EXHIBIT 2.2
ESCROW AND INDEMNITY AGREEMENT
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THIS ESCROW AND INDEMNITY AGREEMENT (this "Agreement") is made and entered
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into as of May 26, 2000, by and among AvantGo, Inc., a Delaware corporation
("AvantGo"), the stockholders listed on Exhibit A hereto (collectively the
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"Stockholders") and Chase Manhattan Bank and Trust Company, N.A., as escrow
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agent (the "Escrow Agent").
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RECITALS
A. Pursuant to the provisions of that certain Agreement and Plan of
Merger dated as of the date hereof (the "Merger Agreement"), by and among
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AvantGo, GC Acquisition, Inc., an Illinois corporation and wholly owned
subsidiary of AvantGo ("AvantGo Sub"), Globalware Computing, Inc., an Illinois
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corporation (the "Company") and the Stockholders, the parties to the Merger
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Agreement intend to effect the merger of AvantGo Sub with and into the Company,
with the Company surviving (the "Merger"). Capitalized terms used herein and
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not otherwise defined herein shall have the meanings ascribed to them in the
Merger Agreement.
B. Under the terms of the Merger Agreement, a portion of the shares (the
"Escrow Shares") of AvantGo Stock to be issued in the Merger in exchange for
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shares of the Company's capital stock are to be subject to an escrow account
with the Escrow Agent. Such Escrow Shares will remain subject to any
indemnification claims AvantGo may have under this Agreement and Article VI of
the Merger Agreement, until released by the Escrow Agent pursuant to the terms
hereof.
C. The Merger Agreement provides that the Escrow Agent shall hold and
administer the Escrow Shares so deposited in accordance with the terms of this
Agreement.
D. The Escrow Agent is willing to hold, administer and distribute the
Escrow Shares in accordance with the terms of this Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
representations, warranties and covenants herein contained, and for other good
and valuable consideration the receipt and sufficiency of which is hereby
acknowledged, the parties hereto intending to be forever bound by the terms set
forth herein, do hereby agree as follows:
Article I
ESCROW FUND AND INDEMNITY
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1.1 Delivery of Shares. The Escrow Agent hereby acknowledges the receipt
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of 211,373 shares of AvantGo Stock (the "Total Escrow Shares") from or on behalf
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of the Stockholders, which shares, consisting of 50% Restricted Shares (as
defined in the Employment Agreements entered into between the Stockholders and
AvantGo as of the date hereof) and 50% non-Restricted Shares, shall constitute
the Escrow Shares. The Escrow Shares shall be
considered to have been deposited herein by the Stockholders and such shares of
AvantGo Stock and all other securities or other property issued on conversion
thereof or in exchange therefor, including all dividends and distributions made
thereon and all interest earned thereon, are hereinafter called the "Escrow
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Fund."
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1.2 Consent of Stockholders. By virtue of the approval by the
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Stockholders of the Merger Agreement and the Merger, each of the Stockholders
have, without any further act of any Stockholder, consented to: (a) the
establishment of the Escrow Fund to secure the indemnification obligations of
the Stockholders under Article VI of the Merger Agreement in the manner set
forth therein, (b) the decision of the Stockholders' Representative (as defined
in Section 4.1 hereof) being binding on each Stockholder with respect to the
subject matter hereof, and for the purpose of taking of any and all actions and
the making of any decisions required or permitted to be taken or made by them
under this Agreement, and (c) all of the other terms, conditions and limitations
set forth in this Agreement.
1.3 Voting of Proxy. The Escrow Agent shall at all times vote the proxy
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on the Escrow Shares as directed by the Stockholders' Representative.
1.4 Cash Dividends. The Escrow Agent shall deliver cash dividends paid on
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the Escrow Shares, if any, to the Stockholders, based on their Proportionate
Interests. The Escrow Agent shall deliver such dividends to the Stockholders'
addresses listed on Exhibit A, or at such other address provided to the Escrow
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Agent pursuant to the terms of Section 5.2 herein.
Article II
COLLATERAL SECURITY, DISBURSEMENT OF COLLATERAL;
RELEASE OF ESCROW
2.1 Collateral Security. The Stockholders have agreed in Article VI of
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the Merger Agreement to indemnify and hold harmless the AvantGo Indemnitees from
and against specified losses. The Escrow Fund shall be security for this
indemnity obligation of the Stockholders, subject to the limitations, and in the
manner provided, in this Agreement and the Merger Agreement.
