Exhibit 3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, made and entered into this ___ day of
June, 1996, by, between and among Marcel Van Heesewijk, an individual having his
principal office for the transaction of business at 000 Xxxxxx Xxxxxx, Xxxxx
000, Xxxxxxxx Xxxx, Xxxxxxxxxx (hereinafter called "Heesewijk"), Mattheus
Wegbrans, an individual having his principal office for the transaction of
business at QCS Development Company S.A., Immeuble Le Quadra, 455 Xxxxxxxxx Xxx
Xxxxxxx, 00000, Xxxx, Xxxxxx (hereinafter called "Wegbrans"; collectively with
Heesewijk, the "Founders"), the persons listed as "Purchasers" on the signature
pages hereto (the "Purchasers"), and Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx,
Five Palo Alto Square, 0000 Xx Xxxxxx Xxxx, Xxxx Xxxx, Xxxxxxxxxx (hereinafter
called the "Escrow Agent").
W I T N E S S E T H:
Whereas, Section 4(f) of that certain Shareholders' Agreement
dated as of November 22, 1994 (the "Shareholders' Agreement"), and Section
2.4(d) of that certain Series A Convertible Preferred Stock Purchase Agreement
dated November 22, 1994 (the "Purchase Agreement"), require QCS Corporation, a
Delaware corporation (the "Company") to transfer additional shares of its common
stock (the "Common Stock") or, at the option of the Company, to pay the
equivalent value of such shares of Common Stock in cash (at certain agreed upon
values), to the Purchasers if certain financial results described therein (the
"Financial Results") are not achieved; and
Whereas, in consideration for, among other things, the
Founders agreeing (i) to transfer to the Purchasers an aggregate of Four Million
Three Hundred Sixty-Eight Thousand Nine Hundred Thirty-Seven (4,368,937) shares
of the Common Stock or (ii) at the option of the Founders, to pay the equivalent
value of such shares of the Common Stock in cash based on a value of One Dollar
and Three Cents ($1.03) per share or (iii) to transfer or pay a combination of
both shares of the Common Stock and cash in the equivalent aggregate amount on
or before August 1, 1997, the Founders, the Purchasers and the Company entered
into an agreement dated June ___, 1996 (the "Founders Agreement"), wherein such
parties agreed to delete Sections 4(e) and 4(f) of the Shareholders' Agreement
and Section 2.4(d) of the Purchase Agreement, and to make certain other
deletions and amendments to the Shareholders' Agreement and Purchase Agreement;
and
Whereas, in accordance with the provisions of the Founders
Agreement, the Founders, the Purchasers, and the Escrow Agent have agreed to
enter into this Escrow Agreement and the Founders have agreed to deposit an
aggregate of Four Million Three Hundred Sixty-Eight Thousand Nine Hundred
Thirty-Seven (4,368,937) shares of the Common Stock, which have fully vested
(the "Escrowed Shares"), with the Escrow Agent to be held by said Escrow Agent
pursuant to the terms hereof; and
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Whereas, the percentage of Escrowed Shares to be transferred
by each of Heesewijk and Wegbrans shall be determined in accordance with Section
2 of the Founders Agreement; and
Whereas, the parties hereto intend to set forth herein their
agreement as to this matter.
Now, Therefore, in consideration of these premises, the mutual
promises of the parties and other good and valuable consideration, the receipt
and sufficiency of which are hereby mutually acknowledged, it is hereby
covenanted and agreed by and among the parties hereto as follows:
1. Escrow Agent. The law firm of Xxxxxx Godward Xxxxxx
Xxxxxxxxx & Xxxxx agrees to act as Escrow Agent hereunder, and the Purchasers,
Heesewijk and Wegbrans agree that the Escrow Agent shall so act and perform
under the terms and conditions of this Escrow Agreement.
2. Possession of Shares. The Escrow Agent hereby acknowledges
that it has received from Heesewijk 3,021,037 shares of Common Stock and from
Wegbrans 1,347,900 shares of Common Stock, which in the aggregate represent Four
Million Three Hundred Sixty-Eight Thousand Nine Hundred Thirty-Seven (4,368,937)
shares of Common Stock, which will be held by the Escrow Agent pursuant to the
terms and conditions described in this Escrow Agreement. Such Escrowed Shares
and/or cash shall be paid over and delivered to Purchasers, or their designees,
on or before August 1, 1997, in satisfaction of the obligations of Heesewijk and
Wegbrans to Purchasers as set forth in the Founders Agreement. The Escrow Agent
hereby acknowledges to Purchasers that the Escrowed Shares held by it are
impressed with a trust in favor of Purchasers.
