Exhibit 10.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT (this "AGREEMENT") is made and entered into as of
the 1st day of July, 2003, by and between TTECH ACQUISITION CORP., a Delaware
corporation (the "PURCHASER"), FIND/SVP, INC., a New York corporation (the
"PURCHASER PARENT"), SOPHEON CORPORATION, a Minnesota corporation, (the
"COMPANY"), SOPHEON PLC, a registered corporation in United Kingdom (the
"COMPANY PARENT") and U.S. BANK NATIONAL ASSOCIATION, a national banking
association, as escrow agent (the "ESCROW AGENT"). The Purchaser and the
Purchaser Parent may be referred to collectively herein as the "PURCHASER
PARTIES." The Company and the Company Parent may be referred to collectively
herein as the "COMPANY PARTIES."
RECITALS
A. The Company, the Company Parent, the Purchaser and the Purchaser
Parent are parties to that certain Amended and Restated Asset Purchase Agreement
dated as of June 25, 2003 (the "ASSET PURCHASE AGREEMENT") pursuant to which the
Purchaser shall acquire certain assets of the Company in exchange for, among
other things, 32,700 shares of common stock of the Purchaser Parent as set forth
on EXHIBIT A hereto (the "PURCHASER PARENT SHARES").
B. Subsequent to the Closing, in accordance with Section 11.5 of the
Asset Purchase Agreement, the Company Parent will deposit shares of its common
stock (the "COMPANY PARENT SHARES") with the Escrow Agent, which shares shall
also be set forth in EXHIBIT A hereto.
C. Pursuant to Section 2.3 of the Asset Purchase Agreement, this
Agreement must be entered into at and upon the closing of the transactions
contemplated by the Asset Purchase Agreement.
D. The Company, the Company Parent, the Purchaser and the Purchaser
Parent desire to enter into this Agreement to establish the terms and conditions
of the Escrow Fund as defined below and agreed upon in the Asset Purchase
Agreement.
NOW, THEREFORE, in consideration of the mutual promises herein
contained and for other good and valuable consideration, and intending to be
legally bound, the parties hereto agree as follows:
1. DEFINITIONS. Capitalized terms used but not otherwise defined herein
or in the Recitals hereto shall have the meanings ascribed to such terms in the
Asset Purchase Agreement.
2. APPOINTMENT OF ESCROW AGENT; PAYMENT OF ESCROW FEES. The Purchaser,
the Purchaser Parent, the Company and the Company Parent hereby appoint the
Escrow Agent to act as escrow agent hereunder and the Escrow Agent hereby
accepts such appointment for the purpose of receiving, safeguarding and
disbursing the Escrow Fund (as defined below) in accordance with the terms and
conditions set forth herein. The Escrow Agent's fees shall be as
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set forth on SCHEDULE A hereto. The Escrow Agent acknowledges receipt of an
executed copy of the Asset Purchase Agreement. The acceptance fee and the Escrow
Agent's first year's administrative fees shall be due upon execution and
delivery of this Agreement. Unless otherwise agreed to by the parties in a joint
written instruction to the Escrow Agent, all fees and charges shall be paid by
the Company Parent. The administrative fees set forth on SCHEDULE A hereto shall
govern.
3. DEPOSIT TO ESCROW. (i) Simultaneously with the execution of this
Agreement, the Purchaser Parent has deposited with the Escrow Agent certificates
evidencing an aggregate number of 32,700 Purchaser Parent Shares together with a
blank stock power duly executed by the Company (the "PURCHASER PARENT SHARES
ESCROW") pursuant to Section 2.2 of the Asset Purchase Agreement, and (ii) in
accordance with Section 11.5 of the Asset Purchase Agreement, (x) the Company
Parent shall deposit with the Escrow Agent certificates evidencing the Company
Parent Shares, and (y) the Purchaser shall deliver an assignment separate from
certificate with respect to the Company Parent Shares (collectively, the
Purchaser Parent Shares and the Company Parent Shares shall be referred to
herein as the "SHARES ESCROW" or the "ESCROW FUND"). The Escrow Agent hereby
acknowledges receipt of the Purchaser Parent Shares of the Escrow Fund. The
Escrow Fund shall not be subject to any lien, attachment, trustee, process or
any other judicial process of any creditor of any party hereto, as well as, the
Escrow Agent. The Escrow Agent agrees to hold the Escrow Fund in escrow subject
to the terms and conditions of this Agreement.
