ESCROW AGREEMENT
Exhibit
10.1
EXECUTION
VERSION
THIS
ESCROW AGREEMENT (as the same may
be amended or modified from time to time and including any and all written
instructions given to “Escrow Agent” (hereinafter defined) pursuant hereto, this
“Escrow
Agreement”) is made and entered into as of November 21, 2007, by
and among Perficient, Inc., a Delaware corporation (“Party
A”),
ePairs Inc. (“Party
B”,
and together with Party A, sometimes referred to collectively as the “Parties”),
and JPMorgan Chase Bank, N.A. (the “Escrow
Agent”).
WHEREAS,
Party A and Party B
are parties to that certain Asset Purchase Agreement dated as of November 21,
2007 (the “Purchase
Agreement”); and
WHEREAS,
in connection with
the closing of the transactions contemplated by the Purchase Agreement (the
“Closing”),
Party A has agreed to deposit into escrow with the Escrow Agent one or more
certificates in the name of Party B evidencing in the aggregate 41,581 shares
of
common stock, par value $0.001 per share, of Party A (“Buyer
Common
Stock”) (such shares referred to herein as the “Escrowed
Shares”), to be held by the Escrow Agent pursuant to the terms and
conditions set forth in this Agreement and the Purchase Agreement pending the
occurrence of certain events set forth herein and therein; and
WHEREAS,
the purpose of the
Escrowed Shares is to secure claims under Article X of the Purchase Agreement
(“Indemnification
Claims”); and
WHEREAS,
Escrow Agent is
willing to serve in such capacity on the terms and conditions hereinafter set
forth.
NOW
THEREFORE, in
consideration of the foregoing and of the mutual covenants hereinafter set
forth, the parties hereto agree as follows:
1.
Appointment. The
Parties hereby appoint the Escrow Agent as their escrow agent for the purposes
set forth herein, and the Escrow Agent hereby accepts such appointment under
the
terms and conditions set forth herein.
2.
Definitions. Unless
otherwise defined herein, each capitalized term used in this Agreement shall
have the meaning ascribed to such term in the Purchase Agreement.
3.
Authority
of Party A. Each of the Parties hereto agrees that Party A
shall have authority to settle all Indemnification Claims in accordance with
Article X of the Purchase Agreement on behalf of any of the affiliates of Party
A. Unless the context otherwise requires, any references to
Party A contained herein shall be deemed to be references to Party A and
its affiliates. Party A hereby represents and warrants that Party A
has actual authority to settle all Indemnification Claims on behalf of any
of
the affiliates of Party A.
4.
Authority
of Party B. Prior to the distribution of the Escrowed Shares,
if any, each of the Parties hereto agree that Party B shall have authority
to
settle all claims under this Agreement or the Purchase Agreement on behalf
of
any stockholder who is entitled to receive a part of the Escrowed Shares upon
the release and distribution from this escrow. Unless context
otherwise requires, any references to Party B contained herein shall be deemed
to be references to Party B and its affiliates and to the extent the Escrowed
Shares have been transferred or assigned, to the record owners of the Escrowed
Shares.
5.
Deposit
of Escrowed Shares.
(a)
Promptly following the date of this Escrow Agreement, Party A shall instruct
Continental Stock Transfer & Trust Company (“Continental”)
to deliver the Escrowed Shares and any stock powers received by Continental
in
connection with the Escrowed Shares to the Escrow Agent. The Escrowed
Shares shall constitute an escrow fund (the “Escrow
Fund”) for the satisfaction of Indemnification Claims of the Purchaser
Indemnitees under
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the
Purchase Agreement. The Escrow Fund shall not be subject to any lien,
attachment, trustee process or any other judicial process of any creditor of
any
person, including any Party hereto. The Escrow Agent agrees to accept
delivery of the Escrowed Shares and the stock powers and to hold the Escrowed
Shares and the stock powers in an escrow account, subject to the terms and
conditions of this Escrow Agreement. Receipt of the Escrow Fund shall
be confirmed by Escrow Agent as soon as practicable by account statement, and
any discrepancies in any such account statement shall be noted by Parties to
Escrow Agent within thirty (30) calendar days after receipt
thereof. Failure to inform Escrow Agent in writing of any
discrepancies in any such account statement within said thirty (30) day period
shall conclusively be deemed confirmation of such account statement in its
entirety.
(b)
Each record owner of the Escrowed Shares shall be entitled to exercise all
voting rights with respect to such owner’s Escrowed Shares.
