EXHIBIT 2.2
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is made and entered into as of
March 1, 2004, by and among Loudeye Corp., a Delaware corporation ("Parent"), SK
Energy & Chemical, Inc. (the "Stockholder Representative" or "SK"), as the
representative of the stockholders of the Company (the "Company Stockholders")
and LaSalle Bank National Association, a national banking association (the
"Escrow Agent"). Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Merger Agreement (as defined below).
RECITALS
A. Parent, Overpeer, Inc., a Delaware corporation (the "Company"),
Privateer Acquisition Corp., a Delaware corporation and wholly-owned subsidiary
of Parent ("Merger Sub"), the Stockholder Representative and SK Energy &
Chemical, Inc. have entered into an Agreement and Plan of Merger and
Reorganization (the "Merger Agreement"), which provides for the merger of Merger
Sub with and into the Company, with the Company as the surviving company and a
wholly-owned subsidiary of Parent (the "Merger"). The surviving company is
sometimes referred to herein as the "Surviving Entity." Pursuant to the Merger,
all of the outstanding capital stock of the Company will be exchanged for common
stock of Parent as set forth in the Merger Agreement.
B. The Merger Agreement provides that an Escrow Fund will be
established for certain indemnification obligations owed to the Indemnified
Parties pursuant to the Merger Agreement.
C. Simultaneously with the execution of this Agreement, that number of
shares of Parent Common Stock equal to the Escrow Amount shall be deposited into
the Escrow Fund, as set forth in Section 3(a) of this Agreement.
D. The parties hereto desire to establish the terms and conditions
pursuant to which such Escrow Fund will be established and maintained.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used herein without definition shall
have the meanings ascribed to them in the Merger Agreement.
2. Stockholder Representative. For purposes of this Agreement, the
approval of the Merger and the approval and adoption of the Merger Agreement by
the Company Stockholders constitutes the appointment by each of the Company
Stockholders of SK to act as their agent and as attorney-in-fact for and on
behalf of the Company Stockholders, and the taking by the Stockholder
Representative of any and all actions and the making of any decisions required
or permitted to be taken by it under this Agreement and the Merger Agreement. As
evidenced by the execution of this Agreement by the Stockholder Representative,
the Stockholder Representative hereby accepts such appointment as agent and
attorney-in-fact to act on behalf of the Company Stockholders with respect to
the matters contemplated by this Agreement.
3. Escrow and Indemnification.
(a) Escrow of Shares. Simultaneously with the execution of this
Agreement, Parent shall instruct Mellon Investor Services (the "Transfer Agent")
to deposit with the Escrow Agent stock certificates for 262,916 [15% of the
Merger Shares] shares of Parent Common Stock (the "Escrow Amount"), as set forth
in Section 1.6 of the Merger Agreement, issued in the name of the Escrow Agent
or its nominee and containing the restrictive legends set forth on Exhibit C of
this Agreement. The Escrow Agent shall acknowledge receipt of the Escrow Amount.
The Parent shall deliver to the Escrow Agent a certificate for the Escrow Shares
without such restrictive legends for the same number of shares then held in the
Escrow Fund, and in the name of the Escrow Agent or its nominee (the
"Unrestricted Shares"), as soon as reasonably practicable after the
effectiveness of the Registration Statement filed in accordance with Section
5.1(b) of the Merger Agreement, and the Escrow Agent shall upon receipt of such
Unrestricted Shares return to the Parent the Escrow Shares containing such
restrictive legends. The Escrow Agent agrees to hold the Escrow Shares (as
defined below) in the Escrow Fund, subject to the terms and conditions of this
Agreement. The shares deposited with the Escrow Agent pursuant to the first
sentence of this Section 3(a), or as substituted therefor pursuant to the third
sentence of this Section 3 (a), together with any further shares deposited by
Parent pursuant to Section 3(c) herein, are referred to herein as the "Escrow
Shares." The Escrow Shares 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.
(b) Indemnification. Section 7.2 of the Merger Agreement sets forth
the indemnification obligations of the Company Stockholders and SK to Parent,
its officers, directors and affiliates (including the Surviving Entity)
(collectively, the "Indemnified Parties").