4. [THIS SECTION INTENTIONALLY OMITTED]
5. DISBURSEMENTS OF ESCROW FUND. The Escrow Agent shall hold the Escrow
Fund in its possession until authorized to make disbursements as provided below.
Except as provided in Sections 5(b), 5(c), and 5(d), the Escrow Agent shall only
make disbursements from the Escrow Fund in accordance with a joint written
direction from the Purchaser Parties and the Company Parties executed and
delivered to the Escrow Agent (a "WRITTEN DIRECTION").
(a) In the event that the Purchaser presents a certificate
(the "PURCHASE PRICE ADJUSTMENT CERTIFICATE") to the Escrow Agent,
executed by an officer of such person enclosing either (i) a copy of
the Closing Certificate issued pursuant to Section 2.2(b) of the Asset
Purchase Agreement and a statement that no objection was made by the
Company or the Company Parent to the Closing Period during the Response
Period, or (ii) a copy of the Independent Accountant's decision
rendered pursuant to Section 2.2(b) of the Asset Purchase Agreement, in
each case stating:
(i) the dollar amount and conversion to Purchaser
Parent Shares and/or Company Parent Shares, as applicable, or
portion thereof, to be disbursed by the Escrow Agent from the
Escrow Fund (the "PURCHASE PRICE ADJUSTMENT AMOUNT");
(ii) the name of the payee and appropriate contact
information; and
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(iii) that the Purchaser has sent a copy of such
Purchase Price Adjustment Certificate to the other parties
hereto in accordance with Section 17 hereof,
then the Escrow Agent shall be authorized, five (5) business days
after the receipt of such certificate, to transfer Purchaser Parent
Shares and/or Company Parent Shares from the Shares Escrow to the
Purchaser, in payment of the amount due to the Purchaser to satisfy
the Purchase Price Adjustment under the Asset Purchase Agreement. Any
such distribution shall first consist of the distribution of Purchaser
Parent Shares, and thereafter, Company Parent Shares, as necessary to
satisfy the Purchase Price Adjustment.
(b) If, at any time on or before July 1, 2004 (the "ESCROW
TERMINATION DATE"), an event occurs in which the Purchaser believes
constitutes the basis for the Purchaser Parties or any other Purchaser
Indemnified Party to receive indemnity from the Indemnifying Parties
pursuant to Article 9.1 of the Asset Purchase Agreement, the Purchaser
shall furnish written notice in accordance with Section 17 hereof of
such event (the "INDEMNITY NOTICE") to each of the Company Parties and
the Escrow Agent setting forth the Purchaser Parties' or any other
Purchaser Indemnified Party's belief of the basis therefor together
with a good faith estimate of the reasonably foreseeable dollar amount,
to be disbursed by the Escrow Agent from the Escrow Fund (the "DISPUTED
AMOUNT") then the Escrow Agent shall be authorized to make
disbursements to the Purchaser of the Disputed Amount thirty (30) days
after the receipt thereof; PROVIDED, HOWEVER, if, within thirty (30)
days following receipt by the Escrow Agent of such Indemnity Notice,
the Escrow Agent receives a certificate executed by the Company or the
Company Parent (a "COMPANY CERTIFICATE") that the Company Parties in
good faith dispute the Purchaser's claim, the Escrow Agent shall be
authorized to disburse to the Purchaser the portion of the Disputed
Amount which is not disputed by the Company Parties in the Company
Certificate. If the Purchaser Parties and the Company Parties are
unable to resolve any dispute that arises under this Section 5(b)
within twenty (20) days of the Escrow Agent's receipt of the Company
Certificate, such dispute shall be submitted to dispute resolution
pursuant to Section 9.4 of the Asset Purchase Agreement. The Escrow
Agent shall set aside the undistributed portion of the Disputed Amount
until the arbitrator provided for in Section 9.4 of the Asset Purchase
Agreement shall deliver its final decision, at which time the Escrow
Agent shall release such Disputed Amount in accordance with the
arbitrator's award.
