THE TRANSFER OF THE OPTION SHARES DATE THE BENEFICIARY SHALL
DEPOSIT 11% OF THE OPTION PURCHASE PRICE (IN LIEU OF PAYMENT OF SUCH AMOUNT TO
THE GRANTORS) WITH AN ESCROW AGENT LOCATED IN THE UNITED STATES (PROVIDED THAT
THE AGENT IS AN OFFICE OF A FRENCH BANK LOCATED IN THE UNITED STATES) SELECTED
BY THE BENEFICIARY AND REASONABLY ACCEPTABLE TO THE MANAGERS (THE "ESCROW
AGENT"), SUCH DEPOSIT, TOGETHER WITH ANY INTEREST THAT MAY BE EARNED THEREON,
SHALL CONSTITUTE THE ESCROW FUNDS (THE "ESCROW FUNDS").
THE ESCROW FUNDS SHALL
BE HELD BY THE ESCROW AGENT AND BE AVAILABLE UNTIL THE FIRST ANNIVERSARY OF THE
TRANSFER OF THE OPTION SHARES DATE (THE "ESCROW PERIOD") TO COMPENSATE THE
INDEMNIFIED PARTIES FOR INDEMNIFIABLE LOSSES ARISING FROM CLAIMS SUBMITTED BY
THE BENEFICIARY PURSUANT TO THIS ARTICLE 8.
DURING THE PERIOD BETWEEN THE
NOTICE OF INTEREST AND THE TRANSFER OF THE OPTION SHARES DATE, THE BENEFICIARY
AND THE GRANTORS SHALL ENTER INTO AND AGREEMENT WITH THE ESCROW AGENT (THE
"ESCROW AGREEMENT") CONTAINING TERMS THAT ADDRESS: (I) PROCEDURES FOR THE
RELEASE OF ESCROW FUNDS TO THE INDEMNIFIED PARTIES IN RESPONSE TO CLAIMS,
INCLUDING A PROVISION, CONSISTENT WITH SECTION 8.3, THAT THE ESCROW AGENT SHALL
PAY ANY LOSSES SPECIFIED IN A CLAIM IN THE ABSENCE OF A WRITTEN OBJECTION BY THE
MANAGERS WITHIN 30 DAYS AFTER THEIR RECEIPT OF THE APPLICABLE CLAIM NOTICE; (II)
THE HANDLING AND INVESTMENT OF THE ESCROW FUNDS DURING THE ESCROW PERIOD; (III)
THE DISBURSEMENT OF THE REMAINING ESCROW FUNDS TO THE GRANTORS AT THE END OF THE
ESCROW PERIOD (SUBJECT TO ANY PENDING CLAIMS); AND (IV) OTHER REASONABLE AND
CUSTOMARY TERMS FOR SUCH ESCROW AGREEMENTS.
DURING THE ESCROW PERIOD, THE
BENEFICIARY SHALL NOTIFY THE ESCROW AGENT AND THE MANAGERS SIMULTANEOUSLY OF ANY
CLAIM. FOR CLARITY, THE PROCEDURES SPECIFIED IN THIS SECTION 8.7 AND THE AMOUNT
OF THE ESCROW FUNDS DO NOT CONSTITUTE THE BENEFICIARY'S EXCLUSIVE REMEDY WITH
RESPECT TO CLAIMS OR OTHER LIABILITIES ARISING FROM OR RELATED TO THIS
AGREEMENT, AND, SUBJECT TO THE LIMITATIONS SET FORTH IN SECTION 8.2, THE
BENEFICIARY MAY SEEK ALL OTHER REMEDIES AVAILABLE AT LAW OR EQUITY WITH RESPECT
TO CLAIMS OR SUCH OTHER LIABILITIES.
7
PRICE ADJUSTMENT
7.1
AS AN ADDITIONAL CONSIDERATION FOR THE OPTION SHARES,
THE BENEFICIARY AGREES TO PAY THE GRANTORS, SUBJECT TO THE TERMS AND CONDITIONS
OF THIS ARTICLE 8, AN AMOUNT (THE "EARN OUT") WHICH SHALL BE EQUAL TO:
7.1.1
THE PROFITS MADE BY THE COMPANY DURING THE PERIOD
BEGINNING ON JANUARY 1, 2007 AND ENDING ON THE TRANSFER OF THE OPTION SHARES
DATE (THE "INTERIM PERIOD"), WHICH PROFITS SHALL BE CALCULATED IN CONFORMITY
WITH ARTICLE L. 232-12 OF THE FRENCH COMMERCIAL CODE, TAKING INTO ACCOUNT, IN
THE ORDINARY COURSE OF BUSINESS, (I) ALLOWANCES FOR THE NECESSARY DEPRECIATION
AND PROVISIONS (CONSTITUTION DES AMORTISSEMENTS ET PROVISIONS) AND (II) AMOUNTS
TO BE ALLOCATED TO THE STATUTORY RESERVES (RÉSERVES LÉGALES) OR TO ANY OTHER
RESERVE SET FORTH BY THE BY-LAWS OF THE COMPANY (RÉSERVES STATUTAIRES), PROVIDED
HOWEVER THAT THE EXISTING RETAINED PROFITS (REPORT À NOUVEAU BÉNÉFICIAIRE)