Bonus Plan/Documents ESCROW AGREEMENT
EXHIBIT 10.2
Execution Copy
This Bonus Plan/Documents Escrow Agreement (this “Agreement”) is
made as of this 13th day of July 2007, by and among the Persons listed on Exhibit
A attached hereto (each, a “Seller,” and collectively, the “Sellers”), Lexico Publishing Group,
LLC, a California limited liability company (the “Company”), Answers Corporation, a Delaware
corporation (the “Purchaser”), Xxxxx Xxxxxxx, as representative for and on behalf of the Sellers
(the “Sellers’ Representative”) and American Stock transfer & Trust Co. (“Escrow Agent”).
Capitalized terms used but not defined herein shall have the respective meanings ascribed to
them in the Purchase Agreement (as defined below). If the terms of this Agreement conflict in any
way with the provisions of the Purchase Agreement, then the provisions of the Purchase Agreement
shall control. This Agreement shall become effective as of the Closing Date.
RECITALS
A. Purchaser, Sellers, Sellers’ Representative and Company, have entered into that certain
Purchase Agreement, of even date herewith (the “Purchase Agreement”), a copy of which is attached
hereto as Exhibit B.
B. Pursuant to Section 1.2.1 of the Purchase Agreement, at the Closing, Purchaser shall
deliver to and deposit with the Escrow Agent the Purchase Price (subject to any adjustments thereto
in accordance with the Purchase Agreement) (the “Purchase Price”), to be held by the Escrow Agent
pursuant to the terms of this Agreement.
C. Pursuant to Section 2.2 of the Purchase Agreement, on the date hereof the Sellers have
deposited with the Escrow Agent the Escrow Documents (as defined below), to be held by the Escrow
Agent pursuant to the terms of this Agreement.
D. Pursuant to Section 1.4 of the Purchase Agreement, an aggregate gross amount of
US$10,000,000 (inclusive of all Taxes, whether to be borne by the employee or employer) (the
"Escrow Cash”) is to be delivered to and deposited with the Escrow Agent and held in an escrow fund
(the Escrow Cash together with any interest and other income earned on the Escrow Cash, shall be
referred to as the “Escrow Fund”). The Escrow Fund is held to secure the payment to participants in
the Employee Bonus Plan under the Purchase Agreement. The Escrow Fund shall be governed by the
provisions set forth herein and in the Purchase Agreement.
E. The Sellers’ Representative has been appointed as agent for, and to act on behalf of, the
Sellers to undertake certain obligations specified in the Purchase Agreement.
F. The parties hereto desire to set forth additional terms and conditions relating to the
operation of the Escrow Fund.
NOW, THEREFORE, in consideration of the premises and the covenants and agreements set forth
herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as follows:
1. Escrow Documents.
(a) Concurrently with the signing of this Agreement, each of the Sellers has deposited with
the Escrow Agent each of the documents in the form of as Schedules 1(a)(i)-(iii) duly
executed by such Seller (collectively, the “Escrow Documents”):
(i) instruments of transfer of Membership Interests, validly executed by each
of the Sellers, evidencing the transfer of his Membership Interest to the Purchaser,
free and clean of any Encumbrance (dated blank);
(ii) spousal consent to the transfer of Membership Interests, validly executed
by the spouse of each of the Sellers (if applicable), relating to the transfer of
Membership Interest to the Purchaser (dated blank); and
(iii) the list of Company’s Members maintained pursuant to Section 17058(a)(1)
of the California Corporations Code, evidencing the withdrawal of the Sellers as
Members and the admission of the Purchaser as the sole Member (with the date of
admission blank).
(b) The Escrow Agent agrees to accept the Escrow Documents. The Escrow Cash shall be held and
distributed by the Escrow Agent in accordance with the provisions of the Purchase Agreement and
this Agreement. The parties (other than the Escrow Agent) acknowledge and irrevocably agree that
the Escrow Documents shall evidence and constitute the complete and irrevocable transfer and
assignment of the Interests (and any beneficial right therein) from the Sellers to the Purchaser,
and each of parties hereby waives any claim that such documents are not intended or do not pass the
full legal title, ownership and rights related to or arising from the Interests.