(c) Dividends, Etc. Any shares of Parent Common Stock or other
equity securities issued or distributed by Parent (including shares issued upon
a stock split) ("New Shares") in respect of Escrow Shares that have not been
released from the Escrow Fund shall be added to the Escrow Fund and become a
part thereof, and shall be considered Escrow Shares for purposes of this
Agreement. New Shares issued in respect of shares of Parent Common Stock that
have been released from the Escrow Fund shall not be added to the Escrow Fund
but shall be distributed to the record holders thereof. Cash dividends on Parent
Common Stock shall not be added to the Escrow Fund but shall be distributed to
the Stockholder Representative for distribution to the owners of the Escrow
Shares.
(d) Voting of Shares. The Company Stockholders shall have voting
rights with respect to the Escrow Shares held in the Escrow Fund; provided,
however, that the Stockholder Representative shall have the right, on behalf of,
and pursuant to instructions from, the Company Stockholders, to direct the
Escrow Agent in writing as to the exercise of any voting rights pertaining to
the Escrow Shares, and the Escrow Agent shall comply with any such written
instructions. In the absence of such instructions, the Escrow Agent shall not
vote any of the Escrow Shares. The Stockholder Representative shall have no
obligation to solicit consents or proxies from the Company Stockholders for
purposes of any such vote.
(e) Transferability. The interests of the Company Stockholders in
the Escrow Shares shall not be assignable or transferable other than by
operation of law. Notice of any such assignment
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or transfer by operation of law shall be given to the Escrow Agent and Parent,
and no such assignment or transfer shall be valid until such notice is given.
(f) Protection of Escrow Fund. The Escrow Agent shall hold and
safeguard the Escrow Fund during the Escrow Period (as defined in Section 5(a)
below), shall treat such fund as a trust fund in accordance with the terms of
this Agreement and not as the property of Parent and shall hold and dispose of
the Escrow Fund only in accordance with the terms set forth in this Agreement.
(g) Issued and Outstanding. The Escrow Shares shall appear as issued
and outstanding shares on the books and records of Parent.
(h) Escrow Agent Disclaimers. Parent and the Stockholder
Representative agree that the Escrow Agent, in connection with the stock
deposited pursuant to this Section 3, shall have (i) no responsibility to
monitor the value of the stock; (ii) no responsibility to collect dividends;
(iii) no responsibility to sell or otherwise trade the stock, but shall
otherwise deliver the stock on written instructions only as described in Section
10 hereof; and, (iv) no responsibility to ensure the legality of the
registration of the stock.
4. Claims Upon Escrow Fund.
(a) From time to time on or before the Expiration Date (as defined
below), Parent may submit a claim notice (a "Claim Notice") to the Stockholder
Representative and the Escrow Agent specifying any claim it may have under
Article VII of the Merger Agreement (a "Claim"). The Claim Notice shall state
(i) a brief description of the circumstances supporting Parent's belief that
there is or has been a Claim; and (ii) a non-binding, preliminary estimate of
the aggregate dollar amount of the actual and potential damages that have arisen
and may arise, either directly or indirectly. Parent may make more than one
Claim with respect to any underlying state of facts.
(b) If the Stockholder Representative delivers written notice to
Parent and the Escrow Agent disputing any Claim (a "Counter Notice") within
thirty (30) calendar days following receipt of the Claim Notice regarding such
Claim, such Claim shall be resolved as provided in Section 4(c). If no Counter
Notice is received by Parent and the Escrow Agent within such 30-day period,
then the amount of damages claimed by Parent as set forth in its Claim Notice
(or in any revised Claim Notice delivered within such 30-day period based on the
same underlying state of facts as the original Claim Notice) shall be deemed
conclusively established for purposes of this Agreement and the Merger
Agreement, and the Escrow Agent shall distribute Escrow Shares to Parent equal
to the amount claimed in the Claim Notice (or in the revised Claim Notice, as
the case may be) from the Escrow Fund. If a revised Claim Notice is based upon
the same underlying set of facts as the original Claim Notice, then the
submission of a revised Claim Notice within the 30-day period set forth above in
this paragraph shall not re-start such 30-day period, and instead, the initial
30-day period shall remain in effect.
