ESCROW AGREEMENT
THIS
ESCROW AGREEMENT (as the same may be amended or modified from time to time
and
including any and all written instructions given to “Escrow Agent” (hereinafter
defined) pursuant hereto, this “Escrow
Agreement”)
is
made and entered into as of April 19, 2007, by and among Perficient, Inc.,
a
Delaware corporation (“Party
A”),
Xxxx Xxxxxxx, as Representative of the holders (each a “Stockholder”
and
collectively, the “Stockholders”)
of
shares of common stock, par value $0.001 per share, of Perficient, Inc.
(“Parent
Common Stock”)
set
forth on Annex I hereto (“Party
B”,
and
together with Party A, sometimes referred to collectively as the “Parties”),
and
JPMorgan Chase Bank, N.A. (the “Escrow
Agent”).
WHEREAS,
Party A
and Party B are parties to that certain Agreement and Plan of Merger dated
as of
February 20, 2007 (the “Merger
Agreement”)
by and
among Party A, PFT MergeCo III, Inc., a Delaware corporation and wholly owned
subsidiary of Parent (“Merger
Sub”),
e
tech solutions, Inc., and Party B. Escrow Agent is not a party to, has not
received and will not be responsible for the Merger Agreement.
WHEREAS,
in
connection with the closing of the transactions contemplated by the Merger
Agreement (the “Closing”),
the
Stockholders have agreed to deposit into escrow with the Escrow Agent one or
more certificates in the name of the Stockholders evidencing in the aggregate
92,439 shares of Parent Common Stock (the “Escrowed
Shares”),
to be
held by the Escrow Agent pursuant to the terms and conditions set forth in
this
Agreement and the Merger Agreement pending the occurrence of certain events
set
forth herein and therein; and
WHEREAS,
the
purpose of the Escrowed Shares is to secure claims under Article X of the Merger
Agreement (“Indemnification
Claims”);
and
WHEREAS,
Escrow
Agent is willing to serve in such capacity on the terms and conditions
hereinafter set forth.
NOW
THEREFORE,
in
consideration of the foregoing and of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1. Appointment.
The
Parties hereby appoint the Escrow Agent as their escrow agent for the purposes
set forth herein, and the Escrow Agent hereby accepts such appointment under
the
terms and conditions set forth herein.
2. Definitions.
Unless
otherwise defined herein, each capitalized term used in this Agreement shall
have the meaning ascribed to such term in the Merger Agreement.
3. Authority
of Party A.
Each of
the Parties hereto agrees that Party A shall have authority to settle all
Indemnification Claims in accordance with Article X of the Merger Agreement
on
behalf of the Surviving Entity, or any of the affiliates of Parent or Surviving
Entity. Unless the context otherwise requires, any references to Party A
contained herein shall be deemed to be references to Parent and Surviving
Entity, and each of their respective affiliates.
4. Authority
of Party B.
Prior
to the distribution of the Escrowed Cash, if any, and the Escrowed Shares,
if
any, each of the Parties hereto agree that Party B shall have authority to
settle all claims under this Agreement or the Merger Agreement on behalf of
any
Stockholder who is entitled to receive a part of the Escrowed Cash, if any,
and
the Escrowed Shares, if any, upon the release and distribution from this
escrow.
5. Deposit
of Escrowed Shares; Escrowed Cash.
(a) Promptly
following the date of this Escrow Agreement, Party A and Party B shall instruct
Continental Stock Transfer & Trust Company (“Continental”)
to
deliver the Escrowed Shares and stock powers received by Continental in
connection with the Escrowed Shares to the Escrow Agent. The Escrowed Shares
shall constitute an escrow fund (the “Escrow
Fund”)
for
the satisfaction of Indemnification Claims of the Parent Indemnified Persons
under the Merger Agreement. The Escrow Fund shall be held as a escrow fund
and
shall not be subject to any lien, attachment, trustee process or any other
judicial process of any creditor of any person, including any Party hereto.
The
Escrow Agent agrees to accept delivery of the Escrowed Shares and stock powers
and to hold the Escrowed Shares and stock powers in an escrow account, subject
to the terms and conditions of this Escrow Agreement.
1
(b) Each
record owner of the Escrowed Shares shall be entitled to exercise all voting
rights with respect to such owner’s Escrowed Shares. Parent is obligated under
the Merger Agreement to file with the Securities and Exchange Commission (the
“SEC”)
a
registration statement registering the resale of all of the Merger Shares by
the
Stockholders, including the Escrowed Shares. Once such registration statement
has been declared effective by the SEC, Party A shall notify Escrow Agent and
Party B in writing and any Stockholder listed on Annex II to this
Agreement, may from time to time make sales of Escrowed Shares under the
registration statement and in accordance with the terms of any Stock Restriction
Agreement or Stock Restriction and Non-Compete Agreement entered into between
such Stockholder and Party A. Stockholder shall provide written notice of each
such sale to Party A, Party B and Escrow Agent immediately upon execution of
such sale, which shall include detailed instructions from such Stockholder’s
broker for the settlement of the sale. Escrow Agent shall deliver Escrowed
Shares owned by such Stockholder to Party A’s transfer agent in settlement of
such sale, upon direction of such Stockholder but only in the event that such
settlement terms provide for the net proceeds of such sale due to Stockholder
be
delivered to Escrow Agent to be held pursuant to the terms and conditions of
this Escrow Agreement (“Escrowed
Cash”).