(c)
Party A and Party B agree between themselves, for the benefit of Party A
and the Escrow Agent, that any securities or other property distributable
(whether by way of dividend, stock split or otherwise) in respect of or in
exchange for any Escrowed Shares shall not be distributed to the record owners
of such Escrowed Shares, but rather shall be distributed to and held by the
Escrow Agent in the Escrow Fund. Ordinary cash dividends will be paid
by Party A directly to the record owners of such Escrowed Shares and not to
the
Escrow Agent. Unless and until the Escrow Agent shall actually
receive such additional securities or other property, it may assume without
inquiry that the Escrowed Shares currently being held by it in the Escrow Fund
are all that the Escrow Agent is required to hold. At the time any
Escrowed Shares are required to be released from the Escrow Fund to any Person
pursuant to this Agreement, any securities or other property previously received
by the Escrow Agent in respect of or in exchange for such Escrowed Shares shall
be released from the Escrow Fund to such Person.
6.
Release
Date. For purposes of this Agreement, the “Release
Date” shall be November 21, 2008.
7.
Administration
of Escrow Fund. Except as otherwise provided herein, the
Escrow Agent shall administer the Escrow Fund as follows:
(a)
If, as of the Release Date, the Escrow Agent has not received written notice
of
any Indemnification Claims, then the Escrowed Shares, less the amount of all
Claimed Amounts (as defined below) that have not been paid or otherwise resolved
as of the Release Date (the “Retained
Amount”) shall promptly (and in any event no later than 10 Business Days
thereafter) be released to Party B or to the record owners of such Escrowed
Shares as detailed in a written notice from Party B detailing the delivery
instructions. Upon resolution of all Claim Notices (as defined below)
made prior to the Release Date, that portion of the Retained Amount that is
not
paid to Party A in satisfaction of such Claim Notices shall immediately be
disbursed to Party B or to the record owners of the Escrowed Shares as set
forth
in Party B’s delivery instructions delivered as of the Release
Date.
(b)
Subject to the terms and conditions set forth in Section 10.04 of the Purchase
Agreement, if, at any time prior to 5:00 p.m. Central Time on November 21,
2008,
Party A desires to make a claim against the Escrow Fund with respect to any
Indemnification Claim, then Party A shall, on or prior 5:00 p.m. Central Time
on
November 21, 2008, deliver a written claim notice (a “Claim
Notice”) to Party B and to the Escrow Agent. Such Claim Notice
shall contain (i) a description and a good faith estimate of the amount of
any
Damages incurred or reasonably expected to be incurred by Party A (the “Claimed
Amount”); (ii) a statement that Party A is entitled to indemnification
under Article X of the
Purchase Agreement for such Damages; and (iii) a demand for
payment. The number of Escrowed Shares, if any, to be released shall
be determined in accordance with Section7(d)
below.
(c)
Prior to 5:00 p.m. Central Time on the 30th day after receipt by Escrow Agent
of
a Claim Notice, Party B may deliver to Party A and to the Escrow Agent a written
response (the “Response
Notice”) in which Party B may: (i) agree that the full Claimed
Amount may be released from the Escrow Fund to Party A; (ii) agree that part,
but not all, of the Claimed Amount (the “Agreed
Amount”) may be released from the Escrow Fund to Party A; or (iii)
indicate that no part of the Claimed Amount may be released from the Escrow
Fund
to Party A. Any part of the Claimed Amount that is not to be released
to Party A shall be the “Contested
Amount.”
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(A)
If Party B does not deliver a Response Notice within such 30-day period, then
Party B shall be deemed to have indicated that the entire Claimed Amount may
be
released from Escrow Fund to Party A.
(B)
If Party B delivers a Response Notice agreeing that the full Claimed Amount
may
be released from the Escrow Fund to Party A, the Escrow Agent shall promptly
following the receipt of the Response Notice, deliver to Party A such Claimed
Amount.
(C)
If Party B delivers a Response Notice agreeing that part, but not all, of the
Claimed Amount may be released from the Escrow Fund to Party A, the Escrow
Agent
shall promptly following the receipt of the Response Notice deliver to Party
A
Agreed Amount.
(D)
If Party B delivers a Response Notice indicating that there is a Contested
Amount, Party B and Party A shall attempt in good faith to resolve the dispute
related to the Contested Amount. If Party A and Party B shall resolve such
dispute, such resolution shall be binding on Party B and Party A and any other
Purchaser Indemnitee and Seller Indemnitee, as applicable, and a settlement
agreement shall be signed by Party A and Party B and sent to the Escrow Agent,
who shall, upon receipt thereof, if applicable, release Escrowed Shares, if
any,
from the Escrow Fund in accordance with the specific instructions provided
in
such agreement.
