ESCROW AGREEMENT
Exhibit
10.1
Telephone call-backs shall be made to each Party A and Party B if joint instructions are required pursuant to this Escrow Agreement.
EXECUTION
COPY
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
June 25, 2007, by and among Perficient, Inc., a Delaware corporation
(“Party A”), Tier1 Innovation, LLC, a Colorado limited
liability company (“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 June
25, 2007 (the “Purchase Agreement”). Escrow
Agent is not a party to, has not received and will not be responsible for the
Purchase Agreement.
WHEREAS,
in connection
with the closing of the transactions contemplated by the Purchase Agreement
(the
“Closing”), the Seller has agreed to deposit into
escrow with the Escrow Agent one or more certificates in the name of Seller
evidencing in the aggregate 95,819 shares of common stock, par value $0.001
per
share, of Perficient, Inc. (“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 IX 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 IX 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 Buyer and its
affiliates.
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 Seller Interest Holder who is entitled to receive a part of the
Escrowed Shares, if any, upon the release and distribution from this
escrow. If after the Closing and prior to the distribution of the
Escrowed Shares, Party B transfers record ownership of or assigns the Escrowed
Shares to any Seller Interest Holder listed on Annex I hereto, each of the
parties hereto agree that Xxxx Xxxxxxxx shall have authority to settle all
claims under this Escrow Agreement or the Purchase Agreement on behalf of the
Seller Interest Holders who are 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 Seller and to the Seller Interest Holders to the
extent Escrowed Shares have been transferred or assigned to the Seller Interest
Holders.
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5. Deposit
of Escrowed Shares.
(a) Promptly
following the date of this Escrow Agreement, Party A and Party B shall instruct
Continental Stock Transfer & Trust Company
(“Continental”) to deliver the Escrowed Shares and
stock powers signature guaranteed 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 Parent Indemnified Persons under
the Purchase Agreement. The Escrow Fund shall be held as a escrow
fund and 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 stock powers and to hold the Escrowed Shares and stock powers in
an
escrow account, subject to the terms and conditions of this Escrow
Agreement.
(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 Seller Interest Holders or other 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 June 26, 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 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 ten Business Days thereafter) be released to Seller or
to
the Seller Interest Holders in whose names they have been issued as detailed
in
a joint written notice from Party A and Party B detailing the delivery
instructions. Upon resolution of all Claim Notices made prior to the
Release Date, that portion of the Retained Amount that is not paid to Party
A in
satisfaction of such Claims Notice shall immediately be disbursed to Seller
or
to the Seller Interest Holders as set forth in the joint delivery instructions
delivered as of the Release Date.
(b) Subject
to the terms and conditions set forth in Section 9.04 of the Purchase Agreement,
if 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
June 25, 2008, deliver a written claim notice (a “Claim
Notice”) to Party B and to the Escrow Agent. Such Claim
Notice shall (i) state that Party A believes in good faith that it is entitled
to all or any portion of the Escrow Fund and certify that all requirements
set
forth in Article IX of the Purchase Agreement with respect to such
indemnification have been satisfied; (ii) contain a reasonably detailed
description of the circumstances supporting such belief; and (iii) indicate
the
good faith claimed amount of Damages necessary to satisfy such indemnification
claim (the “Claimed Amount”) and what portion of the
Escrow Funds are expected in good faith to be necessary to satisfy such
Indemnification Claim. 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) thirtieth 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
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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 toParty A. Any part of the Claimed Amount that
is not to be released to Party A shall be the “Contested
Amount.”
(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 number
of
Escrowed Shares, if any, equal in the aggregate to the 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
such number of Escrowed Shares, if any, equal in the aggregate to the 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
Buyer 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 Austin, Texas, 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,
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, the Seller Interest Holders 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 Seller has transferred record ownership of the Escrowed Shares to
the
Seller Interest Holders, any amounts distributed to Party A from the Escrow
Fund
shall be satisfied pro rata from each Seller Interest Holder’s Escrowed Shares
in accordance with each Seller Interest Holder’s Percentage Interest set forth
on Annex I to this Escrow Agreement.
(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)(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 (1) trading day immediately
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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 have no liability under and no duty to inquire as to the
provisions of any agreement other than this Escrow Agreement. 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. For the avoidance of doubt, the Escrow Agent shall have
no liability with respect to any provisions of this Escrow Agreement which
set
forth obligations or limitations of liability that the other parties to this
Esrcrow Agreement have to each other. The Escrow Agent shall have no
obligation to investigate, inquire, examine or assist in any manner whatsoever,
the parties' compliance with the terms of this Escrow Agreement that incorporate
by reference provisions of the Purchase Agreement that apply to the other
parties' obligations or limitations of liability to each other that do not
relate to obligations of the Escrow Agent under this Escrow
Agreement.
