Exhibit 10.1
ESCROW AGREEMENT
THIS AGREEMENT is made on the 29th day of August, 2005.
BY AND BETWEEN: 4317467 CANADA INC., a Canadian corporation
(herein referred to as the "Purchaser")
AND: RAMTRON INTERNATIONAL CORPORATION, a Delaware
corporation
(herein referred to as "Ramtron")
AND: FONDS DE SOLIDARITE DES TRAVAILLEURS DU QUEBEC
(F.T.Q.), a Canadian corporation
(herein referred to as the "Fonds")
AND: BUSINESS DEVELOPMENT BANK OF CANADA, a Canadian
corporation
(herein referred to as "BDC")
AND: INVESTISSEMENT TECHNOLOGIE (3599) INC., a Canadian
corporation
(herein referred to as "INVESTISSEMENT TECHNOLOGIE")
AND: VISION2000 VENTURE, LTD., a Grand Cayman corporation
(herein referred to as "Vision")
(Fonds, BDC, INVESTISSEMENT TECHNOLOGIE and Vision
herein sometimes referred to as a "Designated
Vendor" and collectively as the "Designated
Vendors")
AND: ▇▇▇ ▇▇▇▇▇▇▇▇▇, businessman residing at
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(herein referred to as "▇▇▇▇▇▇▇▇▇")
AND: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, businessman residing at
▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
(herein referred to as "▇▇▇▇▇▇▇▇▇▇")
(herein collectively ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇▇▇▇
referred to as "Guarantors")
AND: National Bank Trust Inc., a corporation constituted
pursuant the laws of Quebec;
(herein referred to as the "Escrow Agent")
AND AS INTERVENOR: CITIBANK N.A., a US corporation with offices at
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇ herein represented by ▇▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇▇, duly authorized
(herein referred to as the "Transfer Agent")
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WHEREAS ▇▇▇▇▇▇▇ Parziole, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ Azelmad, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, the Designated Vendors, the Purchaser and
Ramtron have executed a Share Purchase Agreement dated August 29, 2005 (the
"Purchase Agreement");
WHEREAS it is a condition for the consummation of the transactions
contemplated in the Purchase Agreement that the parties shall have executed
and delivered this Escrow Agreement;
WHEREAS the Designated Vendors have agreed to deposit with the Escrow Agent
certain Ramtron Shares as hereinafter described and the Guarantors have
agreed to deposit certain sums of money, to be held and dealt with by the
Escrow Agent hereunder as provided herein.
NOW THEREFORE, THIS AGREEMENT WITNESSETH:
1. PREAMBLE
The preamble shall form an integral part of this agreement.
2. DEFINITION
All capitalized terms referred to herein shall have the meaning ascribed
thereto in the Purchase Agreement unless otherwise specifically defined
herein.
3. ESCROW
3.1 Shares
Simultaneously with the execution and delivery of this Escrow Agreement, the
Designated Vendors are depositing with the Escrow Agent shares of Ramtron in
the proportions set forth in Exhibit A hereto representing the Escrow Shares
as provided in Section 2.3(e) of the Purchase Agreement; such shares are
herein referred to as the "Escrowed Shares". Forthwith hereafter, each of the
Designated Vendors shall remit to the Escrow Agent all ancillary documents
necessary to make such Escrowed Shares suitable for transfer.
3.2 Cash
Simultaneously with the execution and delivery of this Escrow Agreement, the
Guarantors are depositing with the Escrow Agent the sum of US$62,500, being
US$37,500 in the case of ▇▇▇ ▇▇▇▇▇▇▇▇▇ and US$25,000 in the case of ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, as provided in Section 8.4(b) of the Purchase Agreement; such sum
is herein referred to as the "Escrowed Amount". The Escrowed Amount shall be
deposited by the Escrow Agent in an interest bearing account and held in
accordance herewith. Any interest earned shall be dealt with in the same
manner as the capital thereof, i.e. if all the capital is ultimately remitted
to Indemnittee (as hereinafter defined) then all interest shall also be
remitted thereto and if only a portion of such capital is remitted to
Indemnittee then only such portion of the interest shall be remitted to
Indemnitee and the balance returned to Guarantors.
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3.3 Allocation
The Escrowed Shares shall be used to satisfy the payment by the Designated
Vendors of any exigible claims for indemnification made by the Purchaser
and/or Ramtron (collectively the "Indemnitee") against any of the Designated
Vendors pursuant to the Purchase Agreement whether as a consequence of a
Direct Claim (as hereinafter defined) or a Third Party Claim (as hereinafter
defined) (an "Indemnification Claim"), subject to the terms and conditions
hereof. The Escrow Agent shall give instructions to Transfer Agent to dispose
of the Escrowed Shares in accordance with the terms and conditions hereof.
