EXHIBIT 10.2
ESCROW AGREEMENT
ESCROW, AGREEMENT, dated as of April 1, 2003, between FIND/SVP, Inc., a
New York corporation ("FIND"); Xxx X. Xxxxxxxxx ("XXXXXXXXX"); Xxxxxx La Terra
("LA TERRA"); Xxxxxx Xxxxxxx ("WHITCUP"); and Xxxx Xxxxxxx, P.C., as escrow
agent (the "ESCROW AGENT"). Each of Xxxxxxxxx, La Terra and Whitcup may be
individually referred to herein as a "STOCKHOLDER" and, collectively, as the
"STOCKHOLDERS".
WHEREAS, pursuant to a Stock Purchase Agreement dated as of April 1, 2003,
among FIND, Guideline Research Corp., La Terra and Xxxxxxxxx, a copy of which is
annexed hereto as EXHIBIT 1 (the "PURCHASE Agreement"), FIND purchased all of
the issued and outstanding shares of capital stock of Guideline Research Corp.;
and
WHEREAS, pursuant to the Purchase Agreement, FIND will deposit on the date
hereof a number of shares of the common stock of FIND, par value $0.0001 per
share ("FIND COMMON STOCK"), with the Escrow Agent in order to provide security
for indemnity payments, if any, obligated to be made to FIND and each of their
officers, directors, employees, and agents (together, the "INDEMNIFIED PARTIES")
as and to the extent provided in Section 7.3 of the Purchase Agreement (a "FIND
INDEMNITY CLAIM"); and
WHEREAS, Whitcup acknowledges that the Escrow Shares issued in his name at
the request of Xxxxxxxxx and La Terra are being delivered on the date hereof to
Escrow Agent in order to provide security for indemnity claims against Xxxxxxxxx
and La Terra pursuant to the terms and conditions of the Purchase Agreement; and
WHEREAS, FIND and the Stockholders wish to appoint the Escrow Agent to
serve as the escrow agent hereunder, and the Escrow Agent is willing to do so
upon the terms and conditions hereinafter set forth.
NOW, THEREFORE, FIND, the Stockholders and the Escrow Agent hereby agree
as follows:
ARTICLE I
APPOINTMENT OF ESCROW AGENT; DEPOSIT OF ESCROW SHARES
1.1 APPOINTMENT OF THE ESCROW AGENT: DEPOSIT OF ESCROW SHARES. The
Stockholders and FIND hereby constitute and appoint the Escrow Agent as, and the
Escrow Agent hereby agrees to assume and perform the duties of, the escrow agent
under and pursuant to this Agreement. The Escrow Agent acknowledges receipt of
an executed copy of the Purchase Agreement. Simultaneously with the execution of
this Agreement, FIND has deposited with the Escrow Agent certificates evidencing
an aggregate number of 295,043 shares of FIND Common Stock (the "ESCROW
SHARES"). Such certificates have been issued in the names of the Stockholders
and in the number of shares indicated for each Stockholder as set forth on
SCHEDULE A hereto and represent issued and outstanding stock on the balance
sheet of FIND. The Stockholders have each tendered with the Escrow Shares five
(5) duly executed blank stock
powers (the "STOCK POWERS"). The Escrow Agent hereby acknowledges receipt of the
Escrow Shares and the Stock Powers. The Escrow Shares and the Exchange Cash (as
defined herein), if any, shall not be subject to any lien, attachment, trustee,
process or any other judicial process of any creditor of any party hereto. The
Escrow Agent agrees to hold the Escrow Shares, the Stock Powers and, to the
extent received by Escrow Agent pursuant to Section 2.14, the Exchange Cash in
escrow subject to the terms and conditions of this Agreement.
1.2 MAINTENANCE OF ESCROW. Each Stockholder's "PRO RATA LIABILITY
PERCENTAGE" shall be as set forth opposite such Stockholder's name on SCHEDULE
A. The Escrow Agent is hereby granted the power to effect any transfer of Escrow
Shares required by this Agreement using the applicable Stock Powers. FIND and
the Stockholders shall cooperate with the Escrow Agent in promptly issuing, or
causing its transfer agent to promptly issue, such stock certificates as shall
be required to effect such transfers. The Stockholders and FIND will take any
action reasonably required by the transfer agent of FIND to effect such
transfers, including, if required, promptly providing any necessary medallion
signature guarantees. Whitcup acknowledges and agrees that the Escrow Shares
issued in his name at the request of Xxxxxxxxx and La Terra are being delivered
on the date hereof to Escrow Agent in order to provide security for indemnity
claims that FIND may have against Xxxxxxxxx and La Terra pursuant to the terms
and conditions of the Purchase Agreement.