2. Escrow Fund.
(a) Pursuant to Section 1.4 of the Purchase Agreement, on the Closing Date, Purchaser shall
make or cause to be made available to the Escrow Agent, the Escrow Cash. Exhibit A-1
attached hereto sets forth (i) the name, address and taxpayer identification number of each Seller,
and (ii) the pro rata share of each Seller in the Escrow Fund (each, the “Seller’s Pro Rata
Share”). Exhibit A-2, to be attached hereto on the Closing Date, shall set forth (i) the
name, address and taxpayer identification number of each participant in the Employee Bonus Plan (a
"Participant”), and (ii) the initial allocation of the Escrow Fund among the Participants (subject
to the provisions of Section 7 below). The Escrow Agent agrees to accept delivery of the Escrow
Cash and to hold such Escrow Cash in escrow subject to the terms and conditions of this Agreement
and the Purchase Agreement.
(b) As of any particular time, the Escrow Agent may assume, without inquiry, that the Escrow
Cash that shall have been or caused to be deposited with the Escrow Agent by Purchaser is all of
the Escrow Cash required to be held in the Escrow Fund by the Escrow Agent and that Exhibit A s
A-1 and A-2 remain correct and in full force and effect. The Escrow Cash shall be held and
distributed by the Escrow Agent in accordance with the provisions of the Purchase Agreement and
this Agreement. Neither the Escrow Cash nor any beneficial interest therein may be pledged,
encumbered, sold, assigned or transferred (including any transfer by operation of law), by the
Escrow Agent, Purchaser, any Seller or any Participant or be taken or reached by any legal or
equitable process in satisfaction of any debt or other liability of the Escrow Agent, Purchaser,
any Seller or any Participant, (and in case of the Sellers or the Participants, prior to the
distribution to each in accordance with this Agreement, if any).
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3. Rights and Obligations of the Parties. The Escrow Agent shall be entitled to such
rights and shall perform such duties in its capacity as the escrow agent, as set forth herein and
as set forth in the Purchase Agreement (collectively, the “Duties”), in accordance with the
provisions of this Agreement and the Purchase Agreement. Purchaser and the Sellers’ Representative
shall be entitled to their respective rights and shall perform their respective duties and
obligations as set forth herein and in the Purchase Agreement, in accordance with the provisions of
this Agreement and the Purchase Agreement.
4. Effectiveness; Escrow Period.
(a) This Agreement shall be effective only as of and subject to the execution and delivery of
the Purchase Agreement by the parties thereto.
(b) The period during which the Escrow Agent shall hold the Escrow Documents shall commence on
the date hereof and terminate on the earlier of termination of the Purchase Agreement in accordance
with Section 8 thereof or the Closing (the applicable “Escrow Period”). As soon as practicable
after the termination of the Purchase Agreement in accordance with Section 8 thereof, each of
Purchaser or Sellers’ Representative shall notify the Escrow Agent (with duplicate copy to the
other party).
(b) The period during which the Escrow Agent shall hold the Escrow Fund shall commence at the
Closing and terminate following the last distribution to be made pursuant to Section 7 (the
applicable “Escrow Period”). As soon as practicable after the Closing Date, Purchaser shall notify
the Escrow Agent of the Closing Date (without failure of delivery of such notice impairing or
modifying any of the rights set forth herein or in the Purchase Agreement).
5. Duties of Escrow Agent. In addition to the Duties set forth in the Purchase
Agreement, the Duties of the Escrow Agent shall include the following:
(a) The Escrow Agent shall (i) safeguard and treat the Escrow Fund as a trust fund in
accordance with the provisions of this Agreement and not as the property of Purchaser, and shall
hold the Escrow Fund in a separate account, apart from any other funds or accounts of the Escrow
Agent or any other Person, and (ii) hold and dispose of the Escrow Fund only in accordance with the
provisions of this Agreement.
(b) The Duties of the Escrow Agent with respect to the Escrow Cash may be altered, amended,
modified or revoked only by a writing signed by Purchaser, the Escrow Agent and the Sellers’
Representative.
