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EXHIBIT 2.1(b)
EXECUTION COPY
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Agreement"), dated as of the 21st day of
February, 2000, by and among MRV Communications, Inc. ("MRV"), the Selling
Shareholders of Fiber Optic Communications, Inc. ("FOCI") and the law firm of
Xxxxx & XxXxxxxx, Taipei Office (the "Escrow Agent") having Xxxxx X. Xxxx as its
representative.
WITNESSETH
WHEREAS, MRV and Selling Shareholders have entered into a Stock Purchase
Agreement dated February 21, 2000 (the "SPA") pursuant and subject to which MRV
is acquiring up to One Hundred Percent (100%), but not less than Seventy Five
Percent (75%), of the shares of FOCI ("FOCI Shares") from Selling Shareholders;
WHEREAS, all capitalized terms not otherwise defined herein have the
meaning ascribed to such term in the SPA; and
WHEREAS, Section 10.2.3 of the SPA contemplates that the Parties will enter
into an agreement with the Escrow Agent pursuant to which the Escrow Agent will
hold up to One Million (1,000,000) MRV Shares, subject to pro rata adjustment
based on the percentage of FOCI Shares acquired by MRV, to be issued to the
Selling Shareholders of FOCI under the SPA in escrow.
WHEREAS, Section 10.2.3 of the SPA contemplates that the representations,
warranties, covenants and obligations of the Selling Shareholders shall be
secured by placing the aforesaid MRV Shares owned by Selling Shareholders in
escrow under this Agreement;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and conditions set forth below, the parties hereto hereby agree as
follows:
1. At the Closing, MRV shall transfer the Escrowed Shares to the Selling
Shareholders and then the Selling Shareholders shall deliver the Escrowed
Shares directly to the Escrow Agent. The title of the Escrowed Shares shall
be under the name of the authorized representative(s) of the Selling
Shareholders as agreed by MRV. The Escrowed Shares delivered to the Escrow
Agent shall be in the form of one (1) share certificate or other form as
deemed appropriate by MRV. The Selling Shareholders will deliver to the
Escrow Agent a Power of Attorney , as attached in the Appendix hereof, with
respect to the Escrowed Shares granting the Escrow Agent the exclusive right
to vote, transfer, sell, pledge and/or otherwise dispose of the Escrowed
Shares during the term of this Agreement and in accordance with the
provisions of this Agreement and the SPA. Provided, however, that in case of
the Claim arises pursuant to Section 5 hereof, the Escrow Agent shall not
have such right to vote unless both MRV and Selling Shareholders provide a
written instruction to Escrow Agent.
2. The Escrow Agent agrees to keep the Escrowed Shares in a security vault or
safe deposit box, and will act with respect to such Escrowed Shares pursuant
to the terms of this Agreement and the SPA.
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3. The Escrow Agent shall deliver the Escrowed Shares upon receipt of written
notice signed by MRV subject to Section 5 hereof. Furthermore, the Escrow
Agent may take any action not specified in this Agreement upon receipt by
the Escrow Agent of written instruction to such effect which is signed by
MRV.
4. The Selling Shareholders represent that Xx. Xxxxxx Xx-Xxxxx Xxxx, and Mr.
Xxxxx Song-Xxxx Xxx (or their lawful successors designated by Selling
Shareholders) have the power of attorney from all other Selling Shareholders
in connection with any acts or omissions regarding disposition of the
Escrowed Shares stipulated herein.
5. (a) MRV may give a notice (a "Notice") to the Selling Shareholders (with a
copy to the Escrow Agent) specifying in reasonable detail the nature and
dollar amount of any claim (a "Claim") it may have against the Selling
Shareholders pursuant to Section 10 of the Stock Purchase Agreement. If
Xx. Xxxxxx Xx-Xxxxx Wang or Mr. Xxxxx Song-Xxxx Xxx, on behalf of the
Selling Shareholders, gives notice to MRV (with a copy to the Escrow
Agent) disputing any Claim (a "Counter Notice") within 15 days following
receipt by the Selling Shareholders of a copy of the Notice regarding
such Claim, such Claim shall be resolved as provided in paragraph (b)
below. If no Counter Notice is received by the Escrow Agent within such
15-day period, then the amount of damages claimed by MRV shall be deemed
established for purposes of this Escrow Agreement and, at the end of
such 15-day period, the Escrow Agent shall pay to MRV the amount claimed
in the Notice.
(b) If MRV and the Selling Shareholders cannot resolve any Claim between
themselves within 30 days after delivery of a Counter Notice, or within
such extended period of time as MRV and the Selling Shareholders may
agree in writing (written notice of which extended period they shall
jointly give to the Escrow Agent), either Selling Shareholders or MRV
shall have the right to submit the Claim for arbitration as set forth in
Section 16 of this Agreement. Any decision of the arbitrator regarding
such Claim shall be final and binding upon the Selling Shareholders and
MRV, and the Escrow Agent shall make payments from the proceeds of the
Escrowed Shares upon receipt of any instructions in any order signed by
the arbitrator.
