest the Escrow Cash and any other cash portion of the Escrow Fund in the
Money Market Fund.
1.3 The interests of the Sellers and the Buyer in the Escrow and in the
Escrow Fund shall not be assignable or transferable, other than (a) by operation
of law, (b) by the laws of descent or (c) with the prior written consent of the
Buyer (which consent shall not be unreasonably withheld), by a transfer of a
Seller to a trust for estate planning purposes (or any other similar estate
planning mechanism); provided, however, that no such assignment or transfer
shall be recognized or given effect until the Escrow Agent shall have received
written notice thereof.
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Section 2. ADMINISTRATION AND DISTRIBUTION OF THE ESCROW FUND.
2.1 If a Buyer Indemnified Party determines in good faith that there is
or has been a breach of any representation, warranty or covenant of the Sellers
under the Purchase Agreement, or any other event entitling such Buyer
Indemnified Party to indemnity under the terms of the Purchase Agreement (a
"Claim"), then the Buyer Indemnified Party shall deliver to both (a) the Seller
Representatives and (b) the Escrow Agent, a written notice of such breach or
other event (a "Claim Notice") setting forth (i) a brief description of the
circumstances supporting the Buyer Indemnified Party's belief that such breach
or other event exists or has occurred, (ii) to the extent possible, a
non-binding, preliminary, good faith estimate of the aggregate dollar amount of
all Adverse Consequences that have arisen and may arise as a result of such
breach or other event (such aggregate amount being referred to as the "Claim
Amount"), and (iii) a statement specifying whether the Claim Notice pertains to
a Section 12(a)(i) Obligation (as defined in Section 2.3(f) hereof) or a Section
12(a)(ii) Obligation (as defined in Section 2.3(f) hereof). The Escrow Agent
shall, immediately upon receipt of any Claim Notice and prior to the release of
any portion of the Escrow Fund, confirm that the Seller Representatives have
received a copy thereof.
2.2 Within fifteen (15) calendar days after receipt of a Claim Notice by
the Seller Representatives, the Seller Representatives shall deliver to the
Escrow Agent a written notice (the "Response Notice") containing: (a)
instructions to the effect that a portion of the Escrow Fund (the Currency
Exchange Value (as defined in Section 3 below) of which equals the entire Claim
Amount set forth in such Claim Notice) is to be released from the Escrow to the
Buyer Indemnified Party; or (b) instructions to the effect that a portion of the
Escrow Fund (the Currency Exchange Value of which equals a specified portion
(but not the entire amount) of the Claim Amount set forth in the Claim Notice)
is to be released from the Escrow to the Buyer Indemnified Party, together with
a statement that the remaining portion of such Claim Amount is being disputed;
or (c) a statement that the entire Claim Amount set forth in such Claim Notice
is being disputed. If no Response Notice is received by the Escrow Agent from
the Seller Representatives within fifteen (15) calendar days after receipt of a
Claim Notice by the Seller Representatives, then the Escrow Agent shall promptly
deliver to the Buyer Indemnified Party that portion of the Escrow Fund the
Currency Exchange Value of which equals the entire Claim Amount.
2.3 (a) If a Response Notice specifies that a portion of the Escrow Fund
(the Currency Exchange Value of which equals the entire Claim Amount set forth
in a Claim Notice) is to be released from the Escrow to the Buyer Indemnified
Party, then the Escrow Agent shall, promptly following receipt of the Response
Notice, transfer, deliver and assign to the Buyer Indemnified Party, from the
Escrow, that portion of the Escrow Fund the Currency Exchange Value of which
equals the entire Claim Amount.
(b) If a Response Notice delivered by the Seller Representatives in
response to a Claim Notice contains instructions to the effect that a portion of
the Escrow Fund (the Currency Exchange Value of which equals a specified portion
(but not the entire amount) of the Claim
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Amount set forth in such Claim Notice) is to be released to the Buyer
Indemnified Party (the "Undisputed Amount"), then the Escrow Agent shall,
promptly following receipt of the Response Notice, transfer, deliver and assign
to the Buyer Indemnified Party, from the Escrow, the Undisputed Amount.