6. Escrow Documents; Purchase Price.
(a) Purchaser shall deliver to the Escrow Agent and to the Sellers’ Reprehensive a written
notice on the date on which the last of the conditions set forth in Section 7 of the Purchase
Agreement has been satisfied or waived (if permissible). Unless otherwise agreed between the
Purchaser and the Sellers Representative, the Closing Date shall be on the date specified by
Purchaser which will be no earlier than third Business Day and not later than the fifth Business
Day after delivery of the Purchaser’s notice (the “Designated Closing Date”).
(b) No later than two (2) Business Days prior to the Closing Date set forth in the notice
delivered pursuant to clause (a) above, the Company shall deliver to the Purchaser (with a
duplicate copy to the Escrow Agent) the Estimated Closing Adjustments Certificate. Failure of the
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Company to timely and duly deliver the Estimated Closing Adjustments Certificate may be waived by
Purchaser, in its sole discretion (without derogating from any rights or remedies under this
Agreement, including, without limitation, under Section 9 of the Purchase Agreement).
(c) No later than the Designated Closing Date, the Purchaser shall make or cause to be made
available to the Escrow Agent the Purchase Price, by wire transfer in immediately available funds
to a bank account in the name of the Escrow Agent, the details of which shall be provided by the
Escrow Agent in advance. Should the Company fail to timely and duly deliver the Estimated Closing
Adjustments Certificate, the Purchase Price shall be delivered in full, without adjustments (and
without derogating from any rights or remedies under this Agreement, including, without limitation,
under Section 9 of the Purchase Agreement). Should the Company timely deliver the Estimated
Closing Adjustments Certificate, the Purchase Price to be delivered shall be in an amount taking
into account the adjustments set forth in Section 1.2.2 of the Purchase Agreement. The Escrow
Agent agrees to accept delivery of the Purchase Price and to hold it in trust subject to the terms
and conditions of this Agreement and the Purchase Agreement.
(d) Upon receipt by the Escrow Agent of the Purchase Price and the Escrow Cash, the Escrow
Agent shall, automatically, and without any further action required by either party (and the
parties hereby irrevocably instruct the Escrow Agent to): (i) distribute and deliver the Purchase
Price, in accordance with the provisions of the Purchase Agreement and clause (e) below; and (ii)
date the Escrow Documents as of the Closing Date and deliver them to the Purchaser, as soon as
practicable thereafter. All transactions set forth in this clause (d) shall be deemed to take
place simultaneously, and shall be deemed to have been completed upon the time and date of transfer
by the Purchaser of the Purchaser Price to the Escrow Agent, which date shall be the “Closing Date”
of the Purchase Agreement.
(e) Upon receipt by the Escrow Agent of the Purchase Price in accordance with clause (d)
above, the Escrow Agent shall distribute and transfer the Purchase Price as follows: (i) an amount
of US$10,000,000 shall constitute the Escrow Amount and be held by the Escrow Agent in a separate
bank account in the name of the Escrow Agent pursuant to the Indemnity Escrow Agreement of even
date hereof; and (ii) the balance of the Purchase Price (net of the Escrow Amount), shall be
transferred by the Escrow Agent to each of the Sellers, in accordance with each such Seller’s pro
rata share, as set forth in Exhibit A-1, by wire transfer to such bank accounts as shall be
designated in writing by each such Seller prior to Closing.
(f) Should the Purchase Agreement terminate in accordance with Section 8 of the Purchase
Agreement, Sellers’ Representative may then request the Escrow Agent in writing (with a duplicate
copy to the Purchaser) to deliver the Escrow Documents to the Sellers’ Representative, as soon as
practicably thereafter.
7. Distributions from Escrow Fund.
(a) As promptly as practicable after each of the following: (i) the Closing Date; (ii) the
first anniversary of the Closing Date; and (iii) the second anniversary of the Closing Date, the
Escrow Agent shall deliver to the Company the respective aggregate gross amount to be paid on each
such date, as set forth on Exhibit A-2, including interest accrued thereon (if any). Purchaser
shall deliver or cause to be delivered to the Escrow Agent a written notice informing it of the
distribution to be made pursuant to this sub-section (ii) and (iii) above. The aggregate gross
amounts to be paid on the first and second anniversaries of the Closing are subject to
distributions to be made, from time to time, pursuant to clause (c) below. The Company shall pay
each Participant the amounts to which such Participant is then entitled to receive, as set forth on
Exhibit A-2, including interest accrued thereon (if any), and shall remit the employer Taxes
associated with such payments. Such payments shall be made on the next regular
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payroll date of the Company following receipt of the amounts from the Escrow Agent, but in no
event more than thirty days following receipt of such amounts from the Escrow Agent.