(c) If a Counter Notice is timely delivered with respect to a Claim,
Parent shall have fifteen (15) calendar days to respond in a written statement,
but any failure of Parent to respond to a Counter Notice within such 15-day
period shall not relieve the Company Stockholders of any liability which the
Company Stockholders may have. If after the expiration of such fifteen (15)
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calendar day period, there remains a dispute as to any Claim, the parties shall
attempt in good faith for sixty (60) calendar days to agree upon the rights of
the respective parties with respect to such Claim. If the parties should so
agree, joint written instructions of Parent and the Stockholder Representative
setting forth such agreement shall be prepared and signed by both parties and
delivered to the Escrow Agent. If the parties do not agree, than the dispute
shall be resolved either by (i) an arbitrator approved by both parties (an
"Arbitrator") to arbitrate the dispute in accordance with the Commercial
Arbitration Rules of the American Arbitration Association or (ii) a court of
competent jurisdiction. The Escrow Agent shall make payment with respect to any
Claim pursuant to which a Counter Notice is delivered only in accordance with
(i) joint written instructions of Parent and the Stockholder Representative (ii)
a final written decision of an Arbitrator or (iii) a final non-appealable order
of a court of competent jurisdiction.
(d) Any distribution of Escrow Shares to the Parent held in the
Escrow Fund pursuant to this Section 4 shall be done on a pro rata basis
calculated in accordance with the percentages set forth opposite the Company
Stockholders' respective names on Exhibit A attached hereto (which percentages
are identical to the proportion of the Company Stockholders' respective original
contributions to the Escrow Fund as determined pursuant to Section 1.6 of the
Merger Agreement). For the purposes of determining the number of Escrow Shares
to be delivered to Parent out of the Escrow Fund pursuant to this Section 4, the
Escrow Shares shall be valued at the Merger Share Price (as defined in the
Merger Agreement), which is $2.2821 per share.
(e) Notwithstanding anything herein to the contrary, any and all
calculations required to be made pursuant to this Section 4 shall be provided to
the Escrow Agent by the party so requesting the distribution.
(f) Parent's failure to give reasonably prompt notice to the Escrow
Agent and Stockholder Representative of any actual, threatened or possible claim
or demand which may give rise to a right of indemnification hereunder shall not
relieve the Company Stockholders and SK of any liability which the Company
Stockholders and SK may have to the Indemnified Party unless the failure to give
such notice materially and adversely prejudiced the Company Stockholders and SK.
5. Escrow Period; Distribution of Escrow Shares.
(a) Subject to the following requirements, the Escrow Fund shall be
in existence immediately following the deposit of the Escrow Shares with the
Escrow Agent and shall terminate at 5:00 p.m., Central time, on the date (the
"Expiration Date") that is twelve (12) months following the Closing Date (the
"Escrow Period"). Within ten (10) business days after the Expiration Date, the
Escrow Agent shall distribute all of the Escrow Shares then held in escrow to
the Transfer Agent for distribution to the Company Stockholders; provided,
however, that the Escrow Period shall not terminate with respect to (i) any
unpaid Escrow Agent fees under Section 7 herein and (ii) any amount that is
necessary to satisfy any then pending and unsatisfied Claims specified in any
Claim Notice delivered to the Escrow Agent pursuant to Section 4 above.
Deliveries of any of the Escrow Shares to the Transfer Agent for distribution to
the Company Stockholders pursuant to this Section 5 shall be accompanied by a
written document specifying that such Escrow Shares shall be distributed in
accordance with the procedures set forth in Section 5(c) below.
