Exhibit 10.2


 


ESCROW AGREEMENT


 


ESCROW
AGREEMENT (this “Agreement”), dated as of May 26, 2006, by and among (i)
ROCKWELL COLLINS, INC., a Delaware corporation (“Buyer”), (ii) EVANS
& SUTHERLAND COMPUTER CORPORATION, a Utah corporation (“Seller”),
and (iii) U.S. BANK NATIONAL ASSOCIATION, as escrow agent (the “Escrow Agent”
and, together with Buyer and Seller, the “Parties” and each a “Party”).  Capitalized terms used but not defined herein
shall have the meanings given to such terms in the Asset Purchase Agreement,
dated as of February 7, 2006, by and between Buyer and Seller (the “Asset
Purchase Agreement”).


 


W I  T  N  E  S
S  E  T  H


 


WHEREAS,
Buyer and Seller have entered into the Asset Purchase Agreement providing for,
among other things, the purchase by Buyer of the Assets and the assumption by
Buyer of the Assumed Liabilities, and setting forth certain covenants and
conditions in respect thereof;


 


WHEREAS,
Section 4.1(a) of the Asset Purchase Agreement provides that Buyer is required
to deposit with the Escrow Agent Seven Million dollars ($7,000,000);


 


WHEREAS,
in connection with the Asset Purchase Agreement, Buyer, Rockwell Collins
Simulation & Training Solutions, LLC, a Delaware limited liability company
and indirect wholly-owned subsidiary of Buyer, and Seller have entered into the
Laser Projection Systems Agreement, of even date therewith;


 


WHEREAS,
Section 1.2 of the Laser Projection Systems Agreement provides that Buyer is
required to deposit with the Escrow Agent Three Million dollars ($3,000,000);
and


 


WHEREAS,
Buyer and Seller desire that the Escrow Agent hold and dispose of such escrowed
monies, and the Escrow Agent is willing to do so, on the terms and conditions
hereinafter set forth.


 


NOW,
THEREFORE, in
consideration of the foregoing and of the mutual covenants hereinafter set
forth, the Parties agree as follows:


 


1.             Appointment.  Buyer and Seller hereby appoint the Escrow
Agent as their escrow agent for the purposes set forth herein, and the Escrow
Agent hereby accepts such appointment solely under the terms and conditions set
forth herein.


 


2.             Establishment
of Escrow Fund.


 


(a)           Pursuant to Section 4.1(a) of
the Asset Purchase Agreement and Section 1.2 of the Laser Projection Systems
Agreement simultaneously with the execution and delivery of this Agreement,
Buyer is depositing in escrow with the Escrow Agent cash in the amount of Ten
Million dollars ($10,000,000) (the “Escrow Amount”) to be held in escrow
pursuant to the


 

















 


terms of this Agreement to
satisfy any obligations of the Seller pursuant to Section 4.1(c)(i) and Article
XIII of the Asset Purchase Agreement and Sections 5.1 and 5.2 of the Laser
Projection Systems Agreement.  The Escrow
Amount and any and all interest and earnings thereon shall be collectively
referred to as the “Escrow Fund”. 
The Escrow Agent shall hold and administer the Escrow Fund solely in
accordance with the terms and conditions set forth in this Agreement.


 


(b)           No part of the Escrow Fund may be withdrawn or
distributed from the escrow established hereunder, except as expressly provided
in Section 4 of this Agreement.


 


3.             Reports
on Escrow Fund.


 


(a)   The Escrow Agent shall provide to Buyer and Seller
monthly statements identifying transactions, transfers, payments and holdings
of the Escrow Fund and each such statement shall be deemed to be correct and
final upon receipt thereof by Buyer and Seller unless the Escrow Agent is
notified in writing to the contrary within thirty (30) calendar days of the
date of such statement.


 


(b)   Buyer and Seller acknowledge that regulations of
the Comptroller of the Currency grant Buyer and Seller the right to receive
brokerage confirmations of security transactions as they occur.  Buyer and Seller specifically waive such
notification to the extent permitted by law and acknowledge that Buyer and
Seller will receive periodic cash transaction statements, which will detail all
investment transactions.


 


4.             Distributions
from the Escrow Fund. 
The Escrow Agent is directed to hold and distribute the Escrow Fund in
the following manner:


 


(a)           Joint
Instructions.