(E)
If Party B and Party A are unable to resolve the dispute relating to any
Contested Amount within 45 days after the delivery of the Claim Notice, the
settlement of such Contested Amount shall take place by a binding arbitration
proceeding which shall take place in Phoenix, Arizona, unless an alternative
location is otherwise mutually agreed to by Party A and Party B, and be
conducted by an arbitrator who has not been affiliated with or engaged by either
party for a period of five years preceding the commencement of the arbitration
proceeding, and the Escrow Agent shall continue to hold the Contested Amount
until Escrow Agent receives either: (i) a written notice signed by Party A
and
Party B, providing specific written instructions regarding the delivery of
the
Contested Amount, if any, to be released from the Escrow Fund; or (ii) a final
arbitration decision accompanied by a legal opinion by counsel of the presenting
Party, in accordance with the following procedures, providing specific written
instructions regarding the delivery of any or all of such Contested Amount.
The
Contested Amount shall be settled in accordance with the Expedited Procedures
of
the Commercial Arbitration Rules of the American Arbitration Association. The
arbitrator's decision shall relate solely to whether Party A is entitled to
receive the Contested Amount (or a portion thereof) from the Escrow Fund
pursuant to the applicable terms of the Purchase Agreement and this Escrow
Agreement. The final decision of the arbitrator shall be furnished to Party
A,
Party B and the Escrow Agent in writing and shall constitute the conclusive
determination of the issue in question, be binding upon Party A, Party B and
the
Escrow Agent. The prevailing party in any arbitration (which determination
shall
be made by the arbitrator) shall be entitled to an award of attorneys’ fees and
costs to be paid by the losing party (which determination shall be made by
the
arbitrator), and the losing party shall also be liable for all costs of
arbitration, including, but not limited to, the compensation to be paid to
the
arbitrator in any proceeding and the transcript and other expenses of such
proceeding.
(d)
In the event Party B has transferred record ownership of any of the Escrowed
Shares, any amounts distributed to Party A from the Escrow Fund shall be
satisfied pro rata from each record owner’s Escrowed Shares.
(e)
The number of Escrowed Shares, if any, to be released in payment and settlement
of any Claimed Amount, Agreed Amount or all or any portion of the Contested
Amount which may be awarded to Party A pursuant to Section 7(c)(D) or
Section
7(c)(E)
above shall be determined by dividing such Claimed Amount, Agreed Amount or
award, as applicable, by the average closing sale price per share of Buyer
Common Stock as reported on the Nasdaq Global Select Market for the 30
consecutive trading days ending on the date that is one trading day immediately
preceding the release of such shares (as adjusted as appropriate to reflect
any
stock splits, stock dividends, combinations, reorganizations, reclassifications
or similar events). The Escrow Agent will not be responsible for
determining the share price.
8.
Escrow
Agent. The Escrow Agent undertakes to perform only such duties
as are expressly set forth herein and no duties shall be implied. The Escrow
Agent shall neither be responsible for, nor chargeable with,
3
knowledge
of, nor have any requirements to comply with, the terms and conditions of any
other agreement, instrument or document between the Parties, in connection
herewith, if any, including without limitation, the Purchase Agreement (the
“Underlying Agreement”), nor shall the Escrow Agent be required to determine if
any person or entity has complied with any such agreements, nor shall any
additional obligations of the Escrow Agent be inferred from the terms of such
agreements, even though reference thereto may be made in this Escrow
Agreement. In the event of any conflict between the terms and
provisions of this Escrow Agreement, those of the Underlying Agreement, any
schedule or exhibit attached to the Escrow Agreement, or any other agreement
among the Parties, the terms and conditions of this Escrow Agreement shall
control. The Escrow Agent may rely upon any written notice, document,
instruction or request furnished to it hereunder and believed by it to be
genuine and to have been signed or presented by the proper party or
parties. The Escrow Agent shall be under no duty to inquire into or
investigate the validity, accuracy or content of any such document, notice,
instruction or request. The Escrow Agent shall have no duty to
solicit any payments which may be due it or the Escrow Fund. The
Escrow Agent shall not be liable for any action taken or omitted by it in good
faith except to the extent that a final adjudication of a court of competent
jurisdiction determines that the Escrow Agent's gross negligence or willful
misconduct was the primary cause of any loss to either of the
Parties. The Escrow Agent may execute any of its powers and perform
any of its duties hereunder directly or through agents or attorneys (and shall
be liable only for the careful selection of any such agent or attorney) and
may
consult with counsel, accountants and other skilled persons to be selected
and
retained by it. The Escrow Agent shall not be liable for anything
done, suffered or omitted in good faith by it in accordance with the advice
or
opinion of any such counsel, accountants or other skilled persons except to
the
extent that a final adjudication of a court of competent
jurisdiction determines that the Escrow Agent's gross negligence or willful
misconduct was the primary cause of any loss to either of the
Parties.