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(b) If a portion of the Escrow Fund is retained by the Escrow Agent
pursuant to Section 5(a) above (the amount of such retention to be determined
pursuant to Section 4 above), the Escrow Agent shall distribute the balance of
the Escrow Fund not being retained to the Company Stockholders (in accordance
with the procedures provided in Section 5(c) below) and the escrow shall
continue pursuant to this Agreement with respect to the retained portion of the
Escrow Fund until the Escrow Agent receives (i) joint written instructions
signed by Parent and the Stockholder Representative as to the disposition of
such amounts, or (ii) a final written decision of an Arbitrator or (iii) a final
non-appealable order of a court of competent jurisdiction.
(c) Any distribution of all or a portion of the Escrow Shares to the
Transfer Agent for distribution to the Company Stockholders shall be accompanied
by a written document signed by Parent and the Stockholder Representative
specifying that the stock certificates are being issued in the name of each of
the Company Stockholders covering such percentage of the Escrow Shares being
distributed as is calculated on a pro rata basis in accordance with the
percentages set forth opposite such holders' respective names on Exhibit A
attached hereto (which percentages are identical to the proportion of the
Company Stockholders' respective original contributions to the Escrow Fund as
determined pursuant to Section 1.6 of the Merger Agreement); provided, however,
that the Escrow Agent shall withhold the distribution of the portion of the
Escrow Shares otherwise distributable to a Company Stockholder who has not,
according to a written notice provided by Parent to the Escrow Agent, prior to
such distribution, surrendered pursuant to the terms of the Merger Agreement
his, her or its stock certificates formerly representing shares of the Company.
Any such withheld shares shall be delivered to Parent promptly after the
Expiration Date, and shall be delivered by Parent to the Company Stockholders to
whom such shares would have otherwise been distributed upon surrender of their
certificates representing Company Common Stock. Distributions to the Company
Stockholders shall be made by mailing stock certificates to such holders at
their respective addresses shown on Exhibit A (or such other address as may be
provided in writing to the Escrow Agent by the Stockholder Representative). No
fractional Escrow Shares shall be distributed to Company Stockholders pursuant
to this Agreement. Instead, the number of shares that each Company Stockholder
shall receive shall be rounded up or down to the nearest whole number (provided
that the Transfer Agent shall have the authority to effect such rounding in such
a manner that the total number of whole Escrow Shares to be distributed equals
the number of Escrow Shares required to be distributed). Notwithstanding
anything herein to the contrary, any and all calculations required to be made
pursuant to this Section 5 shall be provided to the Escrow Agent by the party so
requesting the distribution.
6. Escrow Agent's Duties.
(a) The Escrow Agent shall be obligated only for the performance of
such duties as are specifically set forth herein, and as set forth in any
additional written escrow instructions that the Escrow Agent may receive which
are signed by an officer of Parent and the Stockholder Representative, 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. The Escrow Agent shall not be liable
for any act done or omitted under this Agreement while acting, absent gross
negligence or willful misconduct, in good faith and in the exercise of
reasonable judgment, and any act done or omitted pursuant to the advice of
counsel shall be conclusive evidence of such good faith.
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(b) The Escrow Agent is authorized to comply with and obey orders,
awards, judgments or decrees of any court of law or arbitration tribunal,
notwithstanding any notices, warnings or other communications from any party or
any other person to the contrary. In case the Escrow Agent obeys or complies
with any such order, judgment or decree of any court or arbitration tribunal,
the Escrow Agent 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 Agreement or any
documents deposited with the Escrow Agent.
(e) In performing any duties hereunder, the Escrow Agent shall not
be liable to any party for damages, losses, or expenses, except for gross
negligence or willful misconduct on the part of the Escrow Agent. The Escrow
Agent shall not incur any such liability for any action taken or omitted in
reliance upon any instrument, including any written statement or affidavit
provided for in this Agreement that the Escrow Agent shall in good faith believe
to be genuine, nor will the Escrow Agent be liable or responsible if acting in
good faith for forgeries, fraud, impersonations, or determining the scope of any
representative authority. In addition, the Escrow Agent may consult with legal
counsel (whether such counsel shall be regularly retained or specifically
employed) in connection with Escrow Agent's duties under this Agreement and
shall be fully protected in any act taken, suffered, or permitted by it in good
faith 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.
