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EXHIBIT 2.3
ESCROW AGREEMENT
BETWEEN:
- LYONNAISE DE BANQUE, a French societe anonyme with a capital of FF.
620,000,000 having its principal office at 0, xxx xx xx Xxxxxxxxxx,
00000 Xxxxx, registered with the Registry of Commerce and Companies of
Lyons under no. B 954 507 976,
Represented by Mr. Alain de la Chapelle, who is duly authorized,
(hereinafter referred to as the "Escrow Agent")
IN THE FIRST PART,
AND:
- THE GUARANTORS' REPRESENTATIVE, acting in the name and for the account
of the companies and individuals whose corporate names, names,
principal offices and addresses are listed in Exhibit 1 hereto,
(such companies and individuals, together with any other party
adhering to this Agreement under the terms of its Section VIII below,
being hereinafter referred to as the "Guarantors"),
IN THE SECOND PART,
AND:
REVOD CORPORATION, a company organized under the laws of the State of
Delaware, United States of America, with its principal office at 0000
Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, Xxxxxx Xxxxxx of
America,
Represented for purposes hereof by its Vice-President, Xx. Xxxx X.
Xxxxxxx, who is duly authorized,
(hereinafter referred to as the "Beneficiary"),
IN THE THIRD PART,
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PREAMBLE:
A/ Under the terms of a share purchase agreement of even date herewith,
the Beneficiary has purchased, either directly or indirectly, certain
of the shares of Imaje, a French societe anonyme with a capital of FF.
139,851,100, having its principal office at 0, xxx Xxxxxxx Xxxxx,
00000 Xxxxx xxx Xxxxxxx, registered with the Registry of Commerce and
Companies of Romans under number B 353 282 106. The shares of Imaje
are hereinafter referred to as the "Shares".
B/ A guarantee agreement (hereinafter referred to as the "Guarantee
Agreement"), also of even date herewith, contains the representations
and warranties made by the Guarantors to the Beneficiary.
C/ Each of the Guarantors intends, pursuant to Section 4 of the Guarantee
Agreement, and as a guarantee of payment of any claims which may be
made by the Beneficiary under the terms of the representations and
warranties made therein, to deposit in an account opened by an
independant escrow agent the sum of one hundred and sixty-four francs
and forty-six centimes (FF. 164.46) corresponding to twenty-two point
four zero six percent (22.406%) of the sale price per Share paid to
such Guarantor.
However, each of the said Guarantors shall have the option, in
accordance with the terms of the Guarantee Agreement, of substituting
for the cash deposit in escrow a bank guarantee upon first demand
issued to the benefit of the escrow agent by a first-rate French bank
(hereinafter referred to as a "Bank Guarantee upon First Demand"), in
a principal amount corresponding to the cash funds deposited in
escrow.
Such escrow agent's assignment shall be to administer such funds and
Bank Guarantees upon First Demand and the funds generated therefrom in
accordance with the terms of this agreement.
D/ Consequently, the parties hereto have requested that Lyonnaise de
Banque accept the assignment as escrow agent.
The Escrow Agent has agreed to act as escrow agent for the funds and
Bank Guarantees upon First Demand referred to above, in accordance
with the following terms and conditions.
WHEREFOR, THE PARTIES HERETO HAVE AGREED AS FOLLOWS:
ARTICLE I: ESCROW ACCOUNT
1.1 The Guarantors' Representative and the Beneficiary hereby
appoint by mutual agreement the Escrow Agent, who accepts, as
escrow agent for the deposit of:
(a) an amount corresponding to one hundred and sixty-four
francs and forty-six centimes (FF. 164.46) times the
number of Shares sold to the
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3.
Beneficiary by those Guarantors having fulfilled
their obligations under the Guarantee Agreement by
means of a cash deposit in escrow; and
(b) Bank Guarantees upon First Demand (and the funds
arising from any calling into effect thereof) in an
amount equal to one hundred and sixty-four francs and
forty-six centimes (FF. 164.46) times the number of
Shares sold to the Beneficiary by those Guarantors
having fulfilled their obligations under the
Guarantee Agreement by means of Bank Guarantees upon
First Demand.