1.3 TAXES. The Stockholders shall pay all applicable income, withholding
and any other taxes imposed on or measured by income which is attributable to
income from the Escrow Shares and the Exchange Cash and shall file all tax and
information returns applicable thereto.
1.4 VOTING OF SHARES. Each Stockholder shall have the sole right to vote
any Escrow Shares being held in the name of such Stockholder and to receive any
dividends thereon.
1.5 TRANSFERABILITY. The respective interests of the Stockholders in the
Escrow Shares and the Exchange Cash shall not be assignable or transferable,
other than by operation of law or pursuant to the terms hereof. Notice of any
such assignment or transfer by operation of law shall be given to the Escrow
Agent and FIND, and no such assignment or transfer shall be valid until such
notice is given.
1.6 ADJUSTMENTS TO ESCROW SHARES. If all or any portion of the Escrow
Shares are subject to any share distribution, share split, split-up, split-off,
spin-off, recapitalization, reincorporation merger with a wholly owned Delaware
subsidiary, separation, reorganization, liquidation, combination, redemption, or
exchange of shares, warrants or other units of equity (together, "EQUITY
EQUIVALENTS") of FIND, occurring after the date hereof, as a result of which
Equity Equivalents of any class shall be issued in respect of outstanding FIND
Common Stock being changed into the same or a different number of shares of FIND
Common Stock or other Equity Equivalents, the number and value of Escrow Shares
shall be correspondingly and ratably adjusted by the Board of Directors of FIND
so as to be substantially the economic equivalent of the number and value of the
Escrow Shares that are in the possession of the Escrow Agent immediately
preceding the event that causes the change in the number or character of the
shares of FIND Common Stock. FIND shall effect this change by replacing the
Escrow Shares with Equity Equivalents within fifteen (15) days of the effective
date of the event that caused the change in the number or character of the
shares of FIND Common Stock. Upon receipt by Escrow Agent, the Equity
Equivalents shall be deemed to be Escrow Shares for all purposes
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hereof; provided, that the valuation provisions set forth Section 2.10 shall be
ratably adjusted by FIND in accordance with the actions of the Board of
Directors causing the Equity Equivalents to be issued.
ARTICLE II
DISTRIBUTION OF ESCROW SHARES; CASH EXCHANGE
2.1 TERM OF ESCROW ACCOUNT. The Escrow Shares and Exchange Cash shall be
held by the Escrow Agent on the terms and subject to the conditions herein,
subject to Section 2.8, through May 31, 2004 (the "EXPIRATION DATE"). This
Agreement shall terminate upon the delivery by the Escrow Agent of all of the
Escrow Shares and Exchange Cash in accordance with this Agreement; provided,
however, that the provisions of Sections 3.1(i), (ii), (iii) and 3.3 hereof
shall survive such termination.
2.2 DELIVERY OF ESCROW SHARES. (a) The Escrow Agent shall deliver the
Escrow Shares and Exchange Cash only in accordance with (i) a written agreement
signed by each of the Stockholders and FIND or (ii) the provisions of this
Article II. Upon delivery and/or transfer of all of the Escrow Shares by Escrow
Agent pursuant to the terms hereof, Escrow Agent shall return any additional
blank Stock Powers executed by such Stockholder to such Stockholder.
(b) Any delivery of all or a portion of the Escrow Shares to FIND shall be
made by the Escrow Agent's delivery of the certificate or certificates
evidencing the applicable number of Escrow Shares to FIND or FIND's transfer
agent (as applicable), together with the applicable Stock Power(s), and written
instructions to FIND or FIND's transfer agent (as applicable) instructing such
party to deliver to the Escrow Agent a certificate to be further issued in the
name of FIND and a certificate issued to the applicable Stockholder for the
balance (if any) of the Escrow Shares to be further held by the Escrow Agent and
not delivered to FIND.