(b) The Company shall deliver a written notice to the Escrow Agent (with a duplicate copy to
the Sellers’ Representative) as soon as practicable after each of the following events: (i) the
occurrence of an event giving rise to the acceleration of a Participant’s entitlement to receive
any of the amounts set forth in Exhibit A-2, in accordance with the terms of the Employee Bonus
Plan (an “Acceleration Notice”); and (ii) the occurrence of an event giving rise to the forfeiture
of any amounts which a Participant would otherwise be entitled to receive, in accordance with the
terms of the Employee Bonus Plan (a “Forfeiture Notice”). An Acceleration Notice or a Forfeiture
Notice delivered pursuant to this clause (b) shall include the amounts so accelerated or forfeited,
as the case may be.
(c) Notwithstanding clause (a) above:
(i) As promptly as practicable after the receipt of an Acceleration Notice, the Escrow
Agent shall deliver to the Company the amounts indicated in such notice, including interest
accrued thereon, and the Company shall pay such amounts to the applicable Participant on the
next regular payroll date of the Company immediately thereafter, and in any event, no later
than thirty days thereafter.
(ii) In the event that during any 6 month period following the Closing Date and until
the second anniversary of the Closing Date, the Escrow Agent shall receive a Forfeiture
Notice, then as promptly as practicable after the end of each such 6 month period, the
Escrow Agent shall deliver to each Seller such Seller’s Pro-Rata Share of the aggregate
amounts with respect to which Forfeiture Notices were delivered during such period,
including interest accrued thereon. Purchaser shall deliver or cause to be delivered to the
Escrow Agent a written notice informing it of each distribution to be made pursuant to this
sub-section (ii).
8. Withholding Rights; Tax Reporting Matters.
(a) The Escrow Agent shall be entitled to deduct and withhold from the Escrow Cash and from
any other payments otherwise required pursuant to this Agreement to any recipient such amounts in
cash as the Escrow Agent is required to deduct and withhold with respect to any such deliveries and
payments under the Internal Revenue Code of 1986, as may be amended from time to time, or any
provision of federal, state, local, provincial or foreign Tax law and to request any necessary Tax
forms, including IRS Form W-9 or the appropriate series of Form W-8, as applicable, or any other
proof of exemption from withholding or any similar information, from any such recipient of
payments. To the extent that amounts are so withheld, such withheld amounts shall be treated for
all purposes of this Agreement as having been delivered and paid to such recipients in respect of
which such deduction and withholding was made.
(b) Without derogating from clause (a) above, Purchaser agrees to provide the Escrow Agent
with a certified tax identification number for Purchaser and the Company, and the Sellers’
Representative (on behalf of each of the Sellers) agrees to provide the Escrow Agent with certified
tax identification numbers for the Sellers’ Representative and each of the Sellers, by furnishing
appropriate Forms W-9 (or Forms W-8, in the case of non-U.S. persons) and other forms and documents
that the Escrow Agent may reasonably request (collectively, “Tax Reporting Documentation”) to the
Escrow Agent within 30 days after the Closing Date. The parties hereto understand that, if such
Tax Reporting Documentation is not so certified to the Escrow Agent, the Escrow Agent may be
required by the Internal Revenue Code of 1986, as may be amended from time to time, or any
provision of federal,
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state, local, provincial or foreign Tax law, to withhold a portion of any payments made to the
Indemnified Persons pursuant to this Agreement.
9. Investment of Escrow Cash, Distributions Made or Received by Escrow Agent; Other
Adjustments; Etc.
(a) The Escrow Agent shall not invest the Purchase Price and shall not be permitted to deduct
any fees from the Purchase Price.
(b) The Escrow Agent shall hold the Escrow Cash in escrow and shall invest the Escrow Cash,
together with any interest or other income thereon, only in money market funds of JPMorgan Chase
Bank or Wachovia Bank through its Evergreen Investments subsidiary.
