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EXHIBIT 2.5
ESCROW AGREEMENT
THIS ESCROW AGREEMENT ("AGREEMENT") is made and entered into as of May
18, 2001 (the "CLOSING DATE") by and among: eBAY INC., a corporation duly
organized and existing under the laws of the State of Delaware ("PARENT"), the
shareholders of iBAZAR SA, a corporation duly organized and existing under the
laws of France (the "COMPANY"), identified on EXHIBIT A hereto (the
"SHAREHOLDERS"), GS CAPITAL PARTNERS III, L.P., as Shareholders' Agent
("SHAREHOLDERS' AGENT"), eBAY BELGIUM HOLDINGS S.A., a societe anonyme duly
organized and existing under the laws of Belgium and a subsidiary of Parent
("EBH") and STATE STREET BANK AND TRUST COMPANY OF CALIFORNIA, N.A., a national
banking association (the "ESCROW AGENT").
RECITALS
A. Parent and the Shareholders have entered into a Contribution
Agreement dated as of February 21, 2001 (the "CONTRIBUTION AGREEMENT"), a copy
of which is attached hereto, pursuant to which the Shareholders will contribute
all of the outstanding shares of the Company to EBH, and receive capital stock
of EBH (the "EXCHANGEABLE STOCK") exchangeable into shares of common stock of
Parent (the "eBAY STOCK").
B. The Contribution Agreement contemplates the establishment of an
escrow arrangement to secure the indemnification and other obligations of the
Shareholders under the Contribution Agreement, whereby certain shares of
Exchangeable Stock, constituting in the aggregate 15% of the shares of
Exchangeable Stock issuable at Closing, will be held in escrow by Escrow Agent
pursuant to the terms of this Agreement.
C. This Agreement is not intended to effect a pledge of shares within
the meaning of Belgian law and EBH has not applied Section 630 of the Belgian
Company Act in this respect. The parties acknowledge that pursuant hereto,
shares of EBH are being deposited into escrow and may be released from time to
time to various parties, including EBH, in accordance with the provisions of
Section 9 of the Contribution Agreement and Sections 3 and 4 of this Agreement.
D. GS Capital Partners III, L.P. has agreed to serve as Shareholders'
Agent under this Agreement and the Contribution Agreement for, among other
things, all matters set forth in Section 12.10 of the Contribution Agreement.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
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1. DEFINED TERMS. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings given to them in the
Contribution Agreement, a copy of which is attached hereto.
2. ESCROW AND INDEMNIFICATION.
(a) SHARES, STOCK POWERS AND ESCROWED PROCEEDS PLACED IN ESCROW. On
the Closing Date, which shall be set forth in a notice to the Escrow Agent, EBH
shall issue stock certificates representing the shares of Exchangeable Stock to
be held in escrow in accordance with this Agreement, issued in bearer form in
the amounts set forth on EXHIBIT B-1, and deliver such stock certificates to the
Escrow Agent. The shares of Exchangeable Stock being held in escrow pursuant to
this Agreement (the "ESCROWED EXCHANGEABLE SHARES"), any shares of eBay Stock
for which the Escrowed Exchangeable Shares will have been exchanged (the
"ESCROWED EBAY SHARES," and together with the Escrowed Exchangeable Shares, the
"ESCROWED SHARES") and any Escrowed Proceeds (as hereinafter defined) shall
constitute an escrow fund (the "ESCROW FUND") with respect to the
indemnification obligations of the Shareholders under the Contribution
Agreement.
(b) ASSIGNMENT CERTIFICATE. Each Shareholder will, on the Closing
Date, issue five original "assignments separate from certificate," referring to
the shares of eBay Stock into which the Exchangeable Stock is exchangeable (the
"STOCK POWERS"), endorsed by each such Shareholder in blank with signatures
guaranteed by a member of the Medallion Guarantee Program.
(c) ESCROW AGENT. The Escrow Agent agrees to accept delivery of the
Escrow Fund and Stock Powers and to hold the Escrow Fund and Stock Powers in an
escrow account (the "ESCROW ACCOUNT"), subject to the terms and conditions of
this Agreement. Each Shareholder will be deemed to hold a proportional ownership
interest in the Escrow Fund deposited into the Escrow Account initially
equivalent to his or its percentage interest set forth on EXHIBIT B-1 hereto;
and, for purposes hereof, a Shareholder's continuing interest in the Escrow Fund
will, as the context requires, be referred to herein as such Shareholder's
"INDIVIDUAL INTEREST" or "INDIVIDUAL ACCOUNT." The Individual Interest of a
Shareholder will include, for so long as Escrowed Exchangeable Shares are held
in escrow, the Escrowed Exchangeable Shares of such Shareholder, individualized
by their number.