 


(i)            Upon
the Escrow Agent’s receipt of written instructions to the Escrow Agent signed
by both Buyer and Seller (a “Joint Instruction”) directing the Escrow
Agent to disburse all or any part of the Escrow Fund, including in resolution
of a Disputed Claim (which Joint Instruction shall set forth the amount to be
disbursed (including whether such disbursement shall be accompanied by any
interest and earnings thereon), the applicable section of the Asset Purchase
Agreement or Laser Projection Systems Agreement for which such amount is being
disbursed (including the specific amount allocated to disbursements made under
the Asset Purchase Agreement or Laser Projection Systems Agreement, as the case
may be), the payee thereof, the date requested for such disbursement and
sufficient details regarding the account to which such disbursement is to be
made), the Escrow Agent will release such amount from the Escrow Fund strictly
in accordance with such written instructions. 
Buyer and Seller each agree to prepare and sign a Joint Instruction that
directs the Escrow Agent to distribute cash held in the Escrow Fund pursuant to
and in accordance with (i) Section 4.1(c)(i) of the Asset Purchase
Agreement, if any payment pursuant to Section 4.1(c)(i) of the Asset Purchase
Agreement is determined to be due and payable following determination of the
Final Closing Net Assets Statement, (ii) Section 5.1 of the Laser Projection
Systems Agreement, if any payments pursuant to Section 5.1 of the Laser
Projection Systems Agreement are determined to be due and payable; (iii)
Section 5.2 of the Laser Projection


 


2

















 


Systems Agreement, if any payment pursuant to Section 5.2 of the Laser
Projection Systems Agreement is determined to be due and payable; (iv) pursuant
to paragraph 4(e)(i)(A)(1), if any payment is determined to be due and payable;
and (v) pursuant to paragraph 4(e)(i)(B), if any payment is determined to
be due and payable.  To the extent that
any amount is released from the Escrow Fund to Buyer pursuant to Section
4.1(c)(i) of the Asset Purchase Agreement and Sections 5.1 and 5.2 of the Laser
Projection Systems Agreements, such amount shall be accompanied by interest and
earnings thereon.


 


(ii)           No Joint Instruction shall be
required prior to any releases by the Escrow Agent pursuant to paragraphs
4(e)(i)(A)(2), 4(e)(i)(C) and 4(e)(i)(D) of this Agreement.  Buyer and Seller agree that a copy of this
Agreement provided to the Escrow Agent shall constitute instructions from the
Buyer and the Seller to the Escrow Agent to cause funds to be released in
accordance with paragraphs 4(e)(ii) and 4(e)(iii)in the amounts and on the
dates specified below, pursuant to paragraphs 4(e)(i)(A)(2), 4(e)(i)(C) and
4(e)(i)(D) of this Agreement.


 


(b)           Undisputed
Claim.  Upon any Claim
becoming an Undisputed Claim, the Escrow Agent will release to Buyer cash held
in the Escrow Fund in the amount called for in the corresponding Claim Notice,
and such amount shall be accompanied by interest and earnings thereon; provided
that if the amount of such Undisputed Claim exceeds the amount of cash held in
the Escrow Fund, the Escrow Agent shall release to Buyer all of the cash held
in the Escrow Fund.


 


(c)           Court
Order or Final Arbitration Order.  Upon the Escrow Agent’s receipt of a
certified copy of a purportedly final, non-appealable order of a court of
competent jurisdiction or a final arbitration award issued by a arbitration
tribunal in accordance with the dispute resolution provisions under Section
15.15 of the Asset Purchase Agreement ordering the Escrow Agent to disburse all
or part of the Escrow Fund, the Escrow Agent will make such disbursement from
the Escrow Fund in accordance with such court order or final arbitration order.  The Escrow Agent shall be entitled to rely
upon the certified copy of such order or award without being required to
determine the authenticity or the correctness of any fact stated therein or the
propriety or validity of the service thereof. 
The Escrow Agent may act in reliance upon any instrument or signature
believed by it to be genuine and may assume that any person purporting to give
documents in connection with the provision hereof has been duly authorized to
do so.


 


(d)           Limitations
on Distributions.


 


(i)            All
APA Indemnification Claims shall be subject to the limitations set forth in
Section 13.4 of the Asset Purchase Agreement.


 


(ii)           Under no circumstances shall (A)
the aggregate amount of all distributions by the Escrow Agent to Buyer pursuant
to Laser Projector Claims exceed Three Million dollars ($3,000,000) and all
interest and earnings thereon or (B) the aggregate amount of all distributions
by the Escrow Agent to Buyer pursuant to this


 


3

















 


Agreement exceed Ten Million dollars
($10,000,000) and all interest and earnings thereon.