(c) All interest and other income attributable to the Escrow Cash originally deposited in
escrow shall be added to and be part of the Escrow Fund for all purposes hereunder. At the time of
delivery to each recipient of the amounts of the Escrow Cash due hereunder, the Escrow Agent shall
deliver to each such recipient her/his/its respective pro rata share of any interest and other
income earned on such amount of the Escrow Cash, after deducting from such amounts all commissions
or fees due in connection with the investment of the Escrow Cash.
(d) The parties acknowledge that for tax reporting purposes each Participant shall be the
owner of the amounts such Participant may be entitled to receive, as set forth on Exhibit A-2 of
the Escrow Fund then remaining for distribution and all income attributable to such portion of the
Escrow Cash, and interest thereon held in the Escrow Fund by the Escrow Agent pursuant to this
Agreement shall be allocable to such Participant.
10. Exculpatory Provisions.
(a) The Escrow Agent shall be obligated only for the performance of its Duties and may rely
and shall be protected in relying or refraining from acting on any instrument reasonably believed
to be genuine and to have been signed or presented by the proper party or parties. The Escrow
Agent shall not be liable for forgeries or false impersonations. The Escrow Agent shall not be
liable for any act done or omitted in good faith hereunder as escrow agent, except for fraud, gross
negligence or willful misconduct. The Escrow Agent shall in no case or event be liable for any
representations or warranties of the Sellers, Company or Purchaser or for punitive, incidental or
consequential damages. Any act done or omitted pursuant to the advice or opinion of counsel shall
be conclusive evidence of the good faith of the Escrow Agent.
(b) In the event of a dispute between the parties hereto, the Escrow Agent is hereby expressly
authorized to disregard any and all notifications given by any of the parties hereto or by any
other person, excepting awards of arbitration or orders or process of courts of law, to which
Escrow Agent shall be entitled to conclusively rely and shall distribute the Escrow Fund in
accordance with the terms thereof, and is hereby expressly authorized to comply with and obey
orders, judgments or decrees of any court and arbitration awards. In case the Escrow Agent obeys
or complies with any such order, judgment or decree of any court or arbitration award, the Escrow
Agent shall not be liable to any of the parties hereto or to any other person by reason of such
compliance, notwithstanding any such order, judgment, decree or award being subsequently reversed,
modified, annulled, set aside, vacated or found to have been entered without jurisdiction.
(c) In the event of any ambiguity or uncertainty hereunder or in any notice, instruction or
other communication received by the Escrow Agent hereunder, the Escrow Agent will
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promptly notify Purchaser and the Sellers’ Representative of such ambiguity and may, in its
sole discretion, refrain from taking any action other than retaining possession of the Escrow Fund,
unless the Escrow Agent receives written instructions, signed by Purchaser and the Sellers’
Representative, which eliminates such ambiguity or uncertainty.
(d) The Escrow Agent shall not be liable in any respect on account of the identity, authority
or rights of the parties executing or delivering or purporting to execute or deliver the Purchase
Agreement, this Agreement or any documents or papers deposited or called for thereunder or
hereunder.
11. Resignation and Removal of the Escrow Agent. The Escrow Agent may resign as
escrow agent at any time, with or without cause, with respect to the Escrow Fund by giving at least
30 days’ prior written notice to each of Purchaser and the Sellers’ Representative, such
resignation to be effective 30 days following the date such notice is given. In addition,
Purchaser and the Sellers’ Representative may jointly remove the Escrow Agent as escrow agent at
any time, with or without cause, by an instrument executed by Purchaser and the Sellers’
Representative (which may be executed in counterparts) given to the Escrow Agent, which instrument
shall designate the effective date of such removal. In the event of any such resignation or
removal, a successor escrow agent, which shall be a bank or trust company organized in the United
States of America having (or if such bank or trust company is a member of a bank company, its bank
holding company shall have) a combined capital and surplus of not less than $50,000,000, shall be
appointed by Purchaser on the terms of this Agreement with the written approval of the Sellers’
Representative, which approval shall not be unreasonably withheld or delayed. In the event that a
successor escrow agent has not been appointed within 30 days after notice of the Escrow Agent’s
resignation or removal, the Escrow Agent shall be entitled to petition a court of competent
jurisdiction to have a successor escrow agent appointed. Any such successor escrow agent shall
deliver to Purchaser and the Sellers’ Representative, a written instrument accepting such
appointment, and thereupon it shall succeed to all the rights and duties of the Escrow Agent
hereunder and shall be entitled to receive possession of the Escrow Fund. Upon receipt of the
identity of the successor Escrow Agent, the Escrow Agent shall deliver the Escrow Fund then held
hereunder to the successor Escrow Agent.