(d) SALE OF ESCROWED SHARES. During the term of this Agreement, each
of the Shareholders, upon no less than 10 business days' prior written notice to
Parent and the Escrow Agent, in the form attached hereto as EXHIBIT D-1, may (i)
exercise its rights under the Registration Rights Agreement of even date
herewith among Parent and the Shareholders (the "REGISTRATION RIGHTS AGREEMENT")
with respect to any of the Escrowed eBay Shares then held in escrow in its
Individual Account, or (ii) sell any of the Escrowed eBay Shares then held in
escrow in its Individual Account pursuant to the Registration Statement (as
defined in the Registration Rights Agreement) or pursuant to Rule 144 ("RULE
144") promulgated by the United States Securities and Exchange Commission under
the Securities Act of 1933, as amended (the "SECURITIES ACT") (in each case, a
"PERMITTED SALE"); provided that (i) the minimum transaction size shall be
30,000 Escrowed eBay Shares (or the remaining balance held in an Individual
Account if less than 30,000 Escrowed eBay Shares) (such number to be
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adjusted, as appropriate, to reflect intervening stock splits, stocks dividends,
recapitalizations or like events affecting Parent), (ii) such notice specifies
the name, address, telephone number and representative to be contacted of the
managing underwriter (if the Permitted Sale is pursuant to an underwritten
public offering) or the "broker/dealer" or "market maker" (as such terms are
used in Rule 144) through which the Permitted Sale otherwise will occur and the
number of shares that are proposed to be sold. Immediately after execution of a
Permitted Sale, the selling Shareholder shall provide a written letter of
direction, in the form attached hereto as EXHIBIT D-2, executed by the selling
Shareholder, to the Escrow Agent, instructing it to deliver Escrowed eBay Shares
in the amount of the Permitted Sale to the managing underwriter, "broker/dealer"
or "market maker," as the case may be. Following timely notice of a Permitted
Sale, the Escrow Agent shall thereafter, no less than two business days prior to
the settlement date for such Permitted Sale specified in the notice thereof,
deliver or cause to be delivered to the managing underwriter (if the Permitted
Sale is an underwritten public offering) or the registered "broker/dealer" or
"market maker" through which such sale otherwise will occur, as specified in the
notice, the number of Escrowed eBay Shares to be sold by such Shareholder in
such Permitted Sale, issued in the name of such Shareholder, along with a letter
of direction in the form attached hereto as EXHIBIT E executed by the Escrow
Agent and the selling Shareholder. The Escrow Agent shall be under no duty to
inquire into the credentials of the managing underwriter, "broker/dealer" or
"market maker," as the case may be, identified by the selling Shareholder, or to
verify the price for the shares being sold and shall not be liable for any loss
resulting from such sale. The Escrow Agent shall, through such managing
underwriter, "broker/dealer" or "market maker," as the case may be, and subject
to the limitations set forth in such instructions, deliver or cause to be
delivered the number of shares as are specified in such instructions. The
expenses incurred in effecting any such sale shall be borne by the selling
Shareholder. If and to the extent necessary to effectuate such release any
certificate must be issued as a smaller number, such Shareholder shall execute
and deliver to the Escrow Agent such additional assignments in blank as are
necessary for the Escrow Agent to have such assignments for all Escrowed eBay
Shares remaining in escrow. All proceeds received by the Escrow Agent from the
sale of Escrowed eBay Shares pursuant to this Section 2(d) (the "ESCROWED
PROCEEDS") will be added to the Escrow Fund, such monies to be credited to the
Individual Accounts of the Shareholders for which such sales were effected and
held and invested in accordance with Section 11 hereof. Any interest, earnings
or other income received with respect thereto pursuant to Section 11 hereof
shall be payable to the Shareholders who exercised their rights under this
Section 2(d) in proportion to the amount of Escrowed Proceeds credited to their
respective Individual Accounts.
(e) VOTING OF ESCROWED SHARES. The record owner or the bearer (as
applicable) of the Escrowed Shares shall be entitled to exercise the voting
rights attributed to such Escrowed Shares; provided that for so long as the
Escrow Agent is the bearer of any Escrowed Exchangeable Shares, the Escrow Agent
shall vote such shares only in accordance with the instructions of the
Shareholders' Agent. In the absence of such directions, the Escrow Agent shall
not vote such shares. EBH agrees to provide the Escrow Agent and the
Shareholders' Agent with written notice of any shareholders' meetings or other
actions to be taken by shareholders on the same basis and at the same time as it
would provide to holders of registered shares of EBH.
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(f) DIVIDENDS, ETC. Parent, EBH and each of the Shareholders agree
among themselves, for the benefit of Parent, EBH and the Escrow Agent, that any
securities or other property distributable (whether by way of dividend, stock
split or otherwise) in respect of or in exchange for any Escrowed Shares shall
be distributed to and held by the Escrow Agent in the Escrow Account (rather
than being distributed to the record owners of such Escrowed Shares or, in the
case of Escrowed Exchangeable Shares, to the Escrow Agent as bearer of such
shares). Unless and until the Escrow Agent shall actually receive such
additional securities or other property, it may assume without inquiry that the
Escrowed Shares and Escrowed Proceeds, if any, currently being held by it in the
Escrow Account are all that the Escrow Agent is required to hold. EBH agrees to
provide written notice to the Escrow Agent of any distribution of securities or
other property in respect of or in exchange for Escrowed Exchangeable Shares,
including instructions for presentation of the shares or other action necessary
to perfect the right to receive such distribution, in a manner and time
sufficient to enable Escrow Agent to present such shares or take such other
actions. Escrow Agent will, promptly after receipt of such written notice,
present such shares to EBH and take such other actions as specified in the
notice from EBH. In the absence of any written notice of distribution from EBH,
or, failing that, from the Shareholders' Agent, Escrow Agent may assume that no
distribution by EBH is being made. At the time any Escrowed Shares are required
to be released from the Escrow Account to any Person pursuant to this Agreement,
any securities or other property previously received by the Escrow Agent in
respect of or in exchange for such Escrowed Shares shall be released from the
Escrow Account to such Person.
