Exhibit 99.9
INDEMNIFICATION ESCROW
AGREEMENT
This Escrow Agreement (this “
Agreement ”) is entered into as of the 1st day of
April, 2007, by and among by and among Vishay Intertechnology,
Inc., a Delaware corporation (“ Purchaser ”),
International Rectifier Corporation, a Delaware corporation
(“ Seller ”), and Union Bank of California,
N.A., as escrow agent hereunder (the “ Escrow Agent
”). Capitalized terms used herein and not otherwise
defined herein shall have the meanings given to them in the Master
Purchase Agreement (as defined below).
RECITALS
WHEREAS, Purchaser and Seller have
entered into that certain Master Purchase Agreement, dated as of
November 8, 2006 (the “ Master Purchase Agreement
”), which provides for, among other things, the sale by the
Seller of all of the Shares of the Companies and certain of the
assets of Seller and the Selling Subsidiaries, in each case related
to, and primarily used in, the PCS Business;
WHEREAS, in accordance with the
terms of the Master Purchase Agreement, $14,485,000 (together with
any interest or other income earned thereon, the “ Escrow
Funds ”) of the consideration otherwise payable to the
Seller has been paid to the Escrow Agent and is to be held by the
Escrow Agent in accordance with the terms of this Agreement;
and
WHEREAS, the parties desire that the
Escrow Agent disburse amounts from the Escrow Account (as defined
in Section 3 below) to Seller or Purchaser from time to time as
provided below.
AGREEMENT
NOW, THEREFORE, in consideration of
the premises and the mutual obligations and covenants set forth
herein, and for other good and valuable consideration (the receipt
and sufficiency of which is hereby acknowledged), the parties
hereto agree as follows:
1.
Escrow Agent Appointment . The Escrow Agent is hereby
appointed to act as escrow agent hereunder, to hold in escrow the
Escrow Funds and to direct the disposition thereof in accordance
with the terms and conditions of this Agreement, and the Escrow
Agent hereby accepts such appointment. The Escrow Agent
represents and warrants to Purchaser and Seller that Escrow Agent
has all legal power and authority to act in the manner contemplated
by this Agreement and to perform its duties hereunder.
2.
Receipt of Escrow Funds . By its signature below, the
Escrow Agent hereby acknowledges its receipt by wire transfer of
funds in the amount of the Escrow Funds to a separate, segregated
escrow account established by the Escrow Agent and maintained by it
at its office referred to in Section 10 below (the “
Escrow Account ”). The Escrow Funds shall be
held by the Escrow Agent for the benefit of Purchaser and Seller
pursuant to this Agreement.
3.
Investment of Escrow Funds . The Escrow Funds shall be
invested by the Escrow Agent, as directed pursuant to the written
instructions of Seller, solely in interest-bearing bank accounts or
certificates of deposit. Purchaser and Seller acknowledge
that all payments made
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pursuant to this Agreement from the
Escrow Funds shall be subject to applicable withholding laws or
regulations then in force. If Purchaser provides the Escrow
Agent with a properly completed Internal Revenue Service Form
W-8BEN (with respect to a Purchaser that is not a United States
Person within the meaning of the Internal Revenue Code of 1986, as
amended, (the “Code”)) or a properly completed Internal
Revenue Service Form W-9 (with respect to a Purchaser that is a
United States Person, within the meaning of the Code) then, absent
a relevant change of law, the Escrow Agent shall not withhold any
U.S. Taxes with respect to any amounts paid to Purchaser under this
Agreement or with respect to any Escrow Interest (as defined
below). The Escrow Agent shall report the amounts of all
interest earned on the Escrow Fund and any other income recognized
for tax purposes with respect to the Escrow Fund (collectively, the
“ Escrow Interest ”) during each calendar year
(i) to all applicable taxing authorities as the income of the
Purchaser by January 31 of the succeeding calendar year and (ii) to
the Purchaser and Seller within ten (10) days of a written request
for such information from either of the Purchaser or Seller.
The Purchaser shall report as its income for tax purposes all
amounts of Escrow Interest to the appropriate taxing authorities
and shall pay or cause to be paid all income taxes (if any) that
are due and payable by the Purchaser with respect to Escrow
Interest (such income taxes, the “ Escrow Taxes
”). In connection with this payment of Escrow Taxes,
the Purchaser and Seller shall direct the Escrow Agent by joint
written instructions of Purchaser and Seller (“ Joint
Instructions ”) to release to the Purchaser from time to
time out of the Escrow Funds the amount of the Escrow Taxes payable
by the Purchaser so as to permit the timely payment of Escrow Taxes
by the Purchaser; provided , any Escrow Taxes withheld by
the Escrow Agent shall be treated as having been so released to the
Purchaser. The amount of Escrow Taxes shall be determined by
Purchaser, with Seller’s consent (which Seller agrees not to
unreasonably withhold). In the event any portion of the
Escrow Funds is to be paid over to Seller pursuant to Section 4,
then, at the time such payment out of the Escrow Funds is required
to be made, the Purchaser shall pay to the Seller an amount equal
to the product of (i) the aggregate amount of Escrow Taxes released
to the Purchaser multiplied by (ii) a fraction (A) the numerator of
which is the amount of such portion of the Escrow Funds to be so
paid over to Seller and (B) the denominator of which is the sum of
$14,485,000 plus the aggregate amount of Escrow Interest
with respect to which Escrow Taxes have been released to the
Purchaser.
