Exhibit 25
EXECUTION COPY
ESCROW AGREEMENT
This ESCROW AGREEMENT (this "Escrow Agreement") is made and entered
into as of this 3rd day of June, 2005, by and among MONEYLINE TELERATE HOLDINGS,
INC. a Delaware corporation ("MTH"), REUTERS LIMITED, a company organized under
the laws of England and Wales ("Limited"), and THE BANK OF NEW YORK, a New York
banking corporation (the "Escrow Agent").
RECITALS
WHEREAS, MTH and Limited are parties to that certain Stock and Asset
Purchase Agreement, dated as of December 20, 2004, as amended on May 20, 2005
and June 3, 2005 (the "Purchase Agreement"), by and among MTH, certain
subsidiaries of MTH (as set forth in the Purchase Agreement and, together with
MTH, the "Sellers"), Limited, Reuters S.A. ("RSA"; RSA together with Limited
being referred to as "Reuters", and Reuters, together with any of their
designated Affiliates, being referred to as the "Purchasers") and One Equity
Partners LLC (for the limited purposes set forth in the Purchase Agreement);
WHEREAS, pursuant to Section 2.3.10 and 2.3.12 of the Purchase
Agreement respectively, (i) the Purchasers agreed to deliver an amount in cash
equal to $39,522,385; and (ii) MTH agreed to deliver to the Escrow Agent at the
Closing (as defined below) the SAVVIS Escrow Shares (as defined below), together
with stock powers duly executed in blank (the $39,522,385 delivered by Purchaser
together with the SAVVIS Escrow Shares, the "Escrow Funds"), which are to be
deposited in escrow (the "Escrow Account") and applied by the Escrow Agent in
accordance with the provisions herein;
WHEREAS, the parties desire to set forth in this Escrow Agreement the
terms and conditions pursuant to which the Escrow Funds will be deposited, held,
and disbursed; and
WHEREAS, MTH and Limited desire to secure the services of the Escrow
Agent, and the Escrow Agent is willing to provide such services, pursuant to the
terms and conditions of this Escrow Agreement.
NOW, THEREFORE, in consideration of the premises and of the
respective agreements and covenants contained herein, and intending to be
legally bound hereby, the parties hereto agree as follows:
1. DEFINED TERMS.
As used in this Escrow Agreement, the following terms have the
respective meanings set forth below.
"Affiliate" means, with respect to any Person, any other Person that,
directly or indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The term "control"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of a Person, whether through the
ownership of voting securities, by contract or otherwise, including the ability
to elect the members of the board of directors or other governing body of a
Person, and the terms "controlled" and "controlling" have correlative meanings.
"Business Day" means a day on which national banks are open for
business in New York, New York and Wilmington, Delaware.
"Closing" means the closing of the transactions contemplated by the
Purchase Agreement.
"Calculation Date SAVVIS Stock Fair Market Value" means $706.26.
"Closing Date" means June 3, 2005.
"Person" means an individual, partnership, corporation, limited
liability company, joint stock company, firm, entity, unincorporated
organization or association, trust or joint venture, or a governmental
authority.
"SAVVIS" means SAVVIS Communications Corporation.
"SAVVIS Escrow Shares" means 21,239 shares of Series A Convertible
Preferred Stock of SAVVIS; provided, that in the event of any merger,
consolidation, reorganization, recapitalization, dividend (including all
paid-in-kind dividends), distribution, stock split, split-up, split-off,
spin-off, combination of shares, exchange of shares or other similar event, or
in the event such shares are converted into common stock or other securities of
SAVVIS or any other entity, "SAVVIS Escrow Shares" shall mean or include, as
appropriate, such securities, cash and/or other property received in respect of
21,239 shares of Series A Convertible Preferred Stock of SAVVIS after such event
or conversion, and this adjustment shall be made successively each time any such
event shall occur (whether before or after any conversion of such shares). In
the event of any such event or conversion, reference to a single SAVVIS Escrow
Share shall be deemed to refer to or include, as appropriate, such other
property received in respect of a single share of Series A Convertible Preferred
Stock of SAVVIS.