(c) If, at any time prior to the Escrow Termination Date, the
Escrow Agent receives a certificate executed by the Purchaser Parties
(together with all Indemnity Notices and Company Certificates, the
"CERTIFICATES") stating (i) that the Purchaser or any other Indemnified
Party is entitled to indemnification from the Indemnifying Parties
pursuant to Article 9 of the Asset Purchase Agreement by reason of a
binding arbitration award pursuant to Section 9.4 of the Asset Purchase
Agreement and attaching a copy of such award, (ii) the dollar amount of
such indemnification which is to be disbursed by the Escrow Agent from
the Escrow Fund (which shall not exceed the amount granted in such
award) and the conversion to the Purchaser Parent Shares and/or the
Company Parent Shares, as applicable, and (iii) the name of the payee
and appropriate contact information
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(which shall be the Person in whose name such award has been entered),
then the Escrow Agent shall be authorized, ten (10) days after receipt
thereof, to make disbursements of the amount indicated in such
certificate. The mailing of the Certificates, along with all documents
and instruments thereto, shall be simultaneously mailed to the Escrow
Agent and the Company Parties by the Purchaser in accordance with
Section 17 hereof.
(d) No later than twenty (20) days prior to the Escrow
Termination Date, the Escrow Agent shall notify the Purchaser Parties
and the Company Parties in writing that, unless the Purchaser Parties
notify the Escrow Agent to the contrary in a writing received prior to
the Escrow Termination Date, the Escrow Agent will assign and deliver
to the Company or the Company Parent or its nominee, as applicable, the
remaining Escrow Fund; PROVIDED, HOWEVER, that in the event the
Purchaser Parties have prior to the Escrow Termination Date delivered
an Indemnity Notice to the Escrow Agent in accordance with Section
5(b), the Escrow Agent shall only be authorized under this Section 5(d)
to assign and deliver the excess of the Escrow Fund over the Disputed
Amount (to the extent such Disputed Amount has not already been
disbursed by the Escrow Agent to the Purchaser, pursuant to Section
5(b) or otherwise).
(e) VALUE OF ESCROWED SHARES. For the purpose of determining
the number of Escrow Shares required for (i) a distribution of Escrow
Shares to the Purchaser Parties pursuant to an indemnification claim in
accordance with Section 5(b), or (ii) otherwise, the Escrow Agent shall
divide (x) the applicable Disputed Amount, or (y) any applicable amount
determined pursuant to this Agreement, as the case may be, by the
amount which is the average closing price of the Purchaser Parent
Shares and/or the Company Parent Shares, as applicable, under the
method described in the last paragraph of Section 9.1 of the Asset
Purchase Agreement.
(f) FLUCTUATIONS IN VALUE OF ESCROW SHARES. It is recognized
by the parties hereto that the Purchaser Parent Shares and the Company
Parent Shares, certificates of which comprise the Escrow Shares, are
publicly traded 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 Company shall
not be required to provide any additional Escrow Shares or other
property by reason thereof.
(g) 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.
6. TERMINATION.
(a) This Agreement shall be effective as of the date hereof
and shall continue in full force and effect until the earlier of (i) a
written agreement between the parties to terminate this Agreement, or
(ii) the close of business on the Business Day during which
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the last of the Escrow Fund is distributed in full pursuant to the
terms hereof, at which time this Agreement shall terminate. Upon
termination of this Agreement, the Escrow Agent shall be discharged
from any further obligation hereunder.
