Exhibit 10.1
Services Acquisition Corp. International
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇. Lauderdale, FL 33301
August 29, 2006
Jamba Juice Company
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Reference is hereby made to the Agreement and Plan of Merger dated as of
March 10, 2006, as amended, (the "Agreement") by among Services Acquisition
Corp. International, a Delaware corporation ("Parent"), JJC Acquisition Company,
a California corporation and a wholly-owned subsidiary of Parent ("Merger Sub")
and Jamba Juice Company, a California corporation ("Company"). Capitalized terms
used herein but not otherwise defined herein shall have such meanings as defined
in the Agreement. The parties have agreed to amend and modify the Agreement as
follows:
1. Notwithstanding anything to the contrary in the Agreement, the language
of Section 2.27 shall be deleted in its entirety and replaced with the
following: "Survival of Representations and Warranties. The representations and
warranties of the Company set forth in this Agreement shall survive the Closing
until July 31, 2007."
2. Notwithstanding anything to the contrary in the Agreement, the language
of the first sentence of Section 7.4 shall be deleted in its entirety and
replaced with the following: "The representations, warranties, covenants and
agreements in this Agreement or in any writing delivered by the Company to
Parent in connection with this Agreement (including the certificate required to
be delivered by the Company pursuant to Section 6.3(a)) shall survive the
Closing until July 31, 2007 (the "SURVIVAL PERIOD")."
3. Notwithstanding anything to the contrary in the Agreement, the language
of the first sentence of Section 1.10 shall be deleted in its entirety and
replaced with the following: "As the sole remedy for the indemnity obligations
set forth in Article VII, at the Closing the parties shall deposit $19,875,000
in cash (such cash, together with all earnings thereon is referred to as the
"ESCROW CASH") of the Total Merger Consideration, deducted from the Total Merger
Consideration otherwise payable to each of the Company's stockholders on a
pro-rata basis, to be held during the period ending on July 31, 2007 ("ESCROW
PERIOD"), all in accordance with the terms and conditions of the Escrow
Agreement in the form annexed hereto as Exhibit A (the "ESCROW AGREEMENT"), to
be entered into at the Closing between Parent, the Representative (as defined in
Section 1.11(b)) (who shall be designated by the Company in writing prior to the
Effective Date, until a successor is appointed pursuant to Section 1.11(b)) and
Continental Stock Transfer and Trust Company ("CONTINENTAL"), as Escrow Agent."
4. A new sentence is hereby added to the end of Section 5.22 of the
Agreement as follows: "Notwithstanding the foregoing, any Excess Third Party
Expenses in excess of $3,425,000 that are reasonably incurred in connection with
the Merger shall not reduce the Total Merger Consideration and shall not be
subject to the indemnification provisions of Article VII."
5. Notwithstanding anything to the contrary in the Agreement, the language
of Section 8.1(h) shall be deleted in its entirety and replaced with the
following: "by either Parent or the Company if the Closing Date shall not have
occurred by November 17, 2006."
6. The Escrow Agreement attached as Exhibit A to the Agreement is hereby
replaced in its entirety with the form of Escrow Agreement attached hereto.
7. The Company represents and warrants to Parent, as of the date of this
letter, that the Company's Total Indebtedness is not greater than $16,000,000.
For purposes of this representation, the term "Total Indebtedness" shall mean,
without duplication, (a) all obligations of the Company evidenced by bonds,
debentures, notes or similar instruments, (b) all obligations of the Company
upon which interest is customarily paid, (c) all obligations of the Company for
purchase money financing, including obligations under conditional sale or other
title retention agreements or issued or assumed in respect of deferred purchase
price, relating to assets purchased by the Company, (d) all interest rate
protection, foreign currency exchange or other interest or exchange rate hedging
agreements and (e) all obligations of the Company and the Subsidiaries as an
account party in respect of bankers' acceptances, in the case of each clause
above, as of such date. Notwithstanding anything to the contrary set forth in
this letter, the representation and the provisions of this paragraph 7 shall in
no way limit, modify, amend, replace or supercede any term or provision of the
Agreement.
8. This letter may be executed in two or more counterparts, all of which
when taken together shall be considered one and the same agreement. In the event
that any signature is delivered by facsimile transmission, such signature shall
create a valid and binding obligation of the party executing (or on whose behalf
such signature is executed) with the same force and effect as if such facsimile
signature page were an original thereof.