"SAVVIS Stock Fair Market Value" means, in respect of each SAVVIS
Escrow Share as of any date, the product of (a) the number of shares of common
stock of SAVVIS into which it is then convertible and (b) 70% (subject to change
as provided below, the "Discount") of the average of the closing prices of such
common stock for the 20 trading days ending with and including the trading day
immediately preceding such date if such common stock is readily tradeable on a
national securities exchange, the National Association of Securities Dealers
Automated Quotation System or other national market system; provided, however,
that if (i) such common stock is not readily tradeable as set forth above, or
any of the events set forth in the proviso of the definition of "SAVVIS Escrow
Shares" shall have occurred and the value of the SAVVIS Escrow Shares shall not
be readily ascertainable on a similar basis, or (ii) Reuters and MTH mutually
agree at any time prior to the Closing to change the Discount or what
constitutes "SAVVIS Stock Fair Market Value", Reuters and MTH shall determine in
good faith the "Discount" or the "SAVVIS Stock Fair Market Value", in any case,
based upon valuations performed by their respective financial advisors;
provided, further, that in the event Reuters and MTH fail or are unable to agree
on such matters within a reasonable period of time not to exceed thirty (30)
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days, then Reuters and MTH shall jointly select an independent, nationally
recognized investment bank to determine the "Discount" or "SAVVIS Stock Fair
Market Value", as the case may be, and the determination of such investment bank
shall be final and binding upon the parties hereto.
"Value of the Escrow Funds" means, as of any date, the sum of (i) the
fair market value of the cash, securities and other property (other than the
SAVVIS Escrow Shares) then held in the Escrow Account as determined by the
Escrow Agent in accordance with its customary practices and (ii) the product of
the Calculation Date SAVVIS Stock Fair Market Value times the number of SAVVIS
Escrow Shares then held in the Escrow Account or, if such shares are no longer
Series A Convertible Preferred Stock of SAVVIS but other property, cash or
securities as contemplated in the definition of "SAVVIS Escrow Shares", then the
number of SAVVIS Escrow Shares shall be deemed to equal for purposes of this
definition such number of Series A Convertible Preferred Stock of SAVVIS that
were exchanged or converted into such other property, cash or securities.
2. APPOINTMENT OF ESCROW AGENT; RESIGNATION AND SUCCESSOR.
2.1 Appointment of Escrow Agent. MTH and Limited hereby appoint the
Escrow Agent as, and the Escrow Agent hereby accepts its appointment and
designation as, Escrow Agent pursuant to the terms and conditions of this Escrow
Agreement.
2.2 Resignation of Escrow Agent; Appointment of Successor. The Escrow
Agent may resign at any time by giving at least sixty (60) days' prior written
notice of resignation to MTH and Limited, such resignation to be effective on
the date specified in such notice, whereupon the Escrow Agent will be discharged
of and from any and all further obligations arising in connection with this
Escrow Agreement. Upon receipt of such notice, MTH and Limited shall appoint a
bank or trust company as successor Escrow Agent by a written instrument executed
by MTH and Limited delivered to the resigning Escrow Agent. The successor Escrow
Agent shall execute and deliver to the parties to this Escrow Agreement an
instrument accepting such appointment and shall succeed to all of the rights and
obligations of the resigning Escrow Agent as of the effective date of the
resignation as if originally named in this Escrow Agreement. Upon assignment of
this Escrow Agreement, the resigning Escrow Agent shall duly transfer and
deliver to the successor Escrow Agent the Escrow Account at the time held by the
resigning Escrow Agent; provided, that, in the event MTH and Limited do not
select a successor Escrow Agent within such sixty (60) day period, the Escrow
Agent may resign, in which case it shall deposit all property and monies held
hereunder into the registry of any court of competent jurisdiction, with notice
to the other parties hereto and shall thereafter be absolved from any and all
liability in connection with the exercise of its powers and duties as Escrow
Agent hereunder, except for liability arising in connection with its gross
negligence, willful misconduct or bad faith.
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3. ESTABLISHMENT OF ESCROW.
3.1 Escrow Account.
(a) At the Closing, Reuters shall deposit with the Escrow Agent, in
accordance with Section 2.3.10 of the Purchase Agreement, an amount in cash
equal to $39,522,385, and the Sellers shall deposit with the Escrow Agent, in
accordance with Section 2.3.12 of the Purchase Agreement, the SAVVIS Escrow
Shares. MTH shall execute and deliver to the Escrow Agent, promptly following
the deposit of the SAVVIS Escrow Shares with the Escrow Agent, one or more stock
powers duly executed in blank by MTH, as the Escrow Agent shall request in
writing, with respect to such SAVVIS Escrow Shares. The Escrow Agent shall act
as Escrow Agent and hold, safeguard and disburse the Escrow Funds pursuant to
the terms and conditions of this Escrow Agreement. The Escrow Funds shall not be
subject to any lien or attachment of any creditor of any party to this Escrow
Agreement or of any Seller or Purchaser, and will be used solely for the
purposes and subject to the conditions set forth in this Escrow Agreement.