(b) Except as specifically agreed in writing by the parties
hereto, termination of this Agreement under Section 6(a) shall not
relieve any of the parties hereto of any obligation arising under this
Agreement prior to its termination. The provisions of this Section 6(b)
and of Sections 7, 13, 14, 15, 16, 17, 18, 19, 20, 21 and 22 shall
survive the termination or expiration of this Agreement, irrespective
of the reason therefor.
(c) For purposes of this Agreement, the term "BUSINESS DAY"
shall mean any day other than a Saturday or a Sunday or a day on which
commercial banks in New York, New York are required or authorized by
law or executive order to remain closed.
7. TAXATION OF INCOME ON ESCROW FUND. The Purchaser Parties and the
Company Parties agree that, for income Tax purposes, the Company shall include
the income earned on the Escrow Fund until disbursement in gross income for each
taxable year of the Company in which such income is earned (each, a "TAXABLE
YEAR"), without regard to when or to whom such income is paid. The Company
Parties shall pay all applicable income, withholding and any other taxes imposed
on or measured by income which is attributable to income from the Escrow Fund
and shall file all tax and information returns applicable thereto.
8. EXCULPATION AND INDEMNIFICATION OF ESCROW AGENT. If is understood
and agreed that the Escrow Agent shall:
(a) be under no duty to accept information from any Person
other than either the Purchaser Parties and the Company Parties and
then only to the extent and in the manner provided in this Agreement;
(b) be protected in acting upon any written notice, opinion,
request, certificate, approval, consent or other document reasonably
believed by it in good faith to be genuine and to be signed by the
proper party or parties;
(c) be deemed conclusively to have given and delivered any
notice required to be given or delivered hereunder if the same is given
in accordance with Section 17 hereof;
(d) be indemnified and held harmless jointly and severally by
the Company against any claim made against it by reason of its acting
or failing to act in connection with any of the transactions
contemplated hereby and against any loss, liability or expense,
including the expense of defending itself against any claim of
liability it may sustain in carrying out the terms of this Agreement,
except such claims as are occasioned by its bad faith, gross
negligence, willful misconduct, fraud or any other breach of fiduciary
duty; PROVIDED, HOWEVER, that promptly after the receipt by the Escrow
Agent of notice of any demand or claim or the commencement of any
action, suit or proceeding, the Escrow Agent shall, if a claim in
respect thereof is to be made against any of the other parties hereto,
notify each other party thereof in writing; and PROVIDED, FURTHER, that
the
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indemnitor hereunder shall be entitled, jointly and severally and at
their own expense, to participate in and/or assume the defense of any
such action, suit or proceeding;
(e) have no liability or duty to inquire into the terms and
conditions of any agreements to which the Escrow Agent is not a party,
its duties under this Agreement being understood to be purely
ministerial in nature;
(f) be permitted to consult with counsel of its choice
selected with reasonable care and shall not be liable for any action
taken, suffered or omitted by it in good faith in accordance with the
written advice of such counsel; PROVIDED, HOWEVER, that nothing
contained in this subsection (f), nor any action taken by the Escrow
Agent, or of any counsel, shall relieve the Escrow Agent from liability
for any claims which are occasioned by its bad faith, gross negligence,
willful misconduct, fraud or any other breach of fiduciary duty, all as
provided in subsection (d) above;
(g) not be bound by any modification, amendment, termination,
cancellation, rescission or supersession of this Agreement, unless the
same shall be in writing and signed by the parties hereto;
(h) if and to the extent it is uncertain as to its duties and
rights hereunder, be entitled to refrain from taking any action other
than to keep all property held by it in escrow until it shall be
directed otherwise in a joint writing by the Purchaser Parties and the
Company Parties, in accordance with this Agreement, or by a final
judgment of a court or arbitrator of competent jurisdiction;
(i) have no liability for any act or omission done pursuant to
the instructions contained or expressly provided for herein, or written
instructions given by joint instructions of the Purchaser Parties and
the Company Parties pursuant hereto;