1.2 Consequently, the Guarantors who have signed this agreement
on its original date hereby simultaneously transfer their
portion of the funds referred to under Section 1.1(a) above to
the Escrow Agent. These funds shall be increased as a result
of adhesions to this Agreement as provided for under Section
VIII hereof.
1.3 Each of the Guarantors who have signed this agreement on its
original date, or who shall adhere to it as provided for under
Section VIII hereof, shall have the option, within thirty (30)
days of the date of sale of its Shares, of providing to the
Escrow Agent a Bank Guarantee upon First Demand prepared in
accordance with the model set forth in EXHIBIT 2 hereto, in an
amount equal to the amount initially deposited in escrow in
cash by such Guarantor. In this event, the Escrow Agent shall
return to the Guarantor concerned, as a counterpart for and
simultaneously with transmission of such Bank Guarantee upon
First Demand, the amount previously deposited in escrow in
cash, plus interest as provided for under Section 3.1 hereof.
1.4 The aforementioned funds, the originals of the Bank Guarantees
upon First Demand and the income arising from the entry into
force thereof, if applicable, shall be deposited in an account
opened by Lyonnaise de Banque entitled "Imaje Escrow Account"
(Compte Sequestre Imaje) (such account being hereinafter
referred to as the "Deposit").
1.5 On the date of signature of this Agreement, the Deposit shall
contain those sums which were initally transferred to the
Escrow Agent in accordance with Section 1.1(a) hereof.
ARTICLE II: REDUCTION OF THE DEPOSIT
2.1 (a) The amount of the Deposit shall be reduced to
sixty-four francs and thirty-five centimes (FF. 64.35) per
Share, corresponding to eight point seven six seven zero
percent (8.7670%) of the sale price paid to the Guarantors on
the first anniversary of the date of signature of this
Agreement, and to forty-two francs and ninety centimes (FF.
42.90) per Share, corresponding to five point eight four four
seven percent (5.8447%) of the sale price paid to the
Guarantors on the second anniversary of the date of signature
of this Agreement.
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4.
(b) However, in the event one or more claims has been
made against the Guarantors and remains outstanding on either
the first or the second anniversary of the date of signature
of this Agreement, the amount of the Deposit shall be
increased by the amount of the aforementioned claims which
remain unpaid by the Guarantors as of either of such dates.
2.2 From January 1, 1999 onwards, only an amount equal to the
amount of any claims already made against the Guarantors which
remain unpaid as of that date shall remain in escrow until
full and final payment of such claims or, where applicable,
full and final settlement of the dispute existing between the
parties.
2.3 In order to be enforceable against the Escrow Agent, the
claims referred to under Sections 2.1(b) and 2.2 must be
notified to it no later than three (3) business days after the
due date (either the first or the second anniversary of the
date of signature of this Agreement, or January 1, 1999, as
the case may be), by registered letter with return receipt
requested, in accordance with the terms of Section VI hereof.
2.4 The Escrow Agent shall retain in escrow that portion of the
Deposit which is the subject of claims, and its assignment
shall continue in that case for as long as the relevant claims
shall remain unresolved by means of legal proceedings as
provided for in the Guarantee Agreement, or by means of
agreement between the parties, even if the Escrow Agent's
assignment is thus extended beyond January 1, 1999.
2.5 It is hereby stipulated that in the event that as a result of
claims made by the Beneficiary and which remain unpaid by the
Guarantors on either of the deadlines set forth in Sections
2.1 and 2.2 hereof the Deposit is maintained at a level
exceeding the base levels of eight point seven six seven zero
percent (8.7670%) or five point eight four four seven percent
(5.8447%) or zero provided for in the absence of any claims
for each such date, that part of the Deposit which exceeds
such base levels shall not under any circumstances be used to
pay claims made after the respective deadline.
