Exhibit 4
ESCROW AGREEMENT
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This AGREEMENT, made as of the 7th day of January, 2002, is entered into
by and among Perficient, Inc. (the "Issuer"), the persons listed on Schedule 1
attached hereto (the "Purchasers"), and the Selling Agent whose name and address
appears on the Information Sheet (as defined herein) attached to this Agreement
and Continental Stock Transfer & Trust Company, 00 Xxxxxxx Xxxxx, 0xx Xxxxx, Xxx
Xxxx, XX 00000 (the "Escrow Agent").
W I T N E S S E T H:
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WHEREAS, certain of the Purchasers (the "Investors") and the Issuer have
executed a Convertible Preferred Stock Purchase Agreement dated as of December
21, 2001 (the "Purchase Agreement"), pursuant to which the Issuer proposes to
sell a minimum of 1,500,000 shares of Series A Convertible Preferred Stock
("Preferred Stock"), par value $.001 per share of the Issuer and warrants to
purchase a minimum of 750,000 shares of Common Stock of the Issuer ("Warrants")
(the "Minimum Securities Amount") and a maximum of 2,200,000 shares of Preferred
Stock and Warrants to purchase a maximum of 1,100,000 shares of Common Stock
(such shares of Series A Preferred Stock being sometimes hereinafter referred to
as the "Preferred Shares") to investors at the price of $1.00 per share (the
"Minimum Dollar Amount") in a private offering (the "Offering") to accredited
investors only (all of the subscribers in the Offering, including the Investors,
are hereinafter referred to as "Purchasers");
WHEREAS, pursuant to the Purchase Agreement and this Escrow Agreement, the
Issuer has agreed to deliver to the Escrow Agent at each Closing certificates
registered in the name of each Purchaser representing (i) that number of
Preferred Shares being purchased by such Purchaser at the Closing, and (ii) that
number of Warrants being purchased by such Purchaser at the Closing;
WHEREAS, pursuant to the Purchase Agreement and this Escrow Agreement, each
Investor has agreed to deliver to the Escrow Agent a check payable to the Escrow
Agent for the benefit of Perficient, Inc. or a wire transfer to an account
designated by the Escrow Agent for the benefit of the Issuer in the full amount
of the purchase price for the Preferred Shares and Warrants being purchased by
such Investor at the Closing;
WHEREAS, the Issuer, the Investors and the Selling Agent propose to
establish an escrow account (the "Escrow Account"), to which subscription monies
which are received by the Escrow Agent from the Investors or the Selling Agent
in connection with such private offering are to be credited, and the Escrow
Agent is willing to establish the Escrow Account on the terms and subject to the
conditions hereinafter set forth; and
WHEREAS, the Escrow Agent has an agreement with Chase Manhattan Bank (the
"Bank") to establish a special bank account (the "Bank Account") into which the
subscription monies, which are received by the Escrow Agent from the Investors
or the Selling Agent and credited to the Escrow Account, are to be deposited;
NOW, THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. Definitions. Each capitalized term not otherwise defined in this
Agreement shall have the meaning set forth for such term in the Purchase
Agreement.
2. Establishment of the Bank Account.
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2.1 The Escrow Agent shall establish a non-interest-bearing bank account
at the branch of the Bank selected by the Escrow Agent, and bearing the
designation set forth on the Information Sheet (heretofore defined as the
"Bank Account"). The purpose of the Bank Account is for (a) the deposit of all
subscription monies (checks, cash or wire transfers) which are delivered by the
Purchasers to the Escrow Agent in connection with their purchase of Preferred
Shares, (b) the holding of amounts of subscription monies which are collected
through the banking system, and (c) the disbursement of collected funds, all as
described herein.
2.2 The Offering Period, which shall be deemed to commence on the date of
this Agreement (the "Effective Date"), shall terminate on April 30, 2002, or at
such earlier date when the conditions set forth in Section 6.1 hereof are met.