(j) have the right, at any time, to resign hereunder by giving
written notice of its resignation to the Purchaser Parties and the
Company Parties, in accordance with Section 17 hereof, at least thirty
(30) business days prior to the date specified for such resignation to
take effect; in which case, upon the effective date of such
resignation:
(i) all cash and other payments and all other
property then held by the Escrow Agent hereunder shall be
delivered by it to such Person as may be designated jointly in
writing by the Purchaser Parties and the Company Parties,
whereupon the Escrow Agent's obligations hereunder shall cease
and terminate;
(ii) if no such Person has been designated by such
date, the Escrow Agent's sole responsibility thereafter shall
be to keep all property then held by it and to deliver the
same to a Person designated jointly in writing by the
Purchaser Parties and the Company Parties, or, if no such
Person shall have been so designated, in accordance with the
directions of a final order or judgment of a court of
competent jurisdiction, and the provisions of subsections (f),
(j) and (k) of this Section 8 shall remain in effect; and
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(k) be reimbursed upon its request for all reasonable
expenses, disbursements and advances incurred or made by it in
accordance with any provisions of this Agreement, except any such
expenses, disbursements or advances as may be attributable to its gross
negligence, willful misconduct (including breach of this Agreement),
bad faith, fraud or other breach of fiduciary duty. All reimbursements
pursuant to this Section 8(k) shall be made by the Company.
(l) The Escrow Agent shall not be entitled to indemnification
from the Escrow Fund for any indemnification required by this Section
8.
9. [INTENTIONALLY OMITTED]
10. REPRESENTATIONS AND WARRANTIES OF THE COMPANY PARTIES. The Company
Parties jointly and severally hereby represent and warrant to each other party
hereto that:
(a) this Agreement has been duly authorized, executed and
delivered by the Company Parties, and is the legal, valid and binding
agreement of the Company Parties, enforceable against them in
accordance with its terms; and
(b) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not
violate any provision of, or be an event that is or, with the passage
of time will result in, a violation of, or result in the acceleration
of or entitle any party to accelerate (whether after the giving of
notice or lapse of time or both) any obligation under or pursuant to
any mortgage, lien, lease, agreement, instrument, order, arbitration
award, judgment or decree to which the Company Parties are a party or
by which they or any of their assets are bound.
11. REPRESENTATIONS AND WARRANTIES OF THE PURCHASER PARTIES. The
Purchaser Parties jointly and severally hereby represent and warrant to each
other party hereto that:
(a) this Agreement has been duly authorized, executed and
delivered by the Purchaser Parties and is the legal, valid and binding
agreement of the Purchaser Parties, enforceable against them in
accordance with its terms; and
(b) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not
violate any provision of, or be an event that is or, with the passage
of time will result in, a violation of, or result in the acceleration
of or entitle any party to accelerate (whether after the giving of
notice or lapse of time or both) any obligation under or pursuant to
any mortgage, lien, lease, agreement, instrument, order, arbitration
award, judgment or decree to which the Purchaser Parties are a party or
by which they or any of their assets are bound.
12. REPRESENTATIONS AND WARRANTIES OF THE ESCROW AGENT. The Escrow
Agent hereby represents and warrants to each other party hereto that:
(a) this Agreement has been duly authorized, executed and
delivered by the Escrow Agent, and is the legal, valid and binding
agreement of the Escrow Agent, enforceable against the Escrow Agent in
accordance with its terms; and
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(b) the execution, delivery and performance of this Agreement
and the consummation of the transactions contemplated hereby will not
violate any provision of, or be an event that is or, with the passage
of time will result in, a violation of, or result in the acceleration
of or entitle any party to accelerate (whether after the giving of
notice or lapse of time or both) any obligation under or pursuant to
any mortgage, lien, lease, agreement, instrument, order, arbitration
award, judgment or decree to which the Escrow Agent is a party or by
which it or any of its assets is bound.