(c) No fractional Escrow Shares shall be held at any time by the Escrow
Agent pursuant to this Agreement. Instead, the number of shares subject to
delivery shall be rounded down to the nearest whole number and any fractions of
shares shall be deemed delivered to FIND for cancellation.
2.3 FIND INDEMNITY CLAIMS. Upon the occurrence of an event which FIND in
good faith believes constitutes the basis for FIND to receive a payment for a
FIND Indemnity Claim, FIND shall furnish written notice of such event (the
"INDEMNITY NOTICE") (which notice shall state that it is given pursuant to this
Section 2.3) to each of the Stockholders and the Escrow Agent (and in any event
on or prior to the Expiration Date) setting forth FIND's then good faith belief
of the basis therefor, and FIND's good faith estimate of the reasonably
foreseeable amount of the FIND Indemnity Claim. FIND shall, upon request, acting
reasonably and in good faith, make available to the Stockholders all relevant
information concerning such FIND Indemnity Claim as the Stockholders shall
reasonably request and which is in or comes into the possession of FIND.
2.4 FIND INDEMNITY CLAIMS NOT DISPUTED BY STOCKHOLDERS. (a) If, within
thirty (30) days after receipt of the Indemnity Notice, Xxxxxxxxx and La Terra
do not give the notice provided for in Section 2.5, FIND shall be entitled to
make demand (an "UNDISPUTED INDEMNITY
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NOTICE DEMAND") that the Escrow Agent either retain for future delivery to FIND
as and when the amount of the FIND Indemnity Claim is determined, if the amount
of the FIND Indemnity Claim is not then determined, or deliver to FIND, if the
amount of the FIND Indemnity Claim has then been determined, a number of Escrow
Shares issued in each Stockholder's name and/or an amount of Exchange Cash that
is being held as a result of an exchange of Escrow Shares (pursuant to Section
2.13 hereof) that were issued in such Stockholder's name, together having an
aggregate value equal to his Pro Rata Liability Percentage of the amount of the
FIND Indemnity Claim set forth in the Indemnity Notice.
2.5 FIND INDEMNITY CLAIMS DISPUTED BY STOCKHOLDERS AS A WHOLE. If
Xxxxxxxxx and La Terra jointly and in good faith dispute either the FIND
Indemnity Claim described in the Indemnity Notice or the amount FIND seeks
payment on account of such FIND Indemnity Claim, Xxxxxxxxx and La Terra shall,
within thirty (30) days after receipt of the Indemnity Notice, jointly notify
FIND and the Escrow Agent of such dispute setting forth the basis therefor in
reasonable detail. In the event Xxxxxxxxx and La Terra jointly dispute the
entire FIND Indemnity Claim, the Escrow Agent shall not distribute any Escrow
Shares being held in any Stockholder's name or any amount of Exchange Cash that
is being held upon exchange of Escrow Shares that were issued in such
Stockholder's name pursuant to Section 2.13 hereof, until the Escrow Agent
receives (i) a written agreement signed by Xxxxxxxxx, La Terra and FIND stating
the aggregate amount to which FIND is entitled in connection with such FIND
Indemnity Claim (an "INDEMNITY CLAIM AGREEMENT"); or (ii) a copy of an
arbitrator's award or court order or judgment directing the aggregate amount to
which FIND is entitled in connection with such FIND Indemnity Claim, provided
that such award, order or judgment is final and binding with respect to FIND,
Xxxxxxxxx and La Terra and from which no appeal may be taken or for which the
time to appeal has expired (a "FINAL JUDGMENT"); provided, in the case of clause
(ii) that the Escrow Agent shall have given written notice of the proposed
distribution, together with copies, of all such documents and opinions to FIND
and the Stockholders at least five (5) days prior to the date of the
distribution by the Escrow Agent. After the occurrence of the events specified
in clause (i) or (ii) above, the Escrow Agent shall deliver to FIND a number of
Escrow Shares issued in each Stockholder's name and/or an amount of Exchange
Cash that is being held as a result of an exchange of Escrow Shares (pursuant to
Section 2.13 hereof) that were issued in such Stockholder's name, together
having an aggregate value equal to his Pro Rata Liability Percentage of the
amount specified in the Indemnity Claim Agreement or Final Judgment, as
applicable. Notwithstanding any provision of this Section 2.5, upon the death or
Disability of either Xxxxxxxxx or La Terra only the non-disabled or alive party
need dispute the FIND Indemnity Claim and provide the notice described in this
section. "DISABILITY" for purposes of this agreement shall have the same meaning
as set forth in the most current employment agreement between Guideline Research
Corp. and such party alleged to be disabled.