In the event that an Indemnification Claim made against all Designated
Vendors results from Section 8.1(b) of the Purchase Agreement, then only
Eighty-Seven and one half percent (87.5%) of such claim shall be exigible
from the Escrowed Shares and the balance thereof shall be exigible from the
Escrowed Amount. The Guarantors hereby, solidarily, guarantee in favour of
the Designated Vendors, but for the exclusive benefit of Indemnittee, 12.5%
of the Indemnification Claim made against all Designated Vendors, the whole
without the benefit of division and discussion thereto and without the
benefit of any additional defences, rights of contestation or dispute
thereto, it being understood that the only dispute or defence mechanism in
virtue of an Indemnification Claim shall be a dispute by the Designated
Vendors in virtue of Section 4 hereof and the Guarantors shall be bound by
the determination and decision of Designated Vendors thereto.
Unless a Disputed Amount is determined herein, at the request of the
Indemnittee, the Escrowed Amount shall be automatically used, without
additional formalities of any kind, notices or requirements and
notwithstanding any contrary order, direction or contestation thereto to
immediately satisfy Twelve and one half percent (12.5%) of any
Indemnification Claim made against all Designated Vendors simultaneously with
the payment of any Claim Notice from any of the Escrowed Shares.
4. PROCEDURE WITH RESPECT TO AN INDEMNIFICATION CLAIM
4.1 Claims by Indemnitee against all Designated Vendors
Promptly upon the Indemnitee becoming aware of any circumstances which have
given or could give rise to an Indemnification Claim (a "Direct Claim")
against all Designated Vendors or promptly after receipt by the Indemnitee of
notice from a third party of any claim or circumstance that, with the lapse
of time, would give rise to a claim by a third party, or of the commencement
(or threatened commencement) of any action, proceeding or investigation (a
"Third Party Claim") against all Designated Vendors that may result in
Damages (as defined in the Purchase Agreement), such Indemnitee shall be
entitled to deliver to the Designated Vendors, the Guarantors and the Escrow
Agent, up to and including the day before the Release Date (as this
expression is hereinafter defined), a notice in writing stating that the
events referred to in the Indemnification Claim have in fact taken place,
claiming entitlement either to a portion of the Escrowed Shares as a
consequence of the Indemnification Claim or to a portion of the Escrowed
Shares and the Escrowed Amount (the "Claim Notice"), which Claim Notice shall
specify in reasonable detail the amount claimed thereunder and the reason for
such claim and that the Designated Vendors and the Guarantors have
concurrently received a written notice of the event referred to in the
Indemnification Claim.
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4.2 Claims by Indemnitee against one Designated Vendor
Promptly upon the Indemnitee becoming aware of any circumstances which have
given or could give rise to a Direct Claim against one Designated Vendor or
promptly after receipt by the Indemnitee of notice from a third party of any
claim or circumstance that, with the lapse of time, would give rise to a
Third Party Claim against one Designated Vendor that may result in Damages
(as defined in the Purchase Agreement), such Indemnitee shall be entitled to
deliver to the relevant Designated Vendor and the Escrow Agent, up to and
including the day before the Release Date (as this expression is hereinafter
defined), a Claim Notice stating that the events referred to in the
Indemnification Claim have in fact taken place, claiming entitlement to a
portion of the Escrowed Shares deposited by the relevant Designated Vendor,
which Claim Notice shall specify in reasonable detail the amount claimed
thereunder and the reason for such claim and that the relevant Designated
Vendor has concurrently received a written notice of the event referred to in
the Indemnification Claim.
4.3 The Response of the Designated Vendors in the case of a claim against
all Designated Vendors
With respect to a Direct Claim against all Designated Vendors, in the event
that the Designated Vendors receive a Claim Notice, each Designated Vendor
shall, within ninety (90) days after receiving the Claim Notice (during which
period the Designated Vendors may make such investigation of the Direct Claim
as is considered necessary or desirable and, for the purpose of said
investigation, the Indemnitee shall make available to the Designated Vendors
the information relied on by the Indemnitee to substantiate the Direct Claim,
together with such information as the Designated Vendors may reasonably
request), deliver to Indemnitee and the Escrow Agent a notice in writing
specifying the extent, if any, to which the Designated Vendor agrees with the
amount claimed in the Claim Notice and shall specify in reasonable detail the
reasons for any dispute thereof (individually the "Response Notice" and
collectively the "Response Notices"). If (a) a Majority (defined herein as a
majority of the Designated Vendors based on the number of Escrowed Shares at
the time of the receipt of the Claim Notice) of the Designated Vendors
deliver Response Notices agreeing that the Escrow Agent shall pay to
Indemnitee the entire amount claimed in the Claim Notice or (b) Indemnitee
and a Majority of the Designated Vendors have satisfactorily resolved a
dispute with respect to a claim by written agreement, and provided a copy of
such agreement to the Escrow Agent or (c) a Majority of the Designated
Vendors fail to send Response Notices to the Indemnitee and the Escrow Agent
within the ninety (90) day period hereinabove set forth, then the Escrow
Agent shall promptly remit to the Indemnitee that number of Escrowed Shares
and, if applicable, that portion of the Escrowed Amount as shall be necessary
to pay the amount set forth in either the written agreement between the
Indemnitee and the Designated Vendors or in the Claim Notice, as the case may
be, to Indemnitee. However, if the Escrow Agent receives a Response Notice
indicating that the Majority of the Designated Vendors dispute, in whole or
in part, the amount claimed in the Claim Notice, the Escrow Agent shall make
no payment in response to such Claim Notice except in compliance with
subsection 4.5 hereof.