13. REMOVAL. The Purchaser Parties and the Company Parties may, through
a joint written notice delivered thirty (30) days prior to its effective date
and designating a substitute escrow agent, dismiss the Escrow Agent hereunder
and appoint a successor. Upon the effective date of such replacement, the Escrow
Agent shall promptly account for and deliver to the successor escrow agent
designated in such notice the Escrow Fund, including all investments thereof and
accrued income thereon on the date of such accounting and delivery. Upon
acceptance of such accounting and delivery by such successor escrow agent, and
upon reimbursement to the Escrow Agent of all fees and expenses due hereunder
through the date of such accounting and delivery, the Escrow Agent shall be
released and discharged form all of its duties and obligations hereunder, but
without prejudice to any liability of the Escrow Agent for its gross negligence,
willful misconduct (including breach of this Agreement), bad faith, fraud or
other breach of fiduciary duty.
14. ENTIRE AGREEMENT. This Agreement (together with the Asset Purchase
Agreement and the Ancillary Documents thereto) embodies the entire agreement of
the parties hereto with respect to the subject matter hereof and supersedes any
other prior oral or written agreements, arrangements or understandings between
the parties hereto, and any such prior agreements, arrangements or
understandings are hereby terminated and of no further effect.
15. WAIVER. The waiver by any party hereto of a breach of any provision
of this Agreement shall not operate or be construed as a further or continuing
waiver of such breach or a waiver of any subsequent breach. No failure on the
part of any party hereto to exercise, and no delay in exercising, any right,
power or remedy hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise of such right, power or remedy by such party preclude
any other further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law.
16. BINDING EFFECT; ASSIGNMENT. This Agreement shall inure to the
benefit of, and shall be binding upon the Purchaser Parties, the Company Parties
and the Escrow Agent and their respective successors and permitted assigns.
17. NOTICES. All notices, demands and other communications provided for
hereunder shall be in writing and shall be given by personal delivery, via
facsimile transmission (receipt telephonically confirmed), by nationally
recognized overnight courier (prepaid), or by certified or registered first
class mail, postage prepaid, return receipt requested, sent to each party, at
its/his address as set forth below or at such other address or in such other
manner as may be designated by such party in written notice to each of the other
parties. All such notices, demands and communications shall be effective when
personally delivered, one (1) business day after
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delivery to the overnight courier, upon telephone confirmation of facsimile
transmission or upon receipt after dispatch by mail to the party to whom the
same is so given or made:
If to the Company or Sopheon PLC
the Company Parent: Stirling House
Stirling Road
Surrey Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxxxx XX0 0XX
XXXXXXX
Facsimile No.: 011-44-1483-883050
Telephone No.: 000-00-0000-000000
Attention: Xxxxx Xxxxx
Xxxx Xxxxxxxx
With a copy to: Xxxxxx and Xxxxxx, Professional Association
2400 IDS Center
00 Xxxxx Xxxxxx Xxxxxx
Xxxxxxxxxxx, Xxxxxxxxx 00000
Facsimile No.: 612-977-8650
Telephone No.: 000-000-0000
Attention: Xxxxxxx X. Xxxxxx
If to the Purchaser Find/SVP, Inc.
or the Purchaser 625 Avenue of the Americas
Parent: Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: 212-255-7632
Telephone No.: 000-000-0000
Attention: Chief Executive Officer
With a copy to: Xxxx Xxxxxxx, P.C.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile No.: 212-245-3009
Telephone No.: 000-000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
If to the Escrow U.S. Bank National Association
Agent: 000 Xxxx Xxxxx Xxxxxx, XX-XX-X0XX
Xx. Xxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx
Facsimile No.: 000-000-0000
Telephone No.: 000-000-0000
Either party hereto may change the address to which notices shall be sent by
sending written notice of such change of address to the other parties in
accordance herewith.