9. Except as modified hereby all of the other terms and conditions of the
Agreement remains in full force and effect.
[REMAINDER OF ▇▇▇▇ INTENTIONALLY LEFT BLANK
SIGNATURE PAGES FOLLOW]
IN WITNESS WHEREOF, the parties hereto have caused this letter (amending
the Agreement) as of the date first written above.
SERVICES ACQUISITION CORP. INTERNATIONAL
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Title: Chairman
JJC ACQUISITION COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Title: President
JAMBA JUICE COMPANY
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
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Title: President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇
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Title: Secretary
Exhibit A
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ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement") is entered into as of this ___
day of ________, 2006, by and among Services Acquisition Corp. International, a
Delaware corporation ("Parent"), Jamba Juice Company, a California corporation
(the "Company"), ___________ (the "Representative"), representing each of the
holders of capital stock of the Company, and [___________], a [_____________]
(the "Escrow Agent").
RECITALS
WHEREAS, Parent, JJC Acquisition Company, Inc., a California
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), the Company
and the Representative have entered into that certain Agreement and Plan of
Merger dated as of March 10, 2006, as amended (the "Merger Agreement";
capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Merger Agreement) pursuant to which, among other things,
Merger Sub will be merged with and into the Company (the "Merger"), with the
Company to be the surviving corporation of the Merger;
WHEREAS, pursuant to the terms of the Merger Agreement, a portion of
the Total Merger Consideration equal to $19,875,000 in cash (the "Escrow
Amount") is to be paid by Parent, on behalf of the Company stockholders, to the
Escrow Agent and held in escrow for the purpose of funding claims for
indemnification by any Indemnified Person pursuant to Article VIII of the Merger
Agreement; and
WHEREAS, pursuant to the Merger Agreement, the Company stockholders
have appointed the Representative to represent them for all purposes in
connection with the indemnification provisions of the Merger Agreement and this
Escrow Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual
obligations and covenants set forth herein, the parties hereto agree as follows:
1. RECEIPT OF ESCROW AMOUNT. By its signature below, the Escrow Agent
acknowledges receipt of the Escrow Amount. The parties hereto hereby constitute
and appoint the Escrow Agent as, and the Escrow Agent ▇▇▇▇▇▇ agrees to assume
and perform the duties of, the escrow agent pursuant to this Agreement. The
Escrow Amount shall be held by the Escrow Agent as a trust fund in a separate
account (the "Escrow Account") maintained for the purposes, and on the terms and
subject to the conditions, set forth in this Agreement.
2. INVESTMENT OF ESCROW AMOUNT. During the term of this Agreement, the
Escrow Amount and all interest thereon shall be invested and reinvested by the
Escrow Agent in the investment(s) indicated on Schedule 1. The Escrow Agent
shall have the right to liquidate any investments held in order to provide funds
necessary to make required payments under this Agreement. The Escrow Agent shall
have no liability for any loss sustained as a result of any investment in an
investment indicated on Schedule 1 or any investment made pursuant to the
instructions of the parties hereto or as a result of any liquidation of any
investment prior to its
maturity or for the failure of the parties to give the Escrow Agent instructions
to reinvest the Escrow Amount.
If the Escrow Agent has not received joint written instructions of
Parent and the Representative ("Joint Written Instructions") at any time that an
investment decision must be made, the Escrow Agent shall invest the Escrow
Amount and all interest thereon in commercial paper rated AA. All interest and
other income earned on the Escrow Amount through the Termination Date (as
defined below) shall be held by Escrow Agent as part of the Escrow Amount. For
tax purposes, all interest and other income earned on the Escrow Amount shall be
reported as taxable income of the former stockholders of the Company set forth
on Schedule 2 hereto (the "Former Stockholders"). Escrow Agent shall file
applicable tax forms consistent with such treatment. As soon as practicable
after the execution of this Agreement by the parties hereto, the Escrow Agent
shall be provided with a fully completed and executed Internal Revenue Service
Form W-8 or W-9, as applicable, from each of the Former Stockholders. The Escrow
Agent shall file such reports and withhold such taxes as it determines is
required by law or regulation.
