EXHIBIT 2.3
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "AGREEMENT") is entered into as of
October 10, 2001, by and among DoubleClick Inc., a Delaware corporation
("DOUBLECLICK"), First Union National Bank, as escrow agent ("ESCROW AGENT"),
and MessageMedia, Inc., a Delaware corporation ("MESSAGEMEDIA").
WHEREAS, DoubleClick and MessageMedia (the "INTERESTED
PARTIES") have entered into an Amended and Restated Agreement and Plan of Merger
and Reorganization, dated as of October 10, 2001 (the "MERGER Agreement");
WHEREAS, DoubleClick and MessageMedia have entered into a Note
Purchase Agreement, dated as of October 10, 2001 (the "NOTE PURCHASE
AGREEMENT"), pursuant to which DoubleClick intends to provide funding to
MessageMedia prior to the effective time of the Merger Agreement; and
WHEREAS, DoubleClick, Escrow Agent, and MessageMedia (the
"PARTIES") desire to establish the terms and conditions pursuant to which an
escrow account will be established and maintained in furtherance of the
transactions contemplated by the Note Purchase Agreement.
NOW, THEREFORE, the Parties hereto hereby agree as follows:
1. Defined Terms. Capitalized terms used in this Agreement and
not otherwise defined shall have the meanings given them in the Merger
Agreement.
2. Appointments. First Union National Bank hereby accepts its
appointment as Escrow Agent hereunder. DoubleClick hereby appoints Xxxxxxxxx
Xxxx, its Vice President and General Counsel, and Xxxxxxx Xxxxx, its Vice
President, Corporate Development, to act, either jointly or individually, on
behalf of DoubleClick for all purposes hereunder (each, a "DOUBLECLICK
REPRESENTATIVE"). MessageMedia hereby appoints A. Xxxxxxxx Xxxxx, its Chief
Executive Officer, and Xxxxxxx Xxxxxxxx, its Chief Financial Officer, to act,
either jointly or individually, on behalf of MessageMedia on all matters
relating to this Agreement (each, a "MESSAGEMEDIA REPRESENTATIVE"). The actions
of a DoubleClick Representative or a MessageMedia Representative under or
pursuant to this Agreement shall be binding on DoubleClick and MessageMedia,
respectively.
3. Escrow of Cash Payment by DoubleClick. Concurrently with
the execution of the Note Purchase Agreement, DoubleClick shall deposit, on
behalf of MessageMedia, with Escrow Agent an aggregate of $1,500,000 (the
"ESCROW PROPERTY"). Escrow Agent agrees to accept delivery of the Escrow
Property and to hold the Escrow Property in a money market account (the "ESCROW
CASH ACCOUNT") mutually acceptable to a DoubleClick Representative and a
MessageMedia Representative, as specified in written instructions from such
Representatives.
4. Transferability; Sale. The interest of MessageMedia in any
property comprising the Escrow Property shall not be assignable or transferable
so long as such Escrow
Property is held by Escrow Agent hereunder; provided, however, that Escrow Agent
may sell, transfer, or otherwise dispose of Escrow Property pursuant to Section
5 hereof, and as otherwise provided in this Agreement.
5. Release of Escrow Property. (a) Unless DoubleClick has
provided written notice (a "CLAIM NOTICE"), on or prior to 12:00 p.m., New York
time, on October 29, 2001 (the "FIRST FUNDING DATE"), to Escrow Agent (with a
copy to MessageMedia), stating that MessageMedia has accepted a Company Superior
Proposal (as defined in the Merger Agreement), then as long as Message Media
shall have delivered to Escrow Agent (with a copy to DoubleClick) a certificate
of its Chief Executive Officer or Chief Financial Officer stating that
MessageMedia has performed and complied with all agreements, obligations and
conditions contained in the Note Purchase Agreement and the Merger Agreement
that are required to be performed by it on or before the First Funding Date,
Escrow Agent shall, after 12:00 p.m., New York time, on October 29, 2001 (or, if
the certificate referred to above in this subsection (a) shall not yet have been
delivered to Escrow Agent, promptly after receipt of such certificate),
transfer, deliver and assign to MessageMedia One Million Dollars ($1,000,000)
from the Escrow Property; provided, that any interest earned thereon shall be
promptly transferred, delivered and assigned to DoubleClick. No Claim Notice
shall be deemed to have been delivered to Escrow Agent until it is actually
received by Escrow Agent at the address set forth in Section 10 hereof.