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With respect to a Third Party Claim against all Designated Vendors, in the
event the Designated Vendors receive a Claim Notice, each Designated Vendor
shall, within thirty (30) days (or sooner if the nature of the asserted
liability so requires) after receiving such Claim Notice deliver to the
Indemnitee, a Response Notice. Upon conclusion of the Third Party Claim
either by (i) agreement in writing between the Majority of the Designated
Vendors and the Indemnitee which delivered the Claim Notice, (ii) agreement
in writing between the third party claimant(s), the Majority of the
Designated Vendors and the Indemnitee who delivered the Claim Notice or
(iii) the final judgment of a court of competent jurisdiction for which there
is no right of appeal or the decision of the arbitrator in accordance herein,
the Indemnitee shall deliver to the Designated Vendors and the Escrow Agent a
notice stating the Damages incurred in connection with such Third Party Claim
(a "Damage Notice") together with a copy of such agreement or judgment, as
the case may be. Within five (5) business days of receipt of such Damage
Notice, the Escrowed Agent shall promptly remit to the Indemnitee that number
of Escrowed Shares and, if applicable, the portion of the Escrowed Amount, as
the case may be, as shall be necessary to pay the amount set forth in the
Damage Notice to the Indemnitee having delivered the Damage Notice.
4.4 The Response of a Designated Vendor in the case of a claim against one
Designated Vendor
With respect to a Direct Claim against one Designated Vendor, in the event
that said Designated Vendor receives a Claim Notice, it shall, within ninety
(90) days after receiving the Claim Notice (during which period said
Designated Vendor may make such investigation of the Direct Claim as is
considered necessary or desirable and, for the purpose of said investigation,
the Indemnitee shall make available to said Designated Vendor the information
relied on by the Indemnitee to substantiate the Direct Claim, together with
such information as said Designated Vendor may reasonably request), deliver
to Indemnitee and the Escrow Agent a Response Notice. The Response Notice
shall specify the extent, if any, to which the relevant Designated Vendor
agrees with the amount claimed in the Claim Notice and shall specify in
reasonable detail the reasons for any dispute thereof. If (a) the relevant
Designated Vendor delivers a Response Notice agreeing that the Escrow Agent
shall pay to Indemnitee the entire amount claimed in the Claim Notice or (b)
Indemnitee and the relevant Designated Vendor have satisfactorily resolved a
dispute with respect to a claim by written agreement, and provided a copy of
such agreement to the Escrow Agent or (c) the relevant Designated Vendor
fails to send a Response Notice to Indemnitee and the Escrow Agent within the
ninety (90) day period hereinabove set forth, then the Escrow Agent shall
promptly remit to the Indemnitee that number of Escrowed Shares deposited by
the relevant Designated Vendor as shall be necessary to pay the amount set
forth in either the written agreement between the Indemnitee and the relevant
Designated Vendor or in the Claim Notice, as the case may be, to Indemnitee.
However, if the Escrow Agent receives a Response Notice indicating that the
relevant Designated Vendor disputes, in whole or in part, the amount claimed
in the Claim Notice, the Escrow Agent shall make no payment in response to
such Claim Notice except in compliance with subsection 4.6 hereof.
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With respect to a Third Party Claim against one Designated Vendor, in the
event the said Designated Vendor receives a Claim Notice, it shall, within
thirty (30) days (or sooner if the nature of the asserted liability so
requires) after receiving such Claim Notice deliver to the Indemnitee, a
Response Notice. Upon conclusion of the Third Party Claim either by
(i) agreement in writing between the relevant Designated Vendor and the
Indemnitee which delivered the Claim Notice, (ii) agreement in writing
between the third party claimant(s), the relevant Designated Vendor and the
Indemnitee who delivered the Claim Notice or (iii) the final judgment of a
court of competent jurisdiction for which there is no right of appeal or the
decision of the arbitrator in accordance herein, the Indemnitee shall deliver
to the relevant Designated Vendor and the Escrow Agent a Damage Notice
together with a copy of such agreement or judgment, as the case may be.
Within five (5) business days of receipt of such Damage Notice, the Escrow
Agent shall promptly remit to the Indemnitee that number of Escrowed Shares
deposited by the relevant Designated Vendor as shall be necessary to pay the
amount set forth in the Damage Notice to the Indemnitee having delivered the
Damage Notice.