(c) If a Response Notice delivered by the Seller Representatives in
response to a Claim Notice contains a statement that all or a portion of the
Claim Amount set forth in such Claim Notice is being disputed (such Claim Amount
or the disputed portion thereof being referred to as the "Disputed Amount"),
then the Seller Representatives and the Buyer Indemnified Party shall, for a
period of fifteen (15) calendar days, attempt in good faith to resolve the
rights of the respective parties with respect to such Disputed Amount. If the
Seller Representatives and the Buyer Indemnified Party should so resolve their
rights with respect to the Disputed Amount, they shall enter into a settlement
agreement specifying their rights to the Disputed Amount.
(d) If within the fifteen (15) calendar day period, the Seller
Representatives and the Buyer Indemnified Party do not resolve their rights with
respect to the Disputed Amount, then the indemnification claim or claims
described in the Claim Notice giving rise to the Disputed Amount shall be
resolved by arbitration in accordance with Section 12(r) of the Purchase
Agreement.
(e) Notwithstanding anything herein to the contrary, the Escrow Agent
shall hold in Escrow the portion of the Escrow Fund the Currency Exchange Value
of which equals the Disputed Amount (the "Disputed Escrow Fund"), and shall
continue to hold the Disputed Escrow Fund in Escrow until such time as (i) the
notice setting forth the Seller Representatives' and the Buyer Indemnified
Party's settlement agreement with respect to the Disputed Amount and a joint
instruction letter executed by the Seller Representatives and the Buyer
Indemnified Party regarding the release of the Disputed Escrow Fund in
accordance with such settlement agreement shall have been delivered to the
Escrow Agent or (ii) a copy of any final judgment resulting from resolution of
the dispute by arbitration in accordance with Section 12(r) of the Purchase
Agreement (the "Arbitration Award") shall have been delivered to the Escrow
Agent. Upon receipt of a copy of the Arbitration Award, the Escrow Agent shall
promptly transfer, deliver and assign to the Buyer Indemnified Party from the
Escrow the portion of the Escrow Fund the Currency Exchange Value of which
equals the amount specified in the Arbitration Award (or if the Currency
Exchange Value of the Escrow Fund is less that the amount specified in the
Arbitration Award, the entire Escrow Fund).
(f) All distributions of the Escrow Fund that are released pursuant to
Section 2 of this Escrow Agreement shall include both the specified Escrow
Amount and any cash, securities or other property issued in respect thereof;
provided, however, that any such cash, securities or other property shall not be
taken into account in determining the Currency Exchange Value of the
distributions. Likewise, any portion of the Escrow Amount required to be held in
the Escrow pursuant to Section 2 hereof (including, without limitation, in
connection with any Unresolved Claims (as defined below)) shall be so held
together with any cash, securities or other property issued in respect thereof.
All distributions of the Escrow Fund that are released pursuant to
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Section 2 hereof with respect to a Section 12(a)(ii) Obligation shall be against
the Sellers' Escrow Accounts on a pro rata basis, based upon the percentage set
forth on Schedule I under the column entitled "Pro Rata Percentage." All
distributions of the Escrow Fund that are released pursuant to Section 2 hereof
with respect to a Section 12(a)(i) Obligation shall be solely against the Escrow
Account of the Seller that has such Section 12(a)(i) Obligation. For purposes of
this Agreement, a "Section 12(a)(i) Obligation" means a several obligation of a
Seller identified in Section 12(a)(i) of the Purchase Agreement; and a "Section
12(a)(ii) Obligation" means a joint and several obligation of the Sellers
identified in Section 12(a)(ii) of the Purchase Agreement.
(g) The procedures set forth in this Section 2.3 shall apply to each
Claim Notice that is delivered by a Buyer Indemnified Party to the Escrow Agent
and the Seller Representatives. No Claim Notice may be delivered after the third
anniversary of the Effective Date (the "Three Year Anniversary").
2.4 The Escrow Agent shall distribute the Escrow Fund in accordance with
the following provisions:
(a) The Escrow Agent shall distribute the Escrow Fund in respect of a
Claim Notice at such time and in such manner as is set forth in any written
agreement or written instructions signed by a Buyer Indemnified Party and the
Seller Representatives and delivered to the Escrow Agent, or any Arbitration
Award delivered to the Escrow Agent, pursuant to Section 2.3 of this Escrow
Agreement.