(g) TRANSFERABILITY. The interests of the Shareholders in the Escrow
Account and in the Escrowed Shares shall not be assignable or transferable,
other than by operation of law or applicable regulation; provided, however, that
the Escrowed Exchangeable Shares may be exchanged for shares of eBay Stock in
accordance with the terms of each of the Put Option Agreements and the Call
Option Agreements, dated of even date with the Contribution Agreement, among
Parent and each of the Shareholders (respectively, the "PUT OPTION" and the
"CALL OPTION"), and otherwise in accordance with the procedures set forth in
this Section 2(g). No transfer of any of such interests by operation of law
shall be recognized or given effect until Parent, EBH and the Escrow Agent shall
have received written notice of such transfer. Such transfer shall take place
without any discontinuity in this Agreement and in the Escrow Fund. In order to
effect any exchange of Escrowed Exchangeable Shares into shares of eBay Stock:
(i) pursuant to the exercise of the Put Option by a Shareholder,
such Shareholder shall deliver written notice (a "PUT EXERCISE NOTICE") of such
exercise to Parent, setting forth the number of Escrowed Exchangeable Shares to
be exchanged for shares of eBay Stock, and the number of shares thereof to be
issued to it in connection therewith. Simultaneously with delivery of the Put
Exercise Notice, the Shareholder shall deliver to the Escrow Agent (if not
previously delivered to the Escrow Agent pursuant to Section 2(b) or otherwise)
its Stock Powers, endorsed by such Shareholder in blank with signatures
guaranteed by a member of the Medallion Guarantee Program. Promptly upon
Parent's receipt of the Put Exercise Notice, and in any event no later than two
business days after such receipt, Parent shall deliver to the Escrow Agent (with
a copy to the applicable Shareholders) a letter of instruction, executed by
Parent and addressed to Parent's transfer agent (the "TRANSFER AGENT"),
instructing the Transfer Agent to issue, on the books of Parent, the number of
shares of eBay Stock into which such Escrowed Exchangeable Shares are being
exchanged, as set forth in the Put Exercise
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Notice, in the name of the Shareholder(s) exercising the Put Option and to
deliver certificates evidencing such shares of eBay Stock to the Escrow Agent.
Upon the Escrow Agent's receipt of such letter of instruction, the Escrow Agent
shall promptly (A) confirm to Parent, EBH and the Shareholders' Agent that it
has received such instruction letter, (B) surrender the certificates issued by
EBH evidencing the Escrowed Exchangeable Shares exchanged therefor to Parent and
(C) send such instruction letter to the Transfer Agent. The shares of eBay Stock
issued to the Shareholder(s) and delivered to the Escrow Agent hereunder shall
be deemed to be "Escrowed eBay Shares," to be held in escrow in the Individual
Account(s) of such Shareholder(s) pursuant to the terms of this Agreement.
(ii) pursuant to the exercise of the Call Option by Parent, Parent
shall deliver written notice (a "CALL EXERCISE NOTICE") of such exercise to the
Shareholders' Agent setting forth the number of Escrowed Exchangeable Shares
(which shall not be less than all of the Escrowed Exchangeable Shares then held
in the Escrow Fund) to be exchanged for shares of eBay Stock, and the number of
shares thereof to be issued in connection therewith. Upon the expiration of two
business days from receipt of the Call Exercise Notice, Parent shall deliver to
the Escrow Agent a letter of instruction, executed by Parent and addressed to
Parent's Transfer Agent, instructing the Transfer Agent to issue, on the books
of Parent, the number of shares of eBay Stock into which such Escrowed
Exchangeable Shares are being exchanged, as set forth in the Call Exercise
Notice, in the name of the Shareholder(s) holding Escrowed Exchangeable Shares
subject to the Call Option and to deliver certificates evidencing such shares of
eBay Stock to the Escrow Agent. Upon the Escrow Agent's receipt of such letter
of instruction, the Escrow Agent shall promptly (A) confirm to Parent, EBH and
the Shareholders' Agent that it has received such instruction letter, (B)
surrender the certificates issued by EBH evidencing the Escrowed Exchangeable
Shares exchanged therefor to Parent and (C) send such instruction letter to the
Transfer Agent. The shares of eBay Stock issued to the Shareholder(s) and
delivered to the Escrow Agent hereunder shall be deemed to be "Escrowed eBay
Shares," to be held in escrow in the Individual Account(s) of such
Shareholder(s) pursuant to the terms of this Agreement.
(iii) Upon each exchange of Escrowed Exchangeable Shares for
Escrowed eBay Shares pursuant to this Section 2(g), Parent shall deliver to the
Escrow Agent a revised version of EXHIBIT B-2 reflecting such exchange. Unless
and until the Escrow Agent receives such revised EXHIBIT B-2, the Escrow Agent
may assume without inquiry that the last EXHIBIT B-2 it received remains in full
force and effect.
(h) FRACTIONAL SHARES. No fractional shares of Exchangeable Stock or
shares of eBay Stock shall be retained in or released from the Escrow Account
pursuant to this Agreement. In connection with any release of Escrowed Shares
from the Escrow Account, Parent, EBH and the Escrow Agent shall "round down" in
order to avoid retaining any fractional share in the Escrow Account and in order
to avoid releasing any fractional share from the Escrow Account. When shares are
"rounded down", no cash-in-lieu payments need to be made.
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3. ADMINISTRATION OF ESCROW ACCOUNT. Except as otherwise provided
herein, the Escrow Agent shall administer the Escrow Account as
follows:
(i) RELEASE OF ESCROW FUND IN CONNECTION WITH CLAIM. (i) Within 40
business days after receipt by the Shareholders' Agent and the Escrow Agent of a
Claim Notice, pursuant to the Contribution Agreement, the Shareholders' Agent
may deliver to the Designated Indemnitee who delivered the Claim Notice and to
the Escrow Agent a written response (the "RESPONSE NOTICE") in which the
Shareholders' Agent: (A) agrees to accept the full Claimed Amount; (B) agrees to
accept a part, but not all, of the Claimed Amount (the "AGREED AMOUNT"); or (C)
indicates that no part of the Escrow Fund in respect of the Claimed Amount may
be released from the Escrow Account to the Designated Indemnitee. Any part of
the Claimed Amount that, pursuant to the Response Notice, is not an Agreed
Amount shall be the "CONTESTED AMOUNT." If a Response Notice is not received by
the Escrow Agent within such 40 business day period, then the Shareholders'
Agent shall be deemed to have rejected the full Claimed Amount.