3. Voting of Common Stock. Unless the Common Stock is
distributed to Purchasers pursuant to Section 4 hereof, Heesewijk and Wegbrans
will retain all voting rights and all other incidents of ownership to the
respective shares of Common Stock deposited by each of them pursuant to the
terms herein, and the Escrow Agent assumes no obligation with respect to voting
any shares of the Common Stock.
4. Distribution. Before August 1, 1997, all of the Escrowed
Shares shall be released and remitted to Purchasers, or their designees, in
accordance with Section 2 of the Founders Agreement, upon delivery to the Escrow
Agent of instructions substantially in the form of Exhibit A hereto, signed by
Heesewijk and Wegbrans. On or after August 1, 1997, that number of Escrowed
Shares that any Purchaser is entitled to receive pursuant to Section 2 of the
Founders Agreement shall be released and remitted to such Purchaser, or its
designee, upon delivery to the Escrow Agent of instructions in the form of
Exhibit B hereto, signed by such Purchaser. If any shares of Common Stock remain
with the Escrow Agent on the Termination Date (as hereinafter defined), the
Escrow Agent shall return such shares to Heesewijk and Wegbrans, as the case may
be, upon the delivery of instructions
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substantially in the form of Exhibit C hereto, signed by all Purchasers. In the
event of any distribution of Escrowed Shares to a Purchaser, the Escrow Agent
shall not be responsible for effecting a transfer of such shares on the books
and records of the Corporation. Heesewijk and Wegbrans, by their execution
hereof, irrevocably instruct the transfer agent of the Company to accept the
instructions of the Escrow Agent with respect to any changes in the
denominations of share certificates registered in the name of Heesewijk or
Wegbrans, without further instruction or documentation.
5. Instructions. All instructions to the Escrow Agent
hereunder must be in writing and signed by the party or parties delivering such
instructions.
6. Good Faith. The Escrow Agent shall not be liable for any
action it may take or fail to take as Escrow Agent, including without
limitation, any action it may take or fail to take in reliance upon the
instructions specified in Section 5 hereof, if its conduct is in good faith and
in the exercise of its own best judgment or upon the advice of counsel to the
Escrow Agent. Subject to the foregoing, Heesewijk and Wegbrans do hereby
covenant and agree to indemnify and hold the Escrow Agent harmless from any and
all claims and demands whatsoever which may be asserted against it in connection
with its action as Escrow Agent hereunder, including reasonable attorneys' fees.
7. Advice and/or Instruction. If the Escrow Agent is in doubt
as to any of its rights, duties or obligations hereunder at any time and from
time to time, it may request the written advice and/or instruction of
Purchasers, Heesewijk and Wegbrans, and the advice and/or instruction given in
writing and signed by Purchasers, Heesewijk and Wegbrans may be fully relied
upon by the Escrow Agent. In the event that the Escrow Agent seeks such advice
and/or instruction from the parties, but fails to receive the same from all of
the parties, it may forbear on any action under this Escrow Agreement until such
advice and/or instruction is received by all of the parties, or in the
alternative until an order is received from a court of competent jurisdiction.
The Escrow Agent shall take no action upon the instruction of Heesewijk or
Wegbrans without first notifying Purchasers of its intention with respect
thereto and may also defer taking any action upon the instruction of any
Purchaser until after it has provided notice of its intention to such other
parties as it desires.
8. Resignation and Substitution. The Escrow Agent may resign
as Escrow Agent upon ten days' written notice to Heesewijk and Wegbrans,
provided, however, that prior to the effectiveness of such resignation, the
Escrow Agent shall in good faith attempt to appoint a successor Escrow Agent,
which shall be another law firm, commercial banking institution, or other
institution that customarily acts in such capacity.
9. Acknowledgment as to Representation. Heesewijk and Wegbrans
hereby acknowledge that the Escrow Agent is legal counsel to the Company, and
does not represent either of Heesewijk or Wegbrans as legal counsel.
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10. Binding Effect. This Escrow Agreement shall be binding
upon and inure to the benefit of the parties and the Escrow Agent and their
respective heirs, successors and assigns.