(b) At all times while any SAVVIS Escrow Shares remain in the Escrow
Account, the Sellers shall be treated as the owner of such SAVVIS Escrow Shares
for all tax purposes and shall pay in a timely fashion all taxes imposed in
respect of the SAVVIS Escrow Shares. The Sellers shall at all times retain full
voting authority with respect to all SAVVIS Escrow Shares in the Escrow Funds.
In the event SAVVIS Escrow Shares are to be converted or exchanged into other
property, cash or securities as contemplated in the definition "SAVVIS Escrow
Shares", the Escrow Agent shall effect such conversion or exchange at the
direction of MTH, and MTH shall direct that such other property, cash or
securities be delivered to the Escrow Agent hereunder as SAVVIS Escrow Shares.
If the Escrow Agent should receive any cash with respect to the SAVVIS Escrow
Shares, the Escrow Agent shall invest, reinvest and/or deposit such cash in
accordance with Section 3.2.
(c) MTH shall have the right and option (the "Cash Substitution
Option"), exercisable as provided in this Section 3.1(c), to at any time cause
the Escrow Agent to assign, transfer and deliver to MTH any or all of the SAVVIS
Escrow Shares (together with stock powers executed in blank relating thereto)
then held in the Escrow Account by depositing with the Escrow Agent, in
substitution therefor, an amount in cash equal to the product of the number of
SAVVIS Escrow Shares to be replaced times the lesser of (a) 130% of the
Calculation Date SAVVIS Stock Fair Market Value and (b) the SAVVIS Stock Fair
Market Value on the date of the Cash Substitution Notice (as defined below). The
Cash Substitution Option shall be exercisable by MTH providing a written notice
of exercise (the "Cash Substitution Notice") to the Escrow Agent and Limited,
which Cash Substitution Notice shall (A) make specific reference to this Section
3.1(c), (B) indicate the SAVVIS Stock Fair Market Value as of the date of the
Cash Substitution Notice, (C) indicate how such value was computed in accordance
with the definition of SAVVIS Stock Fair Market Value, (D) indicate the
aggregate amount of cash to be substituted for the SAVVIS Escrow Shares to be
replaced in accordance with this Section 3.1(c), (E) indicate the precise nature
and amount of the property and/or funds then comprising the SAVVIS Escrow Shares
to be released from the Escrow Account and (F) include a certification of an
officer of MTH that neither it nor any of its affiliates is in possession of
material non-public information with respect to SAVVIS. Unless Limited notifies
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MTH and the Escrow Agent in writing of any objection to any of the matters
referred to in the Cash Substitution Notice, which objection notice shall
include reasonable detail of the basis for any such objection, within five (5)
Business Days after the date of such notice, the Escrow Agent shall deliver the
SAVVIS Escrow Shares to be replaced, together with the stock powers related
thereto executed in blank, to MTH against receipt of immediately available funds
in the amount set forth in such notice. In the event that Limited objects to any
of the matters set forth in the Cash Substitution Notice, Limited and MTH shall
in good faith seek to resolve such matter or matters (with any issue with
respect to determination of SAVVIS Stock Fair Market Value to be resolved as
provided in the definition thereof) and, promptly following such resolution,
Limited and MTH shall provide joint written instructions to the Escrow Agent
with respect to the delivery of the SAVVIS Escrow Shares to be replaced in
exchange for an amount of immediately available funds based upon such
resolution.