(ii) Notwithstanding anything to the contrary contained in Section
3(a)(i), a Shareholder may satisfy all or any portion of its proportionate share
of any Claim which is finally determined to be owed by such Shareholder pursuant
to the terms hereof and the Contribution Agreement by paying cash, in lieu of
the release of all or a portion of its Individual Interest in the Escrow Fund,
by delivery of a written notice prior to the final settlement date of such Claim
(the "SETTLEMENT DATE"), to such Designated Indemnitee, the Shareholders' Agent
and the Escrow Agent specifying such Shareholder's election to make a cash
payment. To the extent that some, but not all, of the Shareholders elect to make
a cash payment, the Shareholders' Agent shall, prior to the Settlement Date,
indicate the names of the Shareholders electing to make a cash payment and those
authorizing a release of a pro rata portion of the Escrow Fund (or both),
specifying the amounts of cash, Escrowed Shares and Escrowed Proceeds to be
delivered by or released on behalf of each such Shareholder. Upon written
confirmation by Parent, or other evidence satisfactory to the Escrow Agent, of
Parent's receipt of any cash payment pursuant to this paragraph (ii), the Escrow
Agent shall release to those Shareholders electing to make a cash payment
hereunder such number of Escrowed Shares from their Individual Accounts having a
Current Value equal to the amount of the cash payment made by each such
Shareholder.
(j) If the Shareholders' Agent delivers a Response Notice agreeing
to accept the full Claimed Amount, the Escrow Agent shall, promptly following
the receipt of the Response Notice, deliver to such Designated Indemnitee a
portion of the Escrow Fund having a Current Value equal to the full Claimed
Amount, such distribution to be effected pursuant to the provisions of Section
3(e).
(k) If the Shareholders' Agent delivers a Response Notice agreeing
to accept part, but not all, of the Claimed Amount, the Escrow Agent shall,
promptly following the receipt of the Response Notice, deliver to such
Designated Indemnitee a portion of the Escrow Fund having a Current Value equal
to the Agreed Amount, such distribution to be effected pursuant to the
provisions of Section 3(e).
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(l) If the Shareholders' Agent delivers a Response Notice pursuant
to which there is a Contested Amount or if the Shareholders' Agent does not
deliver a Response Notice within the 40 business day period referred to in
Section 3(a)(i), the Escrow Agent shall not release any portion of the Escrow
Fund in connection with such Contested Amount or Claimed Amount, as the case may
be, until 10 business days after the delivery to it of: (i) a copy of a
settlement agreement executed by the Designated Indemnitee and the Shareholders'
Agent setting forth instructions to the Escrow Agent as to the number of
Escrowed Shares and/or amount of Escrowed Proceeds, if any, to be released from
the Escrow Account with respect to such Contested Amount or Claimed Amount, as
the case may be, or (ii) a copy of the award of the arbitrators referred to and
as provided in the Contribution Agreement, setting forth instructions to the
Escrow Agent as to the number of Escrowed Shares and/or amount of Escrowed
Proceeds, if any, to be released from the Escrow Account with respect to such
Contested Amount or Claimed Amount, as the case may be.
(m) Unless otherwise instructed pursuant to an instrument of the
type described in Section 3(d), the Escrow Agent shall effect all distributions
pursuant to this Section 3 as follows: (i) if the Claim in question relates to
all Shareholders generally under the terms of the Contribution Agreement, such
distribution will be satisfied by withdrawal of the requisite amount from all of
the Shareholders' respective Individual Accounts in the Escrow Fund in
accordance with their respective shareholder percentages set forth on EXHIBIT
B-1; (ii) if the Claim in question is specific to one Shareholder or a group,
but not all, of the Shareholders under the terms of the Contribution Agreement,
such distribution will be satisfied by withdrawal of the requisite amount from
such Shareholder's or Shareholders' Individual Account(s) in the Escrow Fund
(and, if there is more than one affected Shareholder, in such proportion inter
se as their shareholder percentage interests set forth on EXHIBIT B-1 bear to
each other); (iii) Escrowed Shares will be valued at their Current Value on the
date of distribution; and (iv) if a Shareholder's Individual Interest in the
Escrow Fund consists of a combination of Escrowed Shares and Escrowed Proceeds,
its pro rata share of the liability will, unless otherwise instructed by the
Shareholders' Agent, be discharged by a pro rata reduction of such Shareholder's
cash and equity holdings.
4. RELEASE OF ESCROWED SHARES. (a) The Escrow Agent is not the stock
transfer agent for the Escrowed eBay Shares. For the purposes of
this Agreement, the Escrow Agent shall be deemed to have delivered
Escrowed eBay Shares to the Person entitled to them when the Escrow
Agent has delivered appropriate stock certificate(s) and related
Stock Powers to the Transfer Agent with instructions to deliver them
to the appropriate Person. Distributions of Escrowed eBay Shares
shall be made to Parent or the Shareholders, as appropriate, at the
addresses set forth in Section 12.10 of the Contribution Agreement
and otherwise in accordance with the provisions of Section 3 and
this Section 4. If a distribution of a number of Escrowed eBay
Shares less than all of the Escrowed eBay Shares is to be made, the
Escrow Agent must requisition the appropriate number of shares from
the Transfer Agent, delivering to it the appropriate stock
certificates and related letter of direction or Stock Powers.