In
the event that the Escrow Agent shall be uncertain as to its duties or rights
hereunder or shall receive instructions, claims or demands from any party hereto
which, in its opinion, conflict with any of the provisions of this Escrow
Agreement, it shall be entitled to refrain from taking any action and its sole
obligation shall be to keep safely all property held in escrow until it shall
be
directed otherwise in writing by all of the other parties hereto or by a final
order or judgment of a court of competent jurisdiction. The Escrow
Agent may interplead all of the assets held hereunder into a court of competent
jurisdiction or may seek a declaratory judgment with respect to certain
circumstances, and thereafter be fully relieved from any and all liability
or
obligation with respect to such interpleaded assets or any action or nonaction
based on such declaratory judgment. The parties hereto other than the
Escrow Agent agree to pursue any redress or recourse in connection with any
dispute without making the Escrow Agent a party to the same. Anything
in this Escrow Agreement to the contrary notwithstanding, in no event shall
the
Escrow Agent be liable for special, indirect or consequential loss or damage
of
any kind whatsoever (including but not limited to lost profits), even if the
Escrow Agent has been advised of the likelihood of such loss or damage and
regardless of the form of action. Escrow
Agent may rely on the validity, accuracy and content of the statements contained
any written notice, document, instruction, or request furnished to it hereunder
by Party A and Party B without further investigation, inquiry or
examination.
9.
Succession. The
Escrow Agent
may resign and be discharged from its duties or obligations hereunder by giving
its written resignation to the Parties. Such resignation shall take
effect on the earlier of (a) a successor escrow agent being in place and (b)
30
days after such resignation is given to the Parties. In such event,
Party A may appoint a successor escrow agent. If Party A fails to
appoint a successor escrow agent prior to the expiration of 30 days following
receipt of the notice of resignation, the Escrow Agent may petition any court
of
competent jurisdiction for the appointment of a successor escrow agent or for
other appropriate relief, and any such resulting appointment shall be binding
upon all parties hereto. The successor escrow agent shall execute and
deliver to the Escrow Agent an instrument accepting such appointment and the
successor escrow agent shall, without further acts, be vested with all the
estates, property rights, powers and duties of the predecessor Escrow Agent
as
if originally names as Escrow Agent herein. The Escrow Agent shall
act in accordance with written instructions from Party A and Party B as to
the
transfer of the Escrow Fund to a successor escrow agent. Any entity
into which the Escrow Agent may be merged or converted or with which it may
be
consolidated, or any entity to which all or substantially all the escrow
business may be transferred, shall be the Escrow Agent under this Escrow
Agreement without further act.
10.
Removal
of Escrow Agent. The Escrow Agent may be removed at any time
by mutual agreement of Party A and Party B by giving not less than 30 days’
prior written notice to the Escrow Agent. Prior to
the
4
expiration
of such 30-day period, Party A and Party B shall designate, by mutual consent,
a
successor escrow agent. If no successor escrow agent is appointed
within such 30-day period, the Escrow Agent may deposit the amounts remaining
in
the Escrow Fund with a court of competent jurisdiction located in Houston,
Texas, whereupon the Escrow Agent shall be discharged of all duties and
obligations hereunder.
11.
Compensation
and Reimbursement.
Party
A agrees to (a)
pay the Escrow Agent upon execution of this Escrow Agreement and from time
to
time thereafter reasonable compensation for the services to be rendered
hereunder, which unless otherwise agreed in writing shall be as described in
Annex II attached hereto, and (b) pay or reimburse the Escrow Agent upon
request for all expenses, disbursements and advances, including reasonable
attorney's fees and expenses, incurred or made by it in connection with the
preparation, execution, performance, delivery, modification and termination
of
this Escrow Agreement.
12.
Indemnity.
