EXHIBIT 2.3
ESCROW AGREEMENT
ESCROW AGREEMENT dated July 11, 1997, by and among CAPITAL MEDIA GROUP
LIMITED, a Nevada corporation ("CMG"), UNIMEDIA S.A, a company organized under
the laws of the Republic of France, Company No. RCS Paris B 401 988 308
("Unimedia") and XXXXXXXX XXXXXX, ESQ. (the "Escrow Agent").
BACKGROUND
CMG and Unimedia are parties to a certain Agreement and Plan of
Reorganization entered into and effective as of March 4, 1997, as amended by
Amendment No. 1 thereto dated June 23, 1997 and Amendment No. 2 thereto of even
date herewith (as amended, the "Agreement"). Upon consummation of the
transactions contemplated by the Agreement (the "Share Exchange"), including,
without limitation, the exchange of Unimedia shares for shares of CMG Common
Stock, CMG will acquire at least 66 2/3% of the issued and outstanding shares of
capital stock of Unimedia.
Pursuant to the Agreement, Unimedia has executed subscription materials
pursuant to which Unimedia has subscribed to purchase shares of Common Stock of
CMG in a private placement for an aggregate purchase price of $4 million. Of the
aggregate purchase price, USD$1.5 million has been released to CMG and the
balance of USD$2.5 million is to be released to CMG upon consummation of the
Share Exchange. Of such USD$2.5 million, $2 million is to be deposited with the
Escrow Agent, subject to the possibility that an additional amount up to
USD$500,000 may be deposited prior to the closing of the Share Exchange (in the
aggregate, the "Escrowed Proceeds").
Accordingly, the parties now wish to provide for the holding of the
Escrowed Proceeds in escrow until the Share Exchange is consummated, all under
the terms and conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the above premises and the mutual
promises herein contained, and intending to be legally bound hereby, the parties
hereto agree as follows:
1. ESTABLISHMENT OF ESCROW FUND.
On the date hereof, Escrow Agent acknowledges that Unimedia
has delivered to Escrow Agent the sum of USD$2,000,000 (the "Escrow Fund").
The amount placed in escrow (including, without limitation, any
additional amounts deposited with the Escrow Agent prior to the closing of the
Share Exchange), together with any and all accrued interest, dividends and
earnings thereon (collectively, the "Escrow Fund") shall be held subject to the
terms and conditions of this Escrow Agreement.
2. APPOINTMENT OF ESCROW AGENT.
CMG and Unimedia hereby appoint the Escrow Agent as their
agent hereunder solely for the retention, investment and disbursement of the
Escrow Fund and Escrow Agent hereby accepts such appointment under and subject
to the terms hereinafter set forth. During the term hereof, the Escrow Agent
shall maintain complete and accurate records of all transactions in the Escrow
Fund hereby created. The parties acknowledge that (i) the Escrow Agent did not
seek the role of Escrow Agent and is serving as an accommodation, (ii) Xxxxxxx
Xxxxxx, the son of Escrow Agent, is Co-Chairman and a Director of CMG and
Unimedia (having been advised by its counsel) hereby waives and releases any or
differing conflicts or differing interests arising out of the Escrow Agent's
acceptance and performance in its capacity hereunder, and (iii) Escrow Agent is
not being paid specially for escrow services. Neither the acceptance hereof nor
performance hereunder shall affect the right of Escrow Agent to have business or
other relationships with any party hereto or any relative or affiliate thereof.
3. INVESTMENT OF ESCROW FUND.
The Escrow Agent shall invest and reinvest the Escrow Fund (as
soon as practicable after its receipt thereof) in a money market account at
Xxxxxxx Xxxxx. The Escrow Agent shall not be accountable for any loss sustained
by reason of any investment made pursuant to the foregoing authorization so long
as it is not guilty of gross negligence or willful misconduct. The record or
registered owner of the money market account in which the Escrow Fund is
invested shall be the Escrow Agent or its nominee.
4. RELEASE OF THE ESCROW FUND.
4.1 Except as otherwise provided herein, the Escrow Agent
shall only make disbursement of the Escrow Fund (i) upon receipt by the Escrow
Agent of the joint written instruction of CMG and Unimedia in the form attached
hereto as Exhibit "A" (the "Joint Instruction") or (ii) if the Joint Instruction
is not received by 5:00 p.m. (Paris, France time) on July 31, 1997 (or such
later date as is mutually agreed upon in writing by CMG and Unimedia and
communicated to the Escrow Agent in writing prior to such date) (the "Automatic
Disbursement Date"), the Escrow Agent shall promptly disburse the Escrow Fund to
Unimedia.
