ESCROW AGREEMENT
THIS ESCROW AGREEMENT is made and entered into on May 7, 1998 by and
among Helix Technology Corporation, a Delaware corporation ("Helix"), and
Xxxxxxx X. Xxxxxxx, as the representative of the stockholders (the "Stockholder
Representative") of the Xxxxxxxxx-Xxxxxxxx Company, a Washington corporation
("GPC"), and State Street Bank and Trust Company, as escrow agent (the "Escrow
Agent").
WHEREAS, pursuant to the Agreement and Plan of Merger dated as of April
16, 1998 (the "Merger Agreement") by and among Helix, Helix Acquisition
Corporation, a Washington corporation and wholly owned subsidiary of Helix, GPC
and certain stockholders of GPC, Helix Acquisition Corporation has been merged
into GPC (the "Merger"). Capitalized terms used herein and not otherwise defined
have the meanings assigned to them in the Merger Agreement.
WHEREAS, pursuant to Section 1.12 of the Merger Agreement, one hundred
nineteen thousand one hundred forty-five (119,145) shares of Helix Common Stock
(the "Escrow Shares") are being deposited by Helix on behalf of the Stockholders
(the "Stockholders") of GPC hereunder to provide for the indemnification of
Helix under Section 10, of the Merger Agreement. A list of all Stockholders and
their pro rata interest in the Escrow Shares is attached hereto as Schedule I.
NOW THEREFORE, the parties hereto agree as follows:
1. Establishment of Escrow. Helix has delivered to the Escrow Agent and
the Escrow Agent acknowledges receipt of the Escrow Shares in the form of a
single stock certificate. The Escrow Shares shall be held in escrow in the name
of the Escrow Agent or its nominee, subject to the terms and conditions set
forth herein. Unless and until the Escrow Shares are returned to Helix or
distributed to the Stockholders pursuant to the terms of this Agreement, the
Escrow Agent shall vote the Escrow Shares in accordance with the written
instructions of the Stockholders as to their pro rata interest in the Escrow
Fund as set forth in Schedule I.
2. Amounts Earned on Escrow Shares; Tax Matters. All amounts earned on
the Escrow Shares (cash dividends and other distributions) shall be distributed
pro rata to the Stockholders from time to time upon request of the Stockholder
Representative. The parties agree that to the extent permitted by applicable
law, earnings will be allocatable for tax purposes to the Stockholders in
proportions to their holdings and the Stockholders will include all amounts
earned on the Escrow Shares in their gross income for federal, state and local
income tax (collectively, "income tax") purposes and pay any income tax
resulting therefrom. The parties agree that the Escrow Agent will be furnished
with all information necessary to enable it to comply with the reporting and
backup withholding requirements of the Internal Revenue Code of 1986, as
amended.
3. Claims Against Escrow Shares.
(a) At any time or times prior to the Expiration Date (as
defined below), Helix may make claims against the Escrow Shares for amounts due
for indemnification under Section 10 of the Merger Agreement. Helix shall notify
the Stockholder Representative and the Escrow Agent in writing of each such
claim, including a brief description of the amount and nature of such claim.
Each such notice delivered to the Escrow Agent by Helix shall contain a
representation of Helix to the effect that Helix has delivered a copy of such
notice to the Stockholder Representative prior to or simultaneously with its
delivery to the Escrow Agent. In the event that the amount subject to the claim
is unliquidated, Helix shall make a good faith estimate as to the amount of the
claim for purposes of determining the number of Escrow Shares to be withheld by
the Escrow Agent if such claim is not resolved or otherwise adjudicated by the
Expiration Date. If the Stockholder Representative disputes such claim, the
Stockholder Representative shall give written notice thereof to Helix and to the
Escrow Agent within thirty days after the date Helix's notice of claim was
delivered to the Stockholder Representative, in which case the Escrow Agent
shall continue to hold the Escrow Shares in accordance with the terms of this
Agreement; otherwise, such claim shall be deemed to have been acknowledged to be
payable from the Escrow Shares in the full amount set forth in the claim and the
Escrow Agent shall pay such claim to Helix as soon as practicable after
expiration of that thirty-day period. The Escrow Agent shall effect such payment
of Escrow Shares to Helix by surrendering the certificate representing the
Escrow Shares to Helix's transfer agent for cancellation with instructions to
issue a new certificate to the Escrow Agent for the number of Escrow Shares
remaining after giving effect to such payment. If the amount of the claim
exceeds the aggregate value of the Escrow Shares, the Escrow Agent shall have no
liability or responsibility for any deficiency. The value per share of the
Escrow Shares for purposes of this Agreement shall be $20.00 (the "Agreed Share
Value"). All claims paid out of the Escrow Shares shall be rounded to the
nearest whole share. Under no circumstances shall the Stockholders or the
Stockholder Representative have any right to substitute other property for the
Escrow Shares or to change the Agreed Share Value.