3.2 Investment of Escrow Account. Upon the written direction of MTH
and Limited, the Escrow Agent shall place any funds in the Escrow Account only
into Permitted Investments. For the purposes hereof, "Permitted Investments"
shall mean (i) obligations of or guaranteed by the United States of America or
any agency thereof, either outright or in connection with repurchase agreements
covering such obligations, (ii) obligations of or guaranteed by any state or
political subdivision of the United States of America with a maturity six months
or less, (iii) interest bearing certificates of deposit or bankers' acceptances
issued by any other national or state-chartered bank having capital and surplus
of at least $1,000,000,000 with an investment term of six months or less, (iv)
commercial paper with a maturity of not more than thirty days rated at least P-1
by Xxxxx'x Investor Service, Inc. and A-1 by the Standard & Poor's division of
the McGraw Hill Companies, Inc, and (v) money market funds. The Escrow Agent may
liquidate in accordance with its customary procedures any portion of the Escrow
Account invested in a Permitted Investment to provide for payments required to
be made under this Escrow Agreement. For tax purposes, all interest and other
income earned on the Escrow Funds will be income of the Sellers, and all parties
hereto will file all tax returns consistent with such treatment. MTH, on behalf
of the Sellers, agrees to indemnify and hold the Escrow Agent harmless from and
against all such taxes. It is understood that the Escrow Agent will be
responsible for income reporting only with respect to income earned on
investment of Escrow Funds and is not responsible for any other reporting.
4. RELEASE FROM ESCROW.
4.1 Distributions from Escrow Account Pursuant to Section 2.5 of the
Purchase Agreement.
(a) Not later than two (2) Business Days after the delivery to the
Escrow Agent of joint written instructions signed by MTH and Limited specifying
the amount, if any, to which the Purchasers and/or MTH, on behalf of the
Sellers, are entitled from the Escrow Funds pursuant to Section 2.5.2 of the
Purchase Agreement, the Escrow Agent shall disburse to Limited, on behalf of the
Purchasers, and/or MTH, on behalf of the Sellers, from the Escrow Account such
portion(s) of the Escrow Funds as may be necessary to pay such specified
amounts.
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(b) Not later than two (2) Business Days after the delivery to the
Escrow Agent of joint written instructions signed by MTH and Limited specifying
the amounts, if any, to be paid to the independent accounting firm, if any,
engaged pursuant to Section 2.5.3.3 of the Purchase Agreement, the Escrow Agent
shall disburse to the specified independent accounting firm from the Escrow
Account such portion of the Escrow Funds as may be necessary to pay such
specified amounts.
4.2 Distributions from Escrow Account Pursuant to Article VI and IX
of the Purchase Agreement.
(a) From time to time prior to the second anniversary of the Closing
Date, the Purchasers may deliver to MTH and the Escrow Agent a written notice (a
"Claim Notice") requesting distribution to Limited, on behalf of the Purchasers,
of a specified portion of the Escrow Funds in full or partial payment of the
indemnification obligations of one or more of the Sellers under the Purchase
Agreement (subject to the limitations therein), which notice shall (i) identify
in reasonable detail the facts and circumstances with respect to the subject
matter of such claim and associated damages and the section of the Purchase
Agreement under which such indemnification is sought and the amount and method
for computing the amount of damages and (ii) shall be accompanied by a delivery
receipt or other appropriate proof of delivery to MTH of such Claim Notice. If
the Escrow Agent has not received a written objection to a Claim Notice within
forty-five (45) days following the date of the Escrow Agent's receipt of such
Claim Notice, MTH shall be deemed to have irrevocably waived the right to object
or otherwise challenge the claim referred to in such Claim Notice without
prejudice to MTH's right to challenge any future claim and the Escrow Agent
shall pay to Limited, on behalf of the Purchasers, the amount specified in the
Claim Notice on the forty-sixth (46th) day following the receipt of such Claim
Notice (or if the forty-sixth (46th) day is not a Business Day, then on the
first Business Day following the forty-sixth (46th) day).