4.5 Disputed Claims in the case of claims made against all Designated
Vendors
If the Escrow Agent receives Response Notices indicating that the Majority of
the Designated Vendors dispute, in whole or in part, the amount claimed in
the Claim Notice, then the Escrow Agent shall (a) remit to the Indemnitee
that number of Escrowed Shares and the Escrowed Amount, as the case may be,
as shall be necessary to pay to the Indemnitee the portion of the claim of
the Indemnitee set forth in the Claim Notice which the Majority of the
Designated Vendors has indicated in the Response Notice is not subject to
dispute, if any, as set forth in the Response Notice; and (b) continue to
hold the portion of the amount set forth in the Claim Notice which is subject
to the dispute (the "Disputed Amount") in escrow as part of the Escrowed
Shares and the Escrowed Amount, as the case may be,until it shall have
received joint written instructions executed by the Indemnitee and the
Majority of the Designated Vendors, and in such event, shall deal with the
Disputed Amount as directed in such instructions, or (c) continue to hold the
Disputed Amount until it receives a final judgment of a court of competent
jurisdiction from which there is no appeal or the decision of the arbitrator
in accordance herein, in which event the Escrow Agent shall deal with the
Disputed Amount as directed in such judgment.
4.5 Disputed Claims in the case of claims made against one Designated Vendor
If the Escrow Agent receives a Response Notice indicating that the relevant
Designated Vendor disputes, in whole or in part, the amount claimed in the
Claim Notice against said Designated Vendor, then the Escrow Agent shall
(a) remit to the Indemnitee that number of Escrowed Shares deposited by the
relevant Designated Vendor as shall be necessary to pay to the Indemnitee the
portion of the claim of the Indemnitee set forth in the Claim Notice which
the said Designated Vendor has indicated in the Response Notice is not
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subject to dispute, if any, as set forth in the Response Notice; and
(b) continue to hold the Disputed Amount in escrow as part of the Escrowed
Shares deposited by the relevant Designated Vendor until it shall have
received joint written instructions executed by the Indemnitee and the said
Designated Vendor, and in such event, shall deal with the Disputed Amount as
directed in such instructions, or (c) continue to hold the Disputed Amount
until it receives a final judgment of a court of competent jurisdiction from
which there is no appeal or the decision of the arbitrator in accordance
herein, in which event the Escrow Agent shall deal with the Disputed Amount
as directed in such judgment.
5. DISTRIBUTIONS FROM THE ESCROWED SHARES AND THE ESCROWED AMOUNT
Subject to the provisions of Section 4 above, the Escrow Agent shall
distribute to each Designated Vendor in the proportions set forth in Exhibit
A hereto (to be adjusted, if necessary, to take into account a claim against
only one Designated Vendor, it being understood that only the Escrowed Shares
of a Designated Vendor shall be used to satisfy claims made against said
Designated Vendor) from the Escrowed Shares, on the day which is twelve (12)
months and one business day after the date of this Escrow Agreement (the
"Release Date") all of the Escrowed Shares; provided, however, that the
number of Escrowed Shares to be released to the Designated Vendors shall be
reduced by 1) the number of Escrowed Shares corresponding to the aggregate
amount claimed pursuant to Claim Notices delivered by the Indemnitee pursuant
to Section 4.1 hereof prior to any Release Date and which have not been
resolved pursuant to Section 4.3, or pursuant to which payment has not been
made pursuant to Section 4.5 (the "Outstanding Claims") on the Release Date
and 2) in the case of claims against only one Designated Vendor, the number
of Escrowed Shares corresponding to the aggregate amount claimed pursuant to
Claim Notices delivered by the Indemnitee pursuant to Section 4.2 hereof
prior to any Release Date and which have not been resolved pursuant to
Section 4.4, or pursuant to which payment has not been made pursuant to
Section 4.6 (the "Outstanding Claims") on the Release Date ; provided,
further, that any Escrowed Share not distributed to the Designated Vendors,
or the relevant Designated Vendor, as the case may be, by reason of the
existence of Outstanding Claims on such Release Date shall be distributed to
the Designated Vendors, or the relevant Designated Vendor, as soon as
practicable following the resolution of each such Outstanding Claim, and
after making all payments required to be made to the Indemnitee, if any in
respect of each such Outstanding Claim, the whole in accordance with the
provisions of Sections 4.3, 4.4, 4.5 or 4.6 as the case may be.
Subject to the provisions of Section 4 above, the Escrow Agent shall
distribute to each Guarantor (60% in the case of ▇▇▇ ▇▇▇▇▇▇▇▇▇ and 40% in the
case of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇)on the Release Date all of the Escrowed Amount,
provided, however, that the Escrowed Amount to be released to the Guarantors
shall be reduced by 1) the aggregate amount claimed pursuant to the
Outstanding Claims on the Release Date; provided, further, that any Escrowed
Amount not distributed to the Guarantors, by reason of the existence of
Outstanding Claims on such Release Date shall be distributed to the
Guarantors as soon as practicable following the resolution of each such
Outstanding Claim, and after making all payments required to be made to the
Indemnitee, if any in respect of each such Outstanding Claim, the whole in
accordance with the provisions of Sections 4.3, or 4.5 as the case may be.
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6. MATTERS RESPECTING THE ESCROWED SHARES
6.1 For the purposes of the calculation of the number of Escrowed Shares to
be remitted to Indemnitee pursuant to Sections 4.3, 4.4, 4.5 and 4.6, the
price of one Escrowed Share shall be based upon the average closing sale
price of Ramtron International Corporation's share on NASDAQ for the thirty
(30) trading days ending two (2) trading days prior to the date that the
Indemnification Claim is resolved, such date of resolution being indicated in
writing to the Escrow Agent hereto. Such calculation shall be made by Escrow
Agent or its representatives and communicated, in writing, to the parties
hereto.