2.6 FIND INDEMNITY CLAIMS DISPUTED BY THE STOCKHOLDERS IN PART. In the
event Xxxxxxxxx and La Terra jointly and in good faith dispute part of, but not
all of, a FIND Indemnity Claim, the Escrow Agent shall, if the amount of the
FIND Indemnity Claim is undetermined, retain for future delivery to FIND, or, if
the amount of the FIND Indemnity Claim is determined, deliver to FIND a number
of Escrow Shares being held in each Stockholder's name and/or an amount of
Exchange Cash that is being held as a result of an exchange of Escrow Shares
(pursuant to Section 2.13 hereof) that were issued in such Stockholder's name,
together having an aggregate value equal to his Pro Rata Liability Percentage of
the amount specified in the FIND Indemnity Claim attributable to that portion of
the FIND Indemnity Claim which is not
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jointly disputed by Xxxxxxxxx and La Terra. The Escrow Agent shall not deliver
any Escrow Shares or Exchange Cash to FIND having an aggregate value equal to
the amount specified in the FIND Indemnity Claim with respect to the balance of
such FIND Indemnity Claim except in accordance with the procedures set forth in
Section 2.5. Notwithstanding any provision of this Section 2.6, upon the death
or Disability of either Xxxxxxxxx or La Terra only the non-disabled or alive
party need dispute the FIND Indemnity Claim and provide the notice described in
this section.
2.7 DISTRIBUTION OF ESCROW SHARES AND EXCHANGE CASH. No later than the
tenth business day immediately following the Expiration Date, any Escrow Shares
and Exchange Cash remaining with the Escrow Agent after the withholdings
required pursuant to the provisions of Sections 2.4, 2.5, 2.6 and 2.8 hereof
shall be released from the provisions of this Escrow Agreement and delivered
promptly (but in no event later than fifteen (15) days after the Expiration
Date) by the Escrow Agent to the respective Shareholders; provided, that to the
extent that a share certificate needs to be delivered to the transfer agent for
division into certificates of a smaller denomination to accommodate the
withholdings required hereunder, Escrow Agent shall promptly deliver such
certificate to the transfer agent (and not to such Shareholder) within fifteen
(15) days after the Expiration Date and then promptly deliver to the Shareholder
a certificate for the shares deliverable to the Shareholder hereunder within ten
(10) days of Escrow Agent's receipt.
2.8 RETENTION OF ESCROW SHARES AFTER EXPIRATION DATE. After the Expiration
Date, the Escrow Agent shall continue to hold a number of Escrow Shares being
held in each Stockholder's name and/or an amount of Exchange Cash that is being
held as a result of an exchange of Escrow Shares (pursuant to Section 2.13
hereof) that were issued in such Stockholder's name, together having an
aggregate value equal to such Stockholder's Pro Rata Liability Percentage of
each unresolved FIND Indemnity Claim that is the subject of an Indemnity Notice
until such time as the Escrow Agent receives for such unresolved FIND Indemnity
Claim (i) an FIND Indemnity Claim or (ii) a Final Judgment, (in each case,
evidencing the ultimate resolution of any of the underlying claims referred to
in such Indemnity Notice consistent with this Section 2), at which time the
Escrow Agent shall (A) arrange for the delivery of an amount of Escrow Shares
issued in such Stockholder's name and/or an amount of Exchange Cash that is
being held as a result of an exchange of Escrow Shares (pursuant to Section 2.13
hereof) that were issued in such Stockholder's name, together having an
aggregate value equal to his Pro Rata Liability Percentage of the amount
specified in such FIND Indemnity Claim or Final Judgment, as the case may be,
and (B) deliver an amount of Exchange Cash, if any, and deliver to each of the
Stockholders that number of Escrow Shares, if any, which the Escrow Agent
continued to hold after the Expiration Date by reason of such FIND Indemnity
Claim and which is in excess of the amount so delivered to FIND with respect
thereto.
2.9 REPORTING. The parties hereto shall, for federal income tax purposes
and, to the extent permitted by applicable law, state and local tax purposes,
report consistent with the Stockholders as the owners of the Escrow Shares and
the Exchange Cash and as the taxpayers with respect to any income earned thereon
and the Stockholders shall furnish any required tax forms consistent with the
foregoing.