(b) If the Escrow Agent shall have received a written objection from
MTH to a claim referred to in a Claim Notice within forty-five (45) days
following the date of the Escrow Agent's receipt of such Claim Notice, the
Escrow Agent shall not make the payment of the amount specified in the Claim
Notice to Limited pursuant to Section 4.2(a) of this Escrow Agreement, but shall
instead withhold from the amount otherwise distributable hereunder an amount of
the Escrow Funds sufficient to satisfy the claim to which objection has been
made until it has received either (A) joint written instructions signed by MTH
and Limited as to the disposition of the portion of the Escrow Funds in
question, or (B) an order of a court of competent jurisdiction that is final and
not subject to further court proceedings or appeal. Any such court order shall
be accompanied by a legal opinion by counsel for the presenting party reasonably
satisfactory to the Escrow Agent to the effect that the order is final and
non-appealable. Upon receipt of any such written instructions or order, the
Escrow Agent shall, subject to the terms hereof, distribute such Escrow Funds in
accordance therewith. If an objection of MTH to payment of a claim referred to
in a Claim Notice shall prevent timely payment to Limited, on behalf of the
Purchasers, of any amount which is ultimately determined to be distributable in
satisfaction of such claim, the Purchasers shall be entitled to all income
received on such amount by its investment hereunder from and after the
forty-sixth (46th) day following the Escrow Agent's receipt of the applicable
Claim Notice until distribution of such amount to Limited, on behalf of the
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Purchasers, in payment thereof, and the determination by the Escrow Agent of
such interest amount to which Limited, on behalf of the Purchasers, is entitled
shall be binding on both MTH and the Purchasers. The amount of such interest
shall be paid to Limited, on behalf of the Purchasers, concurrently with the
distribution of the portion of the Escrow Funds to satisfy such Claim.
4.3 Other Distributions from Escrow Account.
(a) Not later than two (2) Business Days after delivery to the Escrow
Agent of joint written instructions signed by MTH and Limited specifying the
amounts, if any, to which Limited, on behalf of the Purchasers, and/or MTH, on
behalf of the Sellers, are entitled from the Escrow Funds pursuant to Section
6.32.2 of the Purchase Agreement, the Escrow Agent shall disburse to Limited, on
behalf of the Purchasers, and/or MTH, on behalf of the Sellers, from the Escrow
Account such portion(s) of the Escrow Funds as may be necessary to pay such
specified amounts.
(b) Promptly following the first anniversary of the Closing Date (the
"First Anniversary Date"), the Escrow Agent shall release to MTH, or its
representative, a portion of the Escrow Funds equal to the amount, if any, by
which the Value of the Escrow Funds on the First Anniversary Date exceeds the
sum of (A) $33,750,000, together with any income received thereon by its
investment hereunder to the First Anniversary Date, and (B) the aggregate of the
amount of the claims set forth in Claim Notices that have not been paid or
otherwise resolved as contemplated in Section 4.2 of this Escrow Agreement,
together with any income received on such aggregate amount by its investment
hereunder to the First Anniversary Date.
(c) Promptly following the second anniversary of the Closing Date
(the "Second Anniversary Date"), the Escrow Agent shall distribute the Escrow
Funds, in accordance with the written instructions of MTH, or its
representative; provided, however, that in the event that, on or prior to the
Second Anniversary Date, Limited delivers any Claim Notices and the claims
related thereto are unresolved as of the Second Anniversary Date, the Escrow
Agent shall not distribute and will continue to hold pursuant to Section 4.2
hereof a portion of the Escrow Funds having a value equal to the damages sought
with respect to unresolved claims under such Claim Notices. The Escrow Agent
shall not make any payment from the Escrow Funds it continues to hold after the
distribution from the Escrow Funds pursuant to the foregoing sentence until it
has received either (A) joint written instructions signed by MTH and Limited as
to the disposition of the portion of the Escrow Funds in question, or (B) an
order of a court of competent jurisdiction accompanied by an opinion of counsel
to the effect that such order is final and not subject to further court
proceedings or appeal.
(d) On January 15th of each year after the Closing Date until the
termination of this Escrow Agreement, the Escrow Agent shall distribute to MTH,
on behalf of the Sellers, an amount equal to 40% of the income from the Escrow
Funds allocated to the Sellers for the prior calendar year.
4.4 Form of Disbursements. Except as may be set forth in joint
written instructions signed by MTH and Limited, (i) all disbursements to be made
to Limited, on behalf of the Purchasers, pursuant to this Escrow Agreement shall
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be made in cash unless and until all funds and property (other than the SAVVIS
Escrow Shares) held in the Escrow Account have been exhausted and, thereafter,
such disbursements shall be made in the form of SAVVIS Escrow Shares valued at
the Calculation Date SAVVIS Stock Fair Market Value and (ii) all disbursements
and releases to be made to MTH, or its representative, pursuant to this Escrow
Agreement shall be made in SAVVIS Escrow Shares valued at the Calculation Date
SAVVIS Stock Fair Market Value unless and until all SAVVIS Escrow Shares
contained in the Escrow Account have been exhausted and, thereafter, such
disbursements and releases shall be made in the form of cash.