11. Entire Agreement. This Escrow Agreement constitutes the
entire understanding and agreement between the parties with regard to the
subject matter hereof. This Escrow Agreement may be amended at any time by
written statement executed by all parties hereto. No modification or amendment
of this Escrow Agreement shall be valid unless it is in writing and executed by
all parties hereto. Any conflict between this Escrow Agreement and the Founders
Agreement shall be resolved in favor of the former.
12. Termination. This Agreement shall terminate upon the
earlier to occur of (i) the date on which the obligations of Heesewijk and
Wegbrans described in the Founders Agreement have been satisfied or (ii) the
distribution of all of the Escrowed Shares pursuant to Section 4 hereof or (iii)
the resignation of the Escrow Agent pursuant to Section 8 hereof, if, after a
good faith attempt to appoint a successor escrow agent pursuant to Section 8 no
successor has been so appointed (the "Termination Date"). Except as otherwise
provided in the preceding sentence, Purchasers, Heesewijk and Wegbrans shall not
be entitled to terminate this Agreement.
13. acknowledgment by purchasers. Purchasers acknowledge that
Founders and any Purchaser may reach an agreement prior to August 1, 1997, with
respect to the distribution to such Purchaser of a number of the Escrowed Shares
and/or cash that such Purchaser is entitled to receive pursuant to Section 2 of
the Founders Agreement. If such an agreement has been reached by a Purchaser and
Founders, then Escrow Agent shall release and remit that number of Escrowed
Shares as directed by, and upon the delivery of, written instructions signed by
such Purchaser and Founders, which in no event shall be more than the number of
Escrowed Shares that such Purchaser is entitled to receive pursuant to Section 2
of the Founders Agreement and which in no event shall modify the rights of other
Purchasers hereunder.
14. Law Venue. This Agreement and its validity, construction
and performance shall be governed in all respects by the laws of the State of
California. Jurisdiction of any lawsuit under this Escrow Agreement shall be
limited to the Federal District Courts for all disputes arising hereunder.
15. Compensation. The Escrow Agent shall be compensated
hereunder by Heesewijk and Wegbrans.
16. Notice and Directions. All notices and instructions
provided for in this Agreement and any requests for directions to be made by the
Escrow Agent hereunder, shall be made to the parties at the address opposite
their names on the signature pages hereto.
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In Witness Whereof, the parties have hereunto set their hands
on the day first above written.
ADDRESSES:
/s/ Marcel van Heesewijk 000 Xxxxxx Xxxxxx, Xxxxx 000
-------------------------------- Xxxxxxxx Xxxx, XX 00000
Marcel van Heesewijk
/s/ Mattheus Wegbrans c/o QCS Development Company S.A.
-------------------------------- Immeuble Le Quadra
Mattheus Wegbrans 000 Xxxxxxxxx Xxx Xxxxxxx
000000
Xxxx, Xxxxxx
XXXXXX GODWARD XXXXXX XXXXXXXXX Attn: Xxxxxx X. Xxxxx, Esq.
& XXXXX Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
By: /s/ Xxxxxx X. Xxxxx Xxxx Xxxx, XX 00000-0000
--------------------------------
Name:
--------------------------------
Title:
-------------------------------
PURCHASERS:
CARLYLE QCS PARTNERS, L.P. Attn: Xxxxxx Xxxxxxx
0000 Xxxxxxxxxxxx Xxx., X.X.
Xxxxx 000 North
By: Xxxxxxxxxx, X.X. 00000
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
STF MANAGEMENT LIMITED, as General Address:
Partner of Sharp Technology Fund I Limited
Partnership
By: /s/ Lindsay C.N. Bury
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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STF MANAGEMENT LIMITED, as General Address:
Partner of Sharp Technology Fund II Limited
Partnership
By: /s/ Lindsay C.N. Bury
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
LAGUNITAS PARTNERS, L.P. Address:
By: /s/ Xxxx X. Xxxxxx
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
PROACTIVE PARTNERS, L.P. Address:
By: /s/ Xxxxxxx X. XxXxxxxxxx
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
OAKWOOD HOLDINGS, BVI Address:
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
DE NOYANGE S.A. Address:
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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XXXXXXX CAPITAL MANAGEMENT Address:
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
Xx. Xxxx Xxxxxx Address:
/s/ Xxxx Xxxxxx
---------------------------------------
Xx. Xxxxxx Xxxxxxxxx Address:
---------------------------------------
Xx. Xxxx Xxxxxx Address:
---------------------------------------
Mr. Xxxxx Xxxxx Address:
---------------------------------------
Xx. Xxxxx Xxxxx Address:
---------------------------------------
Xx. Xxxxxx Xxxxx Address:
---------------------------------------
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EXHIBIT A
[Date]
Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Escrow Agreement, dated June __, 1996, by and
between Marcel van Heesewijk ("Heesewijk"), Mattheus Wegbrans ("Wegbrans"), the
Persons listed as "Purchasers" on the signature pages thereto (the
"Purchasers"), and yourself, pursuant to which the certificates representing
Four Million Three Hundred Sixty-Eight Thousand Nine Hundred Thirty-Seven
(4,368,937) shares of the common stock of QCS Corporation ("QCS") were deposited
with you to constitute the Escrowed Shares (as such term is defined in the
Escrow Agreement) in accordance with the Escrow Agreement.