(a) If Escrow Agent has received a Claim Notice by
12:00 p.m., New York time, on the First Funding Date or if MessageMedia shall
not have delivered to Escrow Agent (with a copy to DoubleClick) a certificate of
its Chief Executive Officer or Chief Financial Officer by November 15, 2001
stating that MessageMedia has performed and complied with all agreements,
obligations and conditions contained in the Note Purchase Agreement and the
Merger Agreement that are required to be performed by it on or before the First
Funding Date, then Escrow Agent shall, promptly thereafter, transfer, deliver
and assign to DoubleClick One Million Dollars ($1,000,000) from the Escrow
Property, together with any interest earned thereon.
(b) Unless DoubleClick has provided a Claim Notice on or
prior to 12:00 p.m., New York time, on November 12, 2001 (the "SECOND FUNDING
DATE"), to Escrow Agent (with a copy to MessageMedia), stating either that (i)
MessageMedia has not yet satisfied all outstanding comments of the U.S.
Securities and Exchange Commission regarding the Proxy Statement (as defined in
the Merger Agreement) which relate to MessageMedia or (ii) the Registration
Statement (as defined in the Merger Agreement) has been declared effective by
the U.S. Securities and Exchange Commission, then Escrow Agent shall, on
November 12, 2001 (or, if the certificate referred to below in this subsection
(c) shall not yet have been delivered to Escrow Agent, promptly after receipt of
such certificate), transfer, deliver and assign to MessageMedia Five Hundred
Thousand Dollars ($500,000) from the Escrow Property; provided, that, prior to
the release of such $500,000, MessageMedia shall have delivered to Escrow Agent
(with a copy to DoubleClick) a certificate of its Chief Executive Officer or
Chief Financial Officer stating that MessageMedia has performed and complied
with all agreements, obligations and conditions contained in the Note Purchase
Agreement and the Merger Agreement that are required to be performed by it on or
before the Second Funding Date; provided, further, that any interest earned
thereon shall be promptly transferred, delivered and assigned to DoubleClick. No
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Claim Notice shall be deemed to have been delivered to Escrow Agent until it is
actually received by Escrow Agent at the address set forth in Section 10 hereof.
(c) If Escrow Agent has received a Claim Notice by
12:00 p.m., New York time, on the Second Funding Date, then Escrow Agent shall,
promptly thereafter, transfer, deliver and assign to DoubleClick Five Hundred
Thousand Dollars ($500,000) from the Escrow Property, together with any interest
earned thereon.
6. Fees and Expenses of the Escrow Agent. Each of DoubleClick
and MessageMedia agrees to pay to the Escrow Agent one half of the Escrow
Agent's reasonable fees and expenses, including attorneys' fees, travel
expenses, postal and delivery charges, and all other out-of-pocket expenses, in
accepting and performing its appointment as escrow agent hereunder
(collectively, the "ESCROW AGENT EXPENSES").
7. General Terms and Standards Regarding Escrow Agent.
Notwithstanding any terms of this Agreement to the contrary, each term of this
Agreement, including, without limitation, each of the stated duties and
responsibilities of Escrow Agent set forth herein, shall be subject to the
following terms and conditions:
(a) The duties, responsibilities and obligations of Escrow
Agent shall be limited to those expressly set forth in this Agreement (and the
duty to exercise reasonable care in the physical safekeeping of any property
held in escrow hereunder), and no implied duties, responsibilities or
obligations shall be read into this Agreement against Escrow Agent. Without
limiting the generality of the foregoing, Escrow Agent shall have no duty to
take action to preserve or exercise rights in any property held by it hereunder
(including, without limitation, against prior parties or otherwise).