12. Further Instruments. If the Escrow Agent reasonably requires other or further
instruments in connection with its performance of the Duties, the necessary parties hereto shall
join in furnishing such instruments.
13. Disputes. It is understood and agreed that should any dispute arise with respect
to the delivery and/or ownership or right of possession of the cash held by the Escrow Agent
hereunder, the Escrow Agent is authorized and directed to act in accordance with, and in reliance
upon, the provisions of this Agreement and the Purchase Agreement.
14. Escrow Fees and Expenses. The Escrow Agent shall be paid such fees as are
established by the Fee Schedule attached hereto as Exhibit C, to be borne and paid (or
cause to be paid) 50% by the Purchaser and 50% by the Sellers.
15. Indemnification. In consideration of the Escrow Agent’s acceptance of this
appointment, Purchaser and the Sellers’ Representative (on behalf of the Sellers and not
individually) hereby jointly and severally, agree to indemnify and hold the Escrow Agent harmless
as to any liability actually incurred by it to any person, firm or corporation by reason of its
having accepted such appointment or in carrying out the provisions of this Agreement and the
Purchase Agreement, and to reimburse the Escrow Agent for its costs and expenses (including,
without limitation, counsel fees and expenses) reasonably incurred by reason of any matter as to
which such indemnity is paid pursuant to this
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Section 15; provided, however, that no indemnity need be paid in case of the Escrow Agent’s
fraud, gross negligence or willful misconduct.
16. General.
(a) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given as follows: (a) if sent by registered or certified mail return receipt
requested, upon receipt; (b) if sent designated for overnight delivery by nationally recognized
overnight air courier (such as DHL or Federal Express), three business days after delivery to such
courier; (c) if sent by facsimile transmission on a business day before 5:00 p.m. in the time zone
of the recipient, when transmitted and full receipt is electronically confirmed; (d) if sent by
facsimile transmission on a business day after 5:00 p.m. in the time zone of the recipient or on a
non-business day and full receipt is electronically confirmed, on the following business day; and
(e) if otherwise actually personally delivered, when delivered, provided that such notices,
requests, demands and other communications are delivered to the address set forth below, or to such
other address as any party shall provide by like notice to the other parties to this Agreement. If
any Officer’s Certificate, any objection thereto or any other document of any kind is required to
be delivered to the Escrow Agent and any other person, the Escrow Agent may assume without inquiry
that such Officer’s Certificate, objection or other document was received by such other person on
the date on which it was received by the Escrow Agent.
(i) If to Purchaser, to:
Answers Corporation
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Chief Executive Officer
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxxxx, Chief Executive Officer
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
With a copy (which shall not constitute notice) to:
Meitar, Liquornik, Geva & Leshem, Xxxxxxxxx – Law Offices
00 Xxxx Xxxxxx Xxxxxx Xx.
Xxxxx Xxx 00000, Israel
Attention: Xxxxxxxx Xxxxx and Xxxxx Xxxxx
Facsimile: x000-0-000-0000
00 Xxxx Xxxxxx Xxxxxx Xx.
Xxxxx Xxx 00000, Israel
Attention: Xxxxxxxx Xxxxx and Xxxxx Xxxxx
Facsimile: x000-0-000-0000
(ii) If to the Sellers or Sellers’ Representative, to:
Xxxxx Xxxxxxx
0000 X. 0xx Xxxxxx
Xxxx Xxxxx
Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
0000 X. 0xx Xxxxxx
Xxxx Xxxxx
Xxxxxxxxxx 00000
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
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Xxxx Xxxxx, Xxxxx & Xxxxx, APC
000 Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
000 Xxxxxxxxx, Xxxxx 0000
Xxxx Xxxxx, XX 00000
Attention: Xxxx X. Xxxxx, Esq.