(f) If any controversy arises between the parties to this Agreement,
or with any other party, concerning the subject matter of this Agreement, the
Escrow Agent will not be required to determine the controversy or to take any
action regarding it. Furthermore, the Escrow Agent may 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 Shares; provided, however, that all
costs, expenses, charges and reasonable attorney fees incurred by the Escrow
Agent due to the interpleader action shall be reimbursed equally by the Company
Stockholders, on the one hand, and Parent, on the other hand. 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 Agreement, except for
any liability for obligations or acts or omissions that have already occurred,
and only to the extent set forth herein.
(g) Parent and the Company Stockholders, and their respective
successors and assigns shall indemnify and hold Escrow Agent harmless against
any and all losses, claims, damages, liabilities, and expenses, including
reasonable costs of investigation, counsel fees, and disbursements that may be
imposed on Escrow Agent or incurred by Escrow Agent in connection with the
performance of its duties under this Agreement.
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(h) The Escrow Agent may resign at any time upon giving at least
thirty (30) calendar days' written notice to the parties; provided, however,
that no such resignation shall become effective until the appointment of a
successor escrow agent which shall be accomplished as follows: Parent and the
Stockholder Representative shall use their best efforts to mutually agree on a
successor escrow agent within thirty (30) calendar 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 appoint 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 resignation in accordance with this
Section 6(h), the Escrow Agent shall be discharged from any further duties and
liability under this Agreement, except for any liability for obligations or acts
or omissions that have already occurred, and only to the extent set forth
herein.
7. Escrow Agent Fees.
(a) All fees of the Escrow Agent for performance of its duties under
this Agreement shall be paid one-half by Parent and one-half by the Company
Stockholders. Exhibit B sets forth the usual fees and charges agreed upon for
services of the Escrow Agent as contemplated by this Agreement. In the event the
Escrow Agent renders any service not provided for in Exhibit B, or if the
parties request a substantial modification of its terms, or if the Escrow Agent
is made a party to, or intervenes in, any litigation pertaining to the Escrow
Fund, the Escrow Agent's reasonable costs and expenses shall be paid one-half by
Parent and one-half by the Company Stockholders.
(b) In the event that the Escrow Agent is authorized to make
disbursements to any party to this Agreement pursuant to and in accordance with
the terms of this Agreement, and fees and expenses are due and payable to the
Escrow Agent pursuant to the terms of this Agreement by the party receiving such
disbursement, the Escrow Agent is hereby authorized to offset such amounts due
and payable to it against such disbursement to that party.
8. Reliance by Escrow Agent. The Escrow Agent may rely on the Stockholder
Representative as the exclusive agent of the Company Stockholders under this
Agreement and shall incur no liability to any party with respect to any action
taken or suffered by it in reliance thereon.
9. Substitution of Escrow Shares. The Stockholder Representative may, at
any time or from time to time, substitute some or all of the Escrow Shares held
in the Escrow Fund with cash, by delivery to the Escrow Agent (with a copy to
Parent) of a notice of its intent to substitute such Escrow Shares (a
"Substitution Notice"), and a certified check or wire transfer equal to the
value (calculated at the Merger Share Price) of the number of Escrow Shares to
be substituted (the "Substituted Shares"). The Substitution Notice shall include
the number of Escrow Shares that the Stockholder Representative wishes to
substitute, and be signed by a person authorized to sign on behalf of the
Stockholder Representative. As soon as reasonably practicable following receipt
of a Substitution Notice and payment for the Substituted Shares, the Escrow
Agent shall distribute the Substituted Shares to the Transfer Agent for
distribution to the Company Stockholders in accordance with Section 5 hereof.
Any cash paid to the Escrow Agent pursuant to this Section 9 shall be held in
the Escrow Fund and be treated the same as Escrow Shares for all purposes
herein. Any cash
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deposited with the Escrow Agent pursuant to this Section 9 shall be invested as
soon as reasonably practicable, including income earned on, in the Federated
Treasury Obligations Fund (Trust Shares).