(b) (i) The Escrow Fund shall be divided into three equal installments,
with the first and second installments being referred to in this Section 2.4 as
the "First Year Amount" and the "Second Year Amount," respectively. For purposes
of this Section 2.4, in determining the aggregate Disputed Escrow Fund on the
One Year Anniversary (as defined below), the Two Year Anniversary (as defined
below) and the Three Year Anniversary, the Escrow Agent shall include in the
aggregate Disputed Escrow Fund the Claim Amount of all Unresolved Claims
outstanding regardless of whether the Seller Representatives have had the
opportunity to provide a Response Notice to the applicable Claim Notice. Any
distributions of the Escrow Fund to the Buyer Indemnified Parties pursuant to
this Section 2 shall be applied in the following order: (A) first, against the
First Year Amount; (B) then against the Second Year Amount; and (C) finally
against the remaining installment of the Escrow Fund.
(ii) If there are no unresolved Claims ("Unresolved Claims") outstanding
on the first anniversary of the Effective Date (the "One Year Anniversary"),
then, within five (5) business days after the One Year Anniversary, the Escrow
Agent shall distribute to each of the Sellers any remaining portion of the First
Year Amount then held in such Seller's Escrow Account.
(iii) If there are Unresolved Claims outstanding on the One Year
Anniversary, then, within five (5) business days after the One Year Anniversary,
the Escrow Agent shall distribute to each of the Sellers (by delivery of a
proper share certificate therefor or cash, as applicable) (A) any remaining
portion of the First Year Amount then held in such Seller's
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Escrow Account, less (B) any portion of the aggregate Disputed Escrow Fund for
which such Seller is responsible. Within five (5) business days after the last
Unresolved Claim that was outstanding on the One Year Anniversary is resolved
and all corresponding distributions to the Buyer Indemnified Parties have been
made by the Escrow Agent, the Escrow Agent shall distribute to each of the
Sellers (by delivery of a proper share certificate therefor or cash, as
applicable) any remaining portion of the First Year Amount then held in such
Seller's Escrow Account. Notwithstanding the foregoing, if the only Unresolved
Claims outstanding on the One Year Anniversary involve the Section 12(a)(i)
Obligation of one or more of the Sellers, but not of the others, then, within
five (5) business days of the One Year Anniversary, the Escrow Agent shall
distribute to each of the Sellers who do not have such 12(a)(i) Obligation (by
delivery of a proper share certificate therefor or cash, as applicable) any
remaining portion of the First Year Amount then held in such Seller's Escrow
Account.
(c) (i) If there are no Unresolved Claims outstanding on the second
anniversary of the Effective Date (the "Two Year Anniversary"), then, within
five (5) business days after the Two Year Anniversary, the Escrow Agent shall
distribute to each of the Sellers (by delivery of a proper share certificate
therefor or cash, as applicable) any remaining portion of the Second Year Amount
then held in such Seller's Escrow Account.
(ii) If there are Unresolved Claims outstanding on the Two Year
Anniversary, then, within five (5) business days of the Two Year Anniversary,
the Escrow Agent shall distribute to each of the Sellers (by delivery of a
proper share certificate therefor or cash, as applicable) (A) any remaining
portion of the Second Year Amount then held in such Seller's Escrow Account,
less (B) any portion of the aggregate Disputed Escrow Fund for which such Seller
is responsible (to the extent not already withheld in accordance with Section
2.4(b)(iii) hereof). Within five (5) business days after the last Unresolved
Claim that was outstanding on the Two Year Anniversary is resolved and any
corresponding distributions to the Buyer Indemnified Parties have been made by
the Escrow Agent, the Escrow Agent shall distribute to each of the Sellers (by
delivery of a proper share certificate therefor or cash, as applicable) any
remaining portion of the Second Year Amount then held in such Seller's Escrow
Account. Notwithstanding the foregoing, if the only Unresolved Claims
outstanding on the Two Year Anniversary involve the Section 12(a)(i) Obligation
of one or more of the Sellers, but not of the others, then, within five (5)
business days of the Two Year Anniversary, the Escrow Agent shall distribute to
each of the Sellers who do not have such 12(a)(i) Obligation (by delivery of a
proper share certificate therefor or cash, as applicable) any remaining portion
of the Second Year Amount then held in such Seller's Escrow Account.