 


(e)           Scheduled
Escrow Releases.


 


(i)            The
Escrow Fund is scheduled to be released to Seller within two business days of four
release dates (individually, a “Scheduled Release Date” and, collectively,
the “Scheduled Release Dates”):


 


(A)          (1) upon demonstration of the Motion-Based Prototype Laser Projection
System (as defined in the Laser Projection Systems Agreement) in accordance
with Section 4.3 of the Laser Projection Systems Agreement and upon the Escrow
Agent receiving a Joint Instruction, or, (2) if later, July 1, 2007 (the “Prototype
Release Date”), One Million dollars ($1,000,000) (the “Prototype Release
Amount”) is scheduled to be released to Seller by the Escrow Agent;


 


(B)           upon completion of the manufacturing acceptance testing of the
Motion-Based First Article Laser Projection System (as defined in the Laser
Projection Systems Agreement) in accordance with Section 4.4 of the Laser
Projection Systems Agreement (the “First Article Inspection Release Date”),
and upon the Escrow Agent receiving a Joint Instruction, Two Million dollars
($2,000,000) (the “ First Article Inspection Release Amount”) is
scheduled to be released to Seller by the Escrow Agent;


 


(C)           on December 31, 2006 (the “December 31, 2006 Release Date”),
Five Million dollars ($5,000,000) (the “December 31, 2006 Release Amount”)
is scheduled to be released to Seller by the Escrow Agent; and


 


(D)          on July 1, 2007 (the “July 1, 2007 Release Date”), Two Million
dollars ($2,000,000) (the “July 1, 2007 Release Amount”) is scheduled to
be released to Seller by the Escrow Agent;


 


the
Prototype Release Amount, First Article Inspection Amount, December 31, 2006
Release Amount and July 1, 2007 Release Amount are referred to herein individually
as a “Scheduled Release Amount” and collectively as the “Scheduled
Release Amounts.”


 


(ii)           Within two (2) business days
after each Scheduled Release Date, the Escrow Agent shall release to Seller an
amount, if any, equal to the Escrow Amount, less the sum of (A) any Post
Closing Adjustment or Claims that have been paid to the Buyer under this
Agreement prior to such Scheduled Release Date, (B) any Post Closing Adjustment
or Claims pending as of such Scheduled Release Date, and (C) the Scheduled Release
Amounts due on the Scheduled Release Dates, if any, that have not occurred as
of such Scheduled Release Date, and all interest and earnings thereon; provided,
however, that no amount shall be released to Seller hereunder until
after the earlier of (x) Buyer’s delivery of the Closing Net Assets
Statement pursuant to Section 4.1(b) of the Asset Purchase Agreement or
(y) the deadline for such delivery thereunder.  Buyer and Seller shall provide the Escrow
Agent joint notice of the earlier to occur of (i) the


 


4

















 


delivery of the Closing Net Assets
Statement pursuant to Section 4.1(b) of the Asset Purchase Agreement or (ii)
the expiration of the deadline for delivery of the Closing Net Assets Statement
in accordance with the terms and conditions of the Asset Purchase Agreement.


 


(iii)          Within two (2) business days
after the date on which any pending Post Closing Adjustment (if payable by
Seller) or Claim is resolved (each a “Resolution Date”), and upon the
Escrow Agent receiving Joint Instruction, the Escrow Agent shall release (A) to
Buyer the amount payable to Buyer in connection with such Post Closing
Adjustment or Claim and (B) to Seller an amount, if any, equal to the Escrow
Amount and all interest and earnings thereon, less the sum of (x) any Post
Closing Adjustment or Claims that have been paid to the Buyer under this
Agreement prior to such Resolution Date, (y) any Post Closing Adjustment or
Claims pending as of such Resolution Date, and (z) the Scheduled Release
Amounts due on the Scheduled Release Dates, if any, that have not occurred as
of such Resolution Date.


 


(iv)          The Escrow Fund shall be deemed
closed for all purposes on the Final Release Date.


 


(f)            Definitions.  For purposes hereof, the terms set forth
below shall have the following meanings:


 


“Claim”
shall mean (i) any claim for indemnification pursuant to Section 13.1 of the
Asset Purchase Agreement (an “APA Indemnification Claim”), or (ii) any
claim pursuant to Sections 5.1 or 5.2 of the Laser Projection Systems Agreement
(a “Laser Projector Claim”), for which notice (each such notice, a “Claims
Notice”) has been delivered by Buyer to Seller in accordance with Section
13.3(a) or 13.3(d) of the Asset Purchase Agreement or Sections 5.1 or 5.2 of the
Laser Projection Systems Agreement, as the case may be.  To be valid, each Claims Notice must clearly
specify whether claims asserted therein are APA Indemnification Claims or Laser
Projector Claims.  Buyer shall promptly
provide notice of any Claim to the Escrow Agent.  For purposes of this Agreement, a Claim shall
be deemed “pending” if Buyer has provided notice of such Claim to Escrow
Agent and such Claim has not been paid from the Escrow Fund or otherwise
resolved by Joint Instruction, court order or arbitration order.