10. Sale of Shares.
The Escrow Agent shall upon receipt of the Unrestricted Shares and
thereafter at the written direction of the Stockholder Representative enter into
a standard retail brokerage agreement in a form reasonably acceptable to the
Escrow Agent, with either Xxxxxxx Xxxxx and Co. or XX Xxxxxxx and Co., as
directed by the Stockholder Representative (the "Broker"), in the name of the
Escrow Fund, pursuant to which such Broker shall, at the Escrow Agent's request,
be authorized to sell the Escrow Shares and directed to remit the proceeds, less
transaction costs, to the Escrow Agent. The Stockholder Representative will
provide the selected broker institution with the necessary information to
understand the nature of this transaction and arrange for the selected broker
institution to communicate with the Escrow Agent in regards to implementing this
Section 10. Any such net proceeds received by the Escrow Agent pursuant to this
Section 10 shall be held in the Escrow Fund and be treated the same as Escrow
Shares for all purposes herein. Any cash deposited with the Escrow Agent
pursuant to this Section 10 shall be invested as soon as reasonably practicable,
including income earned, in the Federated Treasury Obligations Fund (Trust
Shares).
(a) The Stockholder Representative will instruct the Escrow Agent in
writing and during business hours (confirmed immediately with telephonic
communication to the Escrow Agent) to, as soon as reasonably practicable, direct
the Broker to sell by market order all (but not less than all) of the Escrow
Shares. In the event the Escrow Agent receives such instructions from the
Stockholder Representative after 3:00 p.m. (Central Time) on any given business
day; the Escrow Agent will direct the Broker to make the sale no earlier than
the following business day. Since the Escrow Agent cannot control the time or
price at which the Escrow Shares are sold, the sale price received may vary from
the market price at the time of the written instruction from the Stockholder
Representative. In the event the Escrow Shares cannot be sold by the Broker
within five (5) business days after receiving the order, the Escrow Agent shall
instruct the Broker to return any unsold Merger Shares to the Escrow Fund.
(b) Neither the Escrow Agent nor Parent shall not be responsible to
the Stockholder Representative, the Company Stockholders, the Parent (as
applicable), or any other person or entity for any loss, liability, or failure
to accomplish a sale of the Escrow Shares arising in respect of any written
instruction in this Section 10 except to the extent that such loss, liability,
or failure to accomplish a sale of the Escrow Shares rose from the Escrow
Agent's gross negligence or willful misconduct. The Escrow Agent is authorized
to execute such instruments of transfer of the Escrow Shares and other
documentation, and to deliver such Escrow Shares, as and when requested by the
Broker in order to effect such sale, as hereinabove provided.
(c) Notwithstanding any other provision herein, in the event Parent
provides written notice to both the Escrow Agent and the Stockholder
Representative that in the reasonable and good faith opinion of the Parent it
has become necessary to suspend the effectiveness of the Registration Statement;
then Escrow Agent shall not direct a Broker to sell the Unrestricted Shares or
take any other action pursuant to this Section 10 until such time as the Parent
provides a second
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written notice to both the Escrow Agent and the Stockholder Representative that
the Registration Statement is again effective.
11. Termination. This Agreement shall terminate upon the distribution by
the Escrow Agent of all of the Escrow Shares in accordance with this Agreement.
12. Controlling Document. To the extent provisions of the Merger Agreement
are inconsistent with the provisions contained in this Agreement, the Merger
Agreement shall supersede this Agreement and be the controlling document, except
that the rights, duties, and responsibilities of the Escrow Agent shall be
governed by this Agreement. Notwithstanding the foregoing, or any contrary
provisions of this Agreement, it is understood that the Escrow Agent is not a
party to and has neither received nor read, nor does Escrow Agent consent to,
any provisions of the Merger Agreement. References in this Agreement to the
Merger Agreement are for reference by the Parent and Stockholder Representative
only, and the parties agree that the Escrow Agent shall not be responsible for
compliance with any provisions of the Merger Agreement or any agreement other
than this Agreement.