In the event the Beneficiary observes, after one of such
deadlines, that an amount retained with respect to claims made
but which remain unpaid must not be allocated to the
Beneficiary or must be partially allocated to the Beneficiary
under the terms of the Guarantee Agreement (in particular in
the event of a waiver of its claim by the Beneficiary, or a
settlement or spontaneous payment by the Guarantors), the
Beneficiary hereby undertakes to provide to the Escrow Agent,
within ten (10) days of such observation and in accordance
with the terms and conditions set forth in Section 3.4(b)
hereof, instructions to return that part of the Deposit to the
Guarantors.
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5.
2.6 For those Guarantors who have deposited cash funds in escrow,
repayments as described above shall be made by means of
sending individually to each of the Guarantors, by registered
mail with return receipt requested, of checks corresponding to
their portions of the Deposit, within twenty (20) days
following the first and the second anniversary of the date of
this Agreement and January 1, 1999 respectively.
The Escrow Agent shall also, automatically and without prior
notice, pay to said Guarantors together with their portion of
the Deposit, any investment income thereon.
2.7 For those Guarantors who have deposited funds in escrow in the
form of Bank Guarantees upon First Demand, the reductions of
the guarantees described above shall be made by means of
transmission to each of the Guarantors by the Escrow Agent of
the original of the Bank Guarantee upon First Demand in
exchange for transmission by the aforementioned Guarantor of a
new Bank Guarantee upon First Demand drafted in identical
fashion (with the exception of the guaranteed amount, which
shall be defined in accordance with the terms of Section 2.1
or 2.2 hereof, as the case may be) and issued by the same bank
or another first-rate French bank.
Within ten (10) days of the first and second anniversary dates
of signature of this Agreement and January 1, 1999,
respectively, the Escrow Agent shall inform the
aforementioned Guarantors of such option and the amount of
such new Bank Guarantees upon First Demand.
The Escrow Agent shall, automatically and without prior
notice, return the Bank Guarantees upon First Demand to the
Guarantors not later than twenty (20) days after the
expiration of the term of its assignment in accordance with
Section IV hereof.
ARTICLE III: THE ESCROW AGENT'S ASSIGNMENT
3.1 All cash amounts placed in escrow shall be invested in
short-term interest-bearing accounts adapted to the
constraints imposed by this Agreement. Unless otherwise
indicated by the Guarantors' Representative, cash amounts
placed in escrow on the date of this Agreement shall be
invested for a term of thirty days during the initial
thirty-day (30-day) period. Such investment shall be made
immediately on the first business day following the date of
payment of the relevant amount to the Escrow Agent. In the
event any of the Guarantors produces a Bank Guarantee upon
First Demand during such initial period and prior to its
expiration, and demands reimbursement of cash funds placed in
escrow prior to such expiration, the corresponding accounts
shall not bear interest. Upon the expiration of such initial
period, half of the available amount shall be frozen for three
(3) months and the other half for eleven (11) months.
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6.
The Escrow Agent shall consult the Guarantors' Representative
with respect to the duration of subsequent reinvestments,
fifteen (15) days prior to the date of each reinvestment.
The Escrow Agent shall provide to the Guarantors'
Representative and to the Beneficiary upon demand a monthly
statement of the funds in the Deposit, it being understood
that investment income on the funds placed in escrow by those
Guarantors who have deposited funds in cash shall be
distributed as provided for in Section 3.5 hereof. Prior to
expiration of the period for adhesion defined in Section 8.1
hereof, the Guarantors' Representative and the Beneficiary may
request communication of such statements at shorter intervals.
3.2 In addition, and in accordance with the terms of the Bank
Guarantees upon First Demand, those Guarantors who have chosen
to place funds in escrow in the form of such guarantees hereby
irrevocably authorize the Escrow Agent to activate all or part
of the Bank Guarantees upon First Demand in order to provide
the necessary amounts to the Deposit for satisfactory
performance of this Agreement and the Guarantee Agreement.