3. Delivery of Certificates. At each Closing, the Issuer will deliver to
the Escrow Agent certificates registered in the name of each Purchaser
representing (i) that number of Preferred Shares being purchased by such
Purchaser at the Closing (the "Preferred Stock Certificates"), and (ii) that
number of Warrants being purchased by such Purchaser at the Closing (the
"Warrant Certificates," and together with the Preferred Stock Certificates, the
"Certificates").
4. Deposits to the Bank Account.
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4.1 At each Closing, each of the Investors and the Selling Agent shall
promptly deliver to the Escrow Agent a check payable to "Continental Stock
Transfer & Trust Company, Escrow Agent for Perficient, Inc," a wire transfer to
an account designated by the Escrow Agent for the benefit of the Issuer or cash
in the full amount of the purchase price for the Preferred Shares being
purchased by the Purchasers at such Closing (the "Payments"). Upon the Escrow
Agent's receipt of such Payments, they shall be credited to the Escrow Account.
Any check payable other than to the Escrow Agent as required in this Section 4.1
shall be returned to the prospective purchaser, or if the Escrow Agent has
insufficient information to do so, then to the Selling Agent (together with any
Subscription Information, as defined below or other documents delivered
therewith) by noon of the next business day following receipt of such check by
the Escrow Agent, and such check shall be deemed not to have been delivered to
the Escrow Agent pursuant to the terms of this Agreement.
4.2 Promptly after receiving a Payment as described in Section 4.1, the
Escrow Agent shall deposit the same into the Bank Account. Payments so deposited
are hereinafter referred to as "Escrow Amounts." The Escrow Agent shall cause
the Bank to process all Escrow Amounts for collection through the banking
system. Simultaneously with each deposit to the Escrow Account, the Investor or
the Selling Agent shall inform the Escrow Agent in writing of the name and
address of the prospective purchaser, the number of Preferred Shares and
Warrants subscribed for by such purchaser, and the aggregate dollar amount of
such subscription (collectively, the "Subscription Information").
4.3 The Escrow Agent shall not be required to accept for credit to the
Escrow Account or for deposit into the Bank Account checks which are not
accompanied by the appropriate Subscription Information. Wire transfers and cash
representing payments by prospective purchasers shall not be deemed deposited in
the Escrow Account until the Escrow Agent has received in writing the
Subscription Information required with respect to such payments.
4.4 The Escrow Agent shall not be required to accept in the Escrow Account
any amounts representing payments by prospective purchasers, whether by check,
cash or wire, except during the Escrow Agent's regular business hours.
4.5 Escrow Amounts which have been deposited in the Bank Account and which
have cleared the banking system and have been collected by the Escrow Agent are
herein referred to as the "Fund."
5. Voting Rights While in Escrow. If, after delivery of the Certificates by
the Issuer to the Escrow Agent, and delivery of the Payments by the Investors or
the Selling Agent to the extent allowable under the General Corporation Law of
the State of Delaware, the Preferred Shares shall be deemed to be outstanding
and to be entitled to vote upon any matter submitted to the shareholders of the
Company, all voting rights associated with the Preferred Shares represented by
the Certificates shall be exercisable by the individual Purchasers. If the
conditions of Section 6.1 are not satisfied by 5:00 p.m. Eastern time on April
30, 2002, such voting rights associated with the Preferred Shares represented by
the Certificates shall expire upon the return by the Escrow Agent of all
Payments to the respective Purchasers.
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6. Disbursements from the Bank Account.