6.2 All voting rights to the Escrowed Shares shall be retained by the
Designated Vendors until such time as a such shares may be released to
Indemnittee or the termination herein.
7. TERMINATION OF THIS ESCROW AGREEMENT
7.1 This Escrow Agreement shall terminate with respect to all parties upon
the distribution of all of the Escrowed Shares and Escrowed Amount held
by the Escrow Agent pursuant to this Escrow Agreement or as may
otherwise be agreed upon by the Purchaser and the Designated Vendors.
7.2 This Escrow Agreement shall terminate with respect to a Designated
Vendor upon the distribution of all of the Escrowed Shares held by the
Escrow Agent pursuant to this Escrow Agreement with respect to said
Designated Vendor or as may otherwise be agreed upon by the Purchaser
and said Designated Vendor.
8. AUTHORIZATION AND DUTIES OF THE ESCROW AGENT
8.1 Authorization
The Purchaser and the Designated Vendors hereby authorize the Escrow Agent to
give instructions to the Transfer Agent, in order to exercise its duties
pursuant to this Agreement and hereby authorize the Transfer Agent to execute
such instructions in order for Escrow Agent to execute such instructions in
order for Escrow Agent to exercise such duties.
8.2 Duties Limited
The Escrow Agent shall perform only the duties expressly set forth herein. It
is understood and agreed that the duties of the Escrow Agent hereunder are
purely ministerial in nature and that it shall not be liable for any error of
judgment or for any act done or step taken or omitted by it in good faith, or
for any mistake of fact or law, or for anything which it may do or refrain
from doing in connection herewith.
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8.3 Reliance
The Escrow Agent may rely upon, and shall be protected in acting or
refraining from acting upon, any written notice, instruction, request or
other document purported to be furnished to it hereunder and the Escrow Agent
shall not be bound to enquire as to the veracity, accuracy or adequacy
thereof or be bound by any notice, instruction, request or other document to
the contrary by any person other than a person entitled to give such notice.
and each of the parties hereto shall not hold the Escrow Agent liable for any
loss or injury to it.
8.4 Indemnity; Good Faith
The Escrow Agent shall incur no liabilities hereunder or in connection
herewith for anything whatsoever and the Purchaser and the Designated Vendors
hereby release the Escrow Agent and such persons from any action, cause of
action, claim, demand, damage, loss, cost, liability, penalty and expense
whatsoever, whether arising, directly or indirectly, by way of statute,
contract, tort or otherwise. In the case of a claim made against all
Designated Vendors, the Purchaser, Ramtron and the Designated Vendors shall
solidarily indemnify the Escrow Agent and hold it harmless against any
action, cause of action, claim, demand, damage, loss, liability or expense
arising out of or in connection with this Escrow Agreement, including the
costs and expenses incurred in defending any such claim of liability. In the
case of a claim made against one Designated Vendor, the Purchaser, Ramtron
and the relevant Designated Vendor shall solidarily indemnify the Escrow
Agent and hold it harmless against any action, cause of action, claim,
demand, damage, loss, liability or expense arising out of or in connection
with this Escrow Agreement, including the costs and expenses incurred in
defending any such claim of liability. Notwithstanding any other provision of
this Escrow Agreement, the foregoing indemnification shall survive
termination of this Escrow Agreement.
8.5 Disputes
In the event of any disagreement between the parties hereto resulting in
adverse claims or demands with respect to any of the Escrowed Shares or the
Escrowed Amount, the Escrow Agent shall be entitled, at its option, to refuse
to comply with any claims or demands on it with respect thereto as long as
such disagreement shall continue, and in so refusing, the Escrow Agent may
elect to make no delivery of the Escrowed Shares or the Escrowed Amount, as
the case may be. In so doing, the Escrow Agent shall not be or become liable
in any way to the parties hereunder for its failure or refusal to comply with
such claims or demands. In the event of any disagreement or apparent
disagreement between the parties hereto resulting in adverse claims or
demands with respect to the Escrowed Shares or Escrowed Amount or if any of
the parties hereto, including the Escrow Agent, are in or appear to be in
disagreement about the interpretation of this Escrow Agreement or the
Purchase Agreement, as it relates to this Escrow Agreement, or about the
rights and obligations of the Escrow Agent or the propriety of an action
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contemplated by the Escrow Agent under this Escrow Agreement, the Escrow
Agent may, at its option, deposit the Escrowed Shares and the Escrowed Amount
or any part thereof then in its possession with a court of competent
jurisdiction and seek instruction or direction from a court of competent
jurisdiction which direction may include a request for an interpleader order.