The Escrow Agent shall call the Bank Guarantees upon First
Demand into effect within ten (10) days of receipt of a
notification in accordance with the models referred to in
Sections 3.3 and 3.4 hereof, in the amounts defined in such
notification.
The Escrow Agent shall inform the Beneficiary and the
Guarantors' Representative thereof.
3.3 The Escrow Agent shall transmit the Deposit to the Beneficiary
in whole or in part not later than twenty (20) days following
receipt of:
a) a joint order by the Beneficiary and the Guarantors'
Representative, in accordance with the model attached
hereto as Appendix 1; or
b) an order by the Guarantors' Representative, in
accordance with the model attached hereto as
Appendix 2; or
c) a decision by a lower court (or court of appeals in
the event the lower court's decision is appealed)
instructing the Guarantors or the Escrow Agent to
transmit the Deposit to the Beneficiary in whole or
in part, in accordance with the model attached hereto
as Appendix 3, or as otherwise imposed by the lower
court or court of appeals.
The amounts necessary for application of this section shall be
withdrawn, for each of the Guarantors, in proportion to the
Shares sold to the Beneficiary (or which are deemed to be sold
in accordance with Section 8.2) by the Guarantors of the
Deposit.
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7.
3.4 The Escrow Agent shall return the Deposit to the Guarantors in
whole or in part not later than twenty (20) days following
receipt of:
a) a joint order by the Beneficiary and the Guarantors'
Representative, in accordance with the model attached
hereto as Appendix 4; or
b) an order by the Beneficiary, in accordance with the
model attached hereto as Appendix 5; or
c) a decision by a lower court (or court of appeals in
the event the lower court's decision is appealed)
instructing the Beneficiary or the Escrow Agent to
transmit the Deposit to the Guarantors in whole or in
part, in accordance with the model attached hereto as
Appendix 6, or as otherwise imposed by the lower
court or court of appeals.
3.5 The Escrow Agent shall, at the Guarantors' Representative's
express request, pay to those Guarantors who have expressed
such request upon the expiration of each calendar quarter the
amount of interest accrued on the Deposit and due to them, not
later than twenty (20) days after the expiration of each such
quarter, and on condition that the Guarantors' Representative
shall have communicated such request for a given quarter or
for the entire term of this Agreement not later than ten (10)
days prior to the expiration of the relevant quarter (i.e. for
the first quarter, not later than December 21, 1995).
ARTICLE IV: TERM AND EXPIRATION OF THE ESCROW AGENT'S ASSIGNMENT
4.1 Subject to the provisions of Section 4.2 below, the Escrow
Agent's assignment shall expire at 12.00 p.m. on January 1,
1999. On that date, and within the deadlines set forth in
Sections 2.6 and 2.7 hereof, the Deposit (including the Bank
Guarantees upon First Demand) or, if applicable, the balance
of the Deposit, shall be returned to the Guarantors.
4.2 In the case provided for in Section 2.2 hereof, the Escrow
Agent's assignment shall be extended in accordance with the
terms of this Agreement until full and final settlement of all
Claims, or, if applicable, of any disputes existing between
the parties.
4.3 No later than January 5, 1999, the Escrow Agent shall request
extension of the term of the Bank Guarantees upon First Demand
from the financial institutions which have issued them beyond
their initial term, in the event the Beneficiary or the
Guarantors' Representative has given notice, no later than
January 2, 1999, of the existence of one or more Claims which
remain outstanding as of December 31, 1998. Such requests
shall be in conformity with the terms of the relevant Bank
Guarantees upon First Demand.
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4.4 The Beneficiary and the Guarantors, acting through the
Guarantors' Representative, may terminate this Agreement early
or make any modification thereto either with or without the
consent of the Escrow Agent, provided, however, that such
modifications shall not increase the Escrow Agent's liability.
ARTICLE V: FEES AND DISBURSEMENTS OF THE ESCROW AGENT
The Escrow Agent shall receive a commission of two hundred thousand francs (FF.