The
Parties shall
jointly and severally indemnify, defend and save harmless the Escrow Agent
and
its directors, officers, agents and employees (the “Indemnitees”)
from and against any and all loss, liability or expense (including the fees
and
expenses of in house or outside counsel and experts and their staffs and all
expense of document location, duplication and shipment) arising out of or in
connection with (a) the Escrow Agent's execution and performance of this Escrow
Agreement, except in the case of any indemnitee to the extent that such loss,
liability or expense is finally adjudicated to have been primarily caused by
the
gross negligence or willful misconduct of such indemnitee, or (b) its following
any instructions or other directions from Party A or Party B, except to the
extent that its following any such instruction or direction is expressly
forbidden by the terms hereof. The Parties hereto acknowledge that
the foregoing indemnities shall survive the resignation or removal of the Escrow
Agent or the termination of this Escrow Agreement. The Parties hereby
grant the Escrow Agent a lien on, right of set-off against and security interest
in the Escrow Fund for the payment of any claim for indemnification,
compensation, expenses and amounts due hereunder.
13.
Account
Opening Information/TINs.
IMPORTANT
INFORMATION ABOUT PROCEDURES
FOR OPENING A NEW ACCOUNT
Patriot
Act
Disclosure. Section
326 of the Uniting and Strengthening America by Providing Appropriate Tools Required
to Intercept
and Obstruct Terrorism Act of 2001 (“USA
PATRIOT Act”)
requires the Escrow Agent to implement
reasonable procedures to verify the identity of any person that opens a new
account with it. Accordingly, the Parties acknowledge that Section
326 of the USA
PATRIOT Act and the Escrow Agent’s
identity verification procedures
require the Escrow Agent to obtain information which may be used to confirm
the
a Party’s
identity, including, without
limitation, name, address and organizational documents
(“Identifying
Information”). The
Parties agree to
provide the Escrow Agent with and consent to the Escrow Agent obtaining from
third parties any such Identifying Information required as a condition of
opening an account with or using any service provided
by the Escrow
Agent.
TINs.
Tax
Matters. The Parties
each represent that its correct Taxpayer Identification Number (“TIN”)
assigned by the Internal Revenue Service (“IRS”)
or
any other taxing authority is set forth on the signature page hereof. In
addition, all interest or other income earned under the Escrow Agreement shall
be reported by the recipient to the Internal Revenue Service or any other taxing
authority. Notwithstanding such written directions, Escrow Agent
shall report and, as required, withhold any taxes as it determines may be
required by any law or regulation in effect at the time of the
distribution. To the extent that any portion of the principal amount
of the Escrowed Fund represents part or all of the purchase price under the
Purchase Agreement, Party B shall provide all information required for Escrow
Agent to perform tax reporting on IRS Form 1099-B on or prior to each
distribution. Unless otherwise directed in a joint written instruction executed
by Party A and Party B, Escrow Agent shall report to the IRS and as appropriate
withhold and remit taxes to the IRS, or to any other taxing authority as
required by law, based upon the information or documentation so
provided. Escrow Agent shall be entitled to rely on such information
and documentation and shall not be responsible for and shall be indemnified
by
Party B for any additional tax, interest or penalty arising from the inaccuracy
or late receipt of such information or documentation.
Party
B
will provide Escrow Agent on or before the effective date of the Escrow
Agreement and at appropriate times thereafter, including prior to any
disbursement, a detailed schedule indicating the allocation of the
disbursement
5
amount
from the Escrow Fund between (i) principal amount, (ii) imputed interest to
be
reported on IRS Form 1099-INT or 1042S or (iii) Original Issue Discount (“OID”)
to
be reported on IRS Form 1099-OID along with the relevant payee tax information,
documentation, and proportionate interest thereof. Escrow Agent shall report
to
the IRS and any other taxing authority as required by law based upon the
information so provided. Escrow Agent shall be entitled to rely on such schedule
and shall not be responsible for and shall be indemnified by Party B for any
additional tax, interest or penalty arising from the inaccuracy or late receipt
of such schedule.
In
addition, Party B shall provide to the Escrow Agent a schedule of all interest
or other income earned under the Escrow Agreement which shall be reported by
the
Escrow Agent to the IRS, or any other taxing authority, on IRS Form 1099 or
1042S (or other appropriate form) as income earned from the Escrow at
disbursement, to the extent required by law. Any other tax returns
required to be filed will be prepared and filed by Party A and/or Party B with
the IRS and any other taxing authority as required by law, including but not
limited to any applicable reporting or withholding pursuant to the Foreign
Investment in Real Property Tax Act (“FIRPTA”).