(b) If the Stockholder Representative gives notice to Helix
and the Escrow Agent pursuant to Section 3(a) disputing a Helix claim, no
distribution of Escrow Shares shall be made by the Escrow Agent to Helix or to
the Stockholders of the Set Aside Amount under Section 4(a) with respect to such
claim until either (i) such disputed claim has been resolved as evidenced by a
written notice executed by Helix and the Stockholder Representative instructing
the Escrow Agent as to the distribution of such Set Aside Amount or portion
thereof or (ii) such dispute shall have been adjudicated in accordance with the
arbitration procedures described in Section 4(b).
4. Disputed Claims.
(a) If the Stockholder Representative disputes an
indemnification claim of Helix as above provided and subject to Section 3, the
Escrow Agent shall allocate a portion of the Escrow Shares equal to the amount
of the claim as set forth in the notice of the claim (the "Set Aside Amount").
In the event Helix notifies the Escrow Agent in writing that it has made
out-of-pocket expenditures or anticipates that it will incur legal expenses in
connection with any such disputed claim with respect to which it is entitled to
be indemnified under the Merger Agreement, a portion of the Escrow Fund equal to
such incurred or anticipated expenditures as set forth in such notification
shall also be added to and become a part of the Set Aside Amount, provided that
in the event that it shall be agreed (as evidenced by a written notice executed
by Helix and the Stockholder Representative as described in Section 3(b)) or
determined through an arbitration proceeding described in Section 4(b) that
Helix is not entitled to indemnification with respect to such claim, Helix shall
not be entitled to such shares.
(b) If the Escrow Agent does not receive written notice
executed by Helix and the Stockholder Representative within sixty days after the
Stockholder Representative sends notice of such dispute to the effect that the
disputed indemnification claim has been resolved, the indemnification claim
shall be referred to an arbitrator chosen by agreement of the Stockholder
Representative and Helix. If no agreement is reached regarding selection of the
arbitrator within thirty days after written request from either party to the
other, Helix or the Stockholder Representative may submit the matter in dispute
to the American Arbitration Association, to be settled by arbitration in Boston,
Massachusetts in accordance with the commercial arbitration rules of the
Association. Helix and the Stockholder Representative agree to act in good faith
to mutually select an arbitrator. The fees and expenses of the arbitrator for
any arbitration shall be borne by the Stockholders and Helix in such proportions
as shall be determined by the arbitrator, or if there is no such determination,
then such fees and expenses shall be borne equally by the Stockholders and
Helix. The determination of the arbitrator as to the amount, if any, of the
indemnification claim that is properly allowable shall be conclusive and binding
upon the parties hereto and judgment may be entered thereon in any court having
jurisdiction. The Escrow Agent shall make payment of such claim to Helix out of
the Set Aside Amount and make payment of the fees and expenses of the
arbitration out of the Escrow Fund, in each case as and to the extent allowed as
soon as practicable following its receipt of a copy of the arbitration award
determination.
5. Termination.
(a) On the earlier of (i) the first anniversary of the Closing
Date (as defined in the Merger Agreement), or (ii) delivery to the Escrow Agent
of the completed next audited financial statements of Helix (the "Expiration
Date"), the Escrow Agent shall deliver the Escrow Shares to the Stockholders
according to their pro rata interests as set forth on Schedule I, provided that
in the event that the Escrow Agent has received notice pursuant to Section 3
above made prior to the Expiration Date, but not resolved by the Expiration
Date, the Escrow Agent shall retain and continue to hold in escrow the Escrow
Shares having a value based on the Agreed Share Value not greater than 15% of
the amount of the indemnification claim for which notice had been received.