In
the event the shares to be delivered on settlement do not constitute the full
amount of shares represented by a stock certificate issued in such Stockholder’s
name and held in the Escrow Fund, Escrow Agent shall direct Party A’s transfer
agent, upon settlement of the sale, to deliver the remainder of the shares
to
Escrow Agent to be returned to the Escrow Fund. Any Escrowed Cash deposited
in
the Escrow Fund shall be available to satisfy Indemnification Claims of the
Parent Indemnified Persons and shall be subject to the terms of this Escrow
Agreement. Party A shall notify the Escrow Agent and Party B if the
effectiveness of the registration statement has been suspended for any reason
and Escrow Agent shall not release any Escrowed Shares in settlement of any
sales effected pursuant to this Section
5(b)
until it
receives notice from Party A that the registration statement is again
effective.
(c) The
Escrow Agent shall hold the Escrowed Cash, if any, together with all interest,
dividends (other than cash dividends on Parent Common Stock), distributions,
income and other proceeds (“Interest”)
on the
Escrowed Cash, which Interest shall be deemed part of Escrowed Cash for purposes
of this Agreement, and subject to the terms and conditions hereof, invest and
reinvest the Escrowed Cash thereon as directed in Section
6.
The
Escrowed Cash, if any, shall constitute part of the Escrow Fund.
(d) Party
A
and Party B (on behalf of Stockholders) agree between themselves, for the
benefit of Party A and the Escrow Agent, that any securities or other
property distributable (whether by way of dividend, stock split or otherwise)
in
respect of or in exchange for any Escrowed Shares shall not be distributed
to
the record owners of such Escrowed Shares, but rather shall be distributed
to
and held by the Escrow Agent in the Escrow Fund. Ordinary cash dividends will
be
paid by Party A directly to the Stockholders or other record owners of such
Escrowed Shares and not to the Escrow Agent. Unless and until the Escrow Agent
shall actually receive such additional securities or other property, it may
assume without inquiry that the Escrowed Shares currently being held by it
in
the Escrow Fund are all that the Escrow Agent is required to hold. At the time
any Escrowed Shares are required to be released from the Escrow Fund to any
Person pursuant to this Agreement, any securities or other property previously
received by the Escrow Agent in respect of or in exchange for such Escrowed
Shares shall be released from the Escrow Fund to such Person.
6. Investment
of Escrow Fund.
During
the term of this Escrow Agreement, the Escrow Fund shall be invested in a trust
account with JPMorgan Chase Bank, N.A. (“JPMorgan
Cash Escrow Account”),
unless otherwise instructed in writing by Party B and as shall be acceptable
to
the Escrow Agent. Such
written instructions, if any, referred to in the foregoing sentence shall
specify the type and identity of the investments to be purchased and/or sold
and
will be
executed through JPMorgan Asset Management (“JPMAM”),
in
the investment management division of JPMorgan Chase. Subject to principles
of
best execution, transactions are effected on behalf of the Escrow Fund through
broker-dealers selected by JPMAM. In this regard, JPMAM seeks to attain the
best
overall result for the Escrow Fund, taking into consideration quality of service
and reliability. An agency fee will be assessed in connection with each
transaction. The
Escrow Agent shall have the right to liquidate any investments held in order
to
provide funds necessary to make required payments under this Escrow Agreement.
Except where such loss is the result of Escrow Agent’s own gross negligence or
willful misconduct, the Escrow Agent shall have no liability for any loss
sustained as a result of any investment in an investment made pursuant to the
terms of this contract or as a result of any liquidation of any investment
prior
to its maturity or for the failure of the parties to give the Escrow Agent
instructions to invest or reinvest the Escrow Fund. The Escrow Agent or any
of
its affiliates may receive compensation with respect to any investment directed
hereunder. Receipt,
investment and reinvestment of the Escrow Deposit shall be confirmed by Escrow
Agent as soon as practicable by account statement, and any discrepancies in
any
such account statement shall be noted by Parties to Escrow Agent within 30
calendar days after receipt thereof. Failure to inform Escrow Agent in writing
of any discrepancies in any such account statement within said 30-day period
shall conclusively be deemed confirmation of such account statement in its
entirety.
2
7. Release
Date.
For
purposes of this Agreement, the “Release
Date”
shall
be February 20, 2008.
8. Administration
of Escrow Fund.