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) thirty 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 within
fifteen days after receiving the Escrow Agent’s written resignation, the Escrow
Agent shall have the right to apply to a court of competent jurisdiction for
the
appointment of a successor escrow agent. 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. If the Parties have failed to appoint a
successor escrow agent prior to the expiration of thirty days following receipt
of the notice of resignation, the Escrow Agent may petition any court of
competent jurisdiction for the appointment of
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a
successor escrow agent or for other appropriate relief, and any such resulting
appointment shall be binding upon all of the parties hereto.
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 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 Austin, 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 III 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
For
accounts opened in the US:
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. When an
account is opened, the Escrow Agent will ask for information that
will allow us to identify relevant parties.
For
non-US accounts:
To
help
in the fight against the funding of terrorism and money laundering activities
we
are required along with all financial institutions to obtain, verify, and record
information that identifies each person who opens an account. When you open
an
account, the Escrow Agent will ask for information that will allow us to
identify you.
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. In the event that any earnings remain undistributed at
the end of any calendar year, Escrow Agent shall report to the Internal Revenue
Service or such other authority such earnings as it deems appropriate or as
required by any applicable law or regulation or, to the extent consistent
therewith, as directed in writing by the Parties. In the absence of
such written directions, undistributed earnings will be reported on
as
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belonging
to Party A, and Party A shall be treated for federal income tax purposes as
the
owner of the property subject to the Escrow Agreement.
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
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|
(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.
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If
to Party A
|
Perficient,
Inc.
|
Xxx
Xxxx
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
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If
to Party B:
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Tier1
Innovation, LLC
|
0000
Xxxx
Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx,
Xxxxxxxx 00000
Attention: Xxxx
Xxxxxxxx
Phone: 000.000.0000
with
a
copy (which shall not constitute notice) to:
Xxxxx
Xxxxxx & Xxxxxx LLP
0000
00xx Xxxxxx,
Xxxxx 000
Xxxxxx,
Xxxxxxxx 00000
Attn: Xxxx
X. Xxxxx
Phone: 000.000.0000
Facsimile: 303.893.1379
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If
to the Escrow Agent:
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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
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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 III 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
III,
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, the Seller Interest Holders,
Party B, Escrow Agent and their respective successors and assigns, if any,
of
the foregoing. This Escrow Agreement shall be governed by and
construed under the laws of the State of Texas. 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 Texas. 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 IX 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 tothis
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.
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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.
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: June 25, 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/
Xxxx Xxxxx
|
|
|
Printed
Name: Xxxx
Xxxxx
|
|
|
Title: President
|
Tax
Certification: Taxpayer Identification Number
(TIN): 00-0000000
Date: June 25, 2007
Name
& Address: Tier1 Innovation, LLC
0000
Xxxx Xxxxx Xxxxxx, Xxxxx
0000
Xxxxxx,
XX 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:
|
(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
|
|
|
Tier1
Innovation, LLC
|
|
By:
|
/s/
Xxxx Xxxxxxxx
|
|
|
Printed
Name: Xxxx Xxxxxxxx
|
| Title: President |
JPMORGAN
CHASE BANK, N.A.
|
|
as
Escrow Agent
|
|
By:
|
/s/
Xxxx Xxxxxxxxxx
|
|
|
Printed
Name: Xxxx
Xxxxxxxxxx
|
|
|
Title: Assistant
Vice President & Trust
Officer
|
Annex
I
Seller
Interest Holders
|
Seller
Interest Holder
|
Escrowed
Shares
|
Percentage
Interest
|
|
Xxxx
Xxxxxxxx
|
40,775
|
42.6%
|
|
Xxx
Xxxxxxx
|
40,775
|
42.6%
|
|
Xxxxx
Xxxxxxx
|
4,418
|
4.6%
|
|
Xxxxx
Xxxxxx
|
4,418
|
4.6%
|
|
Xxxxx
Xxxxxx
|
2,716
|
2.8%
|
|
Xxxx
Xxxxxxx
|
2,716
|
2.8%
|
Annex
II
|
|
Telephone
Number(s) for Call-Backs
and
|
|
|
Person(s)
Designated to Confirm Funds Transfer
Instructions
|
|
If
to Party A:
|
||||
|
Name
|
Telephone
Number
|
Signature
|
||
|
1 Xxxx
X. Xxxxxx
|
314.785.1470
|
/s/
Xxxx X. Xxxxxx
|
||
|
2 Xxxx
Xxxxxxxxxx
|
314.995.8885
|
/s/
Xxxx Xxxxxxxxxx
|
||
|
If
to Party B:
|
||||
|
Name
|
Telephone
Number
|
|||
|
1 Xxxx
X. Xxxxxxxx
|
________________
|
/s/
Xxxx X. Xxxxxxxx
|
||
|
2 Xxx
X. Xxxxxxx
|
________________
|
/s/
Xxx X. Xxxxxxx
|
Telephone call-backs shall be made to each Party A and Party B if joint instructions are required pursuant to this Escