ESCROW AGREEMENT
This
Escrow Agreement (this “Agreement”) dated July 20, 2006 by and among Israel
Technology Acquisition Corp., a Delaware corporation (“Parent”), Xxxxxx Xxxxx,
as the Representative, being the representative of the former stockholders
of
IXI Mobile, Inc. (the “Company”), a Delaware Corporation (the “Representative”)
and Continental Stock Transfer & Trust Company, as escrow agent (the “Escrow
Agent”).
RECITALS
A. The
Company, Parent and ITAC Acquisition Subsidiary Corp., a Delaware corporation
and wholly-owned subsidiary of Parent (“Merger Sub”), are the parties to an
Agreement and Plan of Merger dated as of February 28, 2006 (the "Merger
Agreement") pursuant to which Merger Sub has merged with and into the Company
so
that the Company has become a wholly-owned subsidiary of Parent. Capitalized
terms used herein which are not otherwise defined herein shall have the meanings
ascribed to them in the Merger Agreement.
B. Pursuant
to Article II of the Merger Agreement, the Holders are entitled to Additional
Shares if certain revenue or profit targets are met by the Parent and/or certain
share price targets for shares of Parent Common Stock are met, as prescribed
in
Article II of the Merger Agreement, subject to the terms and conditions
contained therein. The parties desire to establish an escrow fund as security
for the obligations of the Parent to issue Additional Shares that the Holders
may become entitled to receive pursuant to Article II of the Merger Agreement,
such fund to include a separate account for Additional Escrowed Shares that
may
become distributable only upon the exercise of Company Derivative
Securities.
C. Pursuant
to Article VIII of the Merger Agreement, Parent is to be indemnified for Losses,
subject to certain terms and conditions as provided in the Merger Agreement.
The
parties desire to establish an escrow fund as security in order to satisfy
any
indemnification obligations under Article VIII of the Merger Agreement.
D. The
Representative has been designated pursuant to the Merger Agreement to represent
all of the Holders and act on their behalf for purposes of this Agreement.
NOW,
THEREFORE,
in
consideration of the covenants, promises and representations set forth herein,
and for other good and valuable consideration, the receipt and sufficiency
of
which are hereby acknowledged, the parties agree as follows:
1. Escrow
Fund.
(a) Concurrently
with the execution hereof, the Escrow Agent, in its capacity as Exchange Agent
pursuant to the Merger Agreement, has established an escrow fund consisting
of
three separate escrow accounts representing (i) the Holdback Escrowed Shares
(ii) the Additional Escrowed Shares and (iii) the Derivative Escrowed Shares
(individually the “Holdback Escrowed Shares Fund”, “Additional Escrowed Shares
Fund” and “Derivative Escrowed Shares Fund”, and collectively the “Escrow
Fund”). The Escrow Agent shall maintain separate accounts for each Holder's and
each Derivative Holder’s portion of each of the three (3) separate escrow
accounts comprising the Escrow Fund.
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(b) The
Parent has withheld ten percent (10%) of the Closing Shares issuable to the
Holders pursuant to the Merger Agreement, pro rata in accordance with the number
of Closing Shares issuable to each Holder, which represents the Holdback
Escrowed Shares Fund and shall be deposited with the Escrow Agent at the
Effective Time.
(c) In
accordance with Section 2.13(b) of the Merger Agreement the Parent shall deposit
with the Escrow Agent into the Holdback Escrowed Shares Fund ten percent (10%)
of that number of shares of Parent Common Stock issuable (if any) to holders
of
Employee Options pursuant to Section 2.13(a)(i) of the Merger Agreement, pro
rata in accordance with the number of shares of Parent Common Stock issuable
to
each such holder of Employee Options.
(d) In
accordance with Section 2.18(b) of the Merger Agreement the Parent shall deposit
with the Escrow Agent into the Holdback Escrowed Shares Fund ten percent (10%)
of that number of Parent Common Stock issuable (if any) to holders of Company
Warrants pursuant to Section 2.18(a)(i) of the Merger Agreement, pro rata in
accordance with the number of shares of Parent Common Stock issuable to each
such holder of Company Warrants.