The
Escrow Agent shall maintain the Escrowed Cash and Escrowed Shares in an account
and shall create subaccounts for each Stockholder with Escrowed Cash. Except
as
otherwise provided herein, the Escrow Agent shall administer the Escrow Fund
as
follows:
(a) If,
as of
the Release Date, the Escrow Agent has not received written notice of any
Indemnification Claims, then the Escrowed Cash shall promptly (and in any event
no later than five business days thereafter) be released to the Stockholders
who
substituted Escrowed Cash for Escrowed Shares in accordance with each
Stockholder’s account maintained by the Escrow Agent and the Escrowed Shares
shall promptly (and in any event no later than ten Business Days thereafter)
be
released to the Stockholders in whose names they have been issued as detailed
in
a written notice from Party B detailing the delivery instructions.
(b) Subject
to the terms and conditions set forth in Section 10.04 of the Merger Agreement,
if, at any time prior to 5:00 p.m. Central Time on February 20th, 2008, Party
A
desires to make a claim against the Escrow Fund with respect to any
Indemnification Claim, then Party A shall, on or prior 5:00 p.m. Central Time
on
February 20th, 2008, deliver a written claim notice (a “Claim
Notice”)
to
Party B and to the Escrow Agent. Such Claim Notice shall (i) state that Party
A
believes in good faith that it is entitled to all or any portion of the Escrow
Fund and certify that all requirements set forth in Article X of the Merger
Agreement with respect to such indemnification have been satisfied; (ii) contain
a reasonably detailed description of the circumstances supporting such belief;
and (iii) indicate the good faith claimed amount of Damages necessary to satisfy
such Indemnification Claim (the “Claimed
Amount”)
and
what portion of the Escrow Funds are expected in good faith to be necessary
to
satisfy such Indemnification Claim. The number of Escrowed Shares, if any,
to be
released shall be determined in accordance with Section
8(d)
below.
(c) Prior
to
5:00 p.m. Central Time on the (30th) thirtieth day after receipt by Escrow
Agent
of a Claim Notice, Party B may deliver to Party A and to the Escrow Agent a
written response (the “Response
Notice”)
in
which Party B may: (i) agree that the full Claimed Amount may be released from
the Escrow Fund to Party A; (ii) agree that part, but not all, of the Claimed
Amount (the “Agreed
Amount”)
may be
released from the Escrow Fund to Party A; or (iii) indicate that no part of
the
Claimed Amount may be released from the Escrow Fund to Party A. Any part of
the
Claimed Amount that is not to be released to Party A shall be the “Contested
Amount.”
(A) If
Party
B does not deliver a Response Notice within such 30-day period, then Party
B
shall be deemed to have indicated that the entire Claimed Amount may be released
from Escrow Fund to Party A.
(B) If
Party
B delivers a Response Notice agreeing that the full Claimed Amount may be
released from the Escrow Fund to Party A, the Escrow Agent shall promptly
following the receipt of the Response Notice, deliver to Party A Escrowed Cash,
if any, and such number of Escrowed Shares, if any, equal in the aggregate
to
the Claimed Amount.
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(C) If
Party
B delivers a Response Notice agreeing that part, but not all, of the Claimed
Amount may be released from the Escrow Fund to Party A, the Escrow Agent shall
promptly following the receipt of the Response Notice deliver to Party A
Escrowed Cash, if any, and such number of Escrowed Shares, if any, equal in
the
aggregate to the Agreed Amount.
(D) If
Party
B delivers a Response Notice indicating that there is a Contested Amount, Party
B and Party A shall attempt in good faith to resolve the dispute related to
the
Contested Amount. If Party A and Party B shall resolve such dispute, such
resolution shall be binding on Party B and Party A and any other Parent
Indemnified Person and Stockholder Indemnitee, as applicable, and a settlement
agreement shall be signed by Party A and Party B and sent to the Escrow Agent,
who shall, upon receipt thereof, if applicable, release Escrowed Cash, if any,
and Escrowed Shares, if any, from the Escrow Fund in accordance with the
specific instructions provided in such agreement.
(E) If
Party
B and Party A are unable to resolve the dispute relating to any Contested Amount
within 45 days after the delivery of the Claim Notice, the settlement of such
Contested Amount shall take place by a binding arbitration proceeding which
shall take place in Austin, Texas, unless an alternative location is otherwise
mutually agreed to by Party A and Party B, and be conducted by an arbitrator
who
has not been affiliated with or engaged by either party for a period of five
years preceding the commencement of the arbitration proceeding, and the Escrow
Agent shall continue to hold the Contested Amount until Escrow Agent receives
either: (i) a written notice signed by Party A and Party B, providing specific
written instructions regarding the delivery of the Contested Amount, if any,
to
be released from the Escrow Fund; or (ii) a final arbitration decision, in
accordance with the following procedures, providing specific written
instructions regarding the delivery of any or all of such Contested Amount.