 


“Disputed
Claim” shall mean any Claim which Seller shall have disputed in an
Objection delivered to the Escrow Agent, with a copy to Buyer, within thirty
(30) calendar days from receipt by Seller of the corresponding Claims
Notice.  If no Objection is delivered to
the Escrow Agent in such 30-day period, then such Claim shall be deemed an “Undisputed
Claim.”  If Seller withdraws, in
writing delivered to Buyer, its Objection to a Disputed Claim, such Claim shall
be deemed an Undisputed Claim upon delivery by Seller to the Escrow Agent of a
copy of such written withdrawal.


 


“Final
Release Date” means the date upon which all amounts held in the Escrow Fund
are released in accordance with the provisions of this Agreement.


 


“Objection”
shall mean a written objection to a Claim stating in reasonable


 


5

















 


detail the basis for such objection.


 


“Post
Closing Adjustment” shall mean, upon determination of the Final Closing Net
Assets Statement in accordance with Section 4.1(b) of the Asset Purchase
Agreement, any reduction in the Purchase Price in accordance with Section
4.1(c)(i) of the Asset Purchase Agreement is determined to be due and payable.
For purposes of this Agreement, a Post Closing Adjustment shall be deemed “pending”
if Buyer has delivered a Closing Net Assets Statement in accordance with
Section 4.1(b) of the Asset Purchase Agreement and the amount of Net Assets on
the Closing Net Assets Statement is less than the Benchmark Amount and such Post
Closing Adjustment has not been paid from the Escrow Fund or otherwise resolved
by Joint Instruction, court order or arbitration order (it being understood
that the amount of any such pending Post Closing Adjustment shall be equal to
the amount of such deficit).


 


5.             Manner
of Distributions.  All disbursements
hereunder to be made in cash shall be made by the Escrow Agent by wire transfer
of immediately available funds to such account(s) as may be designated in
writing to the Escrow Agent by the Party entitled to such payment. All interest
and earnings, if any, attributable to the Escrow Fund or any other amount held
in the Escrow Account pursuant to this Agreement shall be calculated on a pro
rata basis from the initial deposit of the funds into the Escrow Fund to the
date of such disbursement.


 


6.             Escrow
Agent; Investment of Escrow Fund.


 


(a)           The Escrow Agent shall deal with
the Escrow Fund only in conformity with the terms of this Agreement.  In the event the Escrow Agent shall have
received written notice of a dispute between Buyer and Seller, the Escrow Agent
shall have no duty to determine whether a dispute exists between such Parties
or is a bona fide dispute.  The Escrow
Agent shall have no duty to inquire as to the provisions of any agreement other
than this Agreement.  The Escrow Agent
may rely upon and shall not be liable for acting or refraining from acting upon
any written notice, instruction or request furnished to it hereunder and
believed in good faith by it to be genuine and to have been signed or presented
by the proper Party or Parties.  The
Escrow Agent may execute any of its powers and perform any of its duties
hereunder directly or through agents or attorneys appointed with due care and
may consult with counsel, accountants and other skilled persons to be selected
and retained by it.  In the event that
the Escrow Agent shall be uncertain as to its duties or rights hereunder or
shall receive instructions, claims or demands from any Party 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 in
writing by all of the other Parties or by a final non-appealable order or
judgment of a court of competent jurisdiction.