3. RELEASE OF ESCROW AMOUNT.
(a) On each occasion on which Parent determines that any Indemnified
Person may be entitled to indemnification for any amount pursuant to Article VII
of the Merger Agreement (whether or not the Basket has been exceeded), Parent
shall deliver to the Representative and the Escrow Agent a notice specifying in
reasonable detail the nature and dollar amount of any claim that any Indemnified
Person may have under Article VII of the Merger Agreement (a "Claim
Certificate") for the payment of such amount.
(b) Within thirty (30) days after receipt by the Representative of a
Claim Certificate, the Representative may deliver to Parent and the Escrow Agent
a written objection to all or any part of the Claim Certificate (an
"Objection"). The Objection shall set forth in reasonable detail the basis of
the Representative's objection to the Claim Certificate and the amount in
dispute.
(c) If the Representative fails to deliver an Objection to Parent
and the Escrow Agent by 5:00 p.m. Eastern Time on the thirtieth (30th) day
following the receipt by the Representative of a Claim Certificate, the Escrow
Agent shall pay to the Indemnified Persons out of the Escrow Amount an amount
equal to the amount requested in the Claim Certificate (up to a maximum of the
Escrow Amount). Any such payment shall be made on or before the second (2nd)
Business Day following the expiration of such thirty (30) day period. The Escrow
Agent shall continue to hold any amounts remaining in the Escrow Account
following the payment of any Claim Certificate in accordance with the terms of
this Agreement.
(d) If the Representative delivers a timely Objection with respect
to all or any portion of a Claim Certificate, the Escrow Agent shall not
disburse, and shall continue to hold in the Escrow Account, the amount requested
in the Claim Certificate or the disputed portion thereof, as the case may be,
pending receipt of either (i) payment instructions signed by Parent and the
Representative, specifying the agreement of the parties as to the action to be
taken by the
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Escrow Agent in respect of such Claim Certificate ("Joint Payment Instructions")
or (ii) a notice from either Parent or the Representative stating that either
such Claim Certificate has been submitted to a court of competent jurisdiction
for judgment and that a judgment with respect to such matters has been rendered
or such Claim Certificate has been submitted to a panel of arbitrators with
proper jurisdiction and that a final non-appealable award with respect to such
arbitration has been rendered (in each case, a "Judgment Notice") which is
accompanied by a copy of a final, nonappealable order of such court or such
arbitration panel, as the case may be (each an "Order"), pursuant to which such
court has determined whether and to what extent the Indemnified Persons are
entitled to the amount requested in the Claim Certificate. Upon receipt of Joint
Payment Instructions or a Judgment Notice, as applicable, the Escrow Agent shall
thereafter act in accordance with Section 3(e) or 3(f) below, as applicable. A
copy of the Judgment Notice or Order shall be delivered to each party at the
same time as it is delivered to the Escrow Agent.
(e) Upon receipt by the Escrow Agent of Joint Payment Instructions,
if such Joint Payment Instructions indicate that any Indemnified Persons are
entitled to payment in respect of all or any portion of the Claim Certificate,
then the Escrow Agent shall release from the Escrow Account and pay to the
Indemnified Persons the amount indicated in such Joint Payment Instructions (up
to a maximum of the Escrow Amount). Such payment shall be made on or before the
second (2nd) Business Day following the date on which such Joint Payment
Instructions are received by the Escrow Agent. If such Joint Payment
Instructions indicate that the Indemnified Persons are not entitled to all or
any portion of the amount claimed in such Claim Certificate (a "Discharge
Notice"), then the Escrow Agent shall continue to hold such amount in the Escrow
Account in accordance with the terms of this Agreement until such amounts are to
be disbursed (A) to the Former Stockholders pursuant to Sections 3(h), 3(i) or
3(j) or 3(k), (B) to any Indemnified Persons in respect of another Claim
Certificate pursuant to Sections 3(c), 3(e) or 3(f) or (C) to any Person
pursuant to Section 3(k).