(e) Promptly
after the Effective Time and in no event more than three (3) Business Days
thereafter Parent shall deposit and the Escrow Agent shall hold in the
Additional Escrowed Shares Fund certificates representing 10,000,000 shares
of
Parent Common Stock, pro rata in accordance with the number of Additional Shares
issuable (if any) to each Holder.
(f) On
the
instruction of Parent, the Escrow Agent shall transfer from the Additional
Escrowed Shares Fund to the Derivative Escrowed Shares Fund any Additional
Escrowed Shares that become Derivative Escrowed Shares.
(g) The
Escrow Agent hereby agrees to act as escrow agent and to hold, safeguard and
disburse the Escrow Fund pursuant to the terms and conditions hereof. It shall
treat the Escrow Fund as a trust fund in accordance with the terms of this
Agreement and not as the property of Parent. Its duties hereunder shall cease
upon its distribution of the entire Escrow Fund in accordance with this
Agreement.
(h) Except
as
herein provided, the Holders shall retain all of their rights as stockholders
of
Parent during the period the Holdback Escrowed Shares are held by the Escrow
Agent (the “Holdback Escrow Period”), including, without limitation, the right
to vote their Parent Common Stock Shares included in the Holdback Escrowed
Shares Fund.
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(i) During
the Holdback Escrow Period, all dividends payable in cash with respect to the
shares of Parent Common Stock included in the Holdback Escrowed Shares Fund
shall be paid to the Holders, but all dividends payable in stock or other
non-cash property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent
to hold in accordance with the terms hereof. As used herein, the term “Holdback
Escrowed Shares Fund” shall be deemed to include the Non-Cash Dividends
distributed thereon, if any.
(j) During
the Holdback Escrow Period, no sale, transfer or other disposition may be made
of any or all of the shares of Parent Common Stock in the Holdback Escrow Fund
except (i) by gift to a member of a Holder's immediate family or to a trust,
the
beneficiary of which is a Holder or a member of a Holder's immediate family,
(ii) by virtue of the laws of descent and distribution upon death of any Holder,
(iii) pursuant to a qualified domestic relations order or (iv) if the Holder
is
not a natural person to an “affiliate” of the Holder; provided, however, that
such permissive transfers may be implemented only upon the respective
transferee's written agreement to be bound by the terms and conditions of this
Agreement. During the Holdback Escrow Period, the Holders shall not pledge
or
grant a security interest in the shares of Parent Common Stock included in
the
Holdback Escrow Fund or grant a security interest in their rights under this
Agreement.
(k) The
Holders shall not have any rights with respect to the Additional Escrowed Shares
held by the Escrow Agent pursuant to this Escrow Agreement (including, but
not
limited to, the right to vote such Additional Escrowed Shares) until, and only
to the extent of, the distribution of Additional Escrowed Shares to the Holders.
In addition, the Holders shall not be entitled to any dividends of any of kind
with respect to any Additional Escrowed Shares held by the Escrow Agent;
provided, however, that in the event that any stock split, reverse stock split,
stock dividend (including any dividend or distribution of securities convertible
into Parent Common Stock), extraordinary cash dividends, reorganization,
recapitalization, reclassification, combination, exchange of shares or other
like change with respect to Parent Common Stock, Parent shall deposit a
sufficient number of additional shares of Parent Common Stock into the
Additional Escrowed Shares Fund in order to comply with Section 2.5(d) of the
Merger Agreement.
2. Indemnity
Claim.
(a) Parent,
acting through the Committee may make a claim for indemnification pursuant
to
Article VIII of the Merger Agreement or a claim for expenses incurred by the
Representative and paid by Parent in accordance with Section 8.6 of the Merger
Agreement (“Indemnity Claim”) against the Holdback Escrowed Shares Fund by
giving notice (a “Notice”) to the Representative (with a copy to the Escrow
Agent) specifying (i) the covenant, representation, warranty, agreement,
undertaking or obligation contained in the Merger Agreement which it asserts
has
been breached or otherwise entitles Parent to indemnification, (ii) the total
amount of the actual out-of-pocket Loss or the anticipated potential Loss
(including any costs or expenses which have been or may be reasonably incurred
in connection therewith), and (iii) whether the Loss resulting from the
Indemnity Claim may be covered (in whole or in part) under any insurance and
the
estimated amount of such Loss which may be covered under such insurance. The
Committee also shall deliver to the Escrow Agent (with a copy to the
Representative), concurrently with its delivery to the Escrow Agent of the
Notice, a certification as to the date on which the Notice was delivered to
the
Representative.