(b) Any portion of the Escrow Shares retained by the Escrow
Agent after the earlier of (i) the first anniversary of the Closing Date or (ii)
the Expiration Date, shall continue to be so retained until such time or times
as the Escrow Agent shall receive (1) a joint written instrument signed by Helix
and the Stockholder Representative in which case the Escrow Agent shall proceed
in accordance with such joint written instruction, or (2) notice that a
judgment, order or decree has been entered or made by any court affecting the
Escrow Shares which in the opinion of legal counsel chosen by the Escrow Agent
is binding upon the Escrow Agent and not subject to further appeal or
modification before compliance is required therewith, in which case the Escrow
Agent shall release and deliver the Escrow Shares to the Stockholders or Helix
in compliance with such judgment, and this Agreement shall terminate.
6. The Escrow Agent.
(a) Notwithstanding anything herein to the contrary, the
Escrow Agent shall promptly dispose of all or any part of the Escrow Shares as
directed by a writing jointly signed by the Stockholder Representative and
Helix. The reasonable fees and expenses of the Escrow Agent in connection with
its execution and performance of this Agreement as set forth on Schedule II
hereto shall be borne by Helix. The Escrow Agent shall not be liable for any act
or failure to act under this Agreement, including any and all claims made
against the Escrow Agent as a result of its holding the Escrow Shares in its own
name, except for its own gross negligence or willful misconduct. The Escrow
Agent shall not be liable for, and Helix and the Stockholders shall agree,
jointly and severally, to indemnify and hold harmless the Escrow Agent and its
directors, employees, officers, agents, successors and assigns against, any
losses or claims (including reasonable out-of-pocket expenses and attorney fees)
arising out of any action taken or omitted in good faith hereunder and
reasonable costs of investigation and counsel fees and expenses which may be
imposed on the Escrow Agent or reasonably incurred by it in connection with its
acceptance of this appointment or performance of its duties hereunder. The
Escrow Agent may decline to act and shall not be liable for failure to act if in
doubt as to its duties under this Agreement. The Escrow Agent may act upon any
instrument or signature believed by it to be genuine and may assume that any
person purporting to give any notice or instruction hereunder, reasonably
believed by it to be authorized, has been duly authorized to do so. The Escrow
Agent's duties shall be determined only with reference to this Agreement and
applicable law and the Escrow Agent is not charged with knowledge of or any
duties or responsibilities in connection with any other document or agreement,
including without limitation, the Merger Agreement.
(b) The Escrow Agent shall have the right at any time to
resign hereunder by giving written notice of its resignation to the parties
hereto, at the addresses set forth herein or at such other address as the
parties shall provide, at least thirty days prior to the date specified for such
resignation to take effect. In such event Helix shall with the approval of the
Stockholder Representative, which approval shall not be unreasonably withheld,
appoint a successor escrow agent within that thirty-day period; if Helix does
not designate a successor escrow agent within such period, the Escrow Agent may
appoint a successor escrow agent. Upon the effective date of such resignation,
the Escrow Fund then held by the Escrow Agent hereunder shall be delivered by it
to such successor escrow agent or as otherwise shall be designated in writing by
Helix and the Stockholder Representative.
(c) In the event that the Escrow Agent should at any time be
confronted with inconsistent or conflicting claims or demands by the other
parties hereto, the Escrow Agent shall have the right to interplead the parties
in any Massachusetts court or any court of competent jurisdiction and request
that such court determine the respective rights of the parties with respect to
this Agreement and, upon doing so, the Escrow Agent shall be released from any
obligations or liability to the other parties as a consequence of any such
claims or demands.
(d) The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder, either directly or
by or through its agents or attorneys. Nothing in this Agreement shall be deemed
to impose upon the Escrow Agent any duty to qualify to do business or to act as
fiduciary or otherwise in any jurisdiction other than the Commonwealth of
Massachusetts. The Escrow Agent shall not be responsible for and shall not be
under a duty to examine, inquire into or pass upon the validity, binding effect,
execution or sufficiency of this Agreement or of any amendment or supplement
hereto.