 


(b)           The Escrow Agent shall invest
and reinvest the Escrow Fund in any of the following investments:
(i) securities with maturities not later than ninety (90) days from the
date of acquisition of such securities, issued or directly and fully guaranteed
or insured by the United States Government or any agency or instrumentality
thereof; (ii) commercial paper with maturities not later than ninety (90) days
from the date of acquisition of such commercial paper and rated A1/P1 or
better; (iii) money market investments consisting solely of the investments


 


6

















 


identified in item (i) or (ii)
above; (iv) certificates of deposit with maturities not later than ninety (90)
days from the date of acquisition of such certificates of deposit and overnight
bank deposits with any domestic commercial bank having capital and surplus in
excess of $5,000,000,000; or (v) institutional money market funds as
approved in writing in advance by Buyer and Seller, including those offered by the
Escrow Agent or any affiliate of the Escrow Agent, in any one or more of the
aforementioned types of instruments.  The
Escrow Agent may make investments permitted by paragraph 6(b) through or from
its own or its parent’s or affiliate’s bond department or trust investment
department.  Any interest received by the
Escrow Agent shall be reinvested as provided in this Section 6(b) and remain in
the Escrow Fund until disbursed in accordance with the terms hereof.  The Escrow Agent shall not be responsible or
liable for any loss suffered in connection with any investment of the funds
held pursuant to this Agreement made by it in accordance with this paragraph
6(b) or realized as a result of the sale of any such investment.


 


(c)           All fees and expenses associated
with this Section 6 shall be paid to the Escrow Agent out of the Escrow
Fund.  Prior to any investment of the
Escrow Fund, Buyer and Seller shall provide the Escrow Agent with written
certification of the respective taxpayer identification numbers or appropriate
foreign taxpayer exemptions of Buyer and Seller, respectively. Failure to
provide such information may incur a penalty and cause the Escrow Agent to be
required to withhold tax on any interest payable hereunder. Any payments of
income shall be subject to applicable United States withholding regulations
then in force.


 


(d)           To help the government fight the
funding of terrorism and money laundering activities, Federal law requires all
financial institutions to obtain, verify and record information that identifies
each person who opens an account.  For a
non-individual person such as a business entity, a charity, a trust or other
legal entity, the Escrow Agent will require documentation to verify its
formation and existence as a legal entity. 
The Escrow Agent may also request identification, licenses and
authorization documents from individuals claiming authority to represent the
entity.


 


7.             No
Creditor Rights.  Buyer and Seller
shall be entitled to payments from the Escrow Funds solely in accordance with
the terms hereof.  No creditor of Buyer
or Seller will have any rights in or to the Escrow Funds.  Accordingly, in order to effectuate the
parties’ intentions under this Agreement, Buyer hereby grants to Seller and
Seller hereby grants to Buyer, a security interest in all of the grantor’s
rights, title and interest in and to the Escrow Funds and any proceeds (as such
term is defined in Section 9-102 of the Uniform Commercial Code) of such funds
so long as the Escrow Funds and/or any such proceeds remain subject to the
terms of this Agreement.  In addition,
Buyer and Seller hereby appoint the Escrow Agent as Buyer’s and Seller’s agent
for possession of the Escrow Funds to perfect Buyer’s and Seller’s respective
security interests therein.  The Escrow
Agent agrees to this appointment and acknowledges that, in connection with the
security interest granted in this Paragraph 7, it is acting as bailee with
respect to such Escrow Funds and/or such proceeds on behalf of Buyer and
Seller.  Buyer and Seller further agree
to take any and all necessary additional steps to perfect and continue
perfection of the security interests granted hereunder.


 


7

















 


8.             Succession.


 


(a)           The Escrow Agent may (i) resign
and be discharged from its duties or obligations hereunder by giving at least
thirty (30) calendar days advance notice in writing of such resignation to the
other Parties specifying a date when such resignation shall take effect or (ii)
be removed and be discharged from its duties or obligations hereunder by the
delivery of Joint Instructions to the Escrow Agent specifying a date when such
removal shall take place.  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 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 action, except where an instrument of transfer or
assignment is required by law to effect such succession, anything herein to the
contrary notwithstanding.


 


(b)           In case the office of the Escrow Agent shall become
vacant for any reason, Buyer and Seller shall appoint a bank or trust company
with an office in Chicago, Illinois, having a net worth (as reflected in its
latest publicly available certified financial statements) in excess of
$500,000,000 as successor Escrow Agent hereunder by an instrument or
instruments in writing executed by Buyer and Seller and delivered to such
successor Escrow Agent, and give notice of such to the retiring Escrow Agent,
whereupon such successor Escrow Agent shall succeed to all rights and
obligations of the retiring Escrow Agent as if this Agreement were originally
executed by such successor Escrow Agent, and the retiring Escrow Agent shall
deliver to such successor Escrow Agent the Escrow Fund.  If no successor shall have been so appointed
and have accepted appointment within thirty (30) days after the giving of such
notice of resignation by the Escrow Agent in accordance with Section 8(a)
above, the retiring Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor or for other appropriate
relief.  Upon any delivery of the Escrow
Fund under this Section 8, all of the Escrow Agent’s obligations under this
Agreement shall cease and terminate.  The
Escrow Agent’s sole responsibility following thirty (30) calendar days after
its notice of resignation given under this Section 8 shall be to safekeep the
Escrow Fund.