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(b) If
the
Representative shall give a notice to the Committee (with a copy to the Escrow
Agent) (a “Counter Notice”), within thirty (30) days following the date of
receipt (as specified in the Committee's certification) by the Representative
of
a copy of the Notice, disputing whether the Indemnity Claim is indemnifiable
under Article VIII of the Merger Agreement, the parties shall attempt to resolve
such dispute by voluntary settlement as provided in paragraph 2(c) below. If
no
Counter Notice with respect to an Indemnity Claim is received by the Escrow
Agent from the Representative within such thirty (30) day period, the Indemnity
Claim shall be deemed to be an Established Claim (as hereinafter defined) for
purposes of this Agreement.
(c) If
the
Representative delivers a Counter Notice to the Escrow Agent, the Committee
and
the Representative shall, during the period of sixty (60) days following the
delivery of such Counter Notice or such greater period of time as the parties
may agree to in writing (with a copy to the Escrow Agent), attempt to resolve
the dispute with respect to which the Counter Notice was given. If the Committee
and the Representative shall reach a settlement with respect to any such
dispute, they shall jointly deliver written notice of such settlement to the
Escrow Agent specifying the terms thereof. If the Committee and the
Representative shall be unable to reach a settlement with respect to a dispute,
such dispute shall be resolved by arbitration pursuant to paragraph 2(d)
below.
(d) If
the
Committee and the Representative cannot resolve a dispute prior to expiration
of
the sixty (60) day period referred to in paragraph 2(c) above (or such longer
period as the parties may have agreed to in writing), then such dispute shall
be
submitted (and either party may submit such dispute) for arbitration before
a
single arbitrator in New York City, New York, in accordance with the commercial
arbitration rules of the American Arbitration Association then in effect. The
Committee and the Representative shall attempt to agree upon an arbitrator;
if
they shall be unable to agree upon an arbitrator within ten (10) days after
the
date on which the disputed matter may, under this Agreement, be submitted for
arbitration, then either the Committee or the Representative, upon written
notice to the other, may apply for appointment of such arbitrator by the
American Arbitration Association. Subject to Section 8.6 of the Merger
Agreement, each party shall pay the fees and expenses of counsel used by it
and
50% of the fees and expenses of the arbitrator and of other expenses of the
arbitration. The arbitrator shall render his decision within ninety (90) days
after his appointment and may award costs to any of the parties if, in his
sole
opinion reasonably exercised, the claims made by any other party or parties
had
no reasonable basis and were arbitrary and capricious. Such decision and award
shall be in writing and shall be final and conclusive on the parties, and
counterpart copies thereof shall be delivered to each of the parties. Judgment
may be obtained on the decision of the arbitrator so rendered in any court
having jurisdiction and may be enforced in accordance with the law of the State
of New York, without regard to the principles of conflict of laws therein.
If
the arbitrator shall fail to render his decision or award within such ninety
(90) day period, either the Committee or the Representative may apply to any
New
York or federal court then having jurisdiction by action, proceeding or
otherwise, as may be proper to determine the matter in dispute consistently
with
the provisions of this Agreement. The parties consent to the exclusive
jurisdiction of the New York courts sitting in the County of New York for this
purpose. The prevailing party (or either party, in the case of a decision or
award rendered in part for each party) shall send a copy of the arbitration
decision or of any judgment of the New York or federal court (as applicable)
to
the Escrow Agent.
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(e) As
used
in this Agreement, “Established Claim” means any (i) Indemnification Claim
deemed established pursuant to the last sentence of paragraph 2(b) above, (ii)
Indemnification Claim resolved in favor of Parent by settlement of the parties
pursuant to paragraph 2(c) above, resulting in a dollar award to Parent or
(iii)
Indemnification Claim established by the final decision of an arbitrator or
the
final decision of a court of competent jurisdiction pursuant to paragraph 2(d)
above (in both cases after exhaustion of any appeals), which resulted in an
award of damages to Parent.