The
Contested Amount shall be settled in accordance with the Expedited Procedures
of
the Commercial Arbitration Rules of the American Arbitration Association. The
arbitrator's decision shall relate solely to whether Party A is entitled to
receive the Contested Amount (or a portion thereof) from the Escrow Fund
pursuant to the applicable terms of the Merger Agreement and this Escrow
Agreement. The final decision of the arbitrator shall be furnished to Party
A,
Party B and the Escrow Agent in writing and shall constitute the conclusive
determination of the issue in question, be binding upon Party A, the Surviving
Corporation, the Stockholders and the Escrow Agent. The prevailing party in
any
arbitration (which determination shall be made by the arbitrator) shall be
entitled to an award of attorneys’ fees and costs to be paid by the losing party
(which determination shall be made by the arbitrator), and the losing party
shall also be liable for all costs of arbitration, including, but not limited
to, the compensation to be paid to the arbitrator in any proceeding and the
transcript and other expenses of such proceeding.
(d) Any
amounts distributed to Party A from the Escrow Fund shall be satisfied pro
rata
from each Stockholder’s Escrowed Cash and Escrowed Shares in accordance with
each Stockholder’s Percentage Interest set forth on Annex I to this Escrow
Agreement as follows: (i) first, from each Stockholder’s Escrowed Cash, if any,
and (ii) second, from each Stockholder’s Escrowed Shares (to the extent a
Stockholder’s Escrowed Cash is insufficient to satisfy such Indemnification
Claims). In the event any individual Stockholder’s Escrowed Cash and Escrowed
Shares are exhausted prior to the Escrowed Cash and Escrowed Shares of any
other
Stockholder, the amounts remaining to be distributed to Party A from the Escrow
Fund shall continue to be satisfied in accordance with each remaining
Stockholder’s Percentage Interest set forth on Annex I to this Agreement and any
Stockholder whose Escrowed Cash and Escrowed Shares are exhausted prior to
the
Escrowed Cash and Escrowed Shares of any other Stockholder shall be personally
liable to Party A for such Stockholder’s Percentage Interest of the amounts
remaining due to Party A or becoming due to Party A in accordance with this
Escrow Agreement or the Merger Agreement and the Escrow Agent shall have no
liability or responsibility with respect to same.
(e) The
number of Escrowed Shares, if any, to be released in payment and settlement
of
any Claimed Amount, Agreed Amount or all or any portion of the Contested Amount
which may be awarded to Parent pursuant to Section
8(c)(E)
above
shall be determined by dividing such Claimed Amount, Agreed Amount or award,
as
applicable, by the average closing sales price of one share of Parent Common
Stock as reported on the Nasdaq Global Select Market for the 30 consecutive
trading days ending on the date that is one (1) trading day immediately
preceding the release of such shares (as adjusted as appropriate to reflect
any
stock splits, stock dividends, combinations, reorganizations, reclassifications
or similar events). The Escrow Agent will not be responsible for determing
the
share price.
4
9. Escrow
Agent.
The
Escrow Agent undertakes to perform only such duties as are expressly set forth
herein and no duties shall be implied. The Escrow Agent shall have no liability
under and no duty to inquire as to the provisions of any agreement other than
this Escrow Agreement. The Escrow Agent shall not take any action required
of it
pursuant to this Escrow Agreement until the Escrow Agent has received joint
written instructions by Party A and Party B and may rely upon any written
notice, document, instruction or request furnished to it hereunder and believed
by it to be genuine and to have been signed or presented by the proper party
or
parties. The Escrow Agent shall be under no duty to inquire into or investigate
the validity, accuracy or content of any such document, notice, instruction
or
request. The Escrow Agent shall have no duty to solicit any payments which
may
be due it or the Escrow Fund. The Escrow Agent shall not be liable for any
action taken or omitted by it in good faith except to the extent that a final
adjudication of a court
of
competent jurisdiction determines that the Escrow Agent's gross negligence
or
willful misconduct was the primary cause of any loss to either of the Parties.
The Escrow Agent may execute any of its powers and perform any of its duties
hereunder directly or through agents or attorneys (and shall be liable only
for
the careful selection of any such agent or attorney) and may consult with
counsel, accountants and other skilled persons to be selected and retained
by
it. The Escrow Agent shall not be liable for anything done, suffered or omitted
in good faith by it in accordance with the advice or opinion of any such
counsel, accountants or other skilled persons except to the extent that a final
adjudication of a court
of
competent jurisdiction determines that the Escrow Agent's gross negligence
or
willful misconduct was the primary cause of any loss to either of the Parties.
In the event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party hereto
which, in its opinion, conflict with any of the provisions of this Escrow
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall
be
directed otherwise in writing by all of the other parties hereto or by a final
order or judgment of a court of competent jurisdiction. The Escrow Agent may
interplead all of the assets held hereunder into a court of competent
jurisdiction or may seek a declaratory judgment with respect to certain
circumstances, and thereafter be fully relieved from any and all liability
or
obligation with respect to such interpleaded assets or any action or nonaction
based on such declaratory judgment. The parties hereto other than the Escrow
Agent agree to pursue any redress or recourse in connection with any dispute
without making the Escrow Agent a party to the same. Anything in this Escrow
Agreement to the contrary notwithstanding, in no event shall the Escrow Agent
be
liable for special, indirect or consequential loss or damage of any kind
whatsoever (including but not limited to lost profits), even if the Escrow
Agent
has been advised of the likelihood of such loss or damage and regardless of
the
form of action. Escrow
Agent may rely on the validity, accuracy and content of the statements contained
any written notice, document, instruction, or request furnished to it hereunder
by Party A and Party B without further investigation, inquiry or examination.