Party A and Party B acknowledge and agree that Escrow Agent shall have no
responsibility for the preparation and/or filing of any tax return or any
applicable FIRPTA reporting or withholding with respect to the Escrow Fund
or
any income earned by the Escrow Fund. Party A and Party B further
acknowledge and agree that any taxes payable from the income earned on the
investment of any sums held in the Escrow Fund shall be paid by Party A and/or
Party B respectively as required by law. In the absence of written direction
from Party A and Party B, all proceeds of the Escrow Fund shall be retained
in
the Escrow Fund and reinvested from time to time by the Escrow Agent as provided
in this Escrow Agreement. Escrow Agent shall withhold any taxes it
deems appropriate, including but not limited to required withholding in the
absence of proper tax documentation, and shall remit such taxes to the
appropriate authorities.
14.
Notices.
All
communications hereunder shall be in
writing and shall be deemed to be duly given and received:
(a)
upon delivery if delivered
personally or upon confirmed transmittal if by facsimile;
(b) on the next Business
Day (as
hereinafter defined) if
sent by overnight courier;
or
(c) four
Business
Days after mailing
if mailed by prepaid registered mail, return receipt requested, to the
appropriate notice address set forth below or at such other address as any
party
hereto may have furnished
to the other parties
in writing by registered mail, return receipt requested.
|
If
to Party A:
|
Perficient,
Inc.
|
000
Xxxxxxxxx Xxxxxx Xxxxx, Xxxxx
000
Xx.
Xxxxx,
Xxxxxxxx 00000
Attention: Xxxx
X. Xxxxxx,
Chief Financial Officer
Phone: 000.000.0000
Facsimile: 314.995.8802
with
a
copy (which shall not constitute notice) to:
Xxxxxx
& Xxxxxx LLP
The
Terrace 7
0000
Xxx
Xxxxxxx, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Attention: X.
Xxxxx Xxx III, Esq.
Phone: 000.000.0000
Facsimile: 512.236.3216
|
If
to Party B:
|
ePairs
Inc.
|
00000
Xxxx Xxxxxx Xxxx, Xxxxx X000
Xxxxxxxxx,
Xxxxxxxxxx 00000
Attention: Xxxxx
Xxxxxx, President and Chief Executive Officer
6
Phone:
000.000.0000
Facsimile: 408.973.8499
with
a
copy (which shall not constitute notice) to:
Ropers
Xxxxxxx Xxxx Xxxxxxx PC
00
X.
Xxxxx Xxxxxx
Xxx
Xxxx,
Xxxxxxxxxx 00000
Attn:
Xxxxxxx X. Xxxxxxx, Esq.
Phone:
000.000.0000
Facsimile:
408.918.4501
|
If
to the Escrow Agent:
|
JPMorgan
Chase Bank, N.A.
|
000
Xxxx
Xxxxxx, 0xx Xxxxx Xxxxx, XX0 S037
Xxxxxxx,
Xxxxx 00000
Attention: Xxxx
Xxxxxxxxxx, Escrow Services
Fax
No.:
(000) 000-0000
Notwithstanding
the above, in the case of communications delivered to the Escrow Agent pursuant
to (b) and (c) of this Section 14, such
communications shall be deemed to have been given on the date received by the
Escrow Agent. In the event that the Escrow Agent, in its sole
discretion, shall determine that an emergency exists, the Escrow Agent may
use
such other means of communication as the Escrow Agent deems
appropriate. “Business
Day” shall mean any day
other than a
Saturday, Sunday or any other day on which the Escrow Agent located at the
notice address set forth above is authorized or required by law or executive
order to remain closed.
15. Security
Procedures.
In
the event funds transfer
instructions are given (other than in writing at the time of execution of this
Escrow Agreement, as indicated in Section 9 above),
whether in writing, by telecopier or otherwise, the Escrow Agent is authorized
to seek confirmation of such
instructions by telephone call-back to the person or persons designated on
Annex I hereto, and the
Escrow Agent may rely upon the confirmation of anyone purporting to be the
person or persons so designated. The persons and telephone numbers
for call-backs may be changed only in a writing actually received and
acknowledged by the Escrow Agent. If the Escrow Agent is unable to contact
any
of the authorized representatives identified in Annex I, the Escrow Agent is
hereby authorized
to seek confirmation of such instructions by telephone call-back to any one
or
more of your executive officers, (“Executive
Officers”), which shall
include the titles of President or Chief Financial Officer as the Escrow Agent
may select. Such Executive Officer shall deliver to the Escrow Agent
a fully executed Incumbency Certificate, and the Escrow Agent may rely upon
the
confirmation of anyone purporting to be any such officer. The Escrow Agent
and
the beneficiary's bank in any funds transfer may rely solely upon any account
numbers or similar identifying numbers provided by Party A or Party B to
identify (a) the beneficiary, (b) the beneficiary's bank, or (c) an intermediary
bank. The Escrow Agent may apply any of the escrowed funds for any
payment order it executes using any such identifying number, even when its
use
may result in a person other than the beneficiary being paid, or the transfer
of
funds to a bank other than the beneficiary's bank or an intermediary bank
designated. The parties to this Escrow Agreement acknowledge that these security
procedures are commercially reasonable. Party A and Party B agree
that repetitive or standing settlement instructions will be effective as the
funds transfer instructions of Party A and Party B, whether or not authorized,
if such settlement instructions are verified pursuant to the security procedure
provided herein or such other security procedure that the Escrow Agent, Party
A
and Party B may agree to.