(d) (i) If there are no Unresolved Claims outstanding on the Three Year
Anniversary, then, within five (5) business days after the Three Year
Anniversary, the Escrow Agent shall distribute to each of the Sellers (by
delivery of a proper share certificate therefor or cash, as applicable) any
remaining portion of the Escrow Fund then held in such Seller's Escrow Account.
(ii) If there are Unresolved Claims outstanding on the Three
Year Anniversary, then the aggregate Disputed Escrow Fund shall remain in
escrow, and subject to the foregoing,
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within five (5) business days after the Three Year Anniversary, the Escrow Agent
shall distribute to each of the Sellers (by delivery of a proper share
certificate therefor or cash, as applicable) any remaining portion of the Escrow
Fund then held in such Seller's Escrow Account. Within five (5) business days
after the last Unresolved Claim is resolved and any corresponding distributions
of the Escrow Fund to the Buyer Indemnified Parties are made by the Escrow
Agent, the Escrow Agent shall distribute to each of the Sellers (by delivery of
a proper share certificate therefor or cash, as applicable) any remaining
portion of the Escrow Fund then held in such Seller's Escrow Account.
Notwithstanding the foregoing, if the only Unresolved Claims outstanding on the
Three Year Anniversary involve the Section 12(a)(i) Obligation of one or more of
the Sellers, but not of the others, then, within five (5) business days of the
Three Year Anniversary, the Escrow Agent shall distribute to each of the Sellers
who do not have such Section 12(a)(i) Obligation (by delivery of a proper share
certificate therefor or cash, as applicable) any remaining portion of the Escrow
Fund then held in such Seller's Escrow Account.
(e) Within five business days of the consummation of a Change of Control
(as defined below), the Buyer and the Seller Representatives shall deliver a
notice to the Escrow Agent (a "Change of Control Notice") certifying as to the
Change of Control and the date on which the Change of Control occurred. Upon
receipt of the Change of Control Notice, the Escrow Agent shall promptly
distribute the Escrow Fund as if it were the Three Year Anniversary and in
accordance with Section 2.4(d) hereof.
For purposes of this Section 2.4(e), a "Change of Control" means a
transaction that results in the occurrence of any of the following events:
(i) any "person" or "group" (as such terms are used in Sections
13(d) and 14(d) of the Securities Exchange Act of 1934 (the "Exchange Act")) is
or becomes the "beneficial owner" (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act), directly or indirectly, of more than 50% of the total outstanding
voting securities of the Buyer and, as a result of such transaction, Xxxx
Xxxxxxxx no longer serves as an executive officer of the Buyer;
(ii) any person consolidates with or merges with or into the
Buyer or a subsidiary of the Buyer and such consolidation or merger results in
the holders of the outstanding voting securities of the Buyer immediately prior
to such transaction holding less than a majority of the voting securities of the
Buyer or the surviving entity immediately thereafter and, as a result of such
transaction, Xxxx Xxxxxxxx no longer serves as an executive officer of such
entity; or
(iii) The Buyer and its Affiliates have failed for a period of
ninety (90) days to continue the operations of the Target in substantially the
same manner as such operations were being conducted on the Effective Date.
(f) The Escrow Agent shall distribute the Escrow in any other manner as
is set forth in any written agreement or written instructions signed by the
Buyer and the Seller Representatives.
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(g) No fractional shares of Buyer Common Stock shall be issued. In
determining the number of shares of Buyer Common Stock to be released in
connection with any distribution from a Seller's Escrow Account, the Escrow
Agent shall round down to the nearest whole share of Buyer Common Stock.
Section 3. VALUATION. For purposes of this Escrow Agreement, the
"Currency Exchange Value" with respect to any portion of the Escrow Fund means
the cash value of the applicable portion of the Escrow Cash (or any other cash)
and the value of the applicable portion of the Escrow Shares. For these
purposes, the value of each Escrow Share shall be $17.00, subject to adjustment
for any stock dividend, stock split, reverse stock split, combination or
reclassification of any kind occurring after the date hereof in respect of the
Buyer Common Stock.
Section 4. SELLER RIGHTS.