2.2 AvantGo Indemnitees' Claims.
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(a) At any time (or from time to time), an AvantGo Indemnitee may give
written notice (a "Claim Notice") to the Stockholders and the Escrow Agent that
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such AvantGo Indemnitee claims all or any part of the Escrow Fund (each a
"Claim") in satisfaction of any Damages suffered by such AvantGo Indemnitee,
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prior to the second anniversary of the date hereof (the "Second Anniversary"),
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for which the Stockholders are obligated to indemnify an AvantGo Indemnitee
pursuant to Article VI of the Merger Agreement. The Claim Notice shall set
forth in reasonable detail (i) a statement that AvantGo has paid or incurred or
reasonably anticipates (by reason of receipt of notice from a third party
regarding a potential claim) that it will incur Damages relating to Claims that
arose prior to the expiration of the Survival Period and, in the case where
AvantGo has paid or incurred Damages, any evidence reflecting the
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payment or incurrence of such Damages; (ii) a description of any evidence
supporting the item or items of Damages giving rise to the Claim and the date
each such Damage was paid or incurred, or the basis for such anticipated
liability prior to the expiration of the Survival Period; (iii) if applicable,
the nature of the misrepresentation, breach of warranty or covenant in the
Merger Agreement or Ancillary Document or AvantGo Ancillary Document to which
such item or items are related; (iv) the amount of the Claim (hereinafter
referred to as the "Claim Amount"); and (v) whether or not AvantGo is claiming
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that any of the Stockholders had actual knowledge of the factual basis giving
rise to the Claim to which the Claim Notice relates.
(b) Upon receipt of a Claim Notice, the Stockholders' Representative
shall thirty (30) days to dispute the Claim by delivering written notice to
AvantGo and the Escrow Agent specifying in reasonable detail the basis for the
dispute (a "Dispute Notice").
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(c) If (i) the Stockholders' Representative approves all or a part of
the Claim Amount and the determination as to whether or not any of the
Stockholders had actual knowledge of the factual basis giving rise to the Claim,
or (ii) upon the expiration of the thirty (30) day period referred to in Section
2.2(b), a Dispute Notice has not been delivered to the Escrow Agent, the Escrow
Agent shall release to AvantGo that number of Escrow Shares equal to a quotient,
(x) the numerator of which shall equal the Claim Amount (or such part thereof
which is approved by the Stockholders' Representative and not disputed) and (y)
the denominator of which shall equal the Common Price Per Share (as defined in
Section 2.2(f)). The Escrow Agent shall give written notice to AvantGo and the
Stockholders' Representative of the number of Escrow Shares released to AvantGo.
The Escrow Agent shall deliver to AvantGo the Escrow Shares so released.
(d) If, within the thirty (30) day period referred to in Section 2.2(b),
the Stockholders' Representative shall, in good faith, deliver a Dispute Notice
to AvantGo and the Escrow Agent, AvantGo and the Stockholders' Representative
shall undertake to obtain as promptly as possible a final resolution of such
Claim. If AvantGo and the Stockholders' Representative are unable to resolve a
dispute within thirty (30) days after the delivery to AvantGo and the Escrow
Agent of a Dispute Notice, then AvantGo and the Stockholders' Representative
shall jointly submit their dispute to J.A.M.S. Endispute (the "Arbitrator") in
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New York, New York (or another neutral jurisdiction mutually agreeable to
AvantGo and the Stockholders' Representative) for resolution. If the Arbitrator
is unwilling to act as arbitrator for such dispute, a substitute arbitrator (the
"Substitute") shall be selected as follows: AvantGo shall select an appointing
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arbitrator and the Stockholders' Representative shall select an appointing
arbitrator, and the two appointing arbitrators so selected shall mutually
appoint the Substitute who shall be a nationally recognized arbitration
association not acting for AvantGo or any of the Stockholders; provided,
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however, that if either party fails to select an appointing arbitrator within
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thirty (30) days after the expiration of the second thirty (30) day period
referred to in this Section 2.2(d), the appointing arbitrator selected by the
other party shall serve as the Substitute if such arbitrator is a nationally
recognized arbitration association; otherwise, such arbitrator shall select the
Substitute. The Arbitrator's or Substitute's determination, as the case may be,
as to a dispute shall be final and binding on the parties hereto. AvantGo shall
pay the fees and expenses of the Arbitrator.