(b) Escrow Agent shall not be subject to, bound by,
charged with notice of or be required to comply with or interpret any agreement
or document (including, without limitation, the Note Purchase Agreement, any
note issued pursuant thereto and the Merger Agreement) between or among the
Interested Parties (whether or not reference to any such other agreement or
documents is expressed herein) other than this Agreement.
(c) Escrow Agent shall in no instance be under any duty to
give any property held by it hereunder any greater degree of care than it gives
its own similar property. Escrow Agent shall not be required to invest any funds
held hereunder, and shall not be obligated to pay interest on uninvested funds.
All amounts received by Escrow Agent (and any credits to Escrow Cash Account)
shall be conditional upon collection (and actual receipt by the Escrow Agent) of
final payment. In no event shall Escrow Agent have any obligation to advance
funds.
(d) Escrow Agent may rely upon, and shall be protected in
acting or refraining from acting upon, any written notice, instruction,
statement, request, waiver, order, judgement, certification, consent, receipt or
other paper or document furnished to it (not only as to genuineness, but also as
to its due execution and validity, the genuineness of signatures appearing
thereon and as to the truth and accuracy of any information therein contained),
which it in good faith believes to be genuine and signed or presented by the
proper person.
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(e) Neither Escrow Agent nor any of its directors,
officers or employees shall be liable to anyone for any error of judgment, or
for any act done or step taken or omitted to be taken by it or any of its
directors, officers or employees, or for any mistake of fact or law, or for
anything which it, or any of its directors, officers or employees, may do or
refrain from doing in connection with or in the administration of this
Agreement, unless and except to the extent the same constitutes gross
negligence, bad faith or willful misconduct on the part of Escrow Agent. In no
event shall the Escrow Agent be liable for any indirect, punitive, special or
consequential damages, or any amount in excess of the value of Escrow Property
(as of the date of the action or omission giving rise to liability).
(f) Escrow Agent shall not be deemed to have notice of any
fact, claim or demand with respect hereto unless actually known by an officer
charged with responsibility for administering this Agreement or unless in
writing received by Escrow Agent and making specific reference to this
Agreement.
(g) No provision of this Agreement shall require Escrow
Agent to expend or risk its own funds, or to take any legal or other action
hereunder which might in its judgment involve it in, or require it to incur in
connection with the performance of its duties hereunder, any expense or any
financial liability unless it shall be furnished with indemnification acceptable
to it.
(h) Any permissive right of Escrow Agent to take any
action hereunder shall not be construed as duty.
(i) All indemnifications contained in this Agreement shall
survive the resignation or removal of Escrow Agent, and shall survive the
termination of this Agreement.
(j) Escrow Agent is not responsible for the recitals
appearing in this Agreement. The recitals shall be deemed to be statements of
the Interested Parties to this Agreement.
(k) Escrow Agent has no responsibility for the sufficiency
of this Agreement for any purpose. Without limiting the foregoing, if any
security interest is referred to herein, Escrow Agent shall have no
responsibility for, and makes no representation or warranty as to, the creation,
attachment or perfection of any such security interest or the sufficiency of
this Agreement therefor.
(l) Nothing in this Agreement shall obligate Escrow Agent
to qualify to do business or act in any jurisdiction in which it is not
presently qualified to do business, or be deemed to impose upon Escrow Agent the
duties of a trustee. The duties of Escrow Agent under this Agreement are
strictly ministerial in nature.
(m) In no event shall Escrow Agent have any liability for
any failure or inability of any of the Interested Parties to perform or observe
his or its duties under the Agreement, or by reason of a breach of this
Agreement by either of the Interested Parties. In no event shall Escrow Agent be
obligated to take any action against any of the Interested Parties to compel
performance hereunder.
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(n) Escrow Agent shall in no instance be obligated to
commence, prosecute or defend any legal proceedings in connection herewith.
Escrow Agent shall be authorized and entitled, however, in any instance to
commence, prosecute or defend any legal proceedings in connection herewith,
including without limitation any proceeding it may deem necessary to resolve any
matter or dispute, to obtain a necessary declaration of rights, or to appoint a
successor upon resignation (and after failure by the Interested Parties to
appoint a successor, as provided in Section 11).