4.1 Except as expressly provided otherwise herein, each Seller shall at
all times retain and have the full and absolute right to exercise all rights and
indicia of ownership with respect to the Escrow Shares owned by such Seller, if
any, including, without limitation, voting and consensual rights; provided,
however, that, except as provided otherwise in Section 1.3 hereof, the Sellers
shall have no right to transfer, pledge or encumber or otherwise dispose in any
manner whatsoever any Escrow Shares that are held in the Escrow. In accordance
with Section 1.1, all dividends or distributions or proceeds in stock or other
property issued in respect of the Escrow Shares shall be deposited into the
Escrow and become part of the Escrow Fund. If any such shares of Buyer Common
Stock are transferred to a Buyer Indemnified Party pursuant to Section 2 above,
all rights and indicia of ownership with respect to such shares shall thereupon
reside with such Buyer Indemnified Party or any subsequent holder thereof.
4.2 Except as expressly provided otherwise herein, the Escrow Agent
shall be under no duty to preserve, protect or exercise rights in the Buyer
Common Stock, and shall be responsible only for reasonable measures to maintain
the physical safekeeping thereof, and otherwise to perform such duties on its
part as are expressly set forth in this Escrow Agreement, except that it will,
at the written request of the Seller Representatives given to the Escrow Agent
at least five (5) business days prior to the date on which the Escrow Agent is
requested therein to take any action, deliver to the Seller Representatives a
proxy or other instrument in the form supplied to it by the Seller
Representatives for voting or otherwise exercising any right of consent with
respect to any of the Buyer Common Stock held by it hereunder. The Escrow Agent
will not be responsible for authenticating the right of the Seller
Representatives to exercise voting or consent-giving authority in respect of
shares of Buyer Common Stock held by the Escrow Agent hereunder. The Escrow
Agent shall, upon receiving instructions from the Seller Representatives, be
responsible for forwarding to or notifying any party or taking any other
reasonable action with respect to any notice, solicitation or other document or
information, written or oral, received from an issuer or other person with
respect to the Buyer Common Stock held by the Escrow Agent hereunder, including,
without limitation, any proxy or tender offer material. In addition, the Buyer
shall furnish directly to the Seller Representatives all notices, reports and
other documents that it furnishes to its stockholders, at the same time that it
furnishes such notices, reports and documents to such stockholders.
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Section 5. FEES AND EXPENSES.
5.1 On the Effective Date, upon deposit of the Escrow Amount, the
initial fee set forth in Exhibit A hereto shall be payable to the Escrow Agent,
all of which shall be paid by the Buyer. The Escrow Agent shall also be entitled
to its other customary fees and expenses, as set forth in Exhibit A, for
services to be rendered by the Escrow Agent, all of which shall be paid by the
Buyer.
5.2 The Escrow Agent shall be entitled to reimbursement for
extraordinary expenses (including reasonable attorneys' fees and expenses)
incurred in performance of its duties hereunder. Each of (a) the Buyer and (b)
the Sellers shall be liable for one-half (1/2) of all such amounts and the Buyer
shall be entitled to reimbursement from the Escrow Fund of the Sellers' share of
any such fees and expenses, if such share is paid by the Buyer. The Escrow Agent
shall send all bills under this Section 5.2 to both the Buyer and the Seller
Representatives.
Section 6. DUTIES OF ESCROW AGENT; LIMITATION OF ESCROW AGENT'S
LIABILITY.
6.1 The sole duty of the Escrow Agent, other than as herein specified,
shall be to receive and hold the Escrow Fund, subject to distribution in
accordance with this Escrow Agreement. The Escrow Agent shall not be liable for
losses due to acts of God, war, loss of electrical power or the failure of
communication devices.
6.2 The Escrow Agent shall incur no liability whatsoever with respect to
any action taken or suffered by it in reliance upon any notice, direction,
instruction, consent, statement or other document that is executed by an
authorized officer of the Buyer or by the Seller Representatives, or both, as
the case may be, and believed in good faith by the Escrow Agent to be genuine
and duly authorized, nor for other action or inaction except for its own gross
negligence or willful misconduct. The Escrow Agent shall not be responsible for
the validity or sufficiency of this Escrow Agreement. In all questions arising
under this Escrow Agreement, the Escrow Agent may rely on the advice of counsel,
and for anything done, omitted or suffered in good faith by the Escrow Agent
based on such advice, the Escrow Agent shall not be liable to anyone. The Escrow
Agent shall not be required to take any action hereunder involving any expense
unless the payment of such expense is made or provided for in a manner
reasonably satisfactory to it.