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(e) Upon the delivery of any of the following to the Escrow Agent, the
Escrow Agent shall promptly release to AvantGo from the Escrow Fund that number
of shares of AvantGo Stock equal to the following (valuing each share of AvantGo
Stock at the Common Price Per Share):
(i) a joint direction executed by AvantGo and the Stockholders'
Representative directing the Escrow Agent to pay a specified number of shares of
AvantGo Stock to AvantGo; or
(ii) a direction letter executed by the Arbitrator or the
Substitute, as the case may be, directing the Escrow Agent to pay a specified
number of shares of AvantGo Stock to AvantGo.
(f) For purposes of this Agreement, the term "Common Price Per Share"
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shall mean: (i) with respect to any Claim, if it is conceded or uncontested by
the Stockholders' Representative, or if it is determined by the Arbitrator or
the Substitute (after taking into account all relevant facts and circumstances),
that any Stockholder, on or prior to the Closing Date, had actual knowledge of
the factual basis giving rise to such Claim, the Common Price Per Share shall
equal $8.36; and (ii) with respect to any Claim, if it is conceded or unalleged
in the Claim Notice by AvantGo, or if it is determined by the Arbitrator or the
Substitute (after taking into account all relevant facts and circumstances),
that none of the Stockholders, on or prior to the Closing Date, had actual
knowledge of the factual basis giving rise to such Claim, the Common Price Per
Share shall be determined as follows: (A) if the AvantGo Stock is traded on a
national securities exchange or quoted in a national inter-dealer quotation
system, (I) the Common Price Per Share shall be an amount equal to the Primary
Rolling Average (as defined below); provided, however, that if the spread
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between the Primary Rolling Average and the Secondary Rolling Average (as
defined below) exceeds 20% of the Primary Rolling Average, then the Common Price
Per Share shall equal the average of the Primary Rolling Average and the
Secondary Rolling Average; or (II) if the AvantGo Stock has not been publicly
traded for 20 trading days, the Common Price Per Share shall be an amount equal
to the Interim Rolling Average; provided, however, that if the spread between
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the Interim Rolling Average and the Secondary Rolling Average exceeds 20% of the
Interim Rolling Average, then the Common Price Per Share shall equal the average
of the Interim Rolling Average and the Secondary Rolling Average; or (B) if the
AvantGo Stock is not then traded on a national securities exchange or quoted in
a national inter-dealer quotation system, the Common Price Per Share shall be an
amount equal to the average of the fair market value of one share of AvantGo
Stock on the date of the Claim Notice and the fair market value of one share of
AvantGo Stock on the date on which the Escrow Agent received a direction
pursuant to Section 2.2(e) herein, both as reasonably determined in good faith
by AvantGo's Board of Directors. With respect to a particular Claim, (x) the
"Primary Rolling Average" shall mean the average of the Quoted Prices for the
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AvantGo Stock for the 20 consecutive trading days commencing 22 trading days
before the date of the Claim Notice; (y) the "Secondary Rolling Average" shall
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mean the average of the Quoted Prices for the AvantGo Stock for the 20
consecutive trading days commencing 22 trading days before the date on which the
Escrow Agent receives a direction pursuant to Section 2.2(e) herein; and (z) the
"Interim Rolling Average" shall mean the average of the Quoted Prices for each
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of the trading days ending two trading days before the date of the Claim Notice.
The "Quoted Price" of the AvantGo Stock
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for each day is the last reported sales price of the Common Stock on such day as
reported by NASDAQ, or, if the AvantGo Stock is listed on a securities exchange,
the last reported sales price of the AvantGo Stock on such exchange (which shall
be for consolidated trading if applicable to such exchange) on such day, or if
neither is so reported or listed, the average of the last reported bid and asked
prices of the AvantGo Stock on such day.