4.
Disbursements from Escrow Account .
(a)
Escrow Agent shall continue to hold and safeguard the Escrow
Account until authorized hereunder to release the Escrow Funds and
Escrow Agent shall only release the Escrow Funds, or any portion
thereof, as follows:
(i) pursuant to
the Joint Instructions at any time setting forth (A) the amount of
indemnification or distribution, which shall be disbursed from the
Escrow Account (to the extent of the then remaining balance
thereof) and (B) the recipients thereof; provided, that,
notwithstanding such Joint Instructions, the Escrow Agent shall
report, and as required, except as otherwise provided in Section 3
of this Agreement, withhold from any payments or disbursements made
pursuant to this Agreement from the Escrow Funds any taxes as it
determines may be required by any law or regulation then in
force;
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(ii) as determined by
the final order, decree or judgment of a court of competent
jurisdiction in the United States of America (the time for appeal
having expired with no appeal having been taken) in a proceeding to
which Purchaser and the Seller are parties (a “ Final
Decree ”) upon receipt from Purchaser or Seller of a
certified copy of such Final Decree together with a written notice
(the “ Notice ”) which Notice shall state that
such Final Decree is a final, non-appealable judgment or order from
a court of competent jurisdiction resolving the dispute as to the
release of the applicable portion of the Escrow Account, setting
forth in reasonable detail the substance of such judgment and
instructions as to the resulting release of the Escrow Account and
certifying that a copy of such Notice has been simultaneously
delivered to the Seller (if Purchaser is delivering the Notice) or
Purchaser (if Seller is delivering the Notice) (such recipient, the
“ Non-Presenting Party ”), in which case Escrow
Agent shall release the applicable portion of such Escrow Account
according to such Notice on the third (3rd) Business Day following
receipt by Escrow Agent of the Notice; provided, however, that if
the Non-Presenting Party delivers to Escrow Agent a certificate
prior to such third (3rd) Business Day disputing the contents of
the Notice, then Escrow Agent shall not release the disputed
portion of the Escrow Account specified therein and shall
interplead the disputed portion of the Escrow Account specified
therein into, or file a declaratory judgment action with, a court
of competent jurisdiction to determine the rights of the parties to
the dispute unless prior to such interpleader or filing Escrow
Agent receives joint written instructions from the Seller and
Purchaser pursuant to Section 4(a)(i) hereof; or
(iii) within three (3)
Business Days after the eighteenth (18) month anniversary of the
date hereof, Escrow Agent shall deliver to Seller the balance of
the Escrow Account, after deducting from the Escrow Account an
amount equal to the aggregate amounts set forth in then pending and
unresolved Claim Notices (copies of which shall be delivered by the
Purchaser to the Escrow Agent promptly following delivery thereof
to the Seller pursuant to the Master Purchase
Agreement).
(b)
As promptly as practicable following any disbursement of funds from
the Escrow Account, the Escrow Agent shall send a written statement
to each of Purchaser and Seller stating the amount and recipient of
each such disbursement.
(c)
Upon receipt of any Joint Instructions in accordance with Section
4(a), the Escrow Agent shall, as soon as practicable and in no
event later than five Business Days after the receipt thereof,
disburse the amounts from the Escrow Account to Purchaser and/or
Seller, as specified in such Joint Instructions to be so paid (to
the extent of the then-remaining balance of the Escrow Funds), by
wire transfer of immediately available funds pursuant to payment
instructions (i) furnished by Purchaser with respect to any payment
specified to be made to Purchaser in such Joint Instructions, and
(ii) furnished by Seller with respect to any payments specified to
be made to Seller in such Joint Instructions. In the event
fund transfer instructions are given (other than in writing at the
time of the execution of this Agreement), whether in writing, by
telecopier or otherwise, Escrow Agent is authorized to seek
confirmation of such instructions by telephone call-back to the
person or persons designated as a “Representative” of a
party on Schedule A
attached hereto,
and Escrow Agent may rely upon the confirmations of anyone
purporting to be the person or persons so designated. The
persons and telephone
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numbers for call-backs may be
changed only in writing actually received and acknowledged by
Escrow Agent. Escrow Agent and the beneficiary’s bank
in any funds transfer may rely solely upon any account numbers or
similar identifying numbers provided by Seller or Purchaser to
identify (i) the b