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
(iii) If to the Escrow Agent, to:
American Stock transfer & Trust Co.
000 Xxxxx Xx.-00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn. Xxxx Xxxx
Tel: 000-000-0000
Fax: 000-000 0000
000 Xxxxx Xx.-00xx Xxxxx
Xxxxxxxxxxxx, XX 00000
Attn. Xxxx Xxxx
Tel: 000-000-0000
Fax: 000-000 0000
(b) Captions. The captions in this Agreement are for convenience only and shall not
be considered a part of or affect the construction or interpretation of any provision of this
Agreement.
(c) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties hereto and delivered to the other parties
hereto; if being understood that all parties hereto need not sign the same counterpart and that
signatures may be provided by facsimile transmission.
(d) Assignment. Neither this Agreement, nor any of the rights, interests or
obligations under this Agreement, may be assigned or delegated, in whole or in part, by operation
of law or otherwise by any of the parties hereto without the prior written consent of the other
parties hereto, and any such assignment without such prior written consent shall be null and void,
except that Purchaser may assign this Agreement to any of Purchaser’s Affiliates without the prior
consent of the other parties hereof; provided, however, that Purchaser shall remain liable for all
of its obligations under this Agreement. Subject to the preceding sentence, this Agreement shall
be binding upon, inure to the benefit of, and be enforceable by, the parties hereto and their
respective successors and assigns.
(e) Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement shall continue in full force and effect and
shall be interpreted so as reasonably to effect the intent of the parties hereto. The parties
hereto shall use all reasonable efforts to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Governing Law; Arbitration;
Jurisdiction.
(i) This Agreement shall be governed by and construed in accordance with the laws of
the State of New York without reference to such state’s principles of conflicts of law,
provided, however, that any matter involving the internal corporate affairs of the any party
hereto shall be governed by the provisions of the jurisdictions of its incorporation.
(ii) Any controversy or claim arising out of or relating to this Agreement, including,
without limitation, the breach or termination thereof, shall be settled by arbitration by a
single arbitrator administered by the American Arbitration Association in
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accordance with its Commercial Arbitration Rules, including the Optional Rules for
Emergency Measures of Protection, to be held in New York, New York, USA. The award rendered
by the arbitrator shall be final and binding upon the parties. Judgment on the award
rendered by the arbitrator may be entered in any court having jurisdiction thereof. The
existence and resolution of the arbitration shall be kept confidential by the parties and by
the arbitrator. The award of the arbitrator shall be accompanied by a reasoned opinion. Each
party shall bear its own costs and expenses and an equal share of the arbitrator’s and
administrative fees of arbitration, unless otherwise determined by the arbitrator.
Notwithstanding the foregoing, the parties may apply to any court of competent jurisdiction
for a temporary restraining order, preliminary injunction, or other interim or conservatory
relief, as necessary.
(iii) Subject to sub-section (f)(ii) above, the parties hereto hereby irrevocably
submit to the exclusive jurisdiction of the courts of the New York, New York in connection
with any matter based upon or arising out of this Agreement or the matters contemplated
herein, agrees that process may be served upon them in any manner authorized by the laws of
such jurisdiction for such persons and waives and covenants not to assert or plead any
objection which they might otherwise have to such jurisdiction, venue and such process.
(g) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY AND ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT,
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
17. Patriot Act Compliance. To help the government fight the funding of terrorism and
money laundering activities, federal law requires all financial institutions to obtain, verify and
record information that identifies each person who opens an account. For a non-individual person
such as a business entity, a charity, a trust or other legal entity the Escrow Agent will ask for
documentation to verify its formation and existence as a legal entity. The Escrow Agent may also
ask to see financial statements, licenses, identification and authorization documents from
individuals claiming authority to represent the entity or other relevant documentation. Purchaser
and the Sellers’ Representative each agree to provide all such information and documentation as to
themselves (and in the case of the Sellers’ Representative, as to each of the Seller) as requested
by Escrow Agent to ensure compliance with federal law.