 


9.             Fees.


 


(a)           The Escrow Agent shall charge
fees as set forth in Schedule A hereto (the “Fees”).  One-half of the Fees and all other costs,
charges and fees referred to above shall be paid to the Escrow Agent by Buyer
and one-half of the Fees and all other costs, charges and fees referred to
above shall be paid to the Escrow Agent by Seller.


 


(b)           The Escrow Agent shall charge
any other out-of-pocket expenses, disbursements and advances, including
reasonable attorney’s fees and expenses, incurred or made by the Escrow Agent
in connection with the performance, modification and termination of this
Agreement, all of which shall be paid to the Escrow Agent by the Parties
promptly after they become due.  One-half of such expenses shall be paid
to the Escrow Agent by Buyer and one-half shall of such expenses shall be paid
to the Escrow Agent by Seller.


 


10.           Indemnity.  Buyer and Seller shall severally indemnify, defend and hold harmless the Escrow
Agent and its officers, directors, employees, representatives and agents
against all damages and liabilities, and all expenses, disbursements, and
attorneys’ fees incurred in


 


8

















 


connection therewith, which it
in good faith may incur or suffer in connection with or arising out of this
Agreement or its acceptance of its appointment as the Escrow Agent, except for
such liabilities, damages, expenses, disbursements, damages and attorneys’ fees
incurred by reason of the Escrow Agent’s own bad faith, gross negligence or
willful misconduct.


 


11.           Taxes.  Notwithstanding any other provision in this
Agreement to the contrary, for all tax purposes, Seller shall (a) treat itself
as the owner of the Escrow Fund, (b) report all gain incurred as a result of or
attributable to the disbursement, distribution or transfer of any assets that
comprise the Escrow Fund pursuant to the terms of this Agreement and pay all
taxes attributable thereto and (c) report all income, if any, that is earned
on, or derived from, the Escrow Fund as its income in the taxable year or years
in which such income may properly be included, and pay all taxes attributable
thereto.


 


12.           Representations
and Warranties.  Each of the Parties
individually (and only with respect to itself) hereby represents and warrants
as of the date hereof that:


 


(a)           Such Party is an entity duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization and has all requisite power and authority to enter into this
Agreement and perform its obligations hereunder.


 


(b)           The
execution, delivery and performance by such Party of this Agreement and the
consummation by such Party of the transactions contemplated hereby have been
duly authorized by all necessary organizational action of the board of
directors or similar governing body of such Party, and no other action on the
part of such Party is necessary for the execution, delivery and performance by
such Party of this Agreement and the consummation by such Party of the
transactions contemplated hereby.  This
Agreement has been duly executed and delivered by such Party and, assuming due
authorization, execution and delivery on behalf of the other Party hereto, is a
legal, valid and binding obligation of such Party, enforceable against such
Party in accordance with its terms, except to the extent that enforceability
may be limited by bankruptcy, insolvency, reorganization, moratorium or other laws
relating to or affecting creditors’ rights generally and by general equity
principles.


 


9

















 


13.           Notices.  All notices, requests, claims, demands and
other communications required or permitted to be given under this Agreement
will be in writing and will be delivered by hand or telecopied, e-mailed or
sent, postage prepaid, by registered, certified or express mail or reputable
overnight courier service and will be deemed given when so delivered by hand or
telecopied, when e-mail confirmation is received if delivered by e-mail, or
three business days after being so mailed (one business day in the case of
express mail or overnight courier service). 
All such notices, requests, claims, demands and other communications
will be addressed as set forth below, or pursuant to such other instructions as
may be designated in writing by the party to receive such notice in accordance
with this Paragraph 13:


 


	
  if to Buyer, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Rockwell
  Collins, Inc.

  400 Collins Road N.E.

  Cedar Rapids, Iowa 52498



  
	
   

  	
   

  	
  Attention:

  	
  Gary R. Chadick, Esq.

  
	
   

  	
   

  	
   

  	
  Senior Vice President,

  
	
   

  	
   

  	
   

  	
  General
  Counsel and

  
	
   

  	
   

  	
   

  	
  Secretary

  
	
   

  	
   

  	
  Telephone:

  	
  (319) 295-1000

  
	
   

  	
   

  	
  Telecopy:

  	
  (319) 295-3599

  
	
   

  	
   

  	
  E-mail:

  	
  grchadic@rockwellcollins.com

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
    with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Chadbourne & Parke LLP

  30 Rockefeller Plaza

  New York, New York 10112

  
	
   

  	
   

  	
  Attention:

  	
  Peter R. Kolyer, Esq.