4.2 The Escrow Agent shall make any disbursement of the Escrow
Fund hereunder promptly upon receipt of the Joint Instruction or after the
Automatic Disbursement Date.
4.3 Any disbursements by the Escrow Agent shall be made by
cashiers or bank check and shall be sent via Federal Express or by similar
recognized courier service which guarantees delivery overnight to the person at
the address set forth in the Joint Instruction (or in the case of an Automatic
Disbursement, in accordance with the written instruction of Unimedia) or by wire
transfer in immediately available federal funds to an account designated in the
Joint
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Instruction or, in the case of an Automatic Disbursement, to Unimedia in
accordance with its written instruction.
5. COMPENSATION AND REIMBURSEMENT.
5.1 CMG and Unimedia shall pay no fee to the Escrow Agent for
its services hereunder.
5.2 Escrow Agent shall be fully indemnified by Unimedia and
CMG, share and share alike, for any fees (including reasonable attorneys' fees)
and/or costs suffered or incurred by it, directly or indirectly, in connection
with any matter whatsoever hereunder including, without limitation, if (i) the
conditions of this Escrow Agreement are not promptly fulfilled due to an act or
omission of CMG or Unimedia, (ii) upon the written request of Unimedia or CMG,
Escrow Agent renders any services that are not required to be performed by it
pursuant to the terms of this Escrow Agreement (in which case the requesting
party shall be responsible for the applicable fees), (iii) there is any
modification hereof, (iv) any controversy arises hereunder, or (v) the Escrow
Agent is made a party to, or intervenes in, any litigation pertaining to this
Escrow Agreement or the subject matter hereof; and the Escrow Agent and its
legal counsel shall be reasonably compensated for such services and reimbursed
for all claims, liabilities, costs and expenses occasioned by or resulting from
any of the foregoing (unless, in the case of litigation, the Escrow Agent is
found to have been guilty of gross negligence or willful misconduct).
5.3 Unimedia and CMG, share and share alike, shall indemnify
the Escrow Agent for any compensation, expense reimbursement or other sums
(including counsel fees) incurred by Escrow Agent under this Agreement and shall
be paid in full within thirty (30) days after receipt by either of them of any
statement therefor from the Escrow Agent.
6. LIABILITY OF THE ESCROW AGENT.
6.1 The Escrow Agent's sole obligations hereunder shall be to
hold and deliver the Escrow Fund in accordance with the terms of this Escrow
Agreement, and it shall have no duties or responsibilities except those
expressly set forth herein.
6.2 Unimedia and CMG, share and share alike, shall indemnify
Escrow Agent and hold it harmless from and against any loss, claim, debt,
liability, proceeding, action, suit, or damage of any kind whatsoever and any
cost and expense (including reasonable attorneys' fees) suffered or incurred by
Escrow Agent, directly or indirectly, in connection therewith arising from,
under, out of, or relating to any act or omission of Escrow Agent in connection
with its service hereunder, except for the consequences of its gross negligence
or willful misconduct. Escrow Agent shall give prompt written notice to Unimedia
and CMG of any claims made against it for which it is entitled to
indemnification hereunder, and Unimedia and CMG shall undertake the defense of
any such claims on behalf of Escrow Agent and otherwise cooperate fully in any
such action, provided, however, that Escrow Agent shall have the sole right to
direct such defense.
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6.3 Escrow Agent shall incur no liability in the event that
Escrow Agent distributes the Escrow Fund, if any, pursuant to the provisions
hereof.
6.4 Escrow Agent is authorized to act and rely on any document
believed by it to be genuine and to be signed or presented by the proper party
or parties and will incur no liability in so acting. Escrow Agent may assume
that any person purporting to give any writing, notice or instructions in
connection with this Escrow Agreement as an officer of a party hereto has been
duly authorized to do so by such party.
6.5 If Escrow Agent is required to take any action in
connection herewith and such action involves any expense or potential liability,
Escrow Agent shall not be required to take any such action unless it is
specifically indemnified against such expense or liability in a manner
satisfactory to it and Unimedia and CMG shall execute such documents as Escrow
Agent shall determine, in its discretion, accomplish such purpose.
6.6 Escrow Agent shall be absolved of all responsibilities and
obligations hereunder once the Escrow Fund has been distributed hereunder.
Notwithstanding the foregoing, the provisions hereof inuring to the benefit of
Escrow Agent shall continue without limit.
6.7 If Escrow Agent shall have given notice to any party of
any intended action and such party shall not have objected in writing promptly
within no more than ten (10) days of the giving of such notice, such party shall
be deemed to have consented to such action.