(f) If the Escrow Agent has received a Judgment Notice and an Order
with respect to any Claim Certificate, then the Escrow Agent shall release from
the Escrow Account and pay to the Indemnified Persons an amount equal to the
amount due the Indemnified Persons. Such payment shall be made on or before the
second (2nd) Business Day following the date on which the Escrow Agent received
such Order. If such Order indicates that the Indemnified Persons were not
entitled to all or any portion of the amount claimed in the Claim Certificate (a
"Determination Discharge"), then the Escrow Agent shall continue to hold such
amount to which the Indemnified Persons were determined not to be entitled in
accordance with the terms of this Agreement until such amounts are to be
disbursed (A) to the Former Stockholders pursuant to Sections 3(h), 3(i), 3(j)
or 3(k), (B) to any Indemnified Persons in respect of another Claim Certificate
pursuant to Sections 3(c), 3(e) or 3(f) or (C) to any Person pursuant to Section
3(k).
(g) As promptly as practicable following the disbursement of any
funds from the Escrow Account, the Escrow Agent shall send a written statement
to the Representative and Parent stating the amount of the disbursement and the
amounts remaining in the Escrow Account.
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(h) January 31, 2007 is referred to herein as the "Initial Reduction
Date". On the Initial Reduction Date, the Escrow Amount shall automatically be
reduced by the excess of the Escrow Amount on hand on the Initial Reduction Date
over the sum of (i) $7,950,000 plus (ii) the Pending and Paid Claims Amount (as
defined below) (the amount of such distribution, together with any share of
interest and other earnings on the Escrow Amount as provided below, being
referred to as the "Initial Escrow Disbursement"). On or before the third (3rd)
Business Day following the receipt of Joint Written Instructions by the Escrow
Agent notifying the Escrow Agent of the Initial Reduction Date, subject to the
provisions of the following sentence, the Escrow Agent shall pay to the Former
Stockholders the Initial Escrow Disbursement. For purposes of this Section 3(h),
the "Pending and Paid Claims Amount" shall equal the sum of (x) the amounts
theretofore paid to Parent, plus (y) the amount of claims evidenced by Claim
Certificates submitted prior to the Initial Reduction Date and which have not
been paid in accordance with Section 3(c) as of the Initial Reduction Date and
as to which, as of the Initial Reduction Date, the Escrow Agent has not received
and fully acted upon Joint Payment Instructions or an Order, nor received a
Discharge Notice or a Determination Discharge (any such Claim Certificate(s)
being referred to as an "Initial Outstanding Claim(s)"). The Initial Escrow
Disbursement shall also include a share of the earnings and interest earned on
the Escrow Amount through the Initial Reduction Date, and after deducting any
expenses of the Escrow Agent hereunder, determined by multiplying such amount by
a fraction, the numerator of which is the amount of the Initial Escrow
Disbursement and the denominator of which is $19,875,000. The balance of the
Escrow Amount shall be held in escrow to fund claims for indemnification by any
Indemnified Person pursuant to Article VII of the Merger Agreement.
(i) April 30, 2007 is referred to herein as the "Second Reduction
Date". On the Second Reduction Date, the Escrow Amount shall automatically be
reduced by the excess of the Escrow Amount on hand on the Second Reduction Date
over the sum of (i) $3,975,000, plus (ii) the Pending and Paid Claims Amount (as
defined below) (the amount of such distribution, together with any share of
interest and other earnings on the Escrow Amount as provided below, being
referred to as the "Second Escrow Disbursement"). On or before the third (3rd)
Business Day following the receipt of Joint Written Instructions by the Escrow
Agent notifying the Escrow Agent of the Second Reduction Date, the Escrow Agent
shall pay to the Former Stockholders the Second Escrow Disbursement. For
purposes of this Section 3(i), the Pending and Paid Claims Amount shall equal
the sum of (x) the amounts theretofore paid to the Parent, plus (y) the amount
of claims evidenced by Claim Certificates submitted prior to the Second
Reduction Date and which have not been paid in accordance with Section 3(c) as
of the Second Reduction Date and as to which, as of the Second Reduction Date,
the Escrow Agent has not received and fully acted upon Joint Payment
Instructions or an Order, nor received a Discharge Notice or a Determination
Discharge (any such Claim Certificate(s) being referred to as an "Second
Outstanding Claim(s)"). The Second Escrow Disbursement shall also include a
share of the earnings and interest earned on the Escrow Amount through the
Second Reduction Date, and after deducting any expenses of the Escrow Agent
hereunder, determined by multiplying such amount by a fraction, the numerator of
which is the amount of the Second Escrow Disbursement and the denominator of
which is $19,875,000. The balance of the Escrow Amount shall be held in escrow
to fund claims for indemnification by any Indemnified Person pursuant to Article
VII of the Merger Agreement.