(b) The Escrow Agent is not the stock transfer agent for the
Escrowed Exchangeable Shares. If a distribution of Escrowed Exchangeable Shares
is to be made, the Escrow Agent will remit or, if EBH is maintaining records
regarding ownership of the Escrowed
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Exchangeable Shares, cause EBH to remit the appropriate number of shares to the
Persons entitled to them. For the purposes of this Agreement, the Escrow Agent
shall be deemed to have delivered Escrowed Exchangeable Shares to the Person
entitled to them when the Escrow Agent has delivered a written letter confirming
such transfer of Shares by registered letter, courier or personally to such
Person or its representative. Distributions of Escrowed Exchangeable Shares
shall be made to EBH, Parent or the Shareholders, as appropriate, at the
addresses set forth in Section 12.10 of the Contribution Agreement and otherwise
in accordance with the provisions of Section 3 and this Section 4.
(c) The Escrow Fund shall be released in such amounts and at such
times (each, a "RELEASE DATE") set forth in, and otherwise in accordance with,
the following provisions:
(i) Within 10 business days after the one-year anniversary of
the Closing Date, the Escrow Agent shall distribute, or cause the
Transfer Agent for the Escrowed Shares to distribute (as
applicable), to each of the Shareholders one-third (1/3) of the
aggregate Escrowed Shares and the Escrowed Proceeds, if any, then
held in escrow in each such Shareholder's Individual Account less
such Shareholder's proportionate share of (A) any amount(s)
theretofore paid in full in respect of any Claim and any amount(s)
remaining to be paid pursuant to a prior resolution of a Claim and
(B) any Claimed Amount or Contested Amount, as the case may be, then
outstanding and unresolved, such distribution to be made pro rata in
respect of shares and cash based on the Current Value of such
Escrowed Shares and the amount of such Escrowed Proceeds unless
otherwise instructed by such Shareholder.
(ii) Within 10 business days after the 18-month anniversary
of the Closing Date, the Escrow Agent shall distribute, or cause the
Transfer Agent for the Escrowed Shares to distribute (as
applicable), to each of the Shareholders three-quarters (3/4) of the
aggregate Escrowed Shares and the Escrowed Proceeds, if any, then
held in escrow in such Shareholder's Individual Account less such
Shareholder's proportionate share of (A) any amount(s) theretofore
paid in full in respect of any Claim and any amount(s) remaining to
be paid pursuant to a prior resolution of a Claim and (B) any
Claimed Amount or Contested Amount, as the case may be, then
outstanding and unresolved, such distribution to be made pro rata in
respect of shares and cash based on the Current Value of such
Escrowed Shares and the amount of such Escrowed Proceeds unless
otherwise instructed by such Shareholder.
(iii) Within 10 business days after January 1, 2005 (the
"TERMINATION DATE"), the Escrow Agent shall distribute, or cause or
the Transfer Agent for the Escrowed Shares to distribute (as
applicable), to each of the Shareholders all of the Escrowed Shares
and the Escrowed Proceeds, if any, then held in escrow in such
Shareholder's Individual Account. Notwithstanding the preceding
sentence, if, prior to the Termination Date, any Designated
Indemnitee has given a Claim Notice containing a Claim which has not
been resolved prior to the Termination Date in accordance with
Section 3, the Escrow Agent shall retain in the Individual Account
of each Shareholder for which there may be liability, after the
Termination Date, Escrowed Proceeds and/or Escrowed Shares having a
Current Value equal to such
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Shareholder's portion of such Claimed Amount or Contested Amount, as
the case may be, which, in the aggregate, shall equal 100% of the
Claimed Amount or Contested Amount, as the case may be, with respect
to all Claims which have not then been resolved. Upon written
notification to the Escrow Agent of the decision of the Arbitrators
or of a settlement agreement with respect to each Claim, the Escrow
Agent shall release to the Designated Indemnitee and the
Shareholders the number of Escrowed Shares, valued at the Current
Value, and/or Escrowed Proceeds corresponding to the Contested
Amount as stipulated in such decision or settlement agreement.
(iv) Notwithstanding anything to the contrary contained in
Sections 4(c)(i) or (ii), if, after any Release Date thereunder, any
Claim for a Contested Amount which was outstanding as of such
Release Date is finally resolved in accordance with Section 3, upon
written notification to the Escrow Agent of the decision of the
Arbitrators or of a settlement agreement with respect to such Claim,
the Escrow Agent shall release to the Designated Indemnitee and the
Shareholders the number of Escrowed Shares, valued at the Current
Value, and/or Escrowed Proceeds corresponding to the Contested
Amount as stipulated in such decision or settlement agreement.
5. VALUATION OF ESCROWED SHARES, ETC.
(n) CURRENT VALUE. (i) For purposes of this Agreement, the "CURRENT
VALUE" of the eBay Stock shall mean, with respect to each share of eBay Stock,
the average of the closing prices of the eBay Stock sold on all securities
exchanges on which the eBay Stock may at the time be listed, or, if there have
been no sales on any such exchange on any day, the average of the highest bid
and lowest asked prices on all such exchanges at the end of such day, or, if on
any day the eBay Stock is not so listed, the average of the representative bid
and asked prices quoted in the Nasdaq Stock Market at closing, or, if on any day
the eBay Stock is not quoted in the Nasdaq Stock Market, the average of the
highest bid and lowest asked price on such day in the domestic over-the-counter
market as reported by the National Quotation Bureau, Incorporated, or any
similar successor organization, in each such case averaged over the 10
consecutive business days prior to the day as of which the Current Value of eBay
Stock is being determined. If at any time the eBay Stock is not listed on any
securities exchange or quoted in the Nasdaq Stock Market or the over-the-counter
market, the Current Value shall be the highest price per share that Parent could
obtain from a willing buyer (not a current employee or director) for shares of
eBay Stock sold by Parent, from authorized but unissued shares, as determined in
good faith by the Board of Directors of Parent, unless the Shareholders shall
purchase such shares in conjunction with the underwritten public offering of the
eBay Stock pursuant to a registration statement filed under the Securities Act,
in which case the Current Value shall be the price per share at which the eBay
Stock is sold to the public in such offering.