In the case of claims made against all the Designated Vendors the Escrow
Agent shall be solidarily indemnified by the other parties hereunder in any
such action, interpleader or any other action or proceeding for all costs,
expenses and fees in its capacity as Escrow Agent in connection with any
deposit or any action brought in connection with this Escrow Agreement. In
the case of claims made against one Designated Vendor, the Escrow Agent shall
be indemnified by the Purchaser, Ramtron and the Designated Vendor hereunder
solidarily in any such action, interpleader or any other action or proceeding
for all costs, expenses and fees in its capacity as Escrow Agent in
connection with any deposit or any action brought in connection with this
Escrow Agreement. The parties hereto acknowledge and agree that the Escrow
Agent shall be entitled to represent itself in connection with any legal
actions taken in connection with this Escrow Agreement. Upon the Escrow
Agent's delivery or deposit of the Escrowed Shares or Escrowed Amount in
accordance with the provisions of this Escrow Agreement, the Escrow Agent
shall be automatically and immediately discharged and released from all
duties and obligations under this Escrow Agreement to any party hereto and to
any other person with respect to any part of the monies held in escrow
hereunder.
8.6 Restriction of Indemnity
The indemnities, releases and limitations of liability contained in this
Section 8 shall not apply with respect to any matter arising out of the
wilful misconduct or negligence of the Escrow Agent.
9. RESIGNATION OF ESCROW AGENT; SUCCESSOR ESCROW AGENT
9.1 Resignation
The Escrow Agent may resign at any time by giving notice of such resignation
to the other parties hereto. In such event the Escrow Agent shall not take
any action until the the Majority of the Designated Vendors and the
Indemnitee have jointly designated a bank, trust company, solicitor or other
person as successor Escrow Agent. Upon receipt of instructions to do so
signed by the Purchaser and the Majority of the Designated Vendors (or one
Designated Vendor, if this Agreement has terminated with respect to the other
Designated Vendors), the Escrow Agent shall promptly deliver the Escrowed
Shares, the Escrowed Amount and any other sums held pursuant hereto to such
successor Escrow Agent, such successor shall execute a counterpart of this
Agreement pursuant to which the successor Escrow Agent agrees to be bound by
all of the provisions hereof and the Escrow Agent shall refund all pre-paid
fees, on a pro-rata basis, paid to the Escrow Agent hereunder that relate to
periods after said transfer (such refunded fees shall be divided and paid to
the Purchaser and the Designated Vendors (or one Designated Vendor, if this
Agreement has terminated with respect to the other Designated Vendors) in
equal amounts). Upon the date of such delivery, the Escrow Agent shall have
no further obligation hereunder.
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9.2 Termination
The Purchaser and the Majority of the Designated Vendors (or one Designated
Vendor, if this Agreement has terminated with respect to the other Designated
Vendors) together may terminate the appointment of the Escrow Agent and
select a successor Escrow Agent hereunder upon notice specifying the date
upon which such termination and succession shall take effect. In the event of
such termination, the Escrow Agent shall turn over to such successor Escrow
Agent the Escrowed Shares, the Escrowed Amount and any other funds held by it
pursuant to this Escrow Agreement, net of any fees, expenses or disbursements
pursuant to Section 10. Upon the appointment of the successor Escrow Agent,
such successor Escrow Agent shall execute a counterpart of this Agreement
pursuant to which the successor Escrow Agent agrees to be bound by all of the
provisions hereof.
10. FEES AND EXPENSES OF THE ESCROW AGENT
10.1 The Purchaser and the Designated Vendors, in proportion to the number
of Escrowed Shares deposited by each Designated Vendor (or one Designated
Vendor if the claims relate only to said Designated Vendor) shall each pay
fifty percent (50%) of the fees of the Escrow Agent for the Escrow Agent's
services hereunder (as set out in Exhibit B) for the first year of this
Agreement which shall be paid at the same time as the Escrowed Shares and
the Escrowed Amount shall be deposited herein with the Escrow Agent. All
expenses and disbursements incurred in carrying out the Escrow Agent's duties
hereunder or under the indemnity provided in Section 8 (such latter expenses
shall be advanced to Escrow Agent, upon request) and, in the case the Escrow
is extended beyond one year and one business day, the fees of the Escrow
Agent for the Escrow Agent's services hereunder shall be paid as to fifty
percent (50%) by the Purchaser and as to 50% by the Designated Vendors in
proportionto the number of Escrowed Shares then deposited by each Designated
Vendor indicated in the attached schedule (or one Designated Vendor if the
claims relate only to said Designated Vendor). In the case of a dispute
between the Indemnitee and the Designated Vendors (or one Designated Vendor,
if the claims relate to only one Designated Vendor), the Escrow Agent may
retain such independent counsel or other advisors as it may reasonably
require for the purpose of discharging or determining its duties, obligations
or rights hereunder, and may act and rely upon the advice or opinion so
obtained and fifty percent (50%) of the reasonable fees, expenses or
disbursements of any such counsel shall be paid by the Designated Vendors (or
one Designated Vendor, if the claims relate to only one Designated Vendor)
and the remaining fifty percent (50%) of such fees, expenses or disbursements
of any such counsel shall be paid by the Purchaser. This section shall
survive termination of this Escrow Agreement.