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(j) July 31, 2007 is referred to herein as the "Final Reduction
Date". On or before the third (3rd) Business Day following the receipt of Joint
Written Instructions by the Escrow Agent notifying the Escrow Agent of the Final
Reduction Date, the Escrow Agent shall pay to the Former Stockholders an amount
equal to the then remaining balance of the Escrow Amount, including any interest
or other earnings, reduced by the Pending Claims Amount (as defined below). For
purposes of this Section 3(j), the Pending Claims Amount shall equal the amount
of claims evidenced by Claim Certificates submitted prior to the Final Reduction
Date and which have not been paid in accordance with Section 3(c) as of the
Final Reduction Date and as to which, as of the Final Reduction Date, the Escrow
Agent has not received and fully acted upon Joint Payment Instructions or an
Order, nor received a Discharge Notice or a Determination Discharge (any such
Claim Certificate(s) being referred to as "Final Outstanding Claim(s)"). The
Escrow Agent shall retain and continue to hold in accordance with the terms
hereof an amount equal to the amount requested in all such Final Outstanding
Claims (all such amounts, together with any portion of the Retained Amount not
previously disbursed as provided in Section 3(i), the "Final Retained Amount");
and thereafter the Escrow Agent shall release from the Escrow Account to Parent
and/or Former Stockholders, as applicable, all or portions of the Final Retained
Amount as and when it receives Joint Payment Instructions, Orders, Discharge
Notices or Determination Discharges, as applicable, related to the Final
Outstanding Claims. Following the Final Reduction Date, in the event that the
Final Retained Amount at any time exceeds the amount of all Final Outstanding
Claims which have not been paid to the Indemnified Parties or which are not
subject to a Discharge Notice or Determination Discharge, the Escrow Agent shall
pay to the Former Stockholders within three (3) Business Days of the
Representative's written request for such payment, an amount equal to such
excess.
(k) Notwithstanding the foregoing, if at any time the Escrow Agent
shall receive Joint Written Instructions to release all or a portion of the
Escrow Amount, then within three (3) Business Days after receipt of such Joint
Written Instructions, the Escrow Agent shall release the Escrow Amount in
accordance with such Joint Written Instructions. The parties will cooperate in
good faith in executing such Joint Written Instructions whenever reasonably
necessary to ensure distributions of escrowed funds to the party entitled
thereto under the terms of the Merger Agreement. The date on which the entire
Escrow Amount has been disbursed from the Escrow Account shall be referred to
herein as the "Termination Date.
(l) Any and all payments to be made to the Former Stockholders
pursuant to this Agreement shall be allocated among the Former Stockholders in
the percentages set forth next to the names of the Former Stockholders as set
forth on Schedule 2. All payments to Former Stockholders shall be made by check
made payable to the Former Stockholders in the name and mailed to the address of
such Former Stockholders set forth on Schedule 2, or such updated or corrected
address as may be provided by a Former Stockholder or the Representative.
4. DUTIES OF THE ESCROW AGENT.
(a) DUTIES IN GENERAL.
(1) The Escrow Agent undertakes to perform only such duties as
are expressly set forth herein (and required by applicable law), which the
parties agree are
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ministerial in nature. If in doubt as to its duties and responsibilities
hereunder, the Escrow Agent may consult with counsel of its choice and shall be
protected in any action taken or omitted in connection with the advice or
opinion of such counsel.
(2) If the Escrow Agent becomes involved in litigation with
respect to this Agreement for any reason, it is hereby authorized to deposit the
Escrow Amount with the clerk of such court in which such litigation is pending,
or to interplead all interested parties in any court of competent jurisdiction
and to deposit with the clerk of such court the Escrow Amount. Upon the
happening of either of the above, the Escrow Agent shall be fully relieved and
discharged of any further duties hereunder.
(3) If the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions, claims or demands from any party
hereto which, in its opinion, conflict with any of the provisions of this
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall be
directed otherwise by Joint Written Instructions or by a final order or judgment
of a court of competent jurisdiction. In addition, if the Escrow Agent should at
any time be confronted with inconsistent claims or demands by the parties
hereto, the Escrow Agent shall also have the right to interplead such parties in
any state or federal court located in the State of Delaware (or if such court
does not have jurisdiction, any other court of competent jurisdiction), to
deposit the Escrow Amount with the clerk of such court, and to request that such
court determine the respective rights of the parties with respect to this
Agreement, and upon doing so, the Escrow Agent automatically shall be released
from any obligations or liability as a consequence of any claims or demands
hereunder.
