EXHIBIT 2.2
ESCROW AGREEMENT
between
XXXXXXXX XXXXXX and hereinafter jointly the "SELLERS"
XXXXXXXX XXXXXXXXXXX
and
COMPEX ITALIA SRL hereinafter the "PURCHASER"
and
ME XXXX XX XXXXXX hereinafter the "ESCROW AGENT"
WHEREAS, a purchase agreement dated July 3rd, 2003 (hereinafter the "PURCHASE
AGREEMENT") has been entered into between the Sellers and the Purchaser, by
virtue of which Euros 385'000 are to be held in escrow for the parties for
purposes of securing the payment of the Stockholders Equity Shortfall (as
defined in the Purchase Agreement) if any, by the Purchaser in accordance with
clause 2.02 and 2.03 of the Purchase Agreement;
WHEREAS, in this context the Purchaser shall deposit directly into a special
account of the Escrow Agent, Reference Number 0251-544288-52-Filsport,
(hereinafter the "ESCROW ACCOUNT") opened with with Credit Suisse Geneve an
amount of Euros 385'000 (three hundred eighty five thousand Euros) (hereinafter
the "ESCROW AMOUNT "); and
WHEREAS, the Purchaser and the Sellers by this Escrow Agreement wish to
establish the conditions for the holding, management and release of the Escrow
Amount.
NOW THEREFORE, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
The capitalized terms used herein and not otherwise defined shall have the
respective meaning set forth for such terms in the Purchase Agreement.
ARTICLE 2 - APPOINTMENT
The Purchaser and the Sellers hereby jointly appoint Me Xxxx xx Xxxxxx, BCCC -
Bianchi Xxxxxxx Xxxxxxxx & xx Xxxxxx, Attorneys-al-law, 00, Xxx xx Xxxxxxxx, XX
000, 0000 Xxxxxx 17 as Escrow Agent, who accepts such appointment on the terms
and conditions set out in this Agreement.
ARTICLE 3 - FUNDING OF THE ESCROW ACCOUNT
3.1 This Escrow Account is to be credited with the Escrow Amount upon Closing
of the transaction contemplated by the Purchase Agreement.
3.2 The Escrow Agent shall have no obligation with respect to the funding of
the Escrow Account.
ARTICLE 4 - ADMINISTRATION OF THE ESCROW ACCOUNT
4.1 The Escrow Amount deposited in the Escrow Account shall be invested in
fiduciary deposits. The currency of the fiduciary deposit shall be Euros
and the investment period of the Escrow Amount shall not exceed 10 days.
Such fiduciary deposits shall be made exclusively with European
establishments on such terms and conditions as the Escrow Agent will
determine in its sole discretion.
4.2 Upon request of either the Purchaser or the Sellers, the Escrow Agent shall
provide them from time to time with bank statements evidencing the balance
of the Escrow Account.
ARTICLE 5 - RELEASE OF THE ESCROW AMOUNT
The release by the Escrow Agent of part or all of the Escrow Amount shall only
be made as follows:
(i) upon receipt of joint written instructions of the Purchaser and each
Seller, in accordance with such instructions;
or
(ii) upon receipt of a certified copy of a final arbitral award rendered by
the ICC, directing the Escrow Agent to pay part or all of the Escrow
Amount to either party, in accordance with such directions.
If Escrow Agent receives written notice of any claim from the Purchaser, the
Escrow Agent shall not release any Escrow Amount except in accordance with
Sections 5(i) or 5(ii) above.
ARTICLE 6 - NO VERIFICATION
For the purpose of performing its obligations hereunder, the Escrow Agent shall
be entitled to rely upon the documents and instructions delivered to it, without
making separate verification as to (i) the authenticity of the signatures
appearing on such documents, (ii) the authority of the signatories thereof or
(iii) the veracity of the statements contained therein.