2.3 Release and Transfer of Escrow Fund.
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(a) On the first anniversary of the date hereof, the Escrow Agent is
hereby authorized and directed to release to the Stockholders according to their
Proportionate Interest (as defined herein) all shares of AvantGo Stock remaining
in the Escrow Fund after the satisfaction of AvantGo's Claims pursuant to
Section 2.1 hereof less the aggregate of: (i) that portion of the Escrow Fund as
shall be required to satisfy the sum of all Claims made in good faith then
pending, whether or not payment of such Claims is being disputed by the
Stockholders' Representative; (ii) that portion of any unpaid reimbursement
expenses payable to AvantGo pursuant to Section 5.1 hereof; and (iii) 50% of the
Total Escrow Shares. For purposes of this Agreement, the "Proportionate
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Interest" of each Stockholder shall be as set forth on Exhibit A.
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(b) On the Second Anniversary, the Escrow Agent is hereby authorized and
directed to release to the Stockholders according to their Proportionate
Interest (as defined herein) all shares of AvantGo Stock remaining in the Escrow
Fund after the satisfaction of AvantGo's Claims pursuant to Section 2.1 hereof
less the aggregate of: (i) that portion of the Escrow Fund as shall be required
to satisfy the sum of all Claims made in good faith then pending, whether or not
payment of such Claims is being disputed by the Stockholders' Representative;
and (ii) that portion of any unpaid reimbursement expenses payable to AvantGo
pursuant to Section 5.1 hereof.
(c) The Escrow Agent shall release to the Stockholders according to
their Proportionate Interests that portion of the Escrow Fund which was withheld
by the Escrow Agent pursuant to Sections 2.3(a)(i) and (ii), and 2.3(b) promptly
upon the delivery to the Escrow Agent of (i) a joint written direction to that
effect from AvantGo and the Stockholders' Representative or (ii) a letter
executed by the Arbitrator with respect to the final determination of any
pending Claim.
(d) After the Second Anniversary and promptly upon final resolution and
payment of all Claims outstanding as provided in Section 2.2 hereof, the balance
of the Escrow Fund then remaining, if any, shall be released to the Stockholders
according to their Proportionate Interests. Notwithstanding anything to the
contrary in this Agreement, all portions of the Escrow Fund that, upon the
Second Anniversary, are being withheld for a pending Claim that (i) is based
solely on AvantGo's receipt of written notice from a third party regarding a
potential suit, shall be released to the Stockholders in accordance with their
Proportionate Interests if, within three months after the Second Anniversary,
such third party has not yet filed a lawsuit against AvantGo; or (ii) is
otherwise based solely on AvantGo's reasonable anticipation that it will incur
damages relating to Claims that arose prior to the expiration of the Survival
Period, shall, if no written notice from a third party regarding a potential
suit is received by AvantGo on or prior to the Second
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Anniversary, be released to the Stockholders in accordance with their
Proportionate Interests on the Second Anniversary.
2.4 Restricted Shares and Non-Restricted Shares.
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(a) For purposes of this Agreement, whenever the Escrow Agent is
authorized and directed to release any Escrow Shares from the Escrow Fund, the
Escrow Agent shall release, to the extent reasonably practicable, 50% Restricted
Shares and 50% non-Restricted Shares.
(b) Notwithstanding anything to the contrary in this Agreement, if the
Escrow Agent is authorized and directed pursuant to this Agreement to release
any Escrow Shares that are Restricted Shares that have not yet vested pursuant
to the terms of the Stockholders' Employment Agreements (the "Restricted Escrow
Shares") from the Escrow Fund to the Stockholders prior to the Second
Anniversary, the Escrow Agent shall instead deliver such Restricted Escrow
Shares (not including the dividends and distributions made thereon and all
interest earned thereon, which shall still be released to the Stockholders) to
AvantGo to be deposited in escrow with AvantGo and held by AvantGo on behalf of
the Stockholders in accordance with the provisions of Section 5(g) of each of
the Stockholder's Employment Agreements, and thereafter, such Stockholders'
shares shall be subject only to the restrictions set forth in Section 5 of each
Stockholder's Employment Agreement, and shall no longer be subject to any
restrictions in this Agreement.