(c) In the event that the Selling Shareholders and MRV shall reach a
settlement with respect to any Claim made by MRV pursuant to this
paragraph 5, they shall jointly deliver written notice of such
settlement to the Escrow Agent, including instructions to the Escrow
Agent regarding any payment to be made by it from the proceeds of the
Escrowed Shares, and the Escrow Agent shall act in accordance with such
instructions.
(d) For purpose of calculation and satisfaction of the MRV Claims, the value
of the Escrowed Shares shall be determined by the closing price of MRV
Shares on NASDAQ, the fair market value of the shares of MRV Subsidiary,
or, if MRV Subsidiary becomes a listed company, the closing price of MRV
Subsidiary shares on the stock exchange or over-the-counter market on
which MRV Subsidiary shares are listed (whichever is applicable) on the
business day immediately prior to the date of the aforesaid payment for
the Claim.
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6. The Escrowed Shares shall be exchanged for 10% of MRV's shareholding in the
new subsidiary of MRV into which the business of FOCI may be merged (the
"MRV Subsidiary") upon occurrence of the following conditions: (1) MRV
Subsidiary's initial public offering on NASDAQ or any other stock exchange
or over-the-counter market in the United States; or (2) a sale of 100%
shares of the MRV Subsidiary to a third party other than an affiliate to
MRV.
7. On the date which is two (2) years from the date of Closing defined in SPA
(or, if not a business day, then on the next occurring business day
thereafter), the Escrow Agent shall deliver to Xx. Xxxxxx Xx-Xxxxx Wang and
Mr. Xxxxx Song-Xxxx Xxx (or their lawful successors designated by Selling
Shareholders) on behalf of the Selling Shareholders all of the Escrowed
Shares. Upon release of the Escrowed Shares to Selling Shareholders any and
all rights to exchange shares for the MRV Subsidiary shall terminate.
8. The Escrow Agent undertakes to perform only such duties as are expressly set
forth herein.
9. MRV and the Selling Shareholders hereby agree to jointly and severally
indemnify and hold the escrow agent harmless from and against any losses,
costs, claims, or actions arising from or incurred in connection with the
escrow agent's performance of its obligations hereunder unless such losses,
costs, claims or actions are incurred as a result of the escrow agent's
willful misconduct or gross negligence.
10. The Escrow Agent may rely and shall be protected in acting or refraining
from acting upon any written notice, instruction or request furnished to it
hereunder and believed by it to be genuine and to have been signed or
presented by the proper party or parties. The Escrow Agent may conclusively
presume that the undersigned representative of any party hereto which is a
legal entity other than a natural person has full power and authority to
instruct the Escrow Agent on behalf of that party unless written notice to
the contrary is delivered to the Escrow Agent.
11. The Escrow Agent shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the rights or powers
conferred upon it by this Agreement, and may consult with counsel of its own
choice and shall have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance
with the opinion of such counsel.
12. The Escrow Agent may resign and be discharged from its duties or obligations
hereunder by giving notice in writing of such resignation specifying a date
upon which such resignation shall take effect, whereupon a successor Escrow
Agent shall be appointed by MRV (subject to approval of Selling
Shareholders, which shall not be unreasonably withheld). In the event that
Escrow Agent resigns, there shall not be any additional Escrow Fees to be
paid by the Selling Shareholders.
13. The Escrow Agent shall be entitled to compensation (the "Escrow Fees") in
the amount equivalent to 0.3 % of the market value of the Escrowed Shares on
the date of this Agreement for the services to be rendered by it hereunder
and in addition to be reimbursed for all losses, liabilities or expenses,
including reasonable attorneys' fees
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("Reimbursement"), incurred or made by it without gross negligence or bad
faith arising out of or in connection with its entering into this Agreement
or carrying out its duties hereunder, including the costs and expenses of
defending itself against any claim of liability in the premises. The Escrow
Fees shall be borne by the Selling Shareholders and subtracted upon closing
from the total amount of cash received by the Selling Shareholders as part
of the consideration for the Selling Shares. The Reimbursement shall be
borne by the Selling Shareholders when it is incurred and may be applied
against the said cash consideration or Escrowed Shares as the case may be.
For avoidance of doubt, the Escrow Fees only cover the services of taking
custody of the Escrowed Shares.
14. This Agreement expressly sets forth all the duties of the Escrow Agent with
respect to any and all matters pertinent hereto. No implied duties or
obligations shall be read into this Agreement against the Escrow Agent. The
Escrow Agent shall not be bound by the provisions of any agreement among the
parties hereto except this escrow agreement.
15. This Agreement shall inure to the benefit of and be binding upon the parties
and their respective heirs, successors, assigns and legal representatives,
and shall be governed by and construed in accordance with the laws of
Taiwan, the Republic of China applicable to contracts made and to be
performed therein and cannot be changed or terminated except by a writing
signed by MRV, Selling Shareholders and the Escrow Agent, or the resignation
stated in Section 12 hereof.
16. (a) This Agreement shall be interpreted in accordance with the laws of
Taiwan, the Republic of China without regard to its conflicts of law
principles.