For the avoidance of doubt, the Escrow Agent shall have no liability with
respect to any provisions of this Escrow Agreement which set forth obligations
or limitations of liability that the other parties to this Esrcrow Agreement
have to each other. The Escrow Agent shall have no obligation to investigate,
inquire, examine or assist in any manner whatsoever, the parties' compliance
with the terms of this Escrow Agreement that incorporate by reference provisions
of the Merger Agreement that apply to the other parties' obligations or
limitations of liability to each other that do not relate to obligations of
the
Escrow Agent under this Escrow Agreement.
10. Succession.
The
Escrow Agent may resign and be discharged from its duties or obligations
hereunder by giving 10 days advance notice in writing of such resignation to
the
Parties specifying a date when such resignation shall take effect. The Escrow
Agent shall have the right to withhold an amount equal to any amount due and
owing to the Escrow Agent, plus any costs and expenses the Escrow Agent shall
reasonably believe may be incurred by the Escrow Agent in connection with the
termination of the Escrow Agreement. Any corporation or association into which
the Escrow Agent may be merged or converted or with which it may be
consolidated, or any corporation or association to which all or substantially
all the escrow business of the Escrow Agent’s corporate trust line of business
may be transferred, shall be the Escrow Agent under this Escrow Agreement
without further act. Escrow Agent’s sole responsibility after such 10-day notice
period expires shall be to hold the Escrow Deposit (without any obligation
to
reinvest the same) and to deliver the same to a designated substitute escrow
agent, if any, or in accordance with the directions of a final order or judgment
of a court of competent jurisdiction, at which time of delivery Escrow Agent’s
obligations hereunder shall cease and terminate. If the Parties have failed
to
appoint a successor escrow agent prior to the expiration of 10 days following
receipt of the notice of resignation, the Escrow may petition any court of
competent jurisdiction for the appointment of a successor escrow agent or for
other appropriate relief, and any such resulting appointment shall be binding
upon all of the parties hereto.
5
11. Removal
of Escrow Agent.
The
Escrow Agent may be removed at any time by mutual agreement of Party A and
Party
B by giving not less than 30 days’ prior written notice to the Escrow Agent.
Prior to the expiration of such 30-day period, Party A and Party B shall
designate, by mutual consent, a successor escrow agent. If no successor escrow
agent is appointed within such 30-day period, the Escrow Agent may deposit
the
amounts remaining in the Escrow Fund with a court of competent jurisdiction
located in Austin, Texas, whereupon the Escrow Agent shall be discharged of
all
duties and obligations hereunder.
12. Compensation
and Reimbursement.
Party A
agrees to (a) pay the Escrow Agent upon execution of this Escrow Agreement
and
from time to time thereafter reasonable compensation for the services to be
rendered hereunder, which unless otherwise agreed in writing shall be as
described in Annex IV attached hereto, and (b) pay or reimburse the Escrow
Agent upon request for all expenses, disbursements and advances, including
reasonable attorney's fees and expenses, incurred or made by it in connection
with the preparation, execution, performance, delivery, modification and
termination of this Escrow Agreement; provided, however, that any fees or
expenses incurred hereunder as a result of creating any subaccount shall be
paid
by the Stockholder for whom such subaccount is created..
13. Indemnity.
The
Parties shall jointly and severally indemnify, defend and save harmless the
Escrow Agent and its directors, officers, agents and employees (the
“indemnitees”)
from
and against any and all loss, liability or expense (including the fees and
expenses of in house or outside counsel and experts and their staffs and all
expense of document location, duplication and shipment) arising out of or in
connection with (a) the Escrow Agent's execution and performance of this Escrow
Agreement, except in the case of any indemnitee to the extent that such loss,
liability or expense is finally adjudicated to have been primarily caused by
the
gross negligence or willful misconduct of such indemnitee, or (b) its following
any instructions or other directions from Party A or Party B, except to the
extent that its following any such instruction or direction is expressly
forbidden by the terms hereof. The Parties hereto acknowledge that the foregoing
indemnities shall survive the resignation or removal of the Escrow Agent or
the
termination of this Escrow Agreement. The Parties hereby grant the Escrow Agent
a lien on, right of set-off against and security interest in the Escrow Fund
for
the payment of any claim for indemnification, compensation, expenses and amounts
due hereunder.
14. Account
Opening Information/TINs.
IMPORTANT
INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT
For
accounts opened in the US:
To
help
the government fight the funding of terrorism and money laundering activities,
Federal law requires all financial institutions to obtain, verify, and record
information that identifies each person who opens an account. When an account
is
opened, the Escrow Agent will ask for information that will allow us to identify
relevant parties.
For
non-US accounts:
To
help
in the fight against the funding of terrorism and money laundering activities
we
are required along with all financial institutions to obtain, verify, and record
information that identifies each person who opens an account. When you open
an
account, the Escrow Agent will ask for information that will allow us to
identify you.