(ii) For purposes of this Agreement, the "CURRENT VALUE" with
respect to each share of Exchangeable Stock held by a Shareholder shall be
determined, as of the relevant determination date, on the basis of the Current
Value of the eBay Stock as of such date and in accordance with the number of
shares of eBay Stock into which each share of such Shareholder's Exchangeable
Stock as set forth on EXHIBIT B-2 is exchangeable.
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(iii) The Current Value of the eBay Stock shall be determined by
Parent and set forth in a certificate delivered to the Escrow Agent. In no case
shall the Escrow Agent be required to determine or verify such Current Value.
Unless and until the Escrow Agent receives a certificate from Parent setting
forth the Current Value as of a distribution or calculation date, the Escrow
Agent need not set aside or distribute Escrowed Exchangeable Shares or Escrowed
eBay Shares, as applicable.
(o) STOCK SPLITS. All numbers contained in, and all calculations
required to be made pursuant to, this Agreement (including the Current Value)
shall be adjusted as appropriate to reflect any stock split, reverse stock split
or similar transaction effected by Parent and/or EBH after the date hereof;
provided, however, that the Escrow Agent shall have received notice of such
stock split or other action and shall have received the appropriate number of
additional shares of Exchangeable Stock or other property pursuant to Section
2(d) hereof. In the event of any such stock split or other similar occurrence,
Parent and/or EBH shall deliver to the Shareholders' Agent and the Escrow Agent
a revised version of EXHIBIT B-2 setting forth the new number of Escrowed Shares
held in the Escrow Fund. Unless and until the Escrow Agent receives the
certificates representing additional shares of Exchangeable Stock or other
property pursuant to Section 2(d), the Escrow Agent may assume without inquiry
that no such stock or other property has been or is required to be issued with
respect to Escrowed Shares.
6. FEES AND EXPENSES. Upon the execution of this Agreement by all
parties hereto and the initial deposit of the Escrow Fund in the
Escrow Account, fees and expenses, in accordance with EXHIBIT C
attached hereto, will be payable to the Escrow Agent. In accordance
with EXHIBIT C attached hereto, the Escrow Agent will also be
entitled to reimbursement for reasonable and documented
out-of-pocket expenses, including those of its counsel, incurred by
the Escrow Agent in the performance of its duties hereunder and the
execution and delivery of this Agreement (other than the fees and
expenses incurred by the Escrow Agent pursuant to Section 2 hereof).
Fees and expenses payable to the Escrow Agent in accordance with
EXHIBIT C (other than fees and expenses payable to the Escrow Agent
in connection with transactions under Section 2) shall be referred
to for purposes of this Section 6 as "Shared Escrow Agent Fees and
Expenses." All Shared Escrow Agent Fees and Expenses shall be paid
equally by (i) Parent, on behalf of itself and/or EBH, and (ii) the
Shareholders (acting through the Shareholders' Agent). On (or prior
to) the Closing Date, the Shareholders shall establish (or shall
have established) a cash account with the Escrow Agent in the
initial aggregate amount listed on EXHIBIT C (the "Shareholders'
Cash Account"). At the Closing, and from time to time thereafter
during the term of this Agreement, the Escrow Agent shall draw
amounts from the Shareholders' Cash Account for application to the
Shareholders' portion of the Shared Escrow Agent Fees and Expenses,
as the same become due, upon prior written notice to the
Shareholders' Agent. If, during the term hereof, Shared Escrow Agent
Fees and Expenses become payable to the Escrow Agent and the
Shareholders' Cash Account is insufficiently funded to cover the
Shareholders' portion of such Shared Escrow Agent Fees and Expenses,
the Escrow Agent may deliver an invoice for such amount to the
Shareholders' Agent and the Shareholders shall promptly pay such
amount or, through the Shareholders' Agent, direct the Escrow Agent
in writing to charge such amount to the Shareholders' Individual
Accounts on a pro rata basis in accordance
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with their respective percentage interests in the Escrow Fund as set
forth on EXHIBIT B-1.
7. LIMITATION OF ESCROW AGENT'S LIABILITY.
(p) The Escrow Agent undertakes to perform such duties as are
specifically set forth in this Agreement only and shall have no duty under any
other agreement or document notwithstanding their being referred to herein or
attached hereto as an exhibit. The Escrow Agent shall not be liable except for
the performance of such duties as are specifically set forth in this Agreement,
and no implied covenants or obligations shall be read into this Agreement
against the Escrow Agent. The Escrow Agent shall incur no liability with respect
to any action taken by it or for any inaction on its part in reliance upon any
notice, direction, instruction, consent, statement or other document believed by
it to be genuine and duly authorized, nor for any other action or inaction
except for its own willful misconduct or negligence. The Escrow Agent may rely
on and use the Stock Powers and shall not be liable in connection therewith. In
all questions arising under this Agreement, the Escrow Agent may rely on the
advice of counsel, and for anything done, omitted or suffered in good faith by
the Escrow Agent based upon such advice the Escrow Agent shall not be liable to
anyone. The Escrow Agent shall not be required to take any action hereunder
involving any expense unless the payment of such expense is made or provided for
in a manner reasonably satisfactory to it. In no event shall the Escrow Agent be
liable for incidental, punitive or consequential damages.