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6.1 Upon receipt by the Escrow Agent of a certificate from the Company and
from each of the Investors, representing to be all of the Investors whose
Certificates are still held in Escrow (the Escrow Agent shall be entitled to
rely upon such representation without investigation), that the following have
occurred:
(i) the approval at the Special Meeting of the issuance of the
Series A Preferred Stock and the Common Stock proposed to be issued
upon conversion of the Preferred Shares and exercise of the Warrants,
and
(ii) the closing by the Company of each of the mergers of its
subsidiary with Primary Webworks, Inc. d/b/a Vertecon, Inc. and
another subsidiary with Javelin Solutions, Inc. (the "Approval Date"),
in accordance with the provisions, without amendment, of the Agreement
and Plan of Merger by and among the Corporation and Primary Webworks,
Inc. d/b/a Vertecon, Inc. et al., dated as of September 30, 2001, and
the Agreement and Plan of Merger by and among the Corporation and
Javelin Solutions, Inc. et al., dated as of October 26, 2001 (the
"Acquisition Agreements"), as applicable,
the Escrow Agent will deliver the Certificates to each Purchaser and the
proceeds of the Payments to the Issuer. Notwithstanding this condition, any
Purchaser may instruct the Escrow Agent to release the proceeds of its
subscription to the Issuer at such sooner time as they may notify the Escrow
Agent in writing, provided that WWC Capital Fund, L.P. shall have consented in
writing to such release. If the conditions for release of the Preferred Shares
and Warrants shall not have been satisfied by 5:00 p.m. Eastern time on April
30, 2002, or if the Company or any Investor certifies to the Escrow Agent that
either of the Acquisition Agreements has been terminated, all payments still
retained by the Escrow Agent will be returned promptly to the respective
Purchasers and the Certificates will be returned promptly to the Issuer.
6.2 If by 5:00 p.m. Eastern time on the date of this Agreement the Escrow
Agent determines that the amount in the Fund is less than the Minimum Dollar
Amount, as indicated by the Subscription Information submitted to the Escrow
Agent, then the Escrow Agent shall promptly refund to each prospective purchaser
the amount of Payment received from such purchaser which is then held in the
Fund or which thereafter clears the banking system, without interest thereon or
deduction therefrom, by drawing checks on the Bank Account for the amounts of
such payments and transmitting them to the purchasers. In such event, the Escrow
Agent shall promptly notify the Issuer, the Investors and the Selling Agent of
its distribution of the Fund.
6.3 Upon disbursement of the Fund and delivery of the Certificates pursuant
to the terms of this Article 6, the Escrow Agent shall be relieved of all
further obligations and released from all liability under this Agreement. It is
expressly agreed and understood that in no event shall the aggregate amount of
payments made by the Escrow Agent exceed the amount of the Fund.
7. Rights, Duties and Responsibilities of Escrow Agent. It is understood
and agreed that the duties of the Escrow Agent are purely ministerial in nature,
and that:
7.1 The Escrow Agent shall notify the Issuer, the Investors and the Selling
Agent, on a daily basis, of the Escrow Amounts which have been deposited in the
Bank Account and of the amounts, constituting the Fund, which have cleared the
banking system and have been collected by the Escrow Agent.
7.2 The Escrow Agent shall not be responsible for or be required to enforce
any of the terms or conditions of the Purchase Agreement or any other agreement
between the Purchasers or the Selling Agent and the Issuer nor shall the Escrow
Agent be responsible for the performance by the Purchasers or the Selling Agent
or the Issuer of their respective obligations under this Agreement.
7.3 The Escrow Agent shall not be required to accept from the Purchasers or
the Selling Agent (or the Issuer) any Subscription Information pertaining to
prospective purchasers unless such Subscription Information is accompanied by
checks, cash or wire transfers meeting the requirements of Section 4.1, nor
shall the Escrow Agent be required to keep records of any information with
respect to payments deposited by the Purchasers or the Selling
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Agent (or the Issuer) except as to the amount of such payments; however, the
Escrow Agent shall notify the Selling Agent within a reasonable time of any
discrepancy between the amount set forth in any Subscription Information and
the amount delivered to the Escrow Agent therewith. Such amount need not be
accepted for deposit in the Escrow Account until such discrepancy has been
resolved.
7.4 The Escrow Agent shall be under no duty or responsibility to enforce
collection of any check delivered to it hereunder. The Escrow Agent, within a
reasonable time, shall return to the applicable Purchaser or the Selling Agent
any check received which is dishonored, together with the Subscription
Information, if any, which accompanied such check.
7.5 The Escrow Agent shall be entitled to rely upon the accuracy, act in
reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature, instrument or other document which is given
to the Escrow Agent pursuant to this Agreement without the necessity of the
Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not
be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or to
execute any such certificate, instrument or other document.