TINs. Tax
Matters.
The
Parties each represent that its correct Taxpayer Identification Number
(“TIN”)
assigned by the Internal Revenue Service (“IRS”)
or any
other taxing authority is set forth on the signature page hereof.
In addition, all interest or other income earned under the Escrow Agreement
shall be allocated and/or paid as directed in a joint written direction of
the
Parties and reported by the recipient to the Internal Revenue Service or any
other taxing authority. Notwithstanding such written directions, Escrow Agent
shall report and, as required, withhold any taxes as it determines may be
required by any law or regulation in effect at the time of the distribution.
In
the absence of timely direction, all proceeds of the Escrow Fund shall be
retained in the Escrow Fund and reinvested from time to time by the Escrow
Agent
as provided in Section
6.
In the
event that any earnings remain undistributed at the end of any calendar year,
Escrow Agent shall report to the Internal Revenue Service or such other
authority such earnings as it deems appropriate or as required by any applicable
law or regulation or, to the extent consistent therewith, as directed in writing
by the Parties. In the absence of such written directions, undistributed
earnings will be attributed to and reported on as belonging to Party
A.
In
addition, Escrow Agent shall withhold any taxes it deems appropriate and shall
remit such taxes to the appropriate authorities. Any
tax
returns or reports required to be prepared and filed on behalf of or by the
Escrow Fund will be prepared and filed by Party A or Party B, as applicable,
and
the Escrow Agent shall have no responsibility for the preparation and/or filing
or any tax return with respect to any income earned by the Escrow Fund. In
addition, any tax or other payments required to be made pursuant to such tax
return or filing will be paid by Party A or Party B, as appropriate. Escrow
Agent shall have no responsibility for such payment unless directed to do so
by
the appropriate authorized party.
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15. Notices. All
communications hereunder shall be in writing and shall be deemed to be duly
given and received:
| (a) |
upon
delivery if delivered personally or upon confirmed transmittal if
by
facsimile;
|
| (b) |
on
the
next Business Day (as hereinafter defined) if
sent by overnight courier; or
|
|
(c)
|
four
Business
Days after mailing if mailed by prepaid registered mail, return receipt
requested, to the appropriate notice address set forth below or at
such
other address as any party hereto may have furnished to the other
parties
in writing by registered mail, return receipt
requested.
|
|
If
to Party A
|
Perficient,
Inc.
|
1120
South Capital of Xxxxx Xxxxxxx
Xxxxxxxx
0, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
Xxxx X. XxXxxxxx, Chief Executive Officer
Phone:
000.000.0000
Facsimile:
512.531.6011
with
a
copy (which shall not constitute notice) to:
Xxxxxx
& Xxxxxx LLP
The
Terrace 7
0000
Xxx
Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention:
X. Xxxxx Xxx III, Esq.
Phone:
000.000.0000
Facsimile:
512.236.3216
|
If
to Party B:
|
Xxxx Xxxxxxx |
0000
Xxxxxxx Xxxx
Xxxxxxx
Xxxxxxx, XX 00000
Phone:
000.000.0000
Facsimile:
000.000.0000
| If to the Escrow Agent: |
JPMorgan
Chase Bank, N.A.
|
000
Xxxx
Xxxxxx, 0xx Xxxxx Xxxxx, XX0 S037
Xxxxxxx,
Xxxxx 00000
Attention:
Xxxx Xxxxxxxxxx, Escrow Services
Fax
No.:
(000) 000-0000
Notwithstanding
the above, in the case of communications delivered to the Escrow Agent pursuant
to (b) and (c) of this Section
15,
such
communications shall be deemed to have been given on the date received by the
Escrow Agent. In the event that the Escrow Agent, in its sole discretion, shall
determine that an emergency exists, the Escrow Agent may use such other means
of
communication as the Escrow Agent deems appropriate. “Business
Day”
shall
mean any
day
other than a Saturday, Sunday or any other day on which the Escrow Agent located
at the notice address set forth above is authorized or required by law or
executive order to remain closed.
7
16. Security
Procedures. In
the
event funds transfer instructions are given (other than in writing at the time
of execution of this Escrow Agreement, as indicated in Section
10
above),
whether in writing, by telecopier or otherwise, the Escrow Agent is authorized
to seek confirmation of
such
instructions by telephone call-back to the person or persons designated on
Annex
III
hereto,
and the
Escrow Agent may rely upon the confirmation of anyone purporting to be the
person or persons so designated. The persons and telephone numbers for
call-backs may be changed only in a writing actually received and acknowledged
by the Escrow Agent. If the Escrow Agent is unable to contact any of the
authorized representatives identified in
Annex
III,
the
Escrow Agent is hereby authorized to seek confirmation of such instructions
by
telephone call-back to any one or more of your executive officers,
(“Executive
Officers”),
which
shall include the titles of President or Chief Financial Officer as the Escrow
Agent may select. Such Executive Officer shall deliver to the Escrow Agent
a
fully executed Incumbency Certificate, and the Escrow Agent may rely upon the
confirmation of anyone purporting to be any such officer. The Escrow Agent
and
the beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying numbers provided by Party A or Party B to
identify (a) the beneficiary, (b) the beneficiary's bank, or (c) an intermediary
bank. The Escrow Agent may apply any of the escrowed funds for any payment
order
it executes using any such identifying number, even when its use may result
in a
person other than the beneficiary being paid, or the transfer of funds to a
bank
other than the beneficiary's bank or an intermediary bank designated. The
parties to this Escrow Agreement acknowledge that these security procedures
are
commercially reasonable.