Article III
ESCROW AGENT
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3.1 Compensation. All fees of the Escrow Agent, as provided on Exhibit B
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attached hereto, and all reasonable expenses, disbursements and advances
incurred or paid by the Escrow Agent (including, without limitation, reasonable
attorneys' fees) shall be paid by AvantGo.
3.2 Legal Counsel. If the Escrow Agent is joined into any litigation
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involving the Escrow Fund or this Agreement, the Escrow Agent shall have the
right to retain counsel and shall have a lien on the property deposited
hereunder for any and all reasonable costs, attorneys' and solicitors' fees,
charges, disbursements, and expenses incurred in connection with such
litigation; and shall be entitled to reimburse itself therefor out of the
property deposited hereunder, and if it shall be unable to reimburse itself from
the property deposited hereunder, AvantGo agrees to pay to the Escrow Agent, on
demand, its reasonable charges, counsel and attorneys' fees, disbursements, and
expenses in connection with such litigation.
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3.3 Resignation. The Escrow Agent reserves the right to resign at any
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time by giving written notice of resignation to AvantGo and the Stockholders'
Representative, which notice shall specify the effective date of such
resignation. Within thirty (30) days after receiving such notice, AvantGo and
the Stockholders' Representative agree to appoint a successor escrow agent to
which the Escrow Agent will distribute the property then held hereunder, less
the Escrow Agent's fees, costs and expenses. If a successor escrow agent has
not been appointed and has not accepted such appointment by the end of the
thirty (30) day period, the Escrow Agent may apply to a court of competent
jurisdiction for the appointment of a successor Escrow Agent, and the costs,
expenses and reasonable attorneys' fees which are incurred in connection with
such a proceeding shall be paid by AvantGo. The Escrow Agent shall continue to
serve as escrow agent hereunder until its successor accepts the escrow and
receives the Escrow Fund.
3.4 Liability. The Escrow Agent undertakes to perform only such duties as
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are specifically set forth herein. The Escrow Agent, if acting or refraining
from acting in good faith, shall not be liable for any mistake of fact or error
in judgment by it or for any acts or omissions by it of any kind unless caused
by its willful misconduct or gross negligence, and shall be entitled to rely
conclusively upon (i) any written notice, instrument or signature reasonably
believed by it to be genuine and to have been signed or presented by the proper
party or parties duly authorized to do so, and (ii) the advice of counsel
retained by it. AvantGo shall indemnify the Escrow Agent for any damages the
Escrow Agent incurs for its acting or refraining from acting in good faith
hereunder, which damages were not caused by its willful misconduct or gross
negligence. The Escrow Agent is not responsible for any of the terms and/or
conditions of the Merger Agreement and may rely exclusively on the directions of
the parties as set forth in this Agreement to satisfy its role as Escrow Agent.
Neither AvantGo nor the Escrow Agent shall be liable to the Stockholders for any
portion of the Escrow Fund properly distributed to the Stockholders pursuant to
the terms of this Agreement. In no event shall the Escrow Agent be liable for
special, indirect or consequential loss or damage of an kind whatsoever
(including but not limited to lost profits) even if the Escrow Agent has been
advised of the likelihood of such loss or damage and regardless of the form of
action.
3.5 Controversies. If any controversy arises between AvantGo and the
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Stockholders' Representative or with any third person with respect to the
subject matter of this Agreement, the Escrow Agent shall not be required to
determine the same or take any action with respect thereto, but may await the
final resolution of any such controversy, anything in the instructions delivered
by the parties hereto to the contrary notwithstanding, and in such event it
shall not be liable for interest or damage.
3.6 Discharge of the Escrow Agent. The Escrow Agent agrees that AvantGo
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and the Stockholders' Representative may, by mutual agreement at any time,
remove the Escrow Agent as escrow agent hereunder, and substitute a bank or
trust company therefor, in which event, upon receipt of written notice thereof,
payment by AvantGo of any accrued but unpaid fees due the Escrow Agent and
reimbursement of the Escrow Agent's other fees and expenses from the Escrow Fund
in accordance with Section 3.4 hereof, the Escrow Agent shall account for and
deliver to such substituted escrow agent the Escrow Fund held by it, and the
Escrow Agent shall thereafter be discharged from all liability hereunder.