(o) Whenever the terms hereof call for any notice, payment
or other action on a day which is not a business day, such payment or action may
be taken, or such notice given, as the case may be, on the next succeeding
business day. As used herein, "BUSINESS DAY" shall mean any day other than a
Saturday or Sunday, or any other day on which Escrow Agent is closed for
business.
(p) In the event of any ambiguity or uncertainty under
this Agreement, or in any notice, instruction, or other communication received
by Escrow Agent hereunder, Escrow Agent may, in its reasonable discretion,
refrain from taking action, and may retain the Escrow Property, until and unless
it receives written instruction signed by all Interested Parties, or a decision
by a court of competent jurisdiction which eliminates such uncertainty or
ambiguity.
(q) If at any time Escrow Agent is served with any
judicial or administrative order, judgement, decree, writ or other form of
judicial administrative process which in any way relates to or affects the
Escrow Property (including but not limited to orders of attachment or
garnishment or other forms of levies or injunctions or stays relating to the
Escrow Property), Escrow Agent is authorized to comply therewith in any manner
as it or its legal counsel reasonably deems appropriate; and if Escrow Agent
complies with any such judicial or administrative order, judgement, decree, writ
or other form of judicial or administrative process, Escrow Agent shall not be
liable to any of the Parties hereto or to any other person or entity
notwithstanding that though such order, judgement, decree, writ or process may
be subsequently modified, annulled, set aside, vacated, found to have been
without proper jurisdiction, or otherwise determined to have been without legal
force or effect.
(r) Escrow Agent shall have no liability for the actions
or omissions of any transfer agent, book-entry depository, nominee,
correspondent, subagent or subcustodian, except to the extent that such action
or omission of any transfer agent, book-entry depository, nominee,
correspondent, subagent or subcustodian was caused by Escrow Agent's own gross
negligence, bad faith or willful misconduct.
8. Indemnification.
(a) General. Each of DoubleClick and MessageMedia agrees
to indemnify Escrow Agent for, and to defend and hold harmless Escrow Agent from
and against, any and every loss, liability, damage, claim, cost and expense of
any nature incurred or suffered by Escrow Agent and arising out of or in
connection with this Agreement or the administration of this Agreement or the
performance or observance by Escrow Agent of its responsibilities or services
under this Agreement (including, but not limited to, reasonable attorneys fees
and other
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costs and expenses of defending or preparing to defend against any claim or
liability), unless and except to the extent such loss, liability, damage, cost
or expense shall be caused by the Escrow Agent's own willful misconduct, bad
faith or gross negligence.
(b) Tax-Related Matters. Each of DoubleClick and
MessageMedia agrees to assume any and all obligations imposed now or hereafter
by any applicable tax law with respect to the payment of Escrow Property under
this Agreement, and, without limiting the generality of Section 8(a) above,
hereby agrees to indemnify and hold Escrow Agent harmless from and against any
taxes, additions for late payment, interest, penalties and other expenses, that
may be assessed against Escrow Agent on any such payment or other activities
under this Agreement. DoubleClick and MessageMedia undertake to instruct Escrow
Agent in writing with respect to Escrow Agent's responsibility for withholding
and other taxes, assessments or other governmental charges, certifications and
governmental reporting in connection with its acting as Escrow Agent under this
Agreement. Each of DoubleClick and MessageMedia agrees to indemnify and hold
Escrow Agent harmless from any liability on account of taxes, assessments or
other governmental charges, including, without limitation, the withholding or
deduction or the failure to withhold or deduct same, and any liability for
failure to obtain proper certifications or to properly report to governmental
authorities, to which Escrow Agent may be or become subject in connection with
or which arises out of this Agreement, including costs and expenses (including
reasonable legal fees), interest and penalties. The Interested Parties shall
each promptly provide to Escrow Agent with appropriate IRS Forms W-9 for
taxpayer identification number certifications, or Forms W-8 for nonresident
alien certifications in connection with any payments to be made to them.