7. Stockholder Representative.
(a) In the event the Stockholder Representative shall die or
resign or otherwise terminate his status as such, his successor shall be Xxxxxxx
X. Xxxxxx or such other person as the Stockholder Representative may appoint. If
the successor Stockholder Representative shall die or resign or otherwise
terminate his status as such, his successor shall be any person appointed by
such successor Stockholder Representative or, in the case of his failure to
appoint a successor after a vacancy has been created, elected by the vote or
written consent of a majority in interest of the Stockholders. All decisions of
the Stockholder Representative shall be binding upon the Stockholders. The
Stockholder Representative shall keep the Stockholders reasonably informed of
his or her material decisions.
(b) The Stockholder Representative is authorized to take any
action deemed by him appropriate or necessary to carry out the provisions of,
and to determine the rights of the Stockholders under this Agreement. The
Stockholder Representative shall serve as the agent of the Stockholders for all
purposes related to this Agreement, including without limitation service of
process upon the Stockholders. By execution of this Agreement, the Stockholder
Representative accepts and agrees to diligently discharge the duties and
responsibilities of the Stockholder Representative set forth in this Agreement
without compensation for his services hereunder. The authorization and
designation of the Stockholder Representative under this Section 7(b) shall be
binding upon the successors and assigns of each Stockholder. Helix and the
Escrow Agent shall be entitled to rely upon such authorization and designation
and shall be fully protected in dealing with the Stockholder Representative, and
shall have no duty to inquire into the authority of any person reasonably
believed by any of them to be the Stockholder Representative.
(c) The Stockholder Representative (i) shall not be liable to
any of the Stockholders for any error of judgment, or action taken or omitted in
good faith, or mistake of fact or law unless caused by his own gross negligence
or willful misconduct, (ii) shall be entitled to treat as genuine any letter or
other document furnished to him by Helix, the Stockholders or the Escrow Agent
and believed by him to be genuine and to have been signed and presented by the
proper party or parties, and (iii) shall be reimbursed, upon presentation of an
invoice, from the Escrowed Shares, in an amount sufficient after sale of such
released shares, to pay all counsel fees and other out-of-pocket expenses
incurred by the Stockholder Representative in connection with this Agreement.
(d) The Stockholder Representative, warrants and agrees that
he is authorized to execute this agreement for and on behalf of the
Stockholders.
8. Governing Law. This Agreement is governed by the laws of the
Commonwealth of Massachusetts without regard to its conflict of law provisions,
and shall inure to the benefit of and be binding upon the successors, assigns,
heirs and personal representatives of the parties hereto.
9. Counterparts. This Agreement may be executed in two or more
counterparts, all of which documents shall be considered one and the same
document.
10. Notices. Any notice or other communication required or permitted
hereunder shall be in writing and shall be deemed given when delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or five business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
(a) if to Helix, to:
Helix Technology Corporation
Mansfield Corporate Center
Nine Xxxxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxx Chief Executive Officer
Telecopy: (000) 000-0000
with a copy to:
Xxxxxx & Dodge LLP
Xxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx II
Telecopy: (000) 000-0000
(b) if to the Stockholder Representative:
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
with a copy to:
Ireland, Xxxxxxxxx, Xxxxx & Xxxxxx, P.C.
0000 Xxxxxxxx, 00xx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx Xxxxxx
Telecopy: (000) 000-0000
(c) if to the Escrow Agent:
State Street Bank and Trust Company
Corporate Trust
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxx
Telecopy: (000) 000-0000
Any party may by notice given in accordance with this section to the other
parties designate another address or person for receipt of notices hereunder.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the parties have executed this Agreement
on the date first above written.
HELIX TECHNOLOGY CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
President and Chief Executive Officer
STOCKHOLDER REPRESENTATIVE:
/s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
THE ESCROW AGENT:
STATE STREET BANK AND TRUST COMPANY
By: /s/ Xxxxxx Xxxxxx
Authorized Signatory
Name: Xxxxxx Xxxxxx
Title: Assistant Vice President
THE STOCKHOLDERS:
By: /s/ Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx
Stockholder Representative
SCHEDULE I
Pro Rata Interest
Stockholder Number of Shares
Xxxxx, Xxxxx X.