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18. FURTHER ASSURANCES. The parties hereto agree to execute and deliver
such other documents or agreements and to take such other action as may be
reasonably necessary or desirable for the implementation of this Agreement and
the consummation of the transactions contemplated hereby.
19. INTERPRETATION.
(a) HEADINGS. The section headings of this Agreement are for
reference purposes only and are to be given no effect in the
construction or interpretation of this Agreement.
(b) CERTAIN TERMS AND QUANTITIES. In this Agreement, in the
computation of periods of time from a specified date to a later
specified date, the word "from" means "from and including," the words
"to" and "until" each mean "to but excluding" and the word "through"
means "to and including." Except in the preceding sentence, the word
"including" means "including without limitation." The words "either"
and "or" refer to an exclusive choice. Capitalized terms defined in any
Section of this Agreement shall be used throughout this Agreement as so
defined. Where appropriate, words denoting the singular shall include
the plural and words denoting the masculine shall include the feminine
and neuter. In all cases herein where a dollar amount, time period,
percentage or other quantity is expressed using roman numerals and
fully written out, the latter expression shall govern over the
expression using roman numerals. A reference to conduct includes
references to an omission, statement or undertaking.
(c) INTERNAL CROSS REFERENCES. The words "herein," "hereof"
and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular section, subsection or
clause in this Agreement. Unless otherwise specified, references herein
to a section, subsection or cause refer to the appropriate section,
subsection or clause in this Agreement.
(d) NO DRAFTING PRESUMPTION. The parties hereto acknowledge
and agree that they have participated jointly in the negotiation and
drafting of this Agreement. In the event an ambiguity or question of
intent or interpretation arises, this Agreement shall be construed as
if drafted jointly by the parties hereto and no presumption or burden
of proof shall arise favoring or disfavoring any party hereto by virtue
of the authorship of any of the provisions of this Agreement. The
parties hereto are familiar with the Asset Purchase Agreement and the
definitions therein.
20. COUNTERPARTS AND FACSIMILE SIGNATURES. This Agreement may be
executed in one or more counterparts, each of which shall be deemed to be an
original, but all of which taken together shall constitute one and the same
instrument. Such execution shall be effective when one or more such counterparts
shall have been executed by each of the parties hereto and at least one of each
such counterpart shall have been delivered to each of the other parties hereto.
The counterparts of this Agreement and all ancillary documents hereto may be
executed and delivered by facsimile signature by any of the parties to any other
party and the receiving party may rely on the receipt of such document so
executed and delivered by facsimile as if the original had been received.
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21. MISCELLANEOUS. This Agreement and its provisions shall be
construed, governed by and enforced in accordance with the internal laws of the
State of Delaware, without giving effect to the principles of comity or
conflicts of laws thereof. This Agreement may be amended or modified only in
writing signed by each of the parties hereto. The parties hereto agree and
consent that any legal action, suit or proceeding seeking to enforce any
provision of this Agreement shall be instituted and adjudicated solely and
exclusively in any court of general jurisdiction in the State of New York, or in
the United States District Court having jurisdiction in the State of New York,
and the parties agree that venue will be proper in such courts and waive any
objection that they may have now or hereafter have to the venue of any such
suit, action or proceeding in such courts, and each hereby irrevocably consents
and agrees to the jurisdiction of said courts in any such suit, action or
proceeding. The parties hereto further agree to accept and acknowledge service
of any and all process which may be served in any such suit, action or
proceeding in said courts, and also agree that service of process or notice upon
them shall be deemed in every respect effective service of process or notice
upon them, in any suit, action or proceeding, if given or made (i) according to
applicable law, (ii) by a person over the age of eighteen (18) who personally
served such notice or service of process on a party hereto, or (iii) by
certified mail, return receipt requested, mailed to the applicable party at such
party's address as set forth in this Agreement (as such addresses may be
hereafter modified by notice given in accordance herewith).
