EXHIBIT 2.3
ESCROW AGREEMENT
----------------
This Escrow Agreement (the "Agreement") is entered into as of May 23, 1997
---------
by and among (i) Aseco Corporation, a Delaware corporation (the "Purchaser"),
---------
and (ii) Xxxxx Xxxx and Xxxxxx Xxxxxxx Xxxxx, agents for the Individual Sellers
under the Purchase Agreement referred to below (the "Individual Seller
-----------------
Representatives").
---------------
Recitals
--------
WHEREAS, the Purchaser and the Sellers have entered into a Share Purchase
Agreement dated as of May , 1997 (as amended from time to time, the "Purchase
--------
Agreement"), pursuant to which the Purchaser has agreed to buy, and the Sellers
---------
have agreed to sell, the entire issued share capital of Western Equipment
Developments (Holdings) Limited, a corporation organized under the laws of
England.
WHEREAS, pursuant to Section 1.02 of the Purchase Agreement, a portion of
the Purchase Price (the "Escrow Amount") is to be deposited in escrow, subject
-------------
to the terms and conditions of this Agreement, to fund the payment of the Total
Purchase Price Adjustment Amount and to secure the indemnification obligations
of the Sellers under the Purchase Agreement.
WHEREAS, The Purchaser and the Sellers have agreed that such escrow shall
be in the form of a joint bank deposit account in the names of the Sellers'
solicitors, Burges Salmon, of Xxxxxx Xxxx, Xxxxxxx XX0 0XX England ("Sellers'
--------
Solicitor") and the Purchaser's solicitor, Xxxxxxx XxXxxxx of Sceptre Court, 00
---------
Xxxxx Xxxx, Xxxxxx XX0X 0XX ("Purchaser's Solicitor").
---------------------
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
Section 1. Definitions. Capitalized terms used herein and not defined
--------- -----------
shall have the meanings given to them in the Purchase Agreement.
1
Section 2. Establishment of Joint Bank Account. As promptly as possible
--------- -----------------------------------
after the Closing Date, the Individual Seller Representatives and the Purchaser
shall cause to be established an interest-bearing deposit account at National
Westminster Bank Plc in Bristol, England (the "Bank"), such account (the
----
"Account") to be in the joint names of Sellers' Solicitor and Purchaser's
--------
Solicitor. Sellers' Solicitor and Purchaser's Solicitor shall issue a joint
instruction letter to the Bank in respect of the Account in the form attached
hereto as Exhibit A, stipulating, among other things, that no withdrawal be made
---------
from the Account unless authorized in writing, in each instance, by both
Sellers' Solicitor and Purchaser's Solicitor. Pending the establishment of the
Account, the Escrow Funds shall be held by Purchaser's Solicitor, subject to an
undertaking in the form of Exhibit B hereto. The Escrow Amount plus any
---------
additional deposits to the Account made by the Purchaser in accordance with
Section 5.08 of the Purchase Agreement plus any earnings realized on funds in
the Account are collectively referred to herein as the "Escrow Funds". The
------------
Escrow Funds shall be held in British Pounds Sterling.
Section 3. Disbursement of Escrow Funds.
--------- ----------------------------
The Purchaser and the Individual Seller Representatives shall each procure
that their respective solicitors will give instructions to the Bank to disburse
the Escrow Funds in accordance with the following provisions:
(a) The Total Purchase Price Adjustment Amount (as defined in Section
1.02(c)(iii) of the Purchase Agreement) together with any interest that
shall have accrued on such sum shall be disbursed from the Escrow Funds to
the Purchaser within the time period prescribed in Section 1.02(c)(iii) of
the Purchase Agreement.
(b) Within five (5) days after the resolution of any claim under the
provisions of the Tax Deed or any claim for indemnification by an
Indemnified Party under Article V of the Purchase Agreement, the amount of
such claim determined to be due the Purchaser or other Indemnified Party,
as the case may be, together with any interest that shall have accrued on
such sum shall be paid from the Escrow Funds to the Purchaser or such other
Indemnified Party, as the case may be.
2
(c) On the later of (i) the date the Total Purchase Price Adjustment
Amount is mutually agreed upon by the Purchaser, the Individual Seller
Representatives and the Institutional Sellers and paid to the Purchaser and
(ii) June 30, 1998, all Escrow Funds in the Account not then subject to a
claim under the provisions of the Tax Deed or a claim for indemnification
by an Indemnified Party under Article V the Purchase Agreement shall be
disbursed to the Individual Seller Representatives for distribution to the
Principal Sellers together with any interest that shall have accrued on
such sum.
Section 4. Tax Attribution. For tax purposes, the Purchaser shall be
--------- ---------------
deemed the owner of income earned on the Escrow Funds only when and to the
extent such income is actually paid to the Purchaser.
Section 5. Arbitration of Disputes. Any disputes relating to or arising
--------- -----------------------
under this Agreement shall be resolved in accordance with the arbitration
provisions set forth in the Purchase Agreement.
Section 6. Binding Effect. This Agreement will be binding upon and inure
--------- --------------
to the benefit of the parties hereto and their permitted assigns.
Section 7. Amendment and Termination. This Agreement may be amended,
--------- -------------------------
modified or canceled by mutual agreement of the Purchaser and both of the
Individual Seller Representatives. Unless earlier terminated in accordance with
the preceding sentence, this Agreement will terminate on the date on which no
amounts remain in the Account.
Section 8. Governing Law. This Agreement will be governed by and
--------- -------------
construed in accordance with the law of England.
Section 9. Counterparts. This Agreement may be executed in one or more
--------- ------------
counterparts, each of which will be deemed an original, but all of which
together will constitute one and the same Agreement.
IN WITNESS WHEREOF, this Agreement has been executed as a sealed instrument
as of the day and year first above written.
3
PURCHASER:
---------
ASECO CORPORATION
By: /s/ Xxxx X. Xxxxxx, Xx.
___________________________
(title)
INDIVIDUAL SELLER REPRESENTATIVES:
__________________________________
/s/ Xxxxx Xxxx
______________________________
Xxxxx Xxxx
/s/ Xxxxxx Xxxxx
______________________________
Xxxxxx Xxxxxxx Xxxxx
4