(f) (i)
Promptly after an Indemnity Claim becomes an Established Claim, the Committee
shall deliver a notice to the Escrow Agent directing the Escrow Agent to pay
to
Parent, and the Escrow Agent shall pay to Parent, an amount of Holdback Escrowed
Shares the value of which equals to the aggregate dollar amount of the
Established Claim in accordance with Section 2(f)(ii) (or, if at such time
there
remains in the Holdback Escrowed Shares Fund an insufficient amount of Holdback
Escrowed Shares to satisfy the full amount so payable, the full amount of
Holdback Escrowed Shares remaining in the Holdback Escrowed Shares Fund).
(ii)
Payment of an Established Claim shall be made in shares of Parent Common Stock
in the Holdback Escrowed Shares Fund, pro rata from the account maintained
on
behalf of each Holder. In such event, such shares shall be valued at the Fair
Market Value (as defined below) and the Escrow Agent shall promptly cause the
appropriate number of shares to be transferred from the Holdback Escrowed Shares
Fund to Parent, or its order, to the extent of the number of shares of Parent
Common Stock in the Holdback Escrowed Shares Fund. The parties hereto (other
than the Escrow Agent) agree that the foregoing right to make payments of
Established Claims in shares of Parent Common Stock in the Holdback Escrowed
Shares Fund may be made notwithstanding any other agreements restricting or
limiting the ability of any Holder to sell any shares of Parent Common Stock
or
otherwise. As used herein, “Fair Market Value” means the average reported last
sales price for the Parent Common Stock for the ten (10) Trading Days ending
on
the last Trading Day prior to the day the Established Claim is
paid.
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3. Distribution.
3.1 Holdback
Escrowed Shares.
On the
first Business Day after the termination of the Holdback Period, upon written
instruction from Parent, the Escrow Agent shall distribute and pay to each
Holder who has an interest in the shares of Parent Common Stock then in such
Holder's account in the Holdback Escrowed Shares Fund, unless at such time
there
are any Indemnity Claims with respect to which Notices have been received but
which have not been resolved pursuant to Section 2 hereof or in respect of
which
the Escrow Agent has not been notified of, and received a copy of, a final
determination (after exhaustion of any appeals) by a court of competent
jurisdiction, as the case may be (in either case, “Pending Claims”), and which,
if resolved or finally determined in favor of Parent, would result in a payment
to Parent, in which case the Escrow Agent shall retain, and the total amount
of
such distributions to such Holder shall be reduced by, such Holder’s respective
portion of the “Pending Claims Reserve” (as hereafter defined). Thereafter, if
any Pending Claim becomes an Established Claim, the Escrow Agent shall promptly
pay to Parent an amount in respect thereof determined in accordance with
paragraph 2(f) above, and to the Holder the amount by which the remaining
portion of his account in the Holdback Escrowed Shares Fund exceeds such
Holder’s respective portion of the then Pending Claims Reserve (determined as
set forth below). If any Pending Claim is resolved against Parent, the Escrow
Agent shall promptly pay to each Holder the amount by which the remaining
portion of his account in the Holdback Escrowed Shares Fund exceeds such
Holder’s respective portion of the then Pending Claims Reserve. Upon final
resolution (after exhaustion of any appeals) of all Pending Claims, the Escrow
Agent shall pay to such Holder the remaining portion of his or her account
in
the Holdback Escrowed Shares Fund.
As
used
herein, the “Pending Claims Reserve” at any time shall mean an amount of
Holdback Escrowed Shares, the Fair Market Value of which shall be equal to
the
sum of the aggregate dollar amounts claimed to be due with respect to all
Pending Claims (as shown in the Notices of such Claims). In the event that
the
sum of the aggregate dollar amounts claimed to be due with respect to all
Pending Claims is in excess of the aggregate Fair Market Value of all Holdback
Escrowed Shares which remain in the Holdback Escrowed Fund, then “Pending Claims
Reserve” shall mean all of the Holdback Escrowed Shares remaining in the
Holdback Escrowed Fund.
3.2 Additional
Escrowed Shares.