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3.7 Court Orders. If the Escrow Fund shall be attached, garnished or
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levied upon pursuant to any court order, or the delivery of the Escrow Fund
shall be stayed or enjoined by any court order, or any court order shall be made
or entered into affecting the Escrow Fund, or any part thereof, the Escrow Agent
is hereby expressly authorized, in its sole direction, to obey and comply with
any court order so entered or issued, which it is advised by legal counsel of
its own choosing is binding upon it, whether with or without jurisdiction, and
in case the Escrow Agent obeys or complies with any court order, it shall not be
liable to any of the parties hereto or to any other person, firm or corporation,
by reason of such compliance notwithstanding such court order be subsequently
reversed, modified, annulled, set aside or vacated.
3.8 Merger. Any company into which the Escrow Agent may be merged or
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converted, or into which it may be consolidated, or any company resulting from
such merger, conversion or consolidation to which it shall be a party, or any
company to which the Escrow Agent may sell or transfer all or substantially all
of its escrow/custody business, provided such company shall be eligible to serve
as escrow agent hereunder, shall be the successor hereunder to the Escrow Agent
without the execution or filing of any paper or any further act.
Article IV
STOCKHOLDER ACTIONS
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4.1 Stockholders' Representative.
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(a) Xxxxx Xxx-Xxxxxx (the "Stockholders' Representative"), for and on
behalf of the Stockholders, shall have the power to take any and all actions
required to be taken by the Stockholders pursuant to this Agreement, including,
without limitation, the power to give and receive notices and communications, to
perform this Agreement, to make claims for indemnification against AvantGo, to
authorize delivery to AvantGo of shares of AvantGo Stock or other property from
the Escrow Fund, to object to such deliveries, 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
actions necessary or appropriate in the judgment of the Stockholders'
Representative for the accomplishment of the foregoing. The Stockholders
individually shall have no power or authority to take any actions against
AvantGo or otherwise pursuant to this Agreement or the Merger Agreement, and all
actions of the Stockholders, whether pursuant to this Agreement or the Merger
Agreement, must be taken solely by the Stockholders' Representative. In the
event of the death or written resignation (delivered to AvantGo and the Escrow
Agent) as Stockholders' Representative of, or refusal to act as Stockholders'
Representative by, Xxxxx Xxx-Xxxxxx, the Stockholders hereby appoint Xxxx Xxx-
Xxxxxx to serve as the successor Stockholders' Representative hereunder. In the
event of the death or written resignation (delivered to AvantGo and the Escrow
Agent) as Stockholders' Representative of, or refusal to act as Stockholders'
Representative by, Xxxx Xxx-Xxxxxx, the holders of a majority of the shares of
AvantGo Stock constituting the Escrow Fund shall serve as the Stockholders'
Representative hereunder.
(b) A decision, act, consent or instruction of the Stockholders'
Representative shall constitute a decision of all Stockholders and shall be
final, binding and conclusive upon
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each of the Stockholders, and AvantGo and the Escrow Agent may rely upon any
such decision, act, consent or instruction of the Stockholders' Representative
as being the decision, act, consent or instruction of each and every
Stockholder. Neither AvantGo, the Escrow Agent nor the Stockholders'
Representative shall have any liability of any kind to any Stockholders as a
result of or arising out of any action or inaction by the Stockholders'
Representative, and each Stockholder hereby releases AvantGo, the Escrow Agent
and the Stockholders' Representative from any such liability. AvantGo and the
Escrow Agent may conclusively rely, without any obligation of investigation or
inquiry of any kind, on any action taken by the Stockholders' Representative as
having been fully authorized and approved by all necessary action by each
Stockholder.