Pursuant to Section 4 of the Escrow Agreement, we hereby instruct you
to immediately deliver and remit to Purchasers or their designees the
certificates representing _____ Escrowed Shares to be distributed to such
Purchasers in accordance with Section 2 of the Founders Agreement.
Sincerely yours,
-----------------------------
Marcel van Heesewijk
-----------------------------
Mattheus Wegbrans
A-1
EXHIBIT B
[Date]
Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Escrow Agreement, dated June __, 1996, by and
between Marcel van Heesewijk ("Heesewijk"), Mattheus Wegbrans ("Wegbrans"), the
Persons listed as "Purchasers" on the signature pages thereto (the "Purchasers")
and yourself, pursuant to which the certificates representing Four Million Three
Hundred Sixty-Eight Thousand Nine Hundred Thirty-Seven (4,368,937) shares of the
common stock of QCS Corporation ("QCS") were deposited with you to constitute
the Escrowed Shares (as such term is defined in the Escrow Agreement) in
accordance with the Escrow Agreement.
Pursuant to Section 4 of the Escrow Agreement, we hereby instruct you
to immediately deliver and remit to [Purchaser or its designee] the certificates
representing _____ Escrowed Shares, which constitute the number of Escrowed
Shares that [Purchaser] is entitled to receive pursuant to Section 2 of the
Founders Agreement.
Sincerely yours,
[Purchaser]
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
B-1
EXHIBIT C
[Date]
Xxxxxx Godward Xxxxxx Xxxxxxxxx & Xxxxx
Five Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Ladies and Gentlemen:
Reference is made to the Escrow Agreement, dated June __, 1996, by and
between Marcel van Heesewijk ("Heesewijk"), Mattheus Wegbrans ("Wegbrans"), the
Persons listed as "Purchasers" on the signature pages thereto (the
"Purchasers"), and yourself, pursuant to which the certificates representing
Four Million Three Hundred Sixty-Eight Thousand Nine Hundred Thirty-Seven
(4,368,937) shares of the common stock of QCS Corporation ("QCS") were deposited
with you to constitute the Escrowed Shares (as such term is defined in the
Escrow Agreement) in accordance with the Escrow Agreement.
Because the Escrow Agreement has terminated in accordance with Section
12 therein, we hereby instruct you to immediately deliver and remit to Heesewijk
and Wegbrans the certificates representing _____ Escrowed Shares, pursuant to
Section 4 of the Escrow Agreement.
Sincerely yours,
CARLYLE QCS PARTNERS, L.P.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
STF MANAGEMENT LIMITED, as General
Partner of Sharp Technology Fund I Limited
Partnership
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
C-1
STF MANAGEMENT LIMITED, as General
Partner of Sharp Technology Fund II Limited
Partnership
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
LAGUNITAS PARTNERS, L.P.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
PROACTIVE PARTNERS, L.P.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
OAKWOOD HOLDINGS, BVI
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
DE NOYANGE S.A.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
C-2
XXXXXXX CAPITAL MANAGEMENT
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
Xx. Xxxx Xxxxxx
--------------------------------
Xx. Xxxxxx Xxxxxxxxx
--------------------------------
Xx. Xxxx Xxxxxx
-------------------------------
Mr. Xxxxx Xxxxx
-------------------------------
Xx. Xxxxx Xxxxx
-------------------------------
Xx. Xxxxxx Xxxxx
-------------------------------
C-3