6.3 The Buyer and the Sellers, jointly and severally, shall indemnify
the Escrow Agent for, and hold it harmless against, any loss, liability or
expense incurred without gross negligence or willful misconduct on the part of
the Escrow Agent, arising out of or in connection with its carrying out its
duties hereunder. As among themselves, each of (a) the Buyer and (b) the Sellers
shall be liable for one-half (1/2) of such amounts and the Buyer shall be
entitled to reimbursement from the Escrow Fund of the Sellers' share of any such
loss, liability or expense, if such share is paid by the Buyer. The foregoing
indemnities shall survive the resignation or replacement of the Escrow Agent or
the termination of this Agreement.
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Section 7. GENERAL.
7.1 Nothing in this Escrow Agreement is intended to limit any of the
Buyer's rights, or any obligation of the Buyer or any Seller, under the Purchase
Agreement or under any other agreement contemplated thereby.
7.2 All notices, requests, demands, claims, and other communications
hereunder shall be in writing. Any notice, request, demand, claim, or other
communication hereunder shall be deemed duly given three business days after it
is sent by registered or certified mail, return receipt requested, postage
prepaid, and addressed to the intended recipient as set forth below:
If to the Seller Representatives:
Xxxx X. Xxxx
0000 Xxxx 00xx Xxxxxx
Xxxx, XX 00000
Fax No.: 000-000-0000
Xxxxx X. Xxxxxx
000 Xxxxx Xxxxx Xxx Xxxxxx
Xxxxxxx, XX 00000
Fax No.: 000-000-0000
Xxxxxxx X. Xxxxxxxxxx
0000 Xxxx Xxxxx Xxxxxx
Xxxx, XX 00000
Fax No.: 000-000-0000
Copy to:
Xxxxx & Xxxxxx
Xxx Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx Xxxxx, Esq.
If to the Buyer:
ViaSat, Inc.
0000 Xx Xxxxxx Xxxx
Xxxxxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
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Copy to:
Xxxxxx & Xxxxxxx
00000 Xxxx Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000-0000
Fax No.: (000) 000-0000
Attn: Xxxxx X. Xxxxxx, Esq.
If to the Escrow Agent:
Computershare Trust Co., Inc.
00000 X. Xxxxxxx Xxxxxxx, Xxxxx X-0
Xxxxxxxx, XX 00000
Fax No.: (000) 000-0000
Attn: Corporate Trust
Any party may send any notice, request, demand, claim, or other
communication hereunder to the intended recipient at the address set forth above
using any other means (including personal delivery, expedited courier, messenger
service, fax, telex or ordinary mail). Each such notice, request, demand, claim,
or other communication shall be deemed to have been duly given (i) if by fax,
when such fax has been transmitted to the fax number set forth in this Section
7.2 and evidence of receipt is received or (ii) if given by any other means,
upon delivery or refusal of delivery at the address set forth in this Section
7.2. Any party may change the address to which notices, requests, demands,
claims, and other communications hereunder are to be delivered by giving the
other parties notice in the manner herein set forth.
A copy of any notice or communication from or to the Escrow Agent, the
Seller Representatives or the Buyer shall be contemporaneously given to all
other parties.
7.3 This Escrow Agreement may be executed in two or more counterparts,
each of which shall be deemed an original, and all of which together shall
constitute one and the same instrument.
7.4 The headings contained in this Escrow Agreement are for convenience
of reference only, shall not be deemed to be a part of this Escrow Agreement and
shall not be referred to in connection with the construction or interpretation
of this Escrow Agreement.
7.5 This Agreement shall be governed by and construed in accordance with
the domestic laws of the State of California without giving effect to any choice
or conflict of law provision or rule (whether of the State of California or any
other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of California.
7.6 (a) This Escrow Agreement shall be binding upon: the Seller
Representatives, the Sellers and their respective estates, successors and
assigns (if any); and the Buyer and its successors and assigns (if any). This
Escrow Agreement shall inure to the benefit of the Seller
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Representatives; the Sellers; the Buyer; the Buyer Indemnified Parties; and the
respective successors and assigns (if any) of the foregoing.