17. Miscellaneous.
The
provisions of this Escrow Agreement may be waived, altered, amended or
supplemented, in whole or in part, only by a writing signed by all of the
parties hereto. Neither this Escrow Agreement nor any right or interest
hereunder may be assigned in whole or in part by any party, except as provided
in Sections
10
and
11,
without
the prior consent of the other parties. This Escrow Agreement shall be binding
upon each of the parties hereto and each of their respective successors and
assigns, if any. Nothing in this Escrow Agreement is intended to confer, or
shall be deemed to confer, any rights or remedies upon any person or entity
other than the parties hereto and their successors and assigns. This Escrow
Agreement shall inure to the benefit of: Party A, the Stockholders, Escrow
Agent
and their respective successors and assigns, if any, of the foregoing. This
Escrow Agreement shall be governed by and construed under the laws of the State
of Texas. Each party hereto irrevocably waives any objection on the grounds
of
venue, forum non-conveniens or any similar grounds and irrevocably consents
to
service of process by mail or in any other manner permitted by applicable law
and consents to the jurisdiction of the courts located in the State of Texas.
The parties further hereby waive any right to a trial by jury with respect
to
any lawsuit or judicial proceeding arising or relating to this Escrow Agreement.
No party to this Escrow Agreement is liable to any other party for losses due
to, or if it is unable to perform its obligations under the terms of this Escrow
Agreement because of, acts of God, fire, war, terrorism, floods, strikes,
electrical outages, equipment or transmission failure, or other causes
reasonably beyond its control. This Escrow Agreement and the other agreements
referred to herein set forth the entire understanding of the parties hereto
relating to the subject matter hereof and thereof and supersede all prior
agreements and understandings among or between any of the parties relating
to
the subject matter hereof and thereof. Nothing
in this Escrow Agreement shall derogate from, or modify in any respect any
of
the terms and provisions of the Merger Agreement, including Article X thereof,
with respect to indemnification. In
the
event any provision of this Escrow Agreement shall be held invalid or
unenforceable by any court of competent jurisdiction, such holding shall not
invalidate or render unenforceable any other provision of this Escrow Agreement
and each and every other provision of this Escrow Agreement shall continue
in
full force and effect. The waiver by any party hereto of a breach of any
provision of this Escrow Agreement shall not operate or be construed as a waiver
of any other or subsequent breach by any party. This Escrow Agreement may be
executed in one or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument. All
signatures of the parties to this Escrow Agreement may be transmitted by
facsimile, and such facsimile will, for all purposes, be deemed to be the
original signature of such party whose signature it reproduces, and will be
binding upon such party.
18. Termination.
This
Escrow Agreement shall terminate upon the earliest occurrence of any of the
following events: (a) the written agreement of Party A and Party B; or
(b) upon the delivery by Escrow Agent of all of the Escrow Fund in
accordance with the terms of this Agreement; provided, however, that
Sections
8(c)
and
12
shall
survive any termination of this Agreement.
19. Compliance
with Court Orders.
In the
event that any escrow property shall be attached, garnished or levied upon
by
any court order, or the delivery thereof shall be stayed or enjoined by an
order
of a court, or any order, judgment or decree shall be made or entered by any
court order affecting the property deposited under this Escrow Agreement, the
Escrow Agent is hereby expressly authorized, in its sole discretion, to obey
and
comply with all writs, orders or decrees so entered or issued, which it is
advised by legal counsel of its own choosing is binding upon it, whether with
or
without jurisdiction, and in the event that the Escrow Agent obeys or complies
with any such writ, order or decree it shall not be liable to any of the parties
hereto or to any other person, firm or corporation, by reason of such compliance
notwithstanding such writ, order or decree be subsequently reversed, modified,
annulled, set aside or vacated.
8
IN
WITNESS WHEREOF,
the
parties hereto have executed this Escrow Agreement as of the date set forth
above.
Tax
Certification: Taxpayer
Identification Number (TIN): 00-0000000
Date:
April
12, 2007
Name
& Address: Perficient,
Inc.