(b) EXCULPATION. Except for the Escrow Agent's own willful
misconduct or gross negligence: (i) the Escrow Agent shall have no liability of
any kind whatsoever for its performance of, or from having refrained from
performing, any duties imposed upon the Escrow Agent under this Agreement or for
any of its acts or omissions hereunder; (ii) the Escrow Agent shall not be
responsible for any of the acts or omissions of the parties hereto; (iii) the
Escrow Agent shall not be liable to anyone for damages, losses or expenses
arising out of this Agreement; (iv) the Escrow Agent may rely and/or act upon
any written instrument, document or request believed by the Escrow Agent in good
faith to be genuine and to be executed and delivered by the proper person, and
may assume in good faith the authenticity, validity and effectiveness thereof
and shall not be obligated to make any investigation or determination as to the
truth and accuracy of any information contained therein; and (v) the Escrow
Agent shall have no liability of any kind whatsoever for anything done, suffered
or omitted in good faith by it in accordance with the advice or opinion of legal
counsel. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Escrow Agent be liable for special, indirect or consequential loss or
damage of any kind whatsoever (including, but not limited to, lost profits),
even if the Escrow Agent has been advised of the likelihood of such loss or
damage and regardless of the form of action.
(c) NO ADDITIONAL DUTIES. The Escrow Agent shall have no duties
except those that are expressly set forth herein, and it shall not be bound by
any notice of a claim or
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demand hereunder, or any waiver, modification, amendment, termination or
rescission of this Agreement, unless received by it in writing.
(d) MISCELLANEOUS. 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. The Escrow Agent shall not be responsible
for and shall not be under a duty to examine or pass upon the validity, binding
effect, execution or sufficiency of this Agreement or of any agreement
amendatory or supplemental hereto.
5. INDEMNITY. The Escrow Agent, and its directors, officers, agents and
employees (the "Indemnitees") are entitled to be indemnified by the Parent, and
out of the Escrow Amount, jointly and severally, from all loss, liability or
expense (including the fees and expenses of counsel) arising out of or in
connection with (i) the Escrow Agent's execution and performance of this
Agreement, except in the case of any Indemnitee to the extent that such loss,
liability or expense is due to the gross negligence or willful misconduct of
such Indemnitee, or (ii) its following any instructions or other directions from
Parent and the Representative, except to the extent that its following any such
instruction or direction is expressly forbidden by the terms of this Agreement.
The parties hereto acknowledge that the foregoing indemnities shall survive the
resignation or removal of the Escrow Agent or the termination of this Agreement.
6. RESIGNATION OF THE ESCROW AGENT; ACQUISITION OF THE ESCROW AGENT.
The Escrow Agent, and any successor ▇▇▇▇▇▇ Agent, may resign at any time as the
Escrow Agent hereunder by giving at least fifteen (15) Business Days written
notice to the parties. Upon such resignation and the appointment of a successor
▇▇▇▇▇▇ Agent, the resigning Escrow Agent shall be absolved from any further
duties as the Escrow Agent hereunder. Upon their receipt of notice of
resignation from the Escrow Agent, Parent and the Representative shall use their
reasonable best efforts jointly to designate a successor Escrow Agent. If the
parties do not agree upon a successor Escrow Agent within fifteen (15) Business
Days after the receipt by the parties of the Escrow Agent's resignation notice,
the Escrow Agent may petition any court of competent jurisdiction for the
appointment of a successor ▇▇▇▇▇▇ Agent or other appropriate relief and any such
resulting appointment shall be binding upon all parties hereto. By mutual
agreement, Parent and the Representative shall have the right at any time upon
not less than seven (7) Business Days written notice to terminate their
appointment of the Escrow Agent, or any successor Escrow Agent, as the Escrow
Agent hereunder. Notwithstanding anything to the contrary in the foregoing, the
Escrow Agent or any successor Escrow Agent shall continue to act as the Escrow
Agent until a successor is appointed and qualified to act as the Escrow Agent.