5. THE ESCROW AGENT.
(a) The duties and responsibilities of the Escrow Agent will be
limited to those expressly set forth in this Escrow Agreement and it will not be
subject to, nor obligated to recognize, any provision of any other agreement
between, or direction or instruction of, any or all of the parties to this
Escrow Agreement.
(b) If any Escrow Funds are at any time attached, garnished or levied
upon under any court order or in case the payment of any such Escrow Funds will
be stayed or enjoined by any court order, or in case any order, judgment or
decree will be made or entered by any court affecting such Escrow Funds or any
part thereof, then and in any of such events, the Escrow Agent is authorized, in
its sole discretion, to rely upon and comply with any such order, writ, judgment
or decree which it is advised by legal counsel is binding upon it. If the Escrow
Agent complies with any such order, writ, judgment or decree, it will not be
liable to any of the parties to this Escrow Agreement or to any other Person by
reason of such compliance even though such order, writ, judgment or decree may
be subsequently reversed, modified, annulled, set aside or vacated.
(c) The Escrow Agent will not be liable for any act taken or omitted
under this Escrow Agreement, except for liability arising in connection with its
gross negligence, willful misconduct or bad faith. The Escrow Agent shall not
incur any liability for failure to perform any act or to fulfill any duty,
obligation or responsibility hereunder by reason of any occurrence beyond the
control of the Escrow Agent (including, but not limited to, any act or provision
of any present or future law or regulation or governmental authority, any act of
God or war, or the unavailability of the Federal Reserve Bank wire or telex or
other wire or communication facility). The Escrow Agent will also be fully
protected in relying upon any written notice, demand, certificate or document
that it in good faith believes to be genuine (including facsimiles thereof).
(d) MTH and Limited hereby jointly and severally agree to indemnify
the Escrow Agent and each of its officers, directors, agents and employees from
and against, and to hold the Escrow Agent and such persons harmless against, any
loss, liability, damage or reasonable expense (including reasonable attorneys'
fees) incurred without gross negligence, willful misconduct or bad faith on the
part of the Escrow Agent, arising, directly or indirectly, out of or in
connection with the Escrow Agent's entering into this Escrow Agreement and
carrying out the Escrow Agent's duties hereunder, including costs and reasonable
expenses of successfully defending the Escrow Agent against any claim of
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liability with respect thereto. The Escrow Agent may consult with counsel of its
own choice and will have full and complete authorization and protection for any
action taken or suffered by it hereunder in good faith and in accordance with
the opinion of such counsel. The provisions of this Section 5(d) shall survive
termination of this Escrow Agreement and/or the resignation or removal of the
Escrow Agent.
(e) The Escrow Agent will (a) be paid a fee for its services under
this Escrow Agreement as provided by Exhibit A and (b) be entitled to
reimbursement for reasonable expenses (including the reasonable fees and
disbursements of its counsel) actually incurred by the Escrow Agent in
connection with its duties under this Escrow Agreement (such fees and expenses
being hereinafter referred to collectively as the "Escrow Agent Fees and
Expenses"). All Escrow Agent Fees and Expenses will be paid first out of
interest earned and accrued on the Escrow Funds. The Escrow Agent will not be
entitled to withdraw any amounts from the interest earned and accrued on the
Escrow Funds for reimbursement of Escrow Agent Fees and Expenses until the
expiration of five (5) Business Days following delivery of notice of the amount
of such Escrow Agent Fees and Expenses to MTH and Limited.
6. MISCELLANEOUS.
(a) Notices. All notices, requests, consents or other communications
required or permitted under this Escrow Agreement will be in writing and will be
deemed to have been duly given or delivered by any party (i) when received by
such party if delivered by hand, (ii) upon confirmation when delivered by
facsimile, (iii) within one (1) day after being sent by recognized overnight
delivery service, or (iv) within three (3) Business Days after being mailed by
first-class mail, postage prepaid, and in each case addressed as follows
(provided, however, that notice to the Escrow Agent shall be deemed to have been
duly given only upon the Escrow Agent's receipt thereof, and that the original
of any written notice, request, consent or other communication delivered by
facsimile to the Escrow Agent shall be delivered to the Escrow Agent no later
than five (5) Business Days after the delivery of the facsimile thereof):
(i) if to MTH, to:
Moneyline Telerate Holdings, Inc.