2.10 VALUE OF ESCROWED SHARES. For the purpose of determining the number
of Escrow Shares required for (i) a distribution of Escrow Shares to FIND
pursuant to a FIND
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Indemnification Claim in accordance with Sections 2.4, 2.5 and 2.6, (ii) the
Escrow Agent's withholding requirements pursuant to Section 2.8 hereof, or (iii)
otherwise, the Escrow Agent shall divide (x) the applicable FIND Indemnity Claim
amount pursuant to this Section 2 (less any Exchange Cash, (y) the applicable
withholding amount determined pursuant to Section 2.8 hereof, or (z) any
applicable amount determined pursuant to this Agreement, as the case may be, by
the higher of (i) $1.271 and (ii) average closing price of the FIND Common Stock
for a ten (10) consecutive trading day period ending on the day immediately
preceding the date that such notice was received by Escrow Agent.
2.11 ARBITRATION. Except in the event of the need for immediate equitable
relief from a court of competent jurisdiction to prevent irreparable harm
pending arbitration relief, and except for enforcement of a party's remedies to
the extent such enforcement must be pursuant to court authorization or order
under applicable law, any dispute between the parties hereto or under any other
document, instrument or writing executed pursuant to this Agreement shall be
settled, by arbitration before three arbitrators pursuant to the Commercial
Arbitration Rules of the American Arbitration Association (the "RULES") in New
York, New York or such other location as may be agreed upon by the parties. For
purposes of this Agreement, the parties consent to jurisdiction in New York for
any arbitration proceeding or any action to enforce an arbitration award. The
arbitrators shall be selected by a joint agreement of La Terra, Xxxxxxxxx and
FIND; provided that if they do not so agree within twenty (20) business days of
the date of the request for arbitration, the selection shall be made pursuant to
the Rules. Nothing in this Agreement shall prevent the parties hereto from
settling any dispute by mutual agreement at any time. Any party or parties
awarded a final determination or order in their favor by an arbitrator or court
pursuant to this Section 2.11 shall be entitled to recover from the party or
parties against whom such final determination or order is given all reasonable
costs and expenses, including reasonable attorneys' fees, incurred by the
prevailing party or parties with respect to such arbitration or court
proceeding, such award of costs and expenses to be determined by such arbitrator
or court. Unless otherwise agreed in writing, the parties will continue to
provide service and honor all other commitments under this Agreement during the
course of dispute resolution pursuant to the provisions of this Section with
respect to all matters not subject to such dispute, controversy or claim.
2.12 ACCOUNTING. The Escrow Agent shall upon reasonable request and notice
by any party hereto provide a written account to such party listing any
transactions with respect to the Escrow Shares.
2.13 CASH EXCHANGE UPON EXERCISE OF CONSIDERATION SHARES PUT. To the
extent that Escrow Agent is holding Escrow Shares pursuant to this Agreement
during the Exercise Period, Xxxxxxxxx or La Terra (whether on behalf of
themselves or Whitcup), in connection with the exercise of the Consideration
Shares Put and notwithstanding any provision of Section 2.10 hereof, may tender
to Escrow Agent at closing of such exercise of the Consideration Shares Put (or
upon default thereof upon drawing down of the Letters of Credit) an amount of
cash equal to the Exercise Price (except in the event, and to the extent, of a
"Put Guarantor Transaction" (as defined below) in which case such amount of cash
shall equal the Average Closing Price) for each of the Exercised Escrow Shares
in exchange for the number of Exercised Escrow Shares being held by Escrow Agent
(such payment being referred to herein as "Exchange Cash"). Escrow Agent shall
attend such closing and deliver such Exercised Escrow Shares provided that
Escrow Agent is provided with reasonable notice of such closing and such closing
occurs in New
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York, New York. A "Put Guarantor Transaction" for purposes hereof shall result
to the extent that FIND defaults on all or part of an exercise of the
Consideration Shares Put pursuant to the Purchase Agreement and Xxxxxxxxx or La
Terra is being paid all or part of the Exercise Price by or through DW or
through the Letter(s) of Credit for the Consideration Shares Put.