Article V
MISCELLANEOUS
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5.1 Reimbursement of AvantGo. Notwithstanding anything to the contrary
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contained herein to the effect that (i) AvantGo will pay the fees and expenses
of the Arbitrator pursuant to Section 2.2(d) hereof, (ii) AvantGo will pay
expenses, disbursements and advances incurred or paid by the Escrow Agent
(including, without limitation, reasonable attorneys' fees), and (iii) AvantGo
shall pay any claims for indemnification to the Escrow Agent pursuant to Section
3.4 hereof, to the extent the Escrow Fund then contains sufficient assets,
AvantGo shall be entitled to be reimbursed from the Escrow Fund for one-half of
such fees, expenses, payments or reimbursements if Stockholders have not
otherwise paid AvantGo such amounts within sixty (60) days after written notice,
together with evidence of the amounts to be paid, has been delivered to the
Stockholders by AvantGo; provided, however, that AvantGo provides to the Escrow
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Agent and to the Stockholders appropriate documentation evidencing the amounts
with respect to which AvantGo has requested reimbursement from the Escrow Fund
and such amount is not disputed by the Stockholders' Representative within
thirty (30) days thereafter; and provided, further, that AvantGo shall not be
entitled to be reimbursed for payment of any fee necessary in order to establish
and maintain the Escrow Fund and allow the Escrow Agent to enter into this
Agreement.
5.2 Notices. All notices required or permitted to be given hereunder
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shall be in writing and shall be deemed given when delivered in person, by
facsimile (with electronic confirmation of receipt) or by a nationally
recognized private carrier, or on the third business day after being deposited
in the United States mail, postage prepaid, registered or certified mail,
addressed as follows:
TO AVANTGO, INC.:
AvantGo, Inc.
0000 Xxxxx Xxxxxxxx Xxxxxxxxx, Xxxxx 000
Xxx Xxxxx, XX 00000
Fax: 000-000-0000
Attn: CEO
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with a copy to:
Xxxxxxx Coie LLP
000 Xxxxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxx Xxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxx X. Xxxxxx, Esq.
TO THE STOCKHOLDERS:
To the addresses set forth on Exhibit A hereto.
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with a copy to:
Xxxxxx Xxxxxx & Xxxxx
0000 Xxxxx Xxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx Xxxxxx
TO THE ESCROW AGENT:
Chase Manhattan Bank and Trust Company, N.A.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxx X. Xxxxx
and/or at such other addresses and/or addressees as may be designated by notice
given in accordance with the provisions of this Section 5.2.
5.3 Termination of Agreement. This Agreement shall continue in force
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until the final distribution of all portions of the Escrow Fund held by the
Escrow Agent hereunder or until terminated by written notice signed by AvantGo
and a Majority in Interest of the Stockholders' Representative.
5.4 Expenses. Except as otherwise provided herein, both AvantGo and the
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Stockholders shall be responsible for their own costs and expenses with respect
to matters involving this Agreement.
5.5 Headings. The section headings contained in this Agreement are for
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reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. All pronouns shall be deemed to refer to the
masculine, feminine, neuter, singular or plural, as the identity of the persons,
firm or corporation may require in the context thereof.
5.6 Severability. If any provision of this Agreement, or any covenant,
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obligation or agreement contained herein is determined by a court to be invalid
or unenforceable, such
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determination shall not affect any other provision, covenant, obligation or
agreement, each of which shall be construed and enforced as if such invalid or
unenforceable portion were not contained herein. Such invalidity or
unenforceability shall not affect any valid and enforceable application thereof,
and each such provision, covenant, obligation or agreement, shall be deemed to
be effective, operative, made, entered into or taken in the manner and to the
full extent permitted by law.
5.7 Construction. This Agreement shall be construed, and the rights and
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duties of the parties hereto determined, in accordance with the laws of the
State of California.
5.8 Limitation of Remedy. Nothing contained in this Agreement shall limit
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or impair, or be construed to limit or impair, any right or remedy to which any
party hereto may become entitled by virtue of any breach by any party under the
terms and provisions of the Merger Agreement; provided, however, that such
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rights and remedies shall be limited as set forth in the Merger Agreement.
5.9 Multiple Counterparts. This Agreement may be executed in two or more
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counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument.
5.10 Amendments and Waivers. This Agreement shall be binding upon and
----------------------
inure to the benefit of the parties hereto and their respective successors and
assigns. No amendment, supplement, modification or waiver of this Agreement
shall be binding unless executed in writing by all the parties hereto. No
waiver of any of the provisions of this Agreement shall be deemed or shall
constitute a waiver of any other provision hereof (whether or not similar), nor
shall such waiver constitute a continuing waiver unless otherwise expressly
provided.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties hereto have signed this Escrow and
Indemnity Agreement as of the date first above written.