16.
Miscellaneous.
The
provisions of this
Escrow Agreement may be waived, altered, amended or supplemented, in whole
or in
part, only by a writing signed by all of the parties hereto. Neither
this Escrow Agreement nor any right or interest hereunder may be assigned in
whole or in part by any party, except as provided in Sections 9 and 10,
without the prior
consent of the other parties. This Escrow Agreement shall be binding
upon each of the parties hereto and each of their respective successors and
assigns, if any. Nothing in this Escrow Agreement is intended to
confer, or shall be deemed to confer, any rights or remedies upon any person
or
entity other than the parties hereto and their successors and
assigns. This Escrow Agreement shall inure to the benefit of: Party
A, Party B, Escrow Agent and their respective successors and assigns, if any,
of
the foregoing. This Escrow
7
Agreement
shall be governed by and construed under the laws of the State of New
York. Each party hereto irrevocably waives any objection on the
grounds of venue, forum non-conveniens or any similar grounds and irrevocably
consents to service of process by mail or in any other manner permitted by
applicable law and consents to the jurisdiction of the courts located in the
State of New York. The parties further hereby waive any right to a
trial by jury with respect to any lawsuit or judicial proceeding arising or
relating to this Escrow Agreement. No party to this Escrow Agreement
is liable to any other party for losses due to, or if it is unable to perform
its obligations under the terms of this Escrow Agreement because of, acts of
God, fire, war, terrorism, floods, strikes, electrical outages, equipment or
transmission failure, or other causes reasonably beyond its
control. This Escrow Agreement and the other agreements referred to
herein set forth the entire understanding of the parties hereto relating to
the
subject matter hereof and thereof and supersede all prior agreements and
understandings among or between any of the parties relating to the subject
matter hereof and thereof. Nothing in this Escrow
Agreement
shall derogate from, or modify in any respect any of the terms and provisions
of
the Purchase Agreement, including Article X thereof, with respect to
indemnification. In the event any provision of this Escrow
Agreement shall be held invalid or unenforceable by any court of competent
jurisdiction, such holding shall not invalidate or render unenforceable any
other provision of this Escrow Agreement and each and every other provision
of
this Escrow Agreement shall continue in full force and effect. The
waiver by any party hereto of a breach of any provision of this Escrow Agreement
shall not operate or be construed as a waiver of any other or subsequent breach
by any party. This Escrow Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument. All signatures of the
parties to this Escrow Agreement may be transmitted by facsimile, and such
facsimile will, for all purposes, be deemed to be the original signature of
such
party whose signature it reproduces, and will be binding upon such
party.
17.
Termination.
This Escrow Agreement shall terminate upon the earliest occurrence of any of
the
following events: (a) the written agreement of Party A and Party B; or
(b) upon the delivery by Escrow Agent of all of the Escrow Fund in
accordance with the terms of this Agreement; provided, however, that Sections 7(c) and
11
shall
survive any termination of this Agreement.
18.
Compliance
with Court Orders. In the event
that any
escrow property shall be attached, garnished or levied upon by any court order,
or the delivery thereof shall be stayed or enjoined by an order of a court,
or
any order, judgment or decree shall be made or entered by any court order
affecting the property deposited under this Escrow Agreement, the Escrow Agent
is hereby expressly authorized, in its sole discretion, to obey and comply
with
all writs, orders or decrees so entered or issued, which it is advised by legal
counsel of its own choosing is binding upon it, whether with or without
jurisdiction, and in the event that the Escrow Agent obeys or complies with
any
such writ, order or decree it shall not be liable to any of the parties hereto
or to any other person, firm or corporation, by reason of such compliance
notwithstanding such writ, order or decree be subsequently reversed, modified,
annulled, set aside or vacated.