Notwithstanding any provision hereof, to the extent that a Put Guarantor
Transaction is effected in whole or in part through the Letter(s) of Credit, the
Exercised Escrow Shares that are being paid for by or through such Letter(s) of
Credit shall be delivered to Xxxxx Xxxxx and not the Stockholders. Upon a
drawing by Xxxxxxxxx and/or La Terra on a Letter of Credit as payment for
Exercised Escrow Shares, such party(ies) undertake to arrange for such issuer of
the letter of credit to issue a bank, certified, cashier's or teller's check
upon the drawing thereof payable to the Escrow Agent and request that such
issuer, at Xxxxxxxxx and/or La Terra's expense, as the case may be, immediately
deliver by recognized overnight courier, or if such issuer refused to arrange
delivery, personally arrange for such delivery, such check such that Escrow
Agent receives such check within two (2) business days of the date of such
drawing. All capitalized terms not otherwise defined in this Agreement and set
forth in this Section 2.13 shall have the meanings ascribed to such terms in the
Purchase Agreement or the Put Notice annexed hereto as EXHIBIT 2. Exchange Cash
shall be held by the Escrow Agent in segregated non-interest bearing XXXX
accounts.
2.14 DELIVERY AND WITHHOLDING OF ESCROW SHARES AND EXCHANGE CASH. After
the receipt of Exchange Cash by Escrow Agent, upon any event requiring a
delivery to FIND, or a withholding pursuant to the terms hereof, of Exchange
Cash and Escrow Shares, the Escrow Agent shall, for each such delivery or
withholding, deliver or withhold for each such Stockholder a pro rata percentage
of the aggregate Exchange Cash and a pro rata percentage of the Escrow Shares
equal to the Pro Rata Liability Percentage of such Stockholder.
2.15 FLUCTUATIONS IN VALUE OF ESCROW SHARES. It is recognized by the
parties hereto that FIND Common Stock, certificates of which comprise the Escrow
Shares, are publicly traded through the NASD and that fluctuations in the prices
of such stock will occur from day to day. The Escrow Agent shall not be required
or expected to notify any of the parties hereto of any fluctuation in value of
the said stock during the term hereof and the Stockholders shall not be required
to provide any additional Escrow Shares or other property by reason thereof.
2.16 LIABILITY OF STOCKHOLDERS. For purposes of clarity, notwithstanding
any provision set forth herein, the parties hereto agree that if the number of
Escrow Shares issued in the name of a Stockholder together with the amount of
Exchange Cash delivered in exchange for Escrow Shares issued in the name of such
Stockholder is not sufficient to cover such Stockholder's liability of an
Indemnification Claim, the Escrow Shares issued in the name of any other
Stockholder and the amount of Exchange Cash delivered in exchange for Escrow
Shares of such other Stockholder shall not be diminished or withheld in any
manner as a result of such shortfall.
ARTICLE III
ESCROW AGENT
3.1 DUTIES AND OBLIGATIONS OF THE ESCROW AGENT. The duties and obligations
of the Escrow Agent shall be limited to and determined solely by the provisions
of this Agreement and the certificates delivered in accordance herewith, and the
Escrow Agent is not charged with
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knowledge of or any duties or responsibilities in respect of any other agreement
or document. In furtherance and not in limitation of the foregoing:
(i) the Escrow Agent shall be fully protected in relying in good
faith upon any written certification, notice, direction, request,
waiver, consent, receipt or other document that the Escrow Agent
reasonably believes to be genuine and duly authorized, executed and
delivered;
(ii) the Escrow Agent shall not be liable for any error of judgment,
or for any act done or omitted by it, or for any mistake in fact or
law, or for anything that it may do or refrain from doing in
connection herewith; provided, however, that notwithstanding any
other provision in this Agreement, the Escrow Agent shall be liable
only for its willful misconduct and gross negligence;
(iii) the Escrow Agent may seek the advice of legal counsel selected
with reasonable care in the event of any dispute or question as to
the construction of any of the provisions of this Agreement or its
duties hereunder, and it shall incur no liability and shall be fully
protected in respect of any action taken, omitted or suffered by it
in good faith in accordance with the opinion of such counsel;
(iv) in the event that the Escrow Agent shall in any instance, after
seeking the advice of legal counsel pursuant to the immediately
preceding clause, in good faith be uncertain as to its duties or
rights hereunder, or receive conflicting instructions, it shall be
entitled to refrain from taking any action in that instance and its
sole obligation, in addition to those of its duties hereunder as to
which there is no such uncertainty, shall be to keep safely all
property held in the Escrow Account until it shall be otherwise
notified in writing by each of the parties hereto or by a final,
nonappealable order of a court of competent jurisdiction or
arbitration tribunal; provided, however, in the event that the
Escrow Agent has not received such written direction or court order
or arbitration award within one hundred eighty (180) calendar days
after requesting the same, it shall have the right to interplead
FIND and each of the Stockholders in any court or arbitration
tribunal of competent jurisdiction and request that such court
determine its rights and duties hereunder; and
(v) the Escrow Agent may execute any of its power or
responsibilities hereunder and exercise any rights hereunder either
directly or by or through agents or attorneys selected with
reasonable care. Nothing in this Agreement shall be deemed to impose
upon the Escrow Agent any duty to qualify to do business or act as
fiduciary or otherwise in any jurisdiction other than the State of
New York and the Escrow Agent shall not be responsible for and shall
not be under a duty to examine into or pass upon the validity,
binding effect, execution or sufficiency of this Agreement or of any
agreement amendatory or supplemental hereto.