7.6 If the Escrow Agent is uncertain as to its duties or rights hereunder
or shall receive instructions with respect to the Bank Account, the Escrow
Amounts or the Fund which, in its sole determination, are in conflict either
with other instructions received by it or with any provision of this Agreement,
it shall be entitled to hold the Escrow Amounts, the Fund, or a portion thereof,
in the Bank Account pending the resolution of such uncertainty to the Escrow
Agent's sole satisfaction, by final judgment of a court or courts of competent
jurisdiction or otherwise; or the Escrow Agent, at its sole option, may deposit
the Fund (and any other Escrow Amounts that thereafter become part of the Fund)
with the Clerk of a court of competent jurisdiction in a proceeding to which all
parties in interest are joined. Upon the deposit by the Escrow Agent of the Fund
with the Clerk of any court, the Escrow Agent shall be relieved of all further
obligations and released from all liability hereunder.
7.7 The Escrow Agent shall not be liable for any action taken or omitted
hereunder, or for the misconduct of any employee, agent or attorney appointed by
it, except in the case of willful misconduct or gross negligence. The Escrow
Agent shall be entitled to consult with counsel of its own choosing and shall
not be liable for any action taken, suffered or omitted by it in accordance with
the advice of such counsel.
7.8 The Escrow Agent shall have no responsibility at any time to ascertain
whether or not any security interest exists in the Escrow Amounts, the Fund or
any part thereof or to file any financing statement under the Uniform Commercial
Code with respect to the Fund or any part thereof.
8. Amendment: Resignation. This Agreement may be altered or amended only
with the written consent of the Investors, the Issuer, the Selling Agent and the
Escrow Agent. The Escrow Agent may resign for any reason upon three (3) business
days' written notice to the Issuer, the Investors and the Selling Agent. Should
the Escrow Agent resign as herein provided, it shall not be required to accept
any deposit, make any disbursement or otherwise dispose of the Escrow Amounts or
the Fund, but its only duty shall be to hold the Escrow Amounts until they clear
the banking system and the Fund for a period of not more than five (5) business
days following the effective date of such resignation, at which time (a) if a
successor escrow agent shall have been appointed and written notice thereof
(including the name and address of such successor escrow agent) shall have been
given to the resigning Escrow Agent by the Investors, the Issuer, the Investors,
the Selling Agent and such successor escrow agent, then the resigning Escrow
Agent shall pay over to the successor escrow agent the Fund, less any portion
thereof previously paid out in accordance with this Agreement; or (b) if the
resigning Escrow Agent shall not have received written notice signed by the
Issuer, the Investors, the Selling Agent and a successor escrow agent, then the
resigning Escrow Agent shall promptly refund the amount in the Fund to each
prospective purchaser, without interest thereon or deduction therefrom, and the
resigning Escrow Agent shall promptly notify the Issuer, the Investors and the
Selling Agent in writing of its liquidation and distribution of the Fund;
whereupon, in either case, the Escrow Agent shall be relieved of all further
obligations and released from all liability under this Agreement. Without
limiting the provisions of Section 9 hereof, the resigning Escrow Agent shall be
entitled to be reimbursed by the Issuer and the Selling Agent for any expenses
incurred in connection with its resignation, transfer of the Fund to a successor
escrow agent or distribution of the Fund pursuant to this Section 8.
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9. Representations and Warranties. The Issuer and the Selling Agent hereby
jointly and severally represent and warrant to the Escrow Agent that:
9.1 No party other than the parties hereto and the prospective purchasers
have, or shall have, any lien, claim or security interest in the Certificates,
the Escrow Amounts or the Fund or any part thereof.
9.2 No financing statement under the Uniform Commercial Code is on file in
any jurisdiction claiming a security interest in or describing (whether
specifically or generally) the Certificates, the Escrow Amounts or the Fund or
any part thereof.
9.3 The Subscription Information submitted with each deposit shall, at the
time of submission and at the time of the disbursement of the Fund, be deemed a
representation and warranty that such deposit represents a bona fide payment by
the purchaser described therein for the amount of Common Stock set forth in such
Subscription Information.