[Signature
Page Follows.]
8
IN
WITNESS WHEREOF, the
parties hereto have executed this Escrow Agreement as of the date set forth
above.
Tax
Certification: Taxpayer
Identification Number (TIN): 00-0000000
Date: November 21,
2007
Name
&
Address: Perficient, Inc.
1120
South Capital of Xxxxx Xxxxxxx,
Xxxxxxxx 0, Xxxxx 000
Xxxxxx,
Xxxxx 00000
Customer
is a (check one):
X
Corporation
___ Partnership
___
Individual/sole
proprietor
___
Trust
___ Other _________________
Taxpayer
is (check if applicable):
X
Exempt
from backup withholding
Under
the penalties of perjury, the undersigned certifies that:
|
(1)
|
the
number shown above
is its correct Taxpayer Identification Number (or it is waiting
for a
number to be issued to it);
|
|
(2)
|
it
is not subject to backup withholding because: (a) it is exempt
from backup
withholding or (b) it has not been notified by the Internal Revenue
Service (IRS) that it is subject to backup withholding as a result
of
failure to report all interest or dividends, or (c) the IRS has
notified
it that it is no longer subject to backup withholding;
and
|
|
(3)
|
the
entity is a U.S.
person (including a U.S. resident
alien).
|
(If
the entity is subject to backup withholding, cross out the words after the
(2)
above.)
Investors
who do not supply a tax identification number will be subject to backup
withholding in accordance with IRS regulations.
Note:
The IRS does not require your
consent to any provision of this document other than the certifications required
to avoid backup withholding.
|
|
PARTY
A
|
|
|
Perficient,
Inc.
|
|
By:
/s/ Xxxxxxx X.
Xxxxx
|
|
|
Printed
Name: Xxxxxxx X. Xxxxx
|
|
|
Title:
President and Chief Operating Officer
|
Tax
Certification: Taxpayer
Identification Number (TIN): ):
00-0000000
Date: November 21,
2007
Name
&
Address: ePairs, Inc.
00000
Xxxx Xxxxxx Xxxx, Xxxxx
000
Xxxxxxxxx,
XX 00000
Customer
is a (check one):
X
Corporation ___
Partnership
___
Individual/sole
proprietor ___
Trust
___ Other _________________
Taxpayer
is (check if applicable):
___
Exempt from backup withholding
Under
the penalties of perjury, the undersigned certifies that:
|
(4)
|
the
number shown above
is its correct Taxpayer Identification Number (or it is waiting
for a
number to be issued to it);
|
|
(5)
|
it
is not subject to backup withholding because: (a) it is exempt
from backup
withholding or (b) it has not been notified by the Internal Revenue
Service (IRS) that it is subject to backup withholding as a result
of
failure to report all interest or dividends, or (c) the IRS has
notified
it that it is no longer subject to backup withholding;
and
|
|
(6)
|
the
entity is a U.S.
person (including a U.S. resident
alien).
|
(If
the entity is subject to backup withholding, cross out the words after the
(2)
above.)
Investors
who do not supply a tax identification number will be subject to backup
withholding in accordance with IRS regulations.
Note:
The IRS does not require your
consent to any provision of this document other than the certifications required
to avoid backup withholding.
|
|
PARTY
B
|
|
|
ePairs
Inc.
|
|
By:
/s/ Xxxxx
Xxxxxx
|
|
|
Printed
Name: Xxxxx Xxxxxx
|
|
|
Title: President
and Chief Executive
Officer
|
JPMORGAN
CHASE BANK, N.A.
|
|
as
Escrow Agent
|
|
|
By:
/s/
Xxxx
Xxxxxxxxxx
|
Annex
I
|
|
Telephone
Number(s) for Call-Backs and
|
|
|
Person(s)
Designated
to Give and Confirm Funds Transfer
Instructions
|
|
If
to Party A:
|
||||
|
Name
|
Telephone
Number
|
Signature
|
||
|
1. Xxxx
X. Xxxxxx
|
314.785.1470
|
|||
|
2. Xxxx
Xxxxxxxxxx
|
314.995.8885
|
|||
|
If
to Party B:
|
||||
|
Name
|
Telephone
Number
|
Signature
|
||
|
1. Xxxxx
Xxxxxx
|
000.000.0000
|
|||
Telephone
call-backs shall be made to each Party A and Party B if joint instructions
are
required pursuant to this Escrow Agreement. All funds transfer
instructions must include the signature of the person(s) authorizing said funds
transfer.
Annex
II
Escrow
Agent’s Compensation:
Attached