(b) The Buyer may freely assign any or all of its rights under this
Escrow Agreement, in whole or in part, to any other person to whom the benefit
of the Sellers' indemnification and other obligations have been assigned without
obtaining the consent or approval of any other party hereto or of any other
person, provided that any such assignee shall agree in writing to be bound by
the terms hereof. The Escrow Agent may not delegate its obligations under this
Escrow Agreement to any other person without the prior written consent of the
Buyer and the Seller Representatives.
7.7 Any term or provision of this Escrow Agreement may be amended, and
the observance of any term of this Escrow Agreement may be waived (either
generally or in a particular instance and either retroactively or prospectively)
only by a writing signed by the party to be bound thereby. Notwithstanding any
rights that may be created in any third party under the terms of this Escrow
Agreement, no such amendment or waiver will require the consent of such third
party to be effective. The waiver by a party of any breach hereof or default in
the performance hereof will not be deemed to constitute a waiver of any other
default or any succeeding breach or default. No failure on the part of any party
to exercise any power, right, privilege or remedy under this Escrow Agreement,
and no delay on the part of any party in exercising any power, right, privilege
or remedy under this Escrow Agreement shall operate as a waiver of such power,
right, privilege or remedy; and no single or partial exercise of any such power,
right, privilege or remedy shall preclude any other or further exercise thereof
or of any other power, right, privilege or remedy.
7.8 In the event that any provision of this Escrow Agreement, or the
application of any such provision to any person or set of circumstances, shall
be determined to be invalid, unlawful, void or unenforceable to any extent, the
remainder of this Escrow Agreement, and the application of such provision to
persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
7.9 This Escrow Agreement and the Purchase Agreement set forth the
entire understanding of the parties relating to the subject matter hereof and
thereof and supersede all prior agreements and understandings among or between
any of the parties relating to the subject matter hereof and thereof.
7.10 Each party shall cooperate fully with the other parties and execute
such further instruments, documents and agreements and give such further written
assurances as may be reasonably requested by any other party to evidence and
reflect the transactions described herein and contemplated hereby and to carry
into effect the intents and purposes of this Escrow Agreement.
7.11 Subject to Section 7.6 of this Escrow Agreement, no provisions of
this Escrow Agreement are intended, nor will be interpreted, to provide or
create any third party beneficiary
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rights or any other rights of any kind in any client, customer, affiliate,
stockholder, partner or any party hereto or any other person or entity unless
specifically provided otherwise herein, and, except as so provided, all
provisions hereof will be personal solely between the parties to this Escrow
Agreement.
7.12 The Escrow Agent may resign at any time by giving thirty (30) days'
advance written notice thereof to the other parties hereto, but such resignation
shall not become effective until a successor escrow agent shall have been
appointed and shall have accepted such appointment in writing. Within such
thirty (30)-day period, the Buyer shall appoint a successor escrow agent in
accordance with this Section 7.12 subject to the consent of the Seller
Representatives, which consent shall not be unreasonably withheld or delayed. If
an instrument of acceptance by a successor escrow agent shall not have been
delivered to the Escrow Agent within such thirty (30)-day period, the resigning
Escrow Agent may at the expense of the Buyer and the Sellers, jointly and
severally, petition any court of competent jurisdiction for the appointment of a
successor escrow agent. In addition, the Buyer may substitute a successor escrow
agent for the Escrow Agent subject to the consent of the Seller Representatives,
which consent shall not be unreasonably withheld or delayed.
7.13 This Agreement shall terminate on the Termination Date.
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IN WITNESS WHEREOF, the parties hereto have caused this Escrow Agreement
to be duly executed and delivered as of the date first above written.
VIASAT, INC.
By: /s/ XXXXXXX X. XXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President-Administration,
General Counsel, Secretary
SELLER REPRESENTATIVE
By: /s/ XXXX X. XXXX
---------------------------------
Name: Xxxx X. Xxxx
SELLER REPRESENTATIVE
By: /s/ XXXXX X. XXXXXX
---------------------------------
Name: Xxxxx X. Xxxxxx
SELLER REPRESENTATIVE
By: /s/ XXXXXXX X. XXXXXXXXXX
---------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
COMPUTERSHARE TRUST COMPANY, INC.
By: /s/ XXXX X. XXXX
---------------------------------
Name: Xxxx X. Xxxx
Title: Trust Officer
By: /s/ XXXXXX XXXXX
---------------------------------
Name: Xxxxxx Xxxx
Title: Vice President