22. SEVERABILITY. If any provision of this Agreement or the application
of any such provision to any Person or circumstances shall be held invalid,
illegal or unenforceable in any respect by a court of competent jurisdiction,
such invalidity, illegality or unenforceability shall not affect any other
provision hereof.
23. TRANSFERABILITY. The respective interests of the Company Parties in
the Escrow Fund 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 the
Purchaser Parties in accordance with Section 17 hereof, and no such assignment
or transfer shall be valid until such notice is given.
24. VOTING OF SHARES. The Company shall have the sole right to vote any
Escrow Shares being held in the name of the Company and to receive any dividends
thereon.
25. 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 the Purchaser, occurring after the date hereof, as a result of
which Equity Equivalents of any class shall be issued in respect of outstanding
Purchaser's common stock being changed into the same or a different number of
shares of Purchaser's common stock or other Equity Equivalents, the number and
value of Escrow Shares shall be correspondingly and ratably adjusted by the
Purchaser's board of directors 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 the Purchaser's common stock. The Purchaser
shall effect this change by replacing the Escrow Shares with Equity Equivalents
within fifteen (15)
11
days of the effective date of the event that caused the change in the number or
character of the shares of Purchaser's common stock. Upon receipt by Escrow
Agent, the Equity Equivalents shall be deemed to be Escrow Shares for all
purposes hereof; provided, that the valuation provisions set forth Section 5(e)
hereof shall be ratably adjusted by the Purchaser in accordance with the actions
of its board of directors causing the Equity Equivalents to be issued.
[SIGNATURE PAGE FOLLOWS]
12
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the date first above written.
COMPANY: COMPANY PARENT:
SOPHEON CORPORATION SOPHEON PLC
By /s/Xxxxxx X. Xxxxxxxx By /s/Xxxx Xxxxxxxx
--------------------------------- ---------------------------------
Its Vice President Its Secretary
----------------------------- -----------------------------
PURCHASER: PURCHASER PARENT:
TTECH ACQUISITION CORP. FIND/SVP, INC.
By /s/Xxxxx Xxxxx By Xxxxx Xxxxx
--------------------------------- ---------------------------------
Its Treasurer Its Chief Financial Officer
----------------------------- -----------------------------
ESCROW AGENT:
U.S. BANK NATIONAL ASSOCIATION
By /s/Xxxxxx X. Xxxxxxx
---------------------------------
Its Vice President
-----------------------------
[SIGNATURE PAGE TO ESCROW AGREEMENT]
EXHIBIT A
TO
ESCROW AGREEMENT
STOCK OWNERSHIP
-----------------------------------------------------------------------------------------------
COMPANY SHARES PERCENT TIN ADDRESS
-----------------------------------------------------------------------------------------------
Sopheon Corporation Purchaser Parent 100 00-0000000 0000 Xxxxx Xxxxx
00,000 Xxxxxxxxxxx, Xxxxxxxxx 00000
-----------------------------------------------------------------------------------------------
-----------------------------------------------------------------------------------------------
TTech Acquisition Corp. Company Parent 100 00-0000000 625 Avenue of the Americas
388,350 Xxx Xxxx, XX 00000-0000
-----------------------------------------------------------------------------------------------
A-1
SCHEDULE A
TO
ESCROW AGREEMENT
ESCROW AGENT'S FEES
Acceptance Fee: $1,000
(Includes review of Agreement and establishing procedures
and controls)
First year's administrative fee:
(payable upon opening account, nonrefundable)
If all funds are invested in a Money Market Fund
utilized by U.S. Bank $1,500
If funds are invested other than above $2,000
Subsequent year administration fee: as above
(non-proratable to commence on first anniversary date)
Schedule A-1