6.8 No action may be instituted against Escrow Agent except in
the commercial court located in Paris, France.
7. RESIGNATION AND DISCHARGE.
7.1 Notwithstanding anything to the contrary contained in this
Escrow Agreement, the Escrow Agent (i) may resign from its duties under this
Escrow Agreement at any time and without assigning any reason therefor by giving
ten (10) days' prior written notice of such resignation to CMG and Unimedia; and
(ii) may be discharged from its duties under this Escrow Agreement upon its
receipt of a joint written request from CMG and Unimedia of ten (10) days' prior
written notice of such discharge. If CMG and Unimedia do not designate a
successor escrow holder by joint written notice to Escrow Agent within the
period aforesaid, Escrow Agent may petition a court of competent jurisdiction
for the appointment of a successor and deliver the Escrow Fund, if any, to such
successor. Upon the death, disability or bankruptcy of Escrow Agent, it shall be
deemed to have resigned and neither its heirs nor personal representatives shall
have any responsibility subsequent thereto, except as set forth in Section 7.2
hereof.
7.2 Except as provided in Section 7.1 hereof, upon the
resignation or discharge
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of the Escrow Agent, the Escrow Agent (or his personal representative) shall
deliver the Escrow Fund, if any, in its possession, to the successor escrow
holder. Contemporaneously therewith, the successor escrow holder shall deliver
to Escrow Agent (or his personal representative) a receipt for the Escrow Fund,
if any, delivered to it, and CMG and Unimedia shall deliver to Escrow Agent (or
his personal representative) (i) a complete release, in form satisfactory to the
Escrow Agent (or his personal representative) and its counsel, of all claims or
liability which CMG and Unimedia might have or assert against the Escrow Agent
(or his personal representative) arising hereunder (except for claims arising
prior to such time based on the gross negligence or willful misconduct of the
Escrow Agent); (ii) such documentation as the Escrow Agent (or his personal
representative) may, from time to time request, confirming that the Escrow Agent
(or his personal representative) is not continuing to serve in that capacity and
that a new escrow holder has been named and has assumed all of the duties and
responsibilities of the Escrow Agent hereunder; and (iii) a sum sufficient to
pay to the Escrow Agent all compensation, reimbursements and other amounts to
which it is entitled under Section 5.
8. NOTICES.
All notices, requests, demands, claims, and other communications
hereunder shall be in writing and shall be delivered by certified or registered
mail (first class postage pre-paid), guaranteed overnight delivery, or facsimile
transmission if such transmission is confirmed by delivery by certified or
registered mail (first class postage pre-paid) or guaranteed overnight delivery,
to the following addresses and telecopy numbers (or to such other addresses or
telecopy numbers which such party shall designate in writing to the other
party):
(a) If to the Escrow Agent:
Xxxxxxxx Xxxxxx, Esq.
c/o Marc Xxxxx Xxxx
Chaintrier & Associes
0, Xxxxxx Xxxxx X
00000 Xxxxx, Xxxxxx
Telecopy: 011-33-147-236-879
Attorney at Law
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx XX0 X0XX
Telecopy: 011-44-171-499-7553
(b) if to CMG to:
Capital Media Group Limited
00 Xxxxx Xxxxxx
Xxxxxx, Xxxxxx Xxxxxxx X0X 0XX
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Attention: Xxxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx
Telecopy: 011 44 171 244 4455
with a copy to:
Akerman, Senterfitt & Xxxxxx, P.A.
SunTrust International Center, 00xx Xxxxx
Xxx Xxxxxxxxx Xxxxx Xxxxxx
Xxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telecopy: (000) 000-0000
(c) if to Unimedia to:
Unimedia S.A.
0 xxx xx Xxxxxxx Xxxxx
00000 Xxxxxxxxx, Xxxxxx
Attention: Xxxxxx Xxxxxxxxx
Telecopy: x00-0-00-00-00-00
with a copy to:
Darrois Villey Maillot Brochier
00, Xxxxxx Xxxxxx Xxxx
00000 Xxxxx Cedex 16
Telecopy: x00-0-00-00-00-00
Notice shall be deemed given on the date sent if sent by overnight
delivery or facsimile transmission and on the date delivered (or the date of
refusal of delivery) if sent by certified or registered mail.
9. AMENDMENTS.
No amendment to this Escrow Agreement shall be effective
unless in writing and signed by all the parties hereto.
10. INDULGENCES.
Neither the failure nor any delay on the part of any party
hereto to exercise or partially exercise any right, remedy, power or privilege
under this Escrow Agreement shall operate as a waiver thereof, nor shall it
preclude any other or further exercise of the same or of any other right,
remedy, power or privilege, nor shall any waiver of any right, remedy, power or
privilege with respect to any occurrence be construed as a waiver with respect
to any other
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occurrence. No waiver shall be effective unless it is in writing and is signed
by the party asserted to have granted such waiver.