(b) If a dispute arising out of, relating to or in connection with this
Agreement, or the breach, termination or validity thereof, arises
between the parties which, in the opinion of either party, cannot be
resolved amicably after consultation, the dispute shall be referred for
binding, final resolution by arbitration in accordance with the
Arbitration Law of the ROC in effect at the time of the arbitration
except as they may be modified herein or by mutual agreement of the
parties. The arbitration shall be confidential and may be conducted in
Chinese or English language. It shall take place in Taipei, Taiwan and
the parties expressly consent to jurisdiction of the Arbitration
Association of Taiwan, the Republic of China ("ROCAA") as a condition to
entering this Agreement. The arbitral tribunal shall consist of three
arbitrators, one appointed by each of the parties and the third
appointed by those two in accordance with the rules specified above. If
they cannot agree on a third, the third arbitrator shall be appointed by
the ROCAA.
(c) The arbitral tribunal may grant any relief deemed by the tribunal to be
just and equitable, including specific performance. The arbitral award
may include an award of costs, including reasonable attorneys' fees and
disbursements. The decision of the arbitral tribunal shall be binding
and final and may be used as a basis of judgment thereon in the
jurisdiction where the party is subject to or elsewhere. Neither party
shall be entitled to commence or maintain any action in a court of law
upon any matter in dispute until such matter shall have been submitted
and determined as hereinbefore provided and then only for the
enforcement of the amount found due in such arbitration. Pending
submission to arbitration and thereafter until the arbitral tribunal
publishes its award, the Escrowed Shares shall,
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except in the event of termination or expiration of this Agreement,
continue to be escrowed by the Escrow Agent pursuant to this Agreement.
17. All notices and other communications pursuant to this Agreement shall be in
writing and shall be given (and shall be deemed to have been duly given if
so given) by hand delivery, cable, telegram or telex, or by mail (registered
or certified mail, postage prepaid, return receipt requested) to the
respective parties as follows:
(a) IN THE CASE OF MRV:
MRV Communications, Inc.
0000 Xxxxxxxxxx Xxx
Xxxxxxxxxx, XX 00000
X.X.X.
Attention: Xxxxxx Xxxxxx
WITH A COPY TO:
Xxxxx & XxXxxxxx
00X, 000 Xxx Xxx X. Xxxx,
Xxxxxx, Xxxxxx
Attention: Xxxxx X. Xxxx
(b) IN THE CASE OF SELLING SHAREHOLDERS:
Pacrim Investing & Developing Co., Ltd.
00X, 00, Xxx-Xxx Xxxx, Xxx. 0,
Xx-Xxx, Taoyuan,
Taiwan, R.O.C.
Attention: Xxxxxx Xx-Xxxxx Xxxx
Xxxxx Song-Xxxx Xxx
(c) IN THE CASE OF ESCROW AGENT:
Xxxxx & XxXxxxxx
00X, 000 Xxx Xxx X. Xxxx,
Xxxxxx, Xxxxxx
Attention: Xxxxx X. Xxxx
or to such other person or address as any of the parties hereto shall
specify by notice in writing to all the other parties hereto.
18. This Agreement may be executed in any number of counterparts, each of which
shall be deemed to be an original instrument and all of which together
shall constitute a single agreement.
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this Agreement
on the date first above written.
MRV COMMUNICATIONS INC.
By: /s/ Xxxxxx Xxxxxx
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Xxxxxx Xxxxxx
Vice President and CFO
SELLING SHAREHOLDERS OF
FIBER OPTIC COMMUNICATIONS, INC.
By: /s/ Xxxxxx Xx-Xxxxx Wang
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Xxxxxx Xx-Xxxxx Xxxx
On behalf of the Selling
Shareholders
By: /s/ Xxxxx Song-Xxxx Xxx
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Xxxxx Song-Xxxx Xxx
On behalf of the Selling
Shareholders
XXXXX & XxXXXXXX, TAIPEI OFFICE
By: /s/ Xxxxx X. Xxxx
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Xxxxx X. Xxxx
Senior Partner
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APPENDIX
POWER OF ATTORNEY
We, ______________ and ________________, hereby irrevocably constitute and
appoint Xxxxx X. Xxxx of Xxxxx & XxXxxxxx, Attorneys-at-Law, to be my attorney
in the Republic of China, with full power of substitution and revocation, to
hold up to One Million (1,000,000) shares, with all dividends, rights and
interests accruing to or accrue upon the same, of MRV Communications Inc., which
are registered in my name on the shareholders' roster of MRV on behalf of the
Selling Shareholders; and to vote, transfer, sell, pledge or otherwise dispose
of the Escrowed Shares during the term of the Escrow Agreement and in accordance
with the provisions of the Escrow Agreement and the Stock Purchase Agreement
entered into between the Selling Shareholders and MRV dated February 21, 2000.
IN WITNESS WHEREOF, I have executed this Power of Attorney on the 21st day of
February, 2000.
By:
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Name: Xxxxxx Xx-Xxxxx Wang
By:
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Name: Xxxxx Song-Xxxx Xxx
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