Any corporation or association into which the Escrow Agent may be
merged or converted or with which it may be consolidated, or any corporation or
association to which all or substantially all of the escrow business of the
Escrow Agent's corporate trust line of business may be transferred, shall be the
Escrow Agent under this Agreement without further act.
7. FEES AND EXPENSES OF THE ESCROW AGENT. The fees and the expenses of
the Escrow Agent for its services hereunder shall be paid in equal parts by
Parent and out of the Escrow Amount, in accordance with Schedule 3. The
provisions of this Section 7 shall survive any termination of this Agreement and
removal or resignation of the Escrow Agent.
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8. NOTICES. All notices and other communications required or permitted
pursuant to this Agreement shall be in writing and addressed to such party for
whom such communication is intended at the applicable address set forth below.
Such notice shall be deemed to have been duly given (i) with regard to the
Escrow Agent, when actually received by the Escrow Agent, and (ii) with regard
to any other party hereto, when delivered personally (which shall include
delivery by Federal Express or other nationally recognized, reputable overnight
courier service that issues a receipt or other confirmation of delivery) to the
party for whom such communication is intended, or three (3) Business Days after
the date mailed by certified mail, return receipt requested, postage prepaid, as
follows:
IF TO PARENT:
Services Acquisition Corp. International
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention:
Telephone: (___) ___-____
Facsimile: (___) ___-____
with a copy to:
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and
▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
IF TO THE REPRESENTATIVE:
-------------------------
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Telephone: (___) ___-____
Facsimile: (___) ___-____
with a copy to:
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Attention: _____________________
Telephone: (___) ___-____
Facsimile: (___) ___-____
8
IF TO THE ESCROW AGENT:
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Attention: _____________________
Telephone: (___) ___-____
Facsimile: (___) ___-____
or to such other address as such party shall specify by written notice to the
other parties hereto. Any notice sent to the Escrow Agent shall also be sent to
the other parties to this Agreement.
9. ASSIGNMENT. Parent may assign its rights and obligations under this
Agreement to the same extent it is permitted to assign its rights and
obligations under the Merger Agreement.
10. MISCELLANEOUS. This Agreement, and with respect to Parent and the
Representative, the Merger Agreement, embody the entire agreement and
understanding of the parties concerning the Escrow Amount, and, in the event of
any inconsistency between this Agreement and the Merger Agreement, this
Agreement shall control. This Agreement may be amended only by a writing signed
by the party against whom enforcement is sought. The headings in this Agreement
are intended solely for convenience or reference and shall be given no effect in
the construction or interpretation of this Agreement. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware,
except the choice of law rules utilized in that state. This Agreement shall bind
and inure to the benefit of the parties hereto and their respective, heirs,
personal representatives, successors and permitted assigns. Each party hereto
irrevocably waives any objection on the grounds of venue, forum non-conveniens
or any similar grounds and irrevocably consents to service of process by mail or
in any other manner permitted by applicable law and consents to the jurisdiction
of the courts located in the State of Delaware. The parties further hereby waive
any right to a trial by jury with respect to any lawsuit or judicial proceeding
arising out of or relating to this Agreement. The Escrow Agent shall not be
liable to any other party for losses due to, or if it is unable to perform its
obligations under the terms of this Agreement because of, acts of God, fire,
floods, strikes, equipment or transmission failure, or other causes reasonably
beyond its control. This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and same instrument. All signatures of the parties to this
Agreement may be transmitted by facsimile, and such facsimile will, for all
purposes, be deemed to be the original signature of such party whose signature
it reproduces, and will be binding upon such party.
9
To evidence their agreement, the parties have caused this Agreement to
be executed on the date first written above.
SERVICES ACQUISITION CORP.
INTERNATIONAL
By:
---------------------------
Name:
Title:
JAMBA JUICE COMPANY
By:
---------------------------
Name:
Title:
REPRESENTATIVE
By:
--------------------------
Name:
Title:
[ESCROW AGENT]
By:
---------------------------
Name:
Title:
10
[Signature Page to Escrow Agreement]
11
Schedule 1
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Permissible Investments
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U.S. Bank Money Market Deposit Account
Commercial Paper rated AA
U.S. Treasuries Bonds
Schedule 2
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Former Stockholders
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NAME ADDRESS PERCENTAGE
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Schedule 3
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Fees and Expenses of Escrow Agent
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