11. CONTROLLING LAW.
This Escrow Agreement and all questions relating to its
validity, interpretation, performance and enforcement, shall be governed by and
construed in accordance with the laws of France, notwithstanding any
conflict-of-law provisions to the contrary.
12. BINDING NATURE OF AGREEMENT.
This Escrow Agreement shall be binding upon, and inure to the
benefit of, the parties hereto and their respective heirs, personal
representatives, successors and permitted assigns. The rights and obligations of
this Agreement may not be assigned by any of the parties without the prior
written consent of the other parties.
13. EXECUTION IN COUNTERPARTS.
This Escrow Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original as against any
party whose signature appears thereon, and all of which shall together
constitute one and the same instrument. This Escrow Agreement shall become
binding when one or more counterparts hereof, individually or taken together,
shall bear the signatures of all of the parties reflected herein.
14. PROVISIONS SEPARABLE.
The provisions of this Escrow Agreement are independent of and
separable from each other, and no provision shall be affected or rendered
invalid or unenforceable by virtue of the fact that for any reason any other
provision or provisions may be invalid or unenforceable, in whole or in part.
15. ENTIRE AGREEMENT.
This Escrow Agreement sets forth exclusively the Escrow
Agent's duties and responsibilities with respect to any and all matters
pertinent hereto, contains the entire understanding among the parties hereto
with respect to the subject matter hereof, and supersedes all prior and
contemporaneous agreements and understandings, inducements or conditions,
express or implied, oral or written, except as herein contained. The express
terms hereof control and supersede any course of performance and/or usage of the
trade inconsistent with any of the terms hereof.
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16. NUMBER OF DAYS.
In computing the number of days for purposes of this Escrow
Agreement, all days shall be counted, including Saturdays, Sundays and holidays;
provided, however, that if the final day of any time period falls on a Saturday,
Sunday or holiday, then the final days shall be deemed to be the next business
day.
17. THIRD-PARTY BENEFICIARIES.
Notwithstanding anything to the contrary contained herein, no
provision of this Escrow Agreement is intended to benefit any party other than
the parties hereto and their successors and assigns.
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IN WITNESS WHEREOF, the parties have executed and delivered this Escrow
Agreement on the day and year first above written.
CAPITAL MEDIA GROUP LIMITED, a Nevada
corporation
By: /s/ XXXXXXX XXXXXXXX
-----------------------------------
Name: Xxxxxxx Xxxxxxxx
Title: Co-Chairman
UNIMEDIA S.A., a company organized under
the laws of the Republic of France
By: /s/ XXXXXX XXXXXXXXX
----------------------------------
Name: Xxxxxx Xxxxxxxxx
Title: Chairman and CEO
/s/ XXXXXXXX XXXXXX
-------------------------------------
XXXXXXXX XXXXXX, ESQ.
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EXHIBIT A
__________, 1997
Xxxxxxxx Xxxxxx, Esq.
Attorney at Law
00 Xxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxx XX0 X0XX
Telecopy: 011-44-171-499-7553
RE: ESCROW AGREEMENT (THE "ESCROW AGREEMENT") DATED JULY , 1997,
BY AND AMONG CAPITAL MEDIA GROUP LIMITED, A NEVADA CORPORATION
("CMG"), UNIMEDIA SA, A COMPANY ORGANIZED UNDER THE LAWS OF
THE REPUBLIC OF FRANCE ("UNIMEDIA") AND XXXXXXXX XXXXXX
("ESCROW AGENT")
Dear Xx. Xxxxxx:
Reference is made to the Escrow Agreement described above. You are
hereby instructed to disburse the Escrow Funds which you are holding in escrow
from your escrow account and to pay that sum to the persons or entities and in
the amounts set forth below:
NAME ADDRESS/WIRE INSTRUCTIONS AMOUNT
---- ------------------------- ------
Upon disbursement of the Escrow Fund as set forth above, the
undersigned acknowledge that you will have fully and satisfactorily discharged
your obligations as escrow agent pursuant to the Escrow Agreement, which shall
then be deemed terminated as to your obligations thereunder.
CAPITAL MEDIA GROUP LIMITED, a Nevada
corporation
By:
----------------------------------
Name:
-----------------------------
Title:
-----------------------------
UNIMEDIA S.A., a company organized under the
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laws of the Republic of France
By:
----------------------------------
Name:
-----------------------------
Title:
-----------------------------
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