  
	
   

  	
   

  	
  Telephone:

  	
  (212) 408-5564

  
	
   

  	
   

  	
  Telecopy:

  	
  (212) 541-5369

  
	
   

  	
   

  	
  E-mail:

  	
  pkolyer@chadbourne.com

  
	
   

  	
   

  	
   

  
	
  if
  to the Seller, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Evans & Sutherland Computer Corporation

  600 Komas Drive 

  Salt Lake City, Utah 84108

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Attention:

  	
  David Bateman

  
	
   

  	
   

  	
  Telephone:

  	
  (801) 588-1674

  
	
   

  	
   

  	
  Telecopy:

  	
  (801) 588-4511

  
	
   

  	
   

  	
  E-mail:

  	
  dbateman@es.com

  
						



 


10

















 


	
   

  	
   

  	
    with
  a copy to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  Skadden, Arps, Slate, Meagher & Flom LLP

  525 University Avenue,
  Suite 1100

  Palo Alto, California 94301



  
	
   

  	
   

  	
  Attention:

  	
  Marc R. Packer

  
	
   

  	
   

  	
  Telephone:

  	
  (650) 470-4500

  
	
   

  	
   

  	
  Telecopy:

  	
  (650) 470-4570

  
	
   

  	
   

  	
  Email:

  	
  mpacker@skadden.com

  
	
   

  	
   

  	
   

  
	
  if
  to the Escrow Agent, to:

  
	
   

  	
   

  	
   

  
	
   

  	
   

  	
  U.S. Bank National Association

  209 South LaSalle Street, Suite 300

  Chicago, Illinois 60604



  
	
   

  	
   

  	
  Attention:

  	
  Grace A. Gorka

  
	
   

  	
   

  	
  Telephone:

  	
  (312) 325-8907

  
	
   

  	
   

  	
  Telecopy:

  	
  (312) 325-8905

  
	
   

  	
   

  	
  E-mail:

  	
  grace.gorka@usbank.com

  
					



 


14.           Termination
of this Agreement.  This Agreement
shall terminate upon the Final Release Date in accordance with the provisions
of this Agreement.  Upon any termination
of this Agreement pursuant to this Section 14, this Agreement shall forthwith
become void and of no further force or effect, and no Party shall have any
liability to the other Parties or their respective affiliates, directors,
officers or employees; provided nothing in this Section 14 shall relieve
any Party from any liability for any breach of such Party’s covenants or
agreements contained in this Agreement prior to such termination or for any
breach of such Party’s representations and warranties under this Agreement
prior to such termination.


 


15.           Entire
Agreement.  This Agreement
(including the schedules attached hereto) constitute the entire understanding
and agreement of the Parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings, written or oral,
between the Parties with respect to the subject matter hereof and thereof,
other than in the case of Buyer and Seller which are party to a Confidentiality
Agreement, the Asset Purchase Agreement and any ancillary agreements related
thereto, which shall remain in full force and effect.


 


16.           Assignability.  Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the Parties
(whether by operation of law or otherwise) without the prior written consent of
the other Parties, except that Buyer may assign any or all of its rights and
interests hereunder to any direct or indirect wholly owned subsidiary of Buyer
and except as described in Section 8 of this Agreement.  Subject to the preceding


 


11

















 


sentence, this Agreement shall
be binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.


 


17.           No
Third-Party Beneficiaries. 
Nothing in this Agreement, expressed or implied, shall confer or is
intended to confer on any person other than the Parties or their respective
permitted successors and assigns, any rights, remedies, obligations or
liabilities under or by reason of this Agreement.


 


18.           Amendment;
Waiver.  This Agreement may
be amended, modified and supplemented in any and all respects, but only by a
written instrument signed by all of the Parties expressly stating that such
instrument is intended to amend, modify or supplement this Agreement.  No waiver by any Party of any of the
provisions hereof shall be effective unless explicitly set forth in writing and
executed by the Party so waiving.  Except
as provided in the preceding sentence, no action taken pursuant to this
Agreement, including without limitation, any investigation by or on behalf of
any Party, shall be deemed to constitute a waiver by the Party taking such
action of compliance with any representations, warranties, covenants or
agreements contained herein, or in any documents delivered or to be delivered
pursuant to this Agreement.  The failure
of any Party to assert any of its rights under this Agreement or otherwise
shall not constitute a waiver of those rights. 
The waiver by any Party of a breach of any provisions of this Agreement
shall not operate or be construed as a waiver of any subsequent breach.