9.4 All of the information contained in the Information Sheet is, as of the
date hereof, and will be, at the time of any disbursement of the Fund, true and
correct.
10. Fees and Expenses. The Escrow Agent shall be entitled to the Escrow
Agent Fees set forth on the Information Sheet, payable as and when stated
therein. In addition, the Issuer and the Selling Agent jointly and severally
agree to reimburse the Escrow Agent for any reasonable expenses incurred in
connection with this Agreement, including, but not limited to, reasonable
counsel fees.
11. Indemnification and Contribution.
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11.1 The Issuer and the Selling Agent (collectively referred to as the
"Indemnitors") jointly and severally agree to indemnify the Escrow Agent and its
officers, directors, employees, agents and shareholders (collectively referred
to as the "Indemnitees") against, and hold them harmless of and from, any and
all loss, liability, cost, damage and expense, including without limitation,
reasonable counsel fees, which the Indemnitees may suffer or incur by reason of
any action, claim or proceeding brought against the Indemnitees arising out of
or relating in any way to this Agreement or any transaction to which this
Agreement relates, unless such action, claim or proceeding is the result of the
willful misconduct or gross negligence of the Indemnitees.
11.2 If the indemnification provided for in Section 11.1 is applicable, but
for any reason is held to be unavailable, the Indemnitors shall contribute such
amounts as are just and equitable to pay, or to reimburse the Indemnitees for,
the aggregate of any and all losses, liabilities, costs, damages and expenses,
including counsel fees, actually incurred by the Indemnitees as a result of or
in connection with, and any amount paid in settlement of, any action, claim or
proceeding arising out of or relating in any way to any actions or omissions of
the Indemnitors.
11.3 The provisions of this Article 11 shall survive any termination of
this Agreement, whether by disbursement of the Fund, resignation of the Escrow
Agent or otherwise.
12. Governing Law and Assignment. This Agreement shall be construed in
accordance with and governed by the laws of the State of New York and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that any assignment or transfer by any party of its rights
under this Agreement or with respect to the Escrow Amounts or the Fund shall be
void as against the Escrow Agent unless (a) written notice thereof shall be
given to the Escrow Agent; and (b) the Escrow Agent shall have consented in
writing to such assignment or transfer.
13. Notices. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail
service offered by the United States Postal Service, and addressed, if to the
Purchasers, at their respective addresses set forth on Schedule 1, if to the
Issuer or the Selling Agent, at their respective addresses set forth on the
Information Sheet, and if to the Escrow Agent, at its address set forth above,
to the attention of the Trust Department.
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14. Severability. If any provision of this Agreement or the application
thereof to any person or circumstance shall be determined to be invalid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
15. Execution in Several Counterparts. This Agreement may be executed in
several counterparts or by separate instruments, and all of such counterparts
and instruments shall constitute one agreement, binding on all of the parties
hereto.
16. Entire Agreement. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or oral) of the
parties in connection therewith.
[Signatures on following page.]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
By: /s/ Xxxxx X. XxXxxxx
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Its: Chief Financial Officer
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PERFICIENT, INC.
By: /s/ Xxxx X. XxXxxxxx
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Its: Chief Executive Officer
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GILFORD SECURITIES INCORPORATED
By: /s/ Gilford Securities Incorporated
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Its:
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THE PURCHASERS:
WWC CAPITAL FUND, L.P.
By: WWC CAPITAL MANAGEMENT, LLC
By: /s/ Xxxxxxx X. Xxxxxxxx, III
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Name: Xxxxxxx X. Xxxxxxxx, III
Title: Member
WATERSHED-PERFICIENT, LLC
By: /s/ Xxxxx Xxxxxxx
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Name: Xxxxx Xxxxxxx
Title: Member
/s/ Xxxx X. XxxXxxxxx
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Xxxx X. XxxXxxxxx
/s/ Xxxxxx Xxxxxxxx
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Xxxxxx Xxxxxxxx
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SCHEDULE 1
List of Purchasers
WWC Capital Fund, L.P.*
Watershed-Perficient, LLC*
Xxxx X. XxxXxxxxx*
Xxxxxx Xxxxxxxx*
*Investor