Each
Additional Escrowed Share shall continue to be held by the Escrow Agent in
the
Additional Escrowed Shares Fund until the earliest of (i) the receipt by the
Escrow Agent of instructions from Parent to distribute to the Holders such
amount of Additional Escrowed Shares as specified in such instructions pursuant
to Section 2.15(e)(i) or Section 2.15(f) of the Merger Agreement, (ii) the
receipt by the Escrow Agent of instructions from Parent to deposit such amount
of Additional Escrowed Shares as specified in such instructions into the
Derivative Escrowed Shares Fund pursuant to Section 2.15(e)(ii) of the Merger
Agreement, (iii) the receipt by the Escrow Agent of instructions from Parent
to
return to Parent such amount of Additional Escrowed Shares as specified in
such
instructions pursuant to Section 2.15(k) of the Merger Agreement or (iv) the
receipt by the Escrow Agent of instructions from Parent to deposit such amount
of Additional Escrowed Shares as specified in such instructions into the
Holdback Escrowed Shares Fund pursuant to Section 2.13(b). Any remaining
Additional Escrowed Shares shall continue to be held by the Escrow Agent until
the termination of the Share Price Trigger Period.
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3.3 Derivative
Escrowed Shares.
Derivative Escrowed Shares shall be held in the Derivative Escrowed Shares
Fund
until the receipt by the Escrow Agent of instructions from Parent to distribute
to the Derivative Holders such amount of Derivative Escrowed Shares as specified
in such instructions in accordance with Section 2.15(e)(ii) of the Merger
Agreement.
3.4 Continuing
Derivative Escrowed Shares.
Continuing Derivative Escrowed Shares shall be held in the Derivative Escrowed
Shares Fund until the receipt by the Escrow Agent of instruction from Parent
to
distribute to the Derivative Holders such amount of Continuing Derivative
Escrowed Shares as specified in such instructions in accordance with Section
2.15(e)(iii) of the Merger Agreement or the time in which they should be
returned to Parent for cancellation.
3.5 Fractional
Shares.
Notwithstanding anything to the contrary, no fraction of a share of Parent
Common Stock will be distributed pursuant to this Escrow Agreement. In the
event
that the Escrow Agent is required to distribute any shares of Parent Common
Stock to the Holders pursuant to the terms of this Escrow Agreement, Parent
shall make available to the Escrow Agent a sufficient number of shares of Parent
Common Stock in order to distribute one (1) share of Parent Common Stock to
each
Holder who would otherwise be entitled to a fraction of a share of Parent Common
Stock (after aggregating all fractional shares of Parent Common Stock that
otherwise would be received by such holder) in lieu of such fraction of a share
of Parent Common Stock.
4. Cooperation.
The
Escrow Agent shall cooperate in all respects with the Committee and the
Representative in the calculation of any amounts determined to be payable to
Parent in accordance with this Agreement.
5. No
Trustee or Fiduciary Relationship.
(a) The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein. It is understood that the Escrow Agent is not a trustee or fiduciary
and
is acting hereunder merely in a ministerial capacity.
(b) The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent),
statement, instrument, report or other paper or document (not only as to its
due
execution and the validity and effectiveness of its provisions, but also as
to
the truth and acceptability of any information therein contained) which is
believed by the Escrow Agent to be genuine and to be signed or presented by
the
proper person or persons. The Escrow Agent shall not be bound by any notice
or
demand, or any waiver, modification, termination or rescission of this Agreement
unless evidenced by a writing delivered to the Escrow Agent signed by the proper
party or parties and, if the duties or rights of the Escrow Agent are affected,
unless it shall have given its prior written consent thereto.
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(c) The
Escrow Agent's sole responsibility upon receipt of any notice requiring any
payment to Parent pursuant to the terms of this Agreement or, if such notice
is
disputed by the Committee or the Representative, the settlement with respect
to
any such dispute, whether by virtue of joint resolution, arbitration or
determination of a court of competent jurisdiction, is to pay to Parent the
amount specified in such notice, and the Escrow Agent shall have no duty to
determine the validity, authenticity or enforceability of any specification
or
certification made in such notice.
(d) The
Escrow Agent shall not be liable for any action taken by it in good faith and
believed by it to be authorized or within the rights or powers conferred upon
it
by this Agreement, and may consult with counsel of its own choice and shall
have
full and complete authorization and protection for any action taken or suffered
by it hereunder in good faith and in accordance with the opinion of such
counsel.