 


19.           Section
Headings.  The section
headings contained in this Agreement are for reference purposes only and shall
not affect the meaning or interpretation of this Agreement.


 


20.           Severability.  Any term or provision of this Agreement that
is held by a court of competent jurisdiction or other authority to be invalid,
void or unenforceable in any situation in any jurisdiction shall not affect the
validity or enforceability of the remaining terms and provisions hereof or the
validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. 
If the final judgment of a court of competent jurisdiction or other
authority declares that any term or provision hereof is invalid, void or unenforceable,
the Parties agree that the court making such determination shall have the power
to reduce the scope, duration, area or applicability of the term or provision,
to delete specific words or phrases, or to replace any invalid, void or
unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
or unenforceable term or provision.


 


21.           Governing
Law.  This Agreement shall be governed by and
construed in accordance with the internal laws of the State of Delaware
applicable to contracts made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.


 


22.           Venue.  Subject to Section 15.15 of the Asset
Purchase Agreement, each of Buyer and Seller irrevocably submits to the
exclusive jurisdiction of (i) the Court of Chancery in and for the State of
Delaware and the Superior Court in and for the State of Delaware and (ii) the
United States District Court for the District of Delaware for the purposes of
any Action arising


 


12

















 


out of this Agreement, any
provision hereof or the breach, performance, enforcement, validity or
invalidity hereof (and agrees not to commence any Action relating thereto
except in such courts).  Each of Buyer
and Seller further agrees that service of any process, summons, notice or
document hand delivered or sent by U.S. first class mail to such party’s
respective address set forth in Paragraph 13 above shall be effective
service of process for any Action in Delaware with respect to any matters to
which it has submitted to jurisdiction as set forth in the immediately
preceding sentence.  Each of Buyer and
Seller irrevocably and unconditionally waives any objection to the laying of
venue of any Action arising out of this Agreement, any provision hereof or the
breach, performance, enforcement, validity or invalidity hereof in (i) the
Court of Chancery in and for the State of Delaware and the Superior Court in
and for the State of Delaware or (ii) the United States District Court for the
District of Delaware, and hereby further irrevocably and unconditionally waives
and agrees not to plead or claim in any such court that any such Action brought
in any such court has been brought in an inconvenient forum.  Notwithstanding the foregoing, each party
agrees that a final judgment in any action or proceeding so brought shall be
conclusive and may be enforced by suit on the judgment in any jurisdiction or
in any other manner provided in Law or in equity.


 


23.           Counterparts.  This Agreement may be executed in
counterparts, all of which may be delivered by facsimile transmission, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.  The
exchange of copies of this Agreement and of signature pages by facsimile
transmission shall constitute effective execution and delivery of this
Agreement as to the Parties and may be used in lieu of the original Agreement
for all purposes.  Signatures of the
Parties transmitted by facsimile shall be deemed to be their original signature
for all purposes.


 


Remainder of page intentionally left blank.


 


13

















 


IN WITNESS
WHEREOF, each of Buyer, Seller and the Escrow Agent has caused this Agreement
to be executed by its authorized officer thereunto duly authorized as of the
date first above written.


 


 


ESCROW AGENT:


U.S. BANK NATIONAL ASSOCIATION


 


 


	
  By:
  

  	
  /s/
  Grace A. Gorka

  	
   

  	
   

  
	
  Name:
  

  	
  Grace
  A. Gorka

  	
   

  
	
  Title:

  	
  Vice
  President, Corporate Trust Services

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  BUYER:

  	
   

  
	
  ROCKWELL
  COLLINS, INC.

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:
  

  	
  /s/
  Gary R. Chadick

  	
   

  	
   

  
	
  Name:

  	
  Gary
  R. Chadick

  	
   

  
	
  Title:

  	
  Senior
  Vice President, General Counsel and Secretary

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  SELLER:

  	
   

  
	
  EVANS
  & SUTHERLAND COMPUTER CORPORATION

  	
   

  
	
   

  	
   

  
	
   

  	
   

  
	
  By:
  

  	
  /s/
  James R. Oyler

  	
   

  	
   

  
	
  Name:

  	
  James
  R. Oyler

  	
   

  
	
  Title:

  	
  President
  and Chief Executive Officer

  	
   

  
										



 


[Signature Page to Escrow
Agreement]