13. Notices. All notices, instructions and other communications given
hereunder or in connection herewith shall be in writing. Any such notice,
instruction or communication shall be sent either (i) by registered or certified
mail, return receipt requested, postage prepaid, or (ii) via a reputable
nationwide overnight courier service, in each case to the address set forth
below. Any such notice, instruction or communication shall be deemed to have
been delivered five (5) business days after it is sent by registered or
certified mail, return receipt requested, postage prepaid, or two (2) business
days after it is sent via a reputable nationwide overnight courier service.
If to Parent: Copy to (which shall not constitute notice):
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Loudeye Corp. Xxxxxxxx, Xxxx, Xxxxxxxxxx & Xxxxxxx LLP
0000 Xxxxxxx Xxxxxx Xxxxx 000 X Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000 Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer Attention: Xxxx Xxxxxxxx, Esq. and
Telephone No.: (000) 000-0000 Xxxxxxx XxXxxx, Esq.
Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Stockholder Representative: Copy to (which shall not constitute notice):
--------------------------------- --------------------------------------------
SK Energy & Chemical, Inc. Xxxx Xxxxxxxx, Esq.
000 Xxxxx Xxxxxx, 00xx floor 400 Kelby Street, 17th Floor
Ft. Xxx, XX 00000 Ft. Xxx, XX 00000
Attention: Xx. Xxx Xxx Telephone No.: (000) 000-0000
Telephone No.: 000-000-0000 Facsimile No.: (000) 000-0000
Facsimile No.: 000-000-0000
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If to the Escrow Agent:
LaSalle Bank National Association
000 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
Any party may give any notice, instruction or communication in connection
with this Agreement using any other means (including personal delivery, telecopy
or ordinary mail), but no such notice, instruction or communication shall be
deemed to have been delivered unless and until it is actually received by the
party to whom it was sent. Any party may change the address to which notices,
instructions or communications are to be delivered by giving the other parties
to this Agreement notice thereof in the manner set forth in this Section 13.
14. General.
(a) Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the parties hereto. The parties acknowledge that: (i) they have read this
Agreement; (ii) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel; (iii) they understand the terms
and consequences of this Agreement; and (iv) they are fully aware of the legal
and binding effect of this Agreement.
(b) Governing Law; Assigns. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Washington
without regard to conflict-of-law principles and shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(d) Entire Agreement. Except for those provisions of the Merger
Agreement referenced herein, this Agreement constitutes the entire understanding
and agreement of the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements or understandings, written or
oral, between the parties with respect to the subject matter hereof.
(e) Waivers. No waiver by any party hereto of any condition or of
any breach of any provision of this Agreement shall be effective unless in
writing. No waiver by any party of any such condition or breach, in any one
instance, shall be deemed to be a further or continuing waiver of any such
condition or breach or a waiver of any other condition or breach of any other
provision contained herein.
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(f) Amendment. This Agreement may be amended only with the written
consent of Parent, the Escrow Agent and the Stockholder Representative.
(Remainder of page intentionally left blank.)
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
LOUDEYE CORP. SK ENERGY & CHEMICAL, INC.
(as Stockholder Representative)
By: /s/ Xxxx Xxxxxx By: /s/ Seol X. Xxxxx
------------------------- -------------------------
Name: Xxxx Xxxxxx Name: Seol X. Xxxxx
Title: CEO Title: CFO
LASALLE BANK NATIONAL
ASSOCIATION, as Escrow Agent
By: /c/ X. X. Xxxxxxx
-------------------------
Name: X. X. Xxxxxxx
Title: First Vice President
(Signature Page to Escrow Agreement)