3.2 COOPERATION. FIND and each of the Stockholders shall provide to the
Escrow Agent all instruments and documents within their respective powers to
provide that are necessary for the Escrow Agent to perform its duties and
responsibilities hereunder.
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3.3 INDEMNITY. Xxxxxxxxx and La Terra and FIND jointly and severally
indemnify the Escrow Agent for and against any loss, damages, cost or expense,
including but not limited to reasonable attorneys' fees, reasonably incurred by
the Escrow Agent in connection with the Escrow Agent's performance of its duties
and obligations under this Agreement, as well as the reasonable, costs and
expenses of defending against any claim or liability relating to this Agreement
("ESCROW AGENT INDEMNIFICATION"); provided, however, that the Escrow Agent shall
not be entitled to indemnification for any such loss, liability, cost or expense
arising as a result of the Escrow Agent's willful misconduct or gross
negligence; provided, further, that Xxxxxxxxx and La Terra, in the aggregate,
shall in no event be responsible for more than fifty percent (50%) of the
liability resulting from any matter for which Escrow Agent Indemnification is
sought. The Escrow Agent shall not be entitled to indemnification from the
Escrow Account for any Escrow Agent Indemnification. The Escrow Agent shall be
entitled to charge its usual routine and customary legal fees, if any, for its
services hereunder, which shall be the responsibility of FIND.
3.4 RESIGNATION AND REMOVAL OF THE ESCROW AGENT. (a) The Escrow Agent may
resign as such thirty (30) calendar days following the giving of prior written
notice thereof to each of the Stockholders and FIND. In addition, the Escrow
Agent may be removed and replaced on a date designated in a written instrument
signed by each of the Stockholders and FIND and delivered to the Escrow Agent.
Notwithstanding the foregoing, no removal shall be effective until a successor
escrow agent has acknowledged its appointment as such as provided in paragraph
(c) below. Upon the effective date of such resignation or removal, the Escrow
Agent shall deliver the Exchange Cash, the Escrow Shares and any remaining Stock
Powers to the successor escrow agent, if any, or if none, to a court of
competent jurisdiction, together with such records maintained by the Escrow
Agent in connection with its duties hereunder and other information with respect
to the Exchange Cash, the Escrow Shares and the Stock Powers as any such
successor may reasonably request.
(b) If a successor escrow agent shall not have acknowledged its
appointment as such as provided in paragraph (c) below, in the case of a
resignation, prior to the expiration of thirty (30) calendar days following the
date of a notice of resignation or, in the case of a removal, on the date
designated for the Escrow Agent's removal, as the case may be because each of
the Stockholders and FIND are unable to agree on a successor escrow agent, or
for any other reason, the Escrow Agent may select a successor escrow agent and
any such resulting appointment shall be binding upon all of the parties to this
Agreement.
(c) Upon written acknowledgment by a successor escrow agent appointed in
accordance with the foregoing provisions of this Section 3.4 of its agreement to
serve as escrow agent hereunder and the receipt of the Exchange Cash, Escrow
Shares and any remaining Stock Powers, the Escrow Agent shall be fully released
and relieved of all duties, responsibilities and obligations after such date
under this Agreement, subject to the proviso contained in clause (ii) of Section
3.1, and such successor escrow agent shall for all purposes hereof be the Escrow
Agent.