- Signature Pages Follow -
- 10 -
In witness whereof, each of the parties hereto has executed this Bonus
Plan/Documents Escrow Agreement as of the date first above written.
| American Stock transfer & Trust Co. as Escrow Agent |
||||
| By: | /s/ Xxxxxxx X. Xxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxx | |||
| Title: | Vice President | |||
Signature Page to Bonus Plan/Documents Escrow Agreement
In witness whereof, each of the parties hereto has executed this Bonus
Plan/Documents Escrow Agreement as of the date first above written.
| Answers Corporation as Purchaser |
||||
| By: | /s/ Xxxxxx X. Xxxxxxxxxxx | |||
| Name: | Xxxxxx S, Rosenschein | |||
| Title: | Chief Executive Officer | |||
Signature Page to Bonus Plan/Documents Escrow Agreement
In witness whereof, each of the parties hereto has executed this Bonus
Plan/Documents Escrow Agreement as of the date first above written.
| Xxxxx Xxxxxxx, as trustee of the Xxxxx Xxxxxxx Xxxxxxx
Charitable Remainder Unitrust Trust dated April 9, 2007 |
||||
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxx Xxxxxxx as trustee of the Xxxxx Xxxxxxx Xxxxxxx
Revocable Trust dated February 9, 2007 |
||||
| /s/ Xxxxx Xxxxxxx | ||||
| Xxxxxx Xxxxxx |
||||
| /s/ Xxxxxx Xxxxxx | ||||
| Xxxxx Xxxxxxx, Esq.
as Sellers’ Representative |
||||
| /s/ Xxxxx Xxxxxxx | ||||
| Lexico Publishing Group, LLC the Company |
||||
| By: | /s/ Xxxxx Xxxxxxx and /s/ Xxxxxx Xxxxxx | |||
| Name: | Xxxxx Xxxxxxx and Xxxxxx Xxxxxx | |||
| Title: | Authorized Signatories and Members | |||
Signature Page to Bonus Plan/Documents Escrow Agreement
Exhibit A-1
Schedule of Sellers
| Taxpayer | ||||||||
| Identification | Pro Rata | |||||||
| Name | Address | Number | Share | |||||
Xxxxx Xxxxxxx as
trustee of the
Xxxxx Xxxxxxx
Xxxxxxx Charitable
Remainder Unitrust
Trust dated April
9, 2007
|
0000 X. 0xx Xxxxxx Xxxx Xxxxx Xxxxxxxxxx 00000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 |
5 | % | |||||
Xxxxx Xxxxxxx as
trustee of the
Xxxxx Xxxxxxx
Xxxxxxx Revocable
Trust dated
February 9, 2007
|
0000 X. 0xx Xxxxxx Xxxx Xxxxx Xxxxxxxxxx 00000 Facsimile No.: (000) 000-0000 Telephone No.: (000) 000-0000 |
70 | % | |||||
Xxxxxx Xxxxxx
|
000 X. Xxxxxxxx Xxxxx Xxxxx Xxxx XX 00000 Facsimile No.: (___)___ Telephone No.: (___)___ |
25 | % | |||||
Exhibit A-2
Form of Schedule of Participants
[Note: Schedule to be attached at Closing]
[Note: Schedule to be attached at Closing]
| Amount to be paid on | Amount to be paid on | |||||||||||||||
| Amount to be paid at | 1st Anniversary of | 2nd Anniversary of | ||||||||||||||
| Participant’s | Closing | Closing | Closing | |||||||||||||
| Taxpayer | Gross | Gross | Gross | |||||||||||||
| Participant’s | Participant’s | Identification | amount to | Employer | amount to | Employer | amount to | Employer | ||||||||
| Name | Address | Number | Employee | taxes | Employee | taxes | Employee | taxes | ||||||||
[Employees subject
to 1 year
retention] |
[20%] | [80%] | — | |||||||||||||
[Employee subject
to 2 years
retention] |
[20%] | [30%] | [50%] | |||||||||||||
Total |
||||||||||||||||
Exhibit B
Purchase Agreement
Exhibit C
Fee Schedule
The fees of the Escrow Agent: $5,000 (Five Thousand United States Dollars).