EXHIBIT A
STOCKHOLDER NAME AND ADDRESS PERCENTAGE
---------------------------- ----------
SK Energy & Chemical, Inc. 70.834%
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xx. Xxx, XX 00000
Xxxx Xxxxxxxxxxx 7.601%
000 X. Xxxxxxxxxx Xxx.
Xxxxxxxxx, XX 00000
Xxxx Xxxxxxx 1.717%
0 Xxxxx Xxx.
Xxxxxxxxx, XX 00000
Xxxxxxxx Xxxxxx 0.819%
00 Xxxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
Cheol Xxxxx Xxx 6.841%
000 Xxxxxxx Xxxxx
Xxxx Xxx, XX 00000
Xxxxx Xxxxx Xxx 6.886%
000-00 00xx Xxxxxx
Xxx. #00X Xxx Xxxxxxx, XX 00000
EMI Recorded Music Holdings, Inc. 0.759%
Virgin Holdings Inc. c/o EMI Recorded Music
0000 X. Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Doo Xxx Xxx 2.727%
Xxx Xxxx-Xxxx Family Xxx. 000-000
Xxxx Xx-Xx
Xxxxx, Xxxxx
Xxxxx Xxxx Xxx 1.818%
Xxxx Xx-Xxxx Xx One Hana Apt. 105-1002
Seo Xxx Xxx-Gu
Seoul, Korea
TOTAL 100%
EXHIBIT B
ESCROW AGENT FEES
Acceptance Fee: $ 500.00
Administration Fee: $ 2,500.00*
THE ACCEPTANCE AND ADMINISTRATION FEES ARE DUE UPON EXECUTION OF THE ESCROW
AGREEMENT.
*Should the Escrow Account remain open for more than twelve months, the
Administration Fee will be regarded as an annual charge.
Any investment transaction not in a money market fund or a LaSalle Enhanced
Liquidity Management account will incur a $150.00 per transaction fee. The
parties to the agreement understand and agree that the Escrow Agent may receive
certain revenue on certain mutual fund investments. These revenues take one of
two forms:
Shareholder Servicing Payments: Escrow Agent may receive Shareholder Servicing
Payments as compensation for providing certain services for the benefit of the
Money Market Fund Company. Shareholder Services typically provided by LaSalle
include the maintenance of shareholder ownership records, distributing
prospectuses and other shareholder information materials to investors and
handling proxy-voting materials. Typically Shareholder Servicing payments are
paid under a Money Market Fund's 12b-1 distribution plan and impact the
investment performance of the Fund by the amount of the fee. The shareholder
servicing fee payable from any money market fund is detailed in the Fund's
prospectus that will be provided to you.
Revenue Sharing Payments: Escrow Agent may receive revenue sharing payments from
a Money Market Fund Company. These payments represent a reallocation to Escrow
Agent of a portion of the compensation payable to the fund company in connection
with your account's money market fund investment. Revenue Sharing payments
constitute a form of fee sharing between the fund company and Escrow Agent and
do not, as a general rule, result in any additional charge or expense in
connection with a money market fund investment, are not paid under a 12b-1 plan,
and do not impact the investment performance of the Fund. The amount of any
revenue share, if any, payable to Escrow Agent with respect to your account's
investments is available upon request.
All out-of-pocket expenses will be billed at the Escrow Agent's cost.
Out-of-pocket expenses include, but are not limited to, professional services
(e.g. legal or accounting), travel expenses, telephone and facsimile
transmission costs, postage (including express mail and overnight delivery
charges), and copying charges.
EXHIBIT C
ESCROW AND RESTRICTED STOCK LEGENDS
Escrow Legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN ESCROW
PROVISIONS SET FORTH IN: AN AGREEMENT AND PLAN OF MERGER AMONG LOUDEYE CORP.,
OVERPEER, INC. AND CERTAIN OTHER PARTIES DATED AS OF MARCH 1, 2004; AND AN
ESCROW AGREEMENT AMONG LOUDEYE CORP., LASALLE BANK NATIONAL ASSOCIATION, AND THE
STOCKHOLDER REPRESENTATIVE DATED AS OF MARCH 1, 2004. COPIES OF THE AFORESAID
AGREEMENTS ARE ON FILE AT THE PRINCIPAL OFFICE OF LOUDEYE CORP. AND WILL BE
PROVIDED TO THE HOLDER OF THIS CERTIFICATE WITHOUT CHARGE UPON WRITTEN REQUEST.
Restricted Stock Legend:
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR OTHERWISE
TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL REGISTERED UNDER THE ACT
OR, IN THE OPINION OF COUNSEL SATISFACTORY TO THE ISSUER OF THESE SECURITIES,
SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION OTHERWISE COMPLIES WITH
THE ACT.