(q) Parent hereby agrees to indemnify the Escrow Agent for, and hold
it harmless against, any loss, liability or expense incurred without negligence
or willful misconduct on the part of Escrow Agent, arising out of or in
connection with its carrying out of its duties hereunder. This right of
indemnification shall survive the termination of this Agreement, and the
resignation of the Escrow Agent. The costs and expenses of enforcing this right
of indemnification shall also be paid by Parent.
8. TERMINATION. This Agreement shall terminate on the Termination Date
or, if earlier, upon the release by the Escrow Agent of the entire
Escrow Fund in accordance with this Agreement; provided, however,
that if the Escrow Agent has received from any Designated Indemnitee
a Claim Notice setting forth a Claim that has not been resolved by
the Termination Date, then this Agreement shall continue in full
force and effect until the Claim has been resolved and the Escrowed
Shares and/or Escrowed Proceeds released in accordance with this
Agreement.
9. SUCCESSOR ESCROW AGENT. In the event the Escrow Agent becomes
unavailable or unwilling to continue as escrow agent under this
Agreement, the Escrow Agent may resign and be discharged from its
duties and obligations hereunder by giving its written resignation
to the parties to this Agreement. Such resignation shall take effect
not less than 30 calendar days after it is given to all parties
hereto. Parent may appoint a successor Escrow Agent only with the
consent of two of the Shareholders' Agent (which consent shall not
be unreasonably withheld or delayed). The Escrow Agent shall act in
accordance with written instructions from Parent as to the transfer
of the Escrow Fund to a successor escrow agent. If Parent does not
appoint a successor, the Escrow Agent may apply to a court of
competent jurisdiction to do so.
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10. MISCELLANEOUS.
(d) ARBITRATION. Notwithstanding any provision to the contrary
contained herein, any dispute, action or proceeding arising out of or relating
to this Agreement shall be made solely in accordance with the arbitration
provision set forth in Article 11 of the Contribution Agreement.
(e) ATTORNEYS' FEES. If any action or proceeding relating to this
Agreement or the enforcement of any provision of this Agreement is brought
against any party hereto, the prevailing party shall be entitled to recover from
the non-prevailing party (other than the Escrow Agent) reasonable attorneys'
fees, costs and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
(f) NOTICES. Any notice or other communication required or permitted
to be delivered to any party under this Agreement shall be in writing and shall
be deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile telephone number set forth in Section 12.10 of the
Contribution Agreement or to the Escrow Agent at the address set forth below (or
to such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other parties hereto):
State Street Bank and Trust Company of California, N.A.
Corporate Trust Division
000 Xxxx 0xx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Corporate Trust Administration
(eBay/iBazar 2001 Escrow)
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
The Escrow Agent may assume that any Claim Notice, Response Notice or
other notice of any kind required to be delivered to the Escrow Agent and any
other Person has been received by such other Person if it has been received by
the Escrow Agent, but the Escrow Agent need not inquire into or verify such
receipt.
(g) HEADINGS. The underlined headings contained in this Agreement
are for convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
(h) COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
(i) GOVERNING LAW. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
California (without giving effect to principles of conflicts of laws); provided,
however, that Belgian law will apply to the constitution of the escrow hereunder
on the shares of EBH.
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(j) SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon
each of the parties hereto and each of their respective permitted successors and
assigns, if any. No Shareholder may assign such Shareholder's rights under this
Agreement without the express prior written consent of Parent, provided,
however, that (i) upon the death of a Shareholder, such Shareholder's rights
under this Agreement shall be transferred to the person(s) who receive such
Shareholder's Exchangeable Stock under the laws of descent and distribution and
(ii) a Shareholder may assign such Shareholder's rights under this Agreement to
any organization qualified under Section 501(c)(3) of the Internal Revenue Code
to which the Shareholder transfers Escrowed Shares or in connection with an
estate planning transaction. Nothing in this Agreement is intended to confer, or
shall be deemed to confer, any rights or remedies upon any person or entity
other than the parties hereto and their permitted successors and assigns. This
Agreement shall inure to the benefit of: the Shareholders; Parent; EBH; Escrow
Agent and the respective successors and assigns, if any, of the foregoing.
(k) WAIVER. No failure on the part of any Person to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of any Person in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. No Person shall be deemed to have waived any claim
arising out of this Agreement, or any power, right, privilege or remedy under
this Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such Person; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
(l) AMENDMENTS. This Agreement may not be amended, modified, altered
or supplemented other than by means of a written instrument duly executed and
delivered on behalf of all of the parties hereto; provided, however, that any
amendment duly executed and delivered by the Shareholders' Agent shall be deemed
to have been duly executed and delivered by all of the Shareholders.
(m) SEVERABILITY. In the event that any provision of this Agreement,
or the application of any such provision to any Person or set of circumstances,
shall be determined to be invalid, unlawful, void or unenforceable to any
extent, the remainder of this Agreement, and the application of such provision
to Persons or circumstances other than those as to which it is determined to be
invalid, unlawful, void or unenforceable, shall not be impaired or otherwise
affected and shall continue to be valid and enforceable to the fullest extent
permitted by law.
(n) PARTIES IN INTEREST. None of the provisions of this Agreement is
intended to provide any rights or remedies to any Person other than the parties
hereto and their respective successors and assigns, if any.
(o) ENTIRE AGREEMENT. This Agreement and the other agreements
referred to herein set forth the entire understanding of the parties hereto
relating to the subject matter hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof and thereof.