ARTICLE 7 - ESCROW AGENT FEES
The Escrow Agent shall be entitled to the following fees:
(i) all banking fees be debited to the Escrow Account from time to time;
and
(ii) an escrow fee of CHF 3'000.- per annum (not including VAT) for acting
as Escrow Agent, payable in advance at the beginning of each
twelve-month period, the first time upon execution of this Agreement.
Such fee shall be paid equally by the Purchaser and the Sellers.
ARTICLE 8 - INDEMNIFICATION OF THE ESCROW AGENT
The Purchaser and the Sellers jointly and severally agree to indemnify and hold
the Escrow Agent harmless from and against any losses, damage, costs and
expenses (including legal fees) that may be incurred by the Escrow Agent in
connection with the preparation or performance of this Agreement.
The Escrow Agent shall not be liable for any error of judgment or for any act
done or step taken or omitted by it in good faith or for any mistake of fact or
law or for anything which it may do or refrain from doing in connection
herewith, except for its own gross negligence or willful misconduct.
ARTICLE 9 - TERM OF THE ESCROW AGREEMENT
This Agreement shall automatically end upon the full release of the Escrow
Amount.
ARTICLE 10 - NOTICES
All notices to be given hereunder shall be in writing and sent by registered
mail or telecopy at the following addresses:
IF TO THE SELLERS, TO: XXXXXXXX XXXXXX
Xxx Xxxxxx 00
00000 XXXXXXXX FONTODOCE (VB)
Italy
AND TO: XXXXXXXX XXXXXXXXXXX
Xxx Xxxxxxxxx 00
00000 XXXXXXXXX
Xxxxx
WITH A COPY TO: XXXXXXXXXX XXXXXX
Facsimile: 0039 02 72023904
IF TO THE PURCHASER, TO: COMPEX S.A.
ATTN.: XX. XXXXX XXXXX
Zone Industrielle
"Larges Pieces"
Ecublens/VD
Switzerland
Facsimile: x00 00 000 00 00
WITH A COPY TO: XXXX & STAEHELIN
ATTN. MR. ANDREAS XXXXXXX
00, Xxxxx'Xxx
0000 Xxxxxx 00
Xxxxxxxxxxx
Facsimile: x00 00 000 00 00
IF TO THE ESCROW AGENT: ME XXXX XX XXXXXX
BCCC - BIANCHI XXXXXXX XXXXXXXX &
XX XXXXXX
11, Rue de Beaumont
CP 554
1211 Geneva 17
Facsimile: x00 00 000 00 00
ARTICLE 11 - ASSIGNABILITY
This Agreement shall not be assigned by any party hereto without the prior
written consent of the other parties hereto.
ARTICLE 12 - ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the parties hereto and
supersedes all prior agreements and undertakings, oral or written, between the
parties hereto with respect to the subject matter hereof.
ARTICLE 13 - AUTHORITY
This Agreement has been duly authorized and validly executed and delivered by
the Purchaser and the Sellers and is valid and enforceable against these parties
in accordance with its terms.
ARTICLE 14 - GOVERNING LAW; JURISDICTION
14.1 This Agreement shall be governed by and construed in accordance with the
laws of Switzerland.
14.2 Any dispute regarding a claim for payment by the Purchaser against any
Seller arising in relation to this Agreement shall be determined in
accordance with the provisions of Clause 7.11 of the Purchase Agreement.
14.3 Any dispute involving the Escrow Agent's performance or administration
under this Agreement shall be subject to the exclusive jurisdiction of the
Courts of Geneva, subject to appeal to the Swiss Federal Court in the cases
permitted by law.
Made in Milan, on July 3, 2003 in 3 originals.
/s/ Xxxxx Xxxxx
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Compex Italia Srl
Xxxxx Xxxxx
/s/ Xxxxxxxx Xxxxxx
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Xxxxxxxx Xxxxxx
/s/ Xxxxxxxx Xxxxxxxxxxx
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Xxxxxxxx Xxxxxxxxxxx
/s/ Xxxx xx Xxxxxx
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Xxxx xx Xxxxxx