9. Termination. This Agreement shall terminate upon the later
of the Second Funding Date or the distribution by Escrow Agent of all of the
Escrow Property in accordance with this Agreement; provided that the provisions
of Sections 1, 7, 8, 9, 10, 11 and 12 above shall survive such termination.
10. Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly given upon receipt) by delivery in person, by telecopy
or facsimile, by registered or certified mail (postage prepaid, return receipt
requested) or by a nationally recognized courier service to the respective
parties at the following addresses (or at such other address for a party as
shall be specified in a notice given in accordance with this Section 10):
if to MessageMedia:
MessageMedia, Inc.
000 Xxxxxxxxxx Xxxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxxxxxx
Facsimile: (000) 000-0000
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with a copy to:
Xxxxxx Godward LLP
000 Xxxxxxxxxxx Xxxxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxx
Facsimile: (000) 000-0000
if to DoubleClick:
DoubleClick Inc.
000 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxxxx Xxxx
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
0000 Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to Escrow Agent at:
First Union National Bank
00 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, Xxx Xxxxxx 00000
Attention: Corporate Trust Administrator
Facsimile: (000) 000-0000
11. Successor Escrow Agent. In the event Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, Escrow Agent may
resign and be discharged from its duties or obligations hereunder by delivering
a resignation to the parties, not less than 60 days prior to the date when such
resignation shall take effect. DoubleClick may appoint a successor Escrow Agent
with the consent of MessageMedia, which shall not be unreasonably withheld. If,
within such notice period, DoubleClick provides to Escrow Agent written
instructions with respect to the appointment of a successor Escrow Agent and
directions for the transfer of any Escrow Property then held by Escrow Agent to
such successor, Escrow Agent shall act in accordance with such instructions and
promptly transfer such Escrow Property to such designated successor, who shall
assume all of Escrow Agent's rights and obligations hereunder. If no successor
is so appointed, Escrow Agent may apply to a court of competent jurisdiction for
such appointment.
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12. General.
(a) Successors and Assigns. Except as otherwise provided
herein, the terms and conditions of this Agreement shall inure to the benefit of
and be binding upon the respective successors and assigns of the parties
(including transferees of any securities). Nothing in this Agreement, express or
implied, is intended to confer upon any party other than the parties hereto or
their respective successors and assigns any rights, remedies, obligations, or
liabilities under or by reason of this Agreement, except as expressly provided
in this Agreement.
(b) Governing Law. This Agreement shall be governed by and
construed under the laws of the State of New York other than the conflicts of
law principles thereof.
(c) Counterparts. This Agreement may be executed in two or
more counterparts (including facsimile), each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
(d) Entire Agreement. Except for the provisions of the
Note Purchase Agreement and the Merger Agreement referenced herein, this
Agreement and the Merger Agreement constitute the entire understanding and
agreement of the Parties with respect to the subject matter of this Agreement
and supersedes all prior agreements or understandings, written or oral, between
the Parties with respect to the subject matter hereof.
(e) Waivers. No waiver by any party hereto of any
condition or of any breach of any provision of this Agreement shall be effective
unless in writing. No waiver by any party of any such condition or breach, in
any one instance, shall be deemed to be a further or continuing waiver of any
such condition or breach or a waiver of any other condition or breach of any
other provision contained herein.
(f) Amendment. This Agreement may be amended only with the
written consent of DoubleClick, Escrow Agent and MessageMedia .
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the Parties have duly executed this
Agreement as of the day and year first above written.
DOUBLECLICK INC.
By: /s/ XXXXX XXXXXXXXXX
------------------------------
Name: Xxxxx Xxxxxxxxxx
Title: President, Technology Data
and Research
MESSAGEMEDIA, INC.
By: /s/ A. XXXXXXXX XXXXX
------------------------------
Name: A. Xxxxxxxx Xxxxx
Title: President and Chief Executive
Officer
FIRST UNION NATIONAL BANK, as
Escrow Agent
By: /s/ XXXXX X. XXXXXXXXX
------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Assistant Vice President
[SIGNATURE PAGE FOR ESCROW AGREEMENT]