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(p) WAIVER OF JURY TRIAL. Each of the parties hereto hereby
irrevocably waives any and all right to trial by jury in any dispute, action or
proceeding arising out of or related to this Agreement or the transactions
contemplated hereby.
(q) TAX REPORTING INFORMATION AND CERTIFICATION OF TAX
IDENTIFICATION NUMBERS.
(i) The parties hereto agree that, for tax reporting purposes,
all interest on or other income, if any, attributable to the Escrowed Shares or
any other amount held in escrow by the Escrow Agent pursuant to this Agreement
shall be allocable to the Shareholders in accordance with their percentage
interests in the Escrow Fund as set forth in EXHIBIT B-1; provided, however,
that investments of Escrowed Proceeds in an Individual Account shall be
allocated to the Shareholder for whom such Individual Account is held.
(ii) EBH and each of the Shareholders agree to provide the
Escrow Agent with certified tax identification numbers for each of them by
furnishing appropriate Forms W-8 and other forms and documents that the Escrow
Agent may reasonably request (collectively, "TAX REPORTING DOCUMENTATION") to
the Escrow Agent within 30 days after the date hereof. The parties hereto
understand that, if such Tax Reporting Documentation is not so certified to the
Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code, as
it may be amended from time to time, to withhold a portion of any interest or
other income earned on the investment of monies or other property held by the
Escrow Agent pursuant to this Agreement.
(r) CONSTRUCTION.
(i) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include the masculine and feminine genders.
(ii) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party shall
not be applied in the construction or interpretation of this Agreement.
(iii) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(s) INDEMNIFICATION OF SHAREHOLDERS' AGENT. The Shareholders hereby
agree, severally, to indemnify the Shareholders' Agent for, and hold it harmless
against, any loss, liability or expense incurred without gross negligence or
willful misconduct on the part of the Shareholders' Agent, arising out of or in
connection with its carrying out of its duties as Shareholders' Agent hereunder.
11. INVESTMENTS. Cash on hand in the Escrow Fund or in an Individual
Account shall be invested by the Escrow Agent in one of the
Investment Vehicles described in EXHIBIT C, or as otherwise
instructed, as jointly directed in writing by Parent and the
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Shareholders' Agent. In the absence of such written directions, such
cash need not be invested.
12. AMENDMENTS TO EXHIBIT B. Whenever any fact set forth in EXHIBIT B-2
changes, Parent shall deliver to the Escrow Agent a revised version
of EXHIBIT B-2, setting forth the correct facts. Unless and until
the Escrow Agent receives a revised version of EXHIBIT B-2, the
Escrow Agent may assume without inquiry that the last EXHIBIT B-2 it
received remains in full force and effect and has not been, and is
not required to be, amended.
******************
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EBAY INC.
/s/ XXX XXXXXXX
------------------------------------------
By: Xxx Xxxxxxx
--------------------------------------
Title: Vice President, Deputy General
Counsel
------------------------------------
EBH:
/s/ XXX XXXXXXX
------------------------------------------
By: Xxx Xxxxxxx
--------------------------------------
Title: Director
------------------------------------
SHAREHOLDERS' AGENT:
GS Capital Partners III, L.P.
/s/ XXXX-XXXXXXXXXX XXXXXXX
------------------------------------------
By: Xxxx-Xxxxxxxxxx Xxxxxxx
--------------------------------------
Title: Attorney-in-Fact
------------------------------------
SHAREHOLDER:
/s/ PIERRE-XXXXXXXX XXXXXXXX
------------------------------------------
By: Pierre-Xxxxxxxx Xxxxxxxx
--------------------------------------
Print Name:
-------------------------------
/s/ XXXX XXXXXXXX
------------------------------------------
By: Xxxx Xxxxxxxx
--------------------------------------
Title:
------------------------------------
17
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EBAY INC.
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
EBH:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDERS' AGENT:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDER: GS Capital Partners III,
Offshore, L.P.
/s/ XXXX-XXXXXXXXXX XXXXXXX
------------------------------------------
By: Xxxx-Xxxxxxxxxx Xxxxxxx
--------------------------------------
Print Name: Attorney-in-Fact
-------------------------------
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
18
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EBAY INC.
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
EBH:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDERS' AGENT:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDER: Xxxxxxx, Xxxxx & Co.
Verwaltungs GmbH
/s/ XXXX-XXXXXXXXXX XXXXXXX
------------------------------------------
By: Xxxx-Xxxxxxxxxx Xxxxxxx
--------------------------------------
Print Name: Attorney-in-Fact
-------------------------------
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
19
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EBAY INC.
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
EBH:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDERS' AGENT:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDER: Stone Street Fund, 1999, L.P.
/s/ XXXX-XXXXXXXXXX XXXXXXX
------------------------------------------
By: Xxxx-Xxxxxxxxxx Xxxxxxx
--------------------------------------
Print Name: Attorney-in-Fact
-------------------------------
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
20
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of
the day and year first above written.
EBAY INC.
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
EBH:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDERS' AGENT:
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
SHAREHOLDER: Cisalpina Gestioni, S.p.A.
/s/ XXXXXXX XXXXXX
------------------------------------------
By: Xxxxxxx Xxxxxx
--------------------------------------
Print Name: Attorney-in-Fact
-------------------------------
------------------------------------------
By:
--------------------------------------
Title:
------------------------------------
00
XXXXX XXXXXX BANK AND TRUST
COMPANY OF CALIFORNIA, N.A.
/s/ XXXXX X. XXXXXX
------------------------------------------
By: Xxxxx X. Xxxxxx
--------------------------------------
Title: Vice President
------------------------------------