(e) The
Escrow Agent may resign at any time and be discharged from its duties as escrow
agent hereunder by its giving the other parties hereto written notice and such
resignation shall become effective as hereinafter provided. Such resignation
shall become effective at such time that the Escrow Agent shall turn over the
Escrow Fund to a successor escrow agent appointed jointly by the Committee
and
the Representative. If no new escrow agent is so appointed within the sixty
(60)
day period following the giving of such notice of resignation, the Escrow Agent
may deposit the Escrow Fund with any court it reasonably deems
appropriate.
(f) In
the
event of a dispute between the parties as to the proper disposition of the
Escrow Fund, the Escrow Agent shall be entitled (but not required) to deliver
the Escrow Fund into the United States District Court for the Southern District
of New York and, upon giving notice to the Committee and the Representative
of
such action, shall thereupon be relieved of all further responsibility and
liability.
(g) The
Escrow Agent shall be indemnified and held harmless by Parent from and against
any expenses, including counsel fees and disbursements, or loss suffered by
the
Escrow Agent in connection with any third party action, suit or other proceeding
involving any claim which in any way, directly or indirectly, arises out of
or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Escrow Fund held by it hereunder, other than expenses or losses arising from
the
gross negligence or willful misconduct of the Escrow Agent. Promptly after
the
receipt by the Escrow Agent of notice of any demand or claim or the commencement
of any action, suit or proceeding, the Escrow Agent shall notify the other
parties hereto in writing. In the event of the receipt of such notice, the
Escrow Agent, in its sole discretion, may commence an action in the nature
of
interpleader in an appropriate court to determine ownership or disposition
of
the Escrow Fund or it may deposit the Escrow Fund with the clerk of any
appropriate court or it may retain the Escrow Fund pending receipt of a final,
non-appealable order of a court having jurisdiction over all of the parties
hereto directing to whom and under what circumstances the Escrow Fund are to
be
disbursed and delivered.
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(h) The
Escrow Agent shall be entitled to reasonable compensation from Parent for all
services rendered by it hereunder in accordance with the fee schedule attached
hereto. The Escrow Agent shall also be entitled to reimbursement from Parent
for
all expenses paid or incurred by it in the administration of its duties
hereunder including, but not limited to, all counsel, advisors' and agents'
fees
and disbursements and all taxes or other governmental charges.
(i) From
time
to time on and after the date hereof, the Committee and the Representative
shall
deliver or cause to be delivered to the Escrow Agent such further documents
and
instruments and shall do or cause to be done such further acts as the Escrow
Agent shall reasonably request to carry out more effectively the provisions
and
purposes of this Agreement, to evidence compliance herewith or to assure itself
that it is protected in acting hereunder.
(j) Notwithstanding
anything herein to the contrary, the Escrow Agent shall not be relieved from
liability hereunder for its own gross negligence or its own willful
misconduct.
6. No
Implied Duties. This
Agreement expressly sets forth all the duties of the Escrow Agent with respect
to any and all matters pertinent hereto. No implied duties or obligations shall
be read into this Agreement against the Escrow Agent. The Escrow Agent shall
not
be bound by the provisions of any agreement among the parties hereto except
this
Agreement and shall have no duty to inquire into the terms and conditions of
any
agreement made or entered into in connection with this Agreement, including,
without limitation, the Merger Agreement.
7. Governing
Law.
This
Agreement shall inure to the benefit of and be binding upon the parties and
their respective heirs, successors, assigns and legal representatives, shall
be
governed by and construed in accordance with the law of New York applicable
to
contracts made and to be performed therein except that issues relating to the
rights and obligations of the Escrow Agent shall be governed by and construed
in
accordance with the law of New York applicable to contracts made and to be
performed therein. This Agreement cannot be changed or terminated except by
a
writing signed by the Committee, the Representative and the Escrow
Agent.
8. Jurisdiction.
The
Committee and the Representative each hereby consents to the exclusive
jurisdiction of the New York and federal courts sitting in New York County
with
respect to any claim or controversy arising out of this Agreement. Service
of
process in any action or proceeding brought against the Committee or the
Representative in respect of any such claim or controversy may be made upon
it
by registered mail, postage prepaid, return receipt requested, at the address
specified in Section 9.