000 Xxxxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Legal Officer
With a required copy to:
Xxxxxx & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: R. Xxxxxx Xxxxxxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
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and
Xxxxxx, Xxxxx & Bockius LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxx Xxxxx, Esq.
(ii) if to Reuters Limited, to
Reuters Limited
00 Xxxxx Xxxxxx
Xxxxxx, XX0X 0XX Xxxxxx Xxxxxxx
Facsimile: 011 44 20 7542 6848
Attention: Group General Counsel
With a required copy to:
Reuters America LLC
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
and
Weil, Gotshal & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Esq.
(iii) if to the Escrow Agent, to:
The Bank of New York
Insurance Trust & Escrow Unit
000 Xxxxxxx Xxxxxx, 0X
Xxx Xxxx, XX 00000
Facsimile: (000) 000-0000/5877
Attention: Xxxxxx Xxxxxx, Vice President
Any party by written notice to the other parties pursuant to this Section 6.1
may change the address or the persons to whom notices or copies thereof will be
directed.
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(a) Assignment; MTH Representative. This Escrow Agreement and the
rights and duties hereunder will be binding upon and inure to the benefit of the
parties hereto and the successors and assigns of each of the parties to this
Escrow Agreement. No rights, obligations or liabilities hereunder will be
assignable by the Escrow Agent without the prior written consent of MTH and
Limited. MTH shall have the right to appoint a person, with full power of
substitution, as the representative, agent and attorney in fact of and for MTH
in connection with any matters relating to this Agreement, including, without
limitation, with respect to approvals, waivers, consents, instructions and the
enforcement of rights hereunder. In the event of any such appointment, MTH shall
provide written notice to the other parties of the identity and address of such
representative.
(b) Amendment. This Escrow Agreement may be amended or modified only
by an instrument in writing duly executed by each of the parties hereto.
(c) Waivers. Any waiver by any party hereto of any breach of or
failure to comply with any provision of this Escrow Agreement by any other party
hereto will be in writing and will not be construed as, or constitute, a
continuing waiver of such provision, or a waiver of any other breach of, or
failure to comply with, any other provision of this Escrow Agreement.
(d) Construction. This Escrow Agreement will be governed by the laws
of the State of New York as applied to contracts made and performed in such
state. The headings in this Escrow Agreement are solely for convenience of
reference and will not be given any effect in the construction or interpretation
of this Escrow Agreement. Unless otherwise stated, references to Sections and
Exhibits are references to Sections and Exhibits of this Escrow Agreement.
(e) Third Parties. Nothing expressed or implied in this Escrow
Agreement is intended, or will be construed, to confer upon or give any Person
other than the parties hereto any rights or remedies under, or by reason of,
this Escrow Agreement.
(f) Termination. This Escrow Agreement will terminate at the time of
the final distribution by the Escrow Agent of all Escrow Funds in accordance
with the provisions of this Escrow Agreement.
(g) Counterparts. This Escrow Agreement may be executed in one or
more counterparts, each of which will be deemed an original and all of which
together will constitute a single instrument.
(h) Severability. If any provision of this Escrow Agreement as
applied to any part or to any circumstance will be held invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions of this Escrow Agreement and the application of such provision to any
other part or to any other circumstance will not be affected or impaired
thereby.
(i) Jury Trial; Counterclaims; Immunity. Each of MTH and Reuters
hereby waives the right to trial by jury. To the extent that in any jurisdiction
MTH or Reuters may be entitled to claim, for itself or its assets, immunity from
suit, execution, attachment (whether before or after judgment) or other legal
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process, each hereby irrevocably agrees not to claim, and hereby waives, such
immunity.
(j) General. Unless the context otherwise requires, the singular
shall include the plural and vice-versa, each pronoun in any gender shall
include all other genders, and the term "or" shall mean "and/or". The terms and
provisions of this Escrow Agreement constitute the entire agreement among the
parties hereto in respect of the subject matter hereof.
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IN WITNESS WHEREOF, the parties hereto have caused this
Escrow Agreement to be executed by their duly authorized
officers as of the day and year first above written.
ESCROW AGENT
By: /s/ Xxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxx Xxxxxx
Title: Vice-President
MONEYLINE TELERATE HOLDINGS, INC.
By: /s/ Xxxxxxx X. Xxxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: President
REUTERS LIMITED
By: /s/ Xxxxxxxx Xxxxxx
--------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Company Secretary and Director
Signature Page to Escrow Agreement