200,000) as remuneration for the performance of its assignment.
Fifty percent (50%) of such commission shall be paid by the Beneficiary, and
fifty percent (50%) by the Guarantors, on the first business day following the
date of signature of this Agreement.
In the event the clause set forth in Article 4.2 hereof is implemented, such
remuneration shall be supplemented by an amount of twenty thousand francs (FF.
20,000) per quarter commenced. Such additional remuneration shall be paid by
the Beneficiary.
ARTICLE VI: NOTICES
All notices, demands, requests, and in general all communications which are to
be made or which may be made pursuant to this Agreement or which may be
required or useful for purposes hereof, shall be valid if sent by registered
mail with return receipt requested to the persons and addresses set forth
below:
If to the Escrow Agent, to: Xxxxxxxxx xx Xxxxxx
00, xxx Xxxxx
00000 Xxxxx
Attention: Messrs. Alain
de la Chapelle and
Pierre Pissaloux
If to the Beneficiary, to: Revod Corportion, c/o
Dover Technologies International,
Inc.
Attention: Xxxx X. Xxxxxxx, Esq.
One Marine Xxxxxxx Xxxxx
Xxxxx Xxxxx
Xxxx Xxxxx
Xxxxxxxxxx, XX 00000-0000
XXX
If to the Guarantors' Representative(s),
to: Xx. Xxxx-Xxxxxx Xxxxxx
0, xxx Xxxxxx Xxxxxx
00000 Xxxxx-Les-Valence
with a copy to Xxxxxxxx & Associes
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9.
Attention: Xxxxxxxxx Xxxxxxxx
& Xxxxxxxx Xxxxx
00, xxx xx Xxxxxxxxxx
00000 Xxxxx
or to such other addresses as may be communicated in writing by the Escrow
Agent, the Beneficiary, the Guarantors' Representative or Xxxxxxxx & Associes.
ARTICLE VII: ESCROW AGENT'S LIABILITY
7.1 The Escrow Agent shall have no liability and shall bear no
obligations other than those expressly provided for herein.
The Escrow Agent shall apply the terms and conditions of this
Agreement strictly, and shall maintain strict neutrality with
respect to the parties for the entire term of its assignment.
The Escrow Agent shall not be held liable for any default on
the part of any of the financial institutions having issued
the Bank Guarantees upon First Demand, or any refusal on their
part to fulfil their undertakings on any grounds whatsoever
(other than a breach by the Escrow Agent of any undertakings
expressly made herein); the Beneficiary hereby expressly
undertakes not to invoke the Escrow Agent's liability in this
connection.
In such event, the Beneficiary shall bear sole responsibility
for undertaking all necessary actions against the defaulting
financial institution or Guarantor, and the Escrow Agent shall
not be bound to undertake any actions against such financial
institution or Guarantor, other than appeal or extension of
the Bank Guarantees upon First Demand as provided for herein.
Insofar as it is necessary to do so, the Escrow Agent hereby
delegates all powers to the Beneficiary to act in its name
before any courts having jurisdiction to obtain fulfilment of
their undertakings by the financial institutions issuing the
Bank Guarantees upon First Demand, and undertakes to
facilitate all actions by the Beneficiary against such
financial institutions.
7.2 The Escrow Agent shall be entitled to consider all documents
and signatures submitted or communicated to it under the terms
of this Agreement as genuine, any evident fraudulent acts
notwithstanding.
7.3 Repayment of the Deposit or the balance thereof, if
applicable, shall constitute release by the Guarantors of the
Escrow Agent from all of its obligations hereunder.
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10.