AVANTGO:
AVANTGO, INC.,
a Delaware corporation
By:/s/ Xxxxx Xxx
-------------------------------------
Xxxxx Xxx, Chairman
ESCROW AGENT:
By:/s/ Xxxxx X. Xxxxx
-------------------------------------
Xxxxx X. Xxxxx, Assistant Vice President
THE STOCKHOLDERS:
/s/ Xxxxx Xxx-Xxxxxx
----------------------------------------
Xxxxx Xxx-Xxxxxx
/s/ Xxxx Xxx-Xxxxxx
----------------------------------------
Xxxx Xxx-Xxxxxx
/s/ Xxxx Xxx-Xxxxxx
----------------------------------------
Xxxx Xxx-Xxxxxx
/s/ Long Xxxxxx
----------------------------------------
Long Xxxxxx
/s/ Xxxxx Xxxxx
----------------------------------------
Xxxxx Xxxxx
EXHIBIT A
---------
Number of Restricted
Shares of AvantGo Number of non-Restricted
Name and Address Stock Subject to Shares of AvantGo Stock Stockholder's
of Stockholder Escrow Subject to Escrow Proportionate Interest
---------------------------------- ---------------------- ------------------------ ----------------------
Xxxxx Xxx-Xxxxxx 46,972 46,972 44.44%
000 X. Xxxxxxxx, Xxx. 0X
Xxxxxxx, XX 00000
Xxxx Xxx-Xxxxxx 21,137 21,137 20%
0000 Xxxxxxxxxx Xxxxx
Xxxxxxxx, XX 00000
Xxxx Xxx-Xxxxxx 19,963 19,963 18.89%
0000 X. Xxxxxxxxx Xxxxxx, 0X
Xxxxxxx, XX 00000
Long Bames 11,743 11,743 11.11%
0000 X. Xxxxxxxxx, Xxx. #0
Xxxxxxx, XX 00000
Xxxxx Xxxxx 5,871 5,872 5.56%
0000 X. Xxxxxxxx Xxxxx, Xxx. #00
Xxxxxxx, XX 00000
Total: 105,686 105,687 100%
EXHIBIT B
Schedule of Fees For Escrow Services
For
AvantGo, Inc.
ESCROW FEE: $5,000.00
-----------
Per year or portion thereof (this fee is not prorated for partial years)
Includes review and negotiation of Escrow Agent Agreement; establishment of
records, procedures and controls, and normal Escrow Agent duties. First year fee
payable upon establishment of Agreement.
LEGAL FEE: (if applicable): AT COST
----------
INVESTMENTS
-----------
Chase makes available many attractive mutual fund alternatives with competitive
performance records, including funds rated "AAA" by Standard & Poor's and
Xxxxx'x. Of particular interest to trust customers are several funds offered by
prospectus only through the Vista Family of Mutual Funds. Chase receives
compensation from the fund manager of these mutual funds in connection with such
investments. Additional information in relation to such compensation is
available upon request.
Vista Account Maintenance Fee: 10bp
Cash Escrow-Interest paid as follows: One month LIBOR (average daily) less 50
basis points
Other Investment purchases, sales
Per transaction $75.00
ACTIVITY FEES:
--------------
Claim, Each $25.00
Outgoing Wire Transfer, Each $25.00
Outgoing Check, Each $10.00
Direct out-of-pocket expenses (legal expenses, travel, and other professional
services) will be charged at the actual cost thereof. Indirect expenses such as
stationery items, checks, envelopes, etc., and disbursements such as postage
and telephone will be charged at 6% of annual fees.
Additional Terms
----------------
. Our proposed fees are based upon our review and acceptance of the
appropriate documentation and standard credit/account approval by Capital
Markets Fiduciary Services.
. All fees for services not included will be provided upon request.
. Out-of-pocket expense includes, but is not limited to, legal expense,
postage, stationery, travel or delivery expenses.
. A Funds Transfer Agreement in substantially the same form as the attached
must be executed by both the Seller and the Buyer. Alternatively, language
from this Agreement may be incorporated in the Governing documents.
An incumbency certificate setting forth names, titles and specimen signatures
must be furnished to us with respect to each person signing or giving us
instructions on behalf of each corporate party to the Agreement.
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