3.5 NOTIFICATION OF RECEIPTS; DELIVERIES AND DISBURSEMENTS BY THE ESCROW
AGENT. As promptly as practicable after receipt by the Escrow Agent of each
delivery of funds, certificates, instruments or other documents from a party and
as promptly as practicable after delivery of funds, certificates, instruments or
other documents by the Escrow Agent to a party, the Escrow Agent shall inform
all the parties in writing of such deposit, disbursement or delivery.
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3.6 ATTORNEY FOR FIND. The parties hereto acknowledge and agree that the
Escrow Agent is the attorney for FIND and may continue to represent FIND in all
matters, including any disputes that may arise under this Escrow Agreement, the
Purchase Agreement or the transactions contemplated hereby or thereby. The
parties hereby waive any claim of conflict of interest against the Escrow Agent
resulting from its acting as Escrow Agent and counsel to FIND.
ARTICLE IV
MISCELLANEOUS
4.1 NOTICES. All notices, requests and other communications hereunder must
be in writing and will be deemed to have been duly given if delivered (i)
personally, (ii) by facsimile transmission with confirmed receipt if mailed
contemporaneously by first class mail, postage prepaid, or (iii) by recognized
overnight courier, to the parties at the following addresses or facsimile
numbers:
If to FIND:
FIND/SVP, INC.
000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy to:
Xxxx Xxxxxxx, P.C.
1350 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Xxxxxxxxx, La Terra or Whitcup:
To the address set forth below such Stockholder's name on the signature
pages hereto with a copy to:
Wormser, Kiely, Galef & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
10
and
Levy & Xxxxxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxx, Esq.
Telephone: (000) 000-0000
Fax: (000) 000-0000
If to the Escrow Agent, to:
Xxxx Xxxxxxx, P.C.
1350 Avenue of the Xxxxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section 4.1, be deemed given upon
delivery, (ii) if delivered by facsimile transmission and mail as provided in
this Section 4.1, be deemed given on the next business day, and (iii) if
delivered by overnight courier in the manner described above, be deemed given
upon receipt. Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
4.2 AMENDMENTS ETC. This Agreement may be amended or modified, and any of
the terms hereof may be waived, only by a written instrument duly executed by or
on behalf of FIND, each of the Stockholders and the Escrow Agent. No waiver by
any party of any term or condition contained in this Agreement, in any one or
more instances, shall be deemed to be or construed as a waiver of the same or
any other term or condition of this Agreement on any future occasion.
4.3 FURTHER ASSURANCES. From time to time on and after the date hereof,
the Stockholders and FIND shall deliver or cause to be delivered to the Escrow
Agent such further documents and instruments and shall do and cause to be done
such further acts as the Escrow Agent shall reasonably request (it being
understood that the Escrow Agent shall have no obligation to make any such
request) to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith.
4.4 GOVERNING LAW. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
4.5 BUSINESS DAY. For all purposes of this Agreement, the term "BUSINESS
DAY" shall mean any day other than a Saturday, Sunday or other day on which,
commercial banks in New York, New York are authorized or required by law to
close.
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4.6 MISCELLANEOUS. This Agreement is binding upon and will inure to the
benefit of the parties hereto and their respective successors and permitted
assigns. The headings used in this Agreement have been inserted for convenience
of reference only and do not define or limit the provisions hereof. This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
(SIGNATURE PAGE FOLLOWS)
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
FIND/SVP, INC.
By: /s/ Xxxxx Xxxxx
--------------------------------
Name: Xxxxx Xxxxx
Title: Chief Executive Officer
/s/ Xxx X. Xxxxxxxxx
------------------------------------
Xxx X. Xxxxxxxxx
Address: 000 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
/s/ Xxxxxx La Terra
------------------------------------
Xxxxxx La Terra
Address: 00 Xxxxxxxx Xxxxxx
Xxxxxxxx, Xxx Xxxxxx 00000
Facsimile:
/s/ Xxxxxx Xxxxxxx
------------------------------------
Xxxxxx Xxxxxxx
Address: 000 Xxxxxxxx Xxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile:
XXXX XXXXXXX, P.C.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