ARTICLE VIII: ADHESION TO THIS AGREEMENT
8.1 Those shareholders of Imaje who are not signatories of this
Agreement and who sell their shares in Imaje to the
Beneficiary simultaneously with or subsequent to the signature
hereof may adhere to the terms of this Agreement by signing an
adhesion letter in accordance with the model given in Exhibit
3 hereto. Such adhesion shall be possible until 12.00 p.m. on
November 9, 1995, which deadline may be extended at the
Beneficiary's discretion. Whatever the date of their
adhesion, they shall be treated as though they had signed this
Agreement on its original date. The parties hereby undertake
to accept such adhesion without condition, provided, however,
that adhesion is by signature ne variatur of the model
attached hereto as Exhibit 3.
8.2 The shareholders of Sevres Valence Investissements and Pineal
shall be parties to this Agreement in proportion to the number
of Shares which they are deemed to have sold, in accordance
with Exhibit 4 hereto, on the dates set forth in such Exhibit,
with retroactive effect to the date of this Agreement, if
applicable.
ARTICLE IX: GUARANTORS' REPRESENTATIVE
For purposes hereof, the Guarantors shall be finally bound by all actions by
Xx. Xxxx-Xxxxxx Xxxxxx, resident at 0, xxx Xxxxxx Xxxxxx, 00000
Xxxxx-Les-Valence (hereinafter referred to as the "Guarantors'
Representative"); the Guarantors hereby appoint Xx. Xxxx-Xxxxxx Xxxxxx as
their representative in order that he may act in the Guarantors' name and for
their account, and make all decisions which are either directly or indirectly
connected with the subject matter of this Agreement, and in order that he may
receive all notices under Section VI hereof.
In the event of any incapacity to act on the part of Xx. Xxxx-Xxxxxx Xxxxxx,
Xx. Xxxxx Xxxxxx, resident at Xxxxxxxxxxxxxx 0, 0000 XX Xxxxxxx, xxx
Xxxxxxxxxxx, shall act in his place. In the event both Xx. Xxxx-Xxxxxx Xxxxxx
and Xx. Xxxxx Xxxxxx are unable to act, the Guarantors shall notify the
Beneficiary of the names of their replacements, who shall thereafter act as the
Guarantors' Representative and his alternate.
Absent such notification within thirty (30) days after acknowledgement of
Messrs. Xxxx-Xxxxxx Xxxxxx'x and Xxxxx Xxxxxx'x incapacity to act by the
Beneficiary or any of the Guarantors, and once such acknowledgement has been
notified to all of the Guarantors, a new Guarantors' Representative shall be
appointed by the President of the Commercial Court of Paris, at the request of
any of the parties.
In the interval between the incapacity of the Guarantors' Representative and
the date of his replacement, all notices hereunder shall be deemed to have been
validly given if notified to the last known address of the incapacitated
Guarantors' Representative.
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11.
ARTICLE X: GOVERNING LAW - SUCCESSORS AND ASSIGNS
This Agreement shall be governed by the laws of France, and shall be binding
upon the parties hereto and upon their legal representatives, successors, heirs
and assigns.
ARTICLE XI: DISPUTES
The Guarantors' Representative, the Beneficiary and the Escrow Agent shall seek
to resolve all disputes arising between them concerning the interpretation of
this Agreement by amicable negotiations conducted in good faith.
However, any disputes concerning the interpretation or performance of this
Agreement shall be submitted to the sole jurisdiction of French courts.
Done at Paris
On September 29, 1995
In three (3) original counterparts
[handwritten:] [handwritten:]
Bon pour constitution de sequestre Bon pour constitution de sequestre
(Good for appointment of an (Good for appointment of an
escrow agent) escrow agent)
[signed] REVOD CORPORATION
[signed]
-------------------------- -------------------------------
The Guarantors' Representative For the Beneficiary(1)
For the Guarantors(1)
[signed]
Bon pour acceptation de sequestre
(Good for acceptance of escrow assignment)
----------------------------
For the Escrow Agent(2)
---------------------
(1) The signatures shall be preceded by the handwritten words "Bon pour
constitution de sequestre" (Good for appointment of an escrow agent)
(2) Signature to be preceded by the handwritten words "Bon pour
acceptation de sequestre" (Good for acceptance of escrow assignment)