000 Xx. Xxxxxxxx Xxxxxx
X. Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxx Xxxxxx
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Bills, Xxxxx X.
00000 Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Bills, Xxxxxx X.
000 Xxxxx Xxx
Xxxxxxx, XX 00000
(000) 000-0000
Bills, June M.
000 Xxxxx Xxx
Xxxxxxx, XX 00000
(000) 000-0000
Black, Xxxxxx X.
000 Xxxxx Xxxxxxxx Xxxxxx
Xxxxxx, XX 00000
(000) 000-0000
Xxxxxxxxxx, Xxxxxxx X.
0000 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxx, Xxxxxxx X.
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
(000) 000-0000
Xxxxx, Xxxxxx X. & Xxxxxxx X.
as Joint Tenants & Not as Tenants in Common
00 Xxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Xxx, Xxxxx X.
0000 X. Xxxxx Xxxxxxx, Xxxx 00X
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxxxx, Xxxxxx X. & Xxxxxxxx X.
as Joint Tenants with Right of Survivorship
not as Tenants in Common
S.E. 000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X. & Xxxxx X.
as Joint Tenants & Not as Tenants in Common
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxxx, Xxxxxx X.
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
(000) 000-0000
Xxxxxxx, Xxxxxx X.
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X.
0000 Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxx X.
0000 Xxxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 0000-0000
Xxxxxxxxxx, Xxxxxxx X.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
XxXxxxxx, Xxxxx Xxxxx (Bills)
00000 Xxxxxx Xxxx
Xxxxxx, XX 00000
(000) 000-0000
Xxxxxxxxx, Xxxxxxx X.
0000 Xxxxxxx Xxxxx Xxxxxxx
Xxxxxxxx, XX 00000
(000) 000-0000
Menkick, Xxxxxx X.
00000 X. 00xx Xxxxx
Xxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X.
Trustee of the Xxxxxxx X. Xxxxxx
Family Testamentary Trust
00000 00xx Xxxxxx Xxxxx
Xxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X.
Trustee of the Xxxxxx X. Xxxxxx
Revocable Living Trust, Dated: October 15, 1992
00000 00xx Xxxxxx Xxxxx
Xxxx, XX 00000
X'Xxxxxxxx-Xxxxxx, Xxxxxx
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx-Xxxxxxx Living Trust
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
Xxxxxxxx, Xxxxx X. (Bills)
0000 Xxx Xxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx, X. Xxxxxxxxx, Xx.
0000 X. 0000 X.
Xxxx Xxxx Xxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X.
0000 Xxxxxxxx Xxxx
Xxxxxxxx, XX 00000
(000) 000-0000 H
(000) 000-0000 W
Xxxxxx, Xxxxxxx X.
000 Xxxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxx X.
000 Xxxxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxxx X.
0000 Xxxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxxx, Xxxxxxx X. III & Xxxxxxxxx X.
as Joint Tenants & Not as Tenants in Common
0000 00xx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxx X. & Xxxxx X.
as Joint Tenants with Right of Survivorship
and Not as Tenants in Common
0000 Xxxxxxx Xxxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Xxxxxx, Xxxxxx X.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
(000) 000-0000
Gold I Trust
Xxxxx X. Xxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Gold II Trust
Xxxxx X. Xxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Platinum I Trust
Xxxxx X. Xxxxxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Platinum II Trust
Xxxxx X. Xxxxxxxx and
Xxxxx Xxxxx XxXxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Silver I Trust
Xxxxx X. Xxxxx and
Xxxxx X. Xxxxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Silver II Trust
Xxxxx X. Xxxxx and
Xxxxx X. Xxxxxxxx, Trustees
Xxxxxxxxx-Xxxxxxxx Company
0000 Xxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
SCHEDULE II
Fees of Escrow Agent
Acceptance Fee: Waived
Administrative fee: $2,500.00 per year or part thereof, plus
$35.00 per stockholder
Out-of-Pocket Expense: At cost
Legal Fees (Peabody & Xxxxxx) At cost