1120 South Capital of Xxxxx Xxxxxxx, Xxxxxxxx 0, Xxxxx 000
Xxxxxx, Xxxxx 00000
Customer
is a (check one):
| X Corporation | Partnership | |
| Individual/sole proprietor | Trust | Other |
Taxpayer
is (check if applicable):
X
Exempt from backup withholding
Under
the penalties of perjury, the undersigned certifies
that:
| (1) |
the
number shown above is its correct Taxpayer Identification Number (or
it is
waiting for a number to be issued to it);
|
| (2) |
it
is not subject to backup withholding because: (a) it is exempt from
backup
withholding or (b) it has not been notified by the Internal Revenue
Service (IRS) that it is subject to backup withholding as a result
of
failure to report all interest or dividends, or (c) the IRS has notified
it that it is no longer subject to backup withholding;
and
|
| (3) |
the
entity is a U.S. person (including a U.S. resident
alien).
|
(If
the entity is subject to backup withholding, cross out the words after the
(2)
above.)
Investors
who do not supply a tax identification number will be subject to backup
withholding in accordance with IRS regulations.
Note:
The IRS does not require your consent to any provision of this document other
than the certifications required to avoid backup withholding.
PARTY
A
Perficient,
Inc.
By: /s/
Xxxx X.
Xxxxxx
Printed
Name: Xxxx X. Xxxxxx
Title:
Chief Financial Officer
Tax
Certification: Taxpayer
Identification Number (TIN): ______________________
Date:
________________________
Name
& Address: ________________________________
________________________________
________________________________
Customer
is a (check one):
| __Corporation | Partnership | |
| Individual/sole proprietor | Trust | Other |
Taxpayer
is (check if applicable):
___
Exempt from backup withholding
Under
the penalties of perjury, the undersigned certifies
that:
| (4) |
the
number shown above is its correct Taxpayer Identification Number (or
it is
waiting for a number to be issued to it);
|
| (5) |
it
is not subject to backup withholding because: (a) it is exempt from
backup
withholding or (b) it has not been notified by the Internal Revenue
Service (IRS) that it is subject to backup withholding as a result
of
failure to report all interest or dividends, or (c) the IRS has notified
it that it is no longer subject to backup withholding;
and
|
| (6) |
the
entity is a U.S. person (including a U.S. resident
alien).
|
(If
the entity is subject to backup withholding, cross out the words after the
(2)
above.)
Investors
who do not supply a tax identification number will be subject to backup
withholding in accordance with IRS regulations.
Note:
The IRS does not require your consent to any provision of this document other
than the certifications required to avoid backup withholding.
PARTY
B
Signature:
/s/ Xxxx
Xxxxxxx
Printed
Name: Xxxx Xxxxxxx
JPMORGAN
CHASE BANK, N.A.
as
Escrow Agent
By:__________________________________
Annex
I
Parent
Common Stock
|
Stockholder
|
Escrowed
Shares
|
Escrowed
Cash
|
Percentage
Interest
|
|
Xxxx
Xxxxxx
|
49,391
|
53.43
|
|
|
Penn’s
Light
|
13,111
|
14.18
|
|
|
Xxxx
Xxxxxxx
|
8941
|
9.67
|
|
|
Xxxxx
Good
|
6211
|
6.72
|
|
|
Xxxxx
Xxxx Ventures
|
5495
|
5.95
|
|
|
Xxxxxxxxx
Xxxxxx
|
5176
|
5.60
|
|
|
Xxx
Xxxxx
|
1366
|
1.48
|
|
|
Xxxx
Xxxxxx
|
1035
|
1.12
|
|
|
Xxxx
Xxxxxx
|
556
|
0.60
|
|
|
Xxxx
Xxxxxxxxxx
|
352
|
0.38
|
|
|
Xxxxxxx
Xxxxxxxx
|
352
|
0.38
|
|
|
Xxxx
Xxxxxxxxxx
|
287
|
0.31
|
|
|
Xxxx
Xxxxxx
|
98
|
0.11
|
|
|
Xxx
Xxxxx
|
68
|
0.07
|
Annex
II
List
of Stockholders
Penn’s
Light
Xxxxx
Xxxx Ventures
Xxxx
Xxxxxxx
Xxxxx
Good
Xxx
Xxxxx
Annex
III
Telephone
Number(s) for Call-Backs and
Person(s)
Designated to Confirm Funds Transfer Instructions
If
to
Party A:
|
Name
|
Telephone
Number
|
|
1.
Xxxx X. Xxxxxx
|
314.785.1470
|
|
2.
Xxxx Xxxxxxxxxx
|
314.995.8885
|
|
If
to Party B:
|
|
|
Name
|
Telephone
Number
|
|
1.
Xxxx Xxxxxxx
|
610.827.3028
|
Inasmuch
as you are the only individual who can confirm wire transfers, we will call
you
to confirm any federal funds wire transfer payment order purportedly issued
by
you. Your continued issuance of payment orders to us and confirmation in
accordance with this procedure will constitute your agreement (1) to the
callback security procedure outlined herein and (2) that the security procedure
outlined herein constitutes a commercially reasonable method of verifying the
authenticity of payment orders. Moreover, you agree to accept any risk
associated with a deviation from this bank policy.
Telephone
call-backs shall be made to each Party A and Party B if joint instructions
are
required pursuant to this Escrow Agreement.
Annex
IV
Escrow
Agent’s Compensation:
Attached