10.2 The Purchaser and the Designated Vendors (or one Designated Vendor, if
the claims relate only to said Designated Vendor) shall pay the Escrow
Agent's charges within thirty (30) days of the date of an invoice from the
Escrow Agent. Any amount outstanding after such period shall accrue interest,
calculated daily, at the Escrow Agent's banker's annual prime interest rate
plus 3%. All such fees may be increased after a period of two years from the
date of this Agreement upon thirty (30) days' written notice to the parties.
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10.3 In all cases, the Escrow Agent may require payment and shall have the
right to retain out of the Escrowed Amount to be released, if unpaid in full
for any fees, expenses and other amount howsoever owing to it hereunder prior
to the return of Escrowed Shares or Escrowed Amount to any party in
accordance with this Agreement.
11. UNDERTAKINGS OF THE DESIGNATED VENDORS
11.1 All decisions and actions of the Designated Vendors shall be taken by a
Majority of the Designated Vendors in connection with claims made against all
Designated Vendors, including without limitation the defence or settlement of
any claims for which any Designated Vendor may be required to indemnify
Indemnitee and such decisions shall be binding on all the Designated Vendors
and no Designated Vendor shall have the right to object, dissent, protest or
otherwise contest the same.
11.2 In connection with claims made against all Designated Vendors, by its
execution of this Agreement, each Designated Vendor agrees with the
Purchaser, the Escrow Agent and with each other Designated Vendor that:
(i) The Purchaser and the Escrow Agent shall be able to rely
conclusively on the instructions and decisions of the Majority of
the Designated Vendors as to the settlement of any claims for
indemnification by Indemnitee or any other actions required to be
taken by the Majority of the Designated Vendors hereunder, and no
Designated Vendor shall have any cause of action against the
Purchaser or the Escrow Agent for any action taken by the Purchaser
or the Escrow Agent in reliance upon the instructions or decisions
of the Majority of the Designated Vendors;
(ii) All actions, decisions and instructions of the Majority of the
Designated Vendors shall be conclusive and binding upon all of the
Designated Vendors.
11.3 All fees and expenses incurred by the Majority of the Designated
Vendors with the consent of the Majority of the Designated Vendors shall be
paid by the Designated Vendors in proportion to the number of Escrowed Shares
deposited by each Designated Vendor.
12. ARBITRATION
12.1 All Disputes to be Arbitrated by Single Arbitrator
All disputes arising in connection with this Agreement which cannot be
settled by way of negotiations shall be finally settled by a single
arbitrator appointed pursuant to the procedures provided in the Code of Civil
Procedure of Quebec, save and except for the appointment of the arbitrator,
which appointment shall be effected in accordance with Section 12.2 hereof.
The place of arbitration shall be in Montreal at the offices of counsel for
the Indemnitee at the address designated in Section 13.1 hereof and the
English language shall be used during the proceedings. The arbitrator so
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appointed shall be instructed that time is of the essence in proceeding with
its determination of any dispute and that its decision shall be rendered
within six (6) months of its appointment. The decision of the arbitrator
shall be in writing and shall be final and binding. The costs of such
arbitration shall be equally paid by the Designated Vendors (or one
Designated Vendor if the claims relate only to said Designated Vendor) on the
one hand and by the Purchaser on the other hand, except as otherwise provided
in the arbitration award. The parties hereto shall keep strictly confidential
the content of any such arbitration proceedings and any arbitration award
made in such proceedings except for the purposes of the homologation of the
arbitration award.
12.2 Appointment of Arbitrator
In the event that a dispute arises between any of the parties hereto and such
parties are unable to settle such dispute by way of negotiations, any party
to such dispute may at any time give notice (hereinafter in this Section 12.2
the "Arbitration Notice") to each other party to such dispute of the
requirement of the party giving the Arbitration Notice that such dispute be
submitted to arbitration as herein provided. Following the deemed receipt,
pursuant to Section 13.1 hereof, by the other parties to such dispute, of the
Arbitration Notice, if the parties in dispute shall be unable to agree upon
the appointment of the arbitrator within fifteen (15) days after such deemed
receipt of such Arbitration Notice, then any party to such dispute may apply
to the applicable court of the Province of Quebec for the appointment of such
arbitrator in accordance with the provisions of Articles 941 and following of
the Code of Civil Procedure of Quebec.
13. MISCELLANEOUS
13.1 Notices
Any notice or other communication permitted or required to be given hereunder
by one party to the other shall be in writing and shall be delivered by hand
or by courier service or by telecopier to the party entitled or required to
receive the same, as follows:
IF TO THE PURCHASER:
4317467 Canada Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
and
▇▇▇▇ ▇▇▇▇▇, President, Technology Group
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to Coudert Brothers LLP at:
▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ St. Clair
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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Copy to: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Gervais LLP
1000 de la Gauchetiere Street West
Suite 9000
Montreal (Quebec) H3B 5H4
Attention: Me ▇▇▇ ▇▇▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF RAMTRON:
Ramtron International Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: President
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO VENDORS:
Fonds de solidarite des travailleurs du Quebec (F.T.Q.)
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: Legal Department
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Business Development Bank of Canada
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇ April
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Investissement Technologie (3599) Inc.
▇▇▇, ▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇
Attention: Corporate secretary
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Vision2000 Venture, Ltd.