9. Notices.
All
notices and other communications under this Agreement shall be in writing and
shall be deemed given if given by hand or delivered by nationally recognized
overnight carrier, or if given by telecopier and confirmed by mail (registered
or certified mail, postage prepaid, return receipt requested), to the respective
parties as follows:
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A.
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If
to the Committee, to it at:
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x/x
Xxxxxx Technology Acquisition Corp.
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0
Xxxx Xxxxxx, 0xx
Xxxxx
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Givaat
Xxxxxx
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Israel
54030
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Attention:
Xxxxxx Xxxxxxx, Chief Executive Officer
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000-0-000-0000
telephone
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000-0-000-0000
telecopy
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with
a copy to:
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Naschitz,
Xxxxxxx & Co
|
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0
Xxxxx Xxxxxx
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Xxx
Xxxx
|
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|
Xxxxxx
00000
|
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|
Attention:
Xxxxx Xxxxxxx, Adv.
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000-0-000-0000
telephone
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000-0-000-0000
telecopy
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with
a copy to:
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Xxxxxxxx
Xxxxxx
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The
Chrysler Building
|
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000
Xxxxxxxxx Xxxxxx
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Xxx
Xxxx, Xxx Xxxx 00000-0000
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Attention:
Xxxxx Xxxx Xxxxxx, Esq.
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Telecopier
No.: 000-000-0000
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B.
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If
to the Representative, to him at
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iXi
Mobile, Inc.
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00
Xxxxxxxx Xxxxxx
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Ra’anana
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Israel
43665
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Attention:
Xxxxxx Xxxxx
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000-0-000-0000
telephone
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000-0-000-0000
telecopy
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with
a copy to:
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Xxxxxx,
Fox & Xxxxxx
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Xxxx
Xxxxx, 0 Xxxxxxxx Xxxxxx
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Xxx
Xxxx
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Xxxxxx
00000
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Attention:
Alon Sahar, Adv.
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000-0-000-0000
telephone
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000-0-000-0000
telecopy
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C.
|
If
to the Escrow Agent, to it at:
|
|
|
Continental
Stock Transfer & Trust Company
|
||
|
00
Xxxxxxx Xxxxx, 0xx
Xxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000
|
||
|
Attention:
Compliance Department
|
||
|
Telecopier
No.: 212-509-5150
|
||
|
with
a copy to:
|
||
|
Xxxxxxxx
Xxxxxx
|
||
|
The
Chrysler Building
|
||
|
000
Xxxxxxxxx Xxxxxx
|
||
|
Xxx
Xxxx, Xxx Xxxx 00000-0000
|
||
|
Attention:
Xxxxx Xxxx Xxxxxx, Esq.
|
||
|
Telecopier
No.: 000-000-0000
|
or
to
such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
10. No
Conflict.
Notwithstanding anything contained herein to the contrary, in the event of
any
inconsistency between the terms of this Agreement and the Merger Agreement,
the
terms of the Merger Agreement shall prevail.
11. Miscellaneous.
(a) If
this
Agreement requires a party to deliver any notice or other document, and such
party refuses to do so, the matter shall be submitted to arbitration pursuant
to
paragraph 2(d) of this Agreement.
(b) All
notices delivered to the Escrow Agent shall refer to the provision of this
Agreement under which such notice is being delivered and, if applicable, shall
clearly specify the aggregate dollar amount due and payable to
Parent.
(c) This
Agreement may be executed in any number of counterparts, each of which shall
be
deemed to be an original instrument and all of which together shall constitute
a
single agreement.
[Signature
page follows]
-
11
-
IN
WITNESS WHEREOF,
each of
the parties hereto has duly executed this Agreement on the date first above
written.
|
PARENT:
|
|
|
By:/s/
Xxxxxx Xxxxxxx
|
|
|
Name:
Xxxxxx Xxxxxxx
|
|
|
Title:
Chairman
|
|
|
REPRESENTATIVE:
|
|
|
By:/s/
Xxxxxx Xxxxx
|
|
|
Name:
Xxxxxx Xxxxx
|
|
|
Title:
Chairman
|
|
|
ESCROW
AGENT:
|
|
|
By:/s/
Xxxxxx Xxxxxx
|
|
|
Name:
Xxxxxx Xxxxxx
|
|
|
Title:
Chairman & President
|
|
-
12
-