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
P. O. Box 219 GT,
▇▇▇▇▇▇ Town, Grand Cayman
Cayman Islands
Attention: ▇▇▇▇ ▇▇▇▇
Telecopier: c/o Conyers ▇▇▇▇ ▇▇▇▇▇▇▇, attorneys ▇▇▇-(▇▇▇) ▇▇▇▇ ▇▇▇▇
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IF TO ▇▇▇▇▇▇▇▇▇:
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
IF TO ▇▇▇▇▇▇▇▇▇▇:
▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone: 514-871-2447 ext. 111
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
IF TO ESCROW AGENT:
National Bank Trust Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇ ▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: Advisor, Corporate Services
IF TO TRANSFER AGENT:
Citibank, N.A.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
as intervenor
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Telecopier: ▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Notice delivered as aforesaid shall be deemed received on the date of actual
delivery thereof. Each party may change its address by notice delivered in
like manner. Notices and other communications may be signed by any officer of
any party hereto or by their respective legal counsel.
13.2 Entire Agreement
This Escrow Agreement is entered into and delivered pursuant to the Purchase
Agreement and contains the entire agreement among the parties with respect to
the subject matter hereof and supersedes all prior or contemporaneous
agreements of the parties and their representatives, written or oral,
respecting such subject matter.
13.3 Amendment
This Escrow Agreement shall not be amended or modified except by a writing
duly executed by the parties hereto, and no such amendment or modification
shall affect or be binding upon any party unless and until the Escrow Agent
shall have agreed thereto in writing.
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13.4 Waiver
Waiver of any term or condition of this Escrow Agreement by any party shall
only be effective if in writing and shall not be construed as a waiver of any
subsequent breach or failure of the same or condition, or a waiver of any
other term or condition of this Escrow Agreement.
13.5 Binding Effect; Assignment
This Escrow Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and their permitted successors and assigns. No party to
this Escrow Agreement may assign or delegate, by operation of law or
otherwise, all or any portion of its rights, obligations or liabilities under
this Escrow Agreement without the prior written consent of the other parties
to this Escrow Agreement, which any such party may withhold in its absolute
discretion. Any purported assignment without such prior written consent shall
be void.
13.6 Dollar References
All payments to be made pursuant to this Agreement to the Purchaser shall be
made in U.S. dollars. All payments to be made pursuant to this Agreement to
the Escrow Agent shall be made in Canadian dollars.
13.7 Governing Law
This Escrow Agreement shall be governed by and construed in accordance with
the laws of the Province of Quebec without giving effect to the principles of
conflict of laws thereof.
13.8 Further Assurances
Each of the parties hereto shall execute such documents and other papers and
take such further actions as may be reasonably required or desirable to carry
out the provisions hereof and the transactions contemplated hereby except
that the Escrow Agent shall not be bound to execute such further documents
and other papers or to take such further actions unless it is otherwise
expressly obligated hereunder. In this regard, at the time of transfer of any
Escrowed Shares and at any time, if requested by Escrow Agent, each
Designated Vendor shall deliver to Escrow Agent and the Transfer Agent, if
necessary, all documents required to effect such transfer a duly endorsed
proxy and transfer form with medallion guarantee thereon.
13.9 Counterparts
This Escrow Agreement may be executed in any number of counterparts, with the
same effect as if the signatures to each counterpart were upon a single
instrument, and all such counterparts shall together be deemed an original of
this Escrow Agreement.
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13.10 Language
Les parties ont exige que la presente convention et les documents qui s'y
rattachent soient rediges en anglais seulement. The parties have requested
that this Agreement and any documents related thereto be drafted in the
English language only.
13.11 Headings
The headings in this Escrow Agreement are solely for convenience and shall
not affect the rights of the parties to this Escrow Agreement.
IN WITNESS WHEREOF, the parties have executed this Escrow Agreement as of the
date first above written.
4317467 CANADA INC.
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------
Per: ▇▇▇▇ ▇▇▇▇▇
RAMTRON INTERNATIONAL CORPORATION
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------
Per: ▇▇▇▇ ▇▇▇▇▇
FONDS DE SOLIDARITE DES TRAVAILLEURS DU QUEBEC (F.T.Q.)
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Per: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
BUSINESS DEVELOPMENT BANK OF CANADA
/s/ ▇▇▇ April
----------------------
Per: ▇▇▇ April
INVESTISSEMENT TECHNOLOGIE (3599) INC.
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------
Per: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Page-17
VISION2000 VENTURE LTD.
/s/ ▇▇▇▇ ▇▇▇▇
----------------------
Per: ▇▇▇▇ ▇▇▇▇
NATIONAL BANK TRUST INC.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------
Per: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
/s/ Angelique Prono
------------------------
Per: Angelique Prono
/s/ ▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------
▇▇▇ ▇▇▇▇▇▇▇▇▇
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
----------------------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
INTERVENTION
The undersigned hereby intervenes to declare having read the provisions of this
Agreement and acknowledge the terms and conditions of this Agreement.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
----------------------------
Per: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Vice President
Citibank N.A. Depository Receipt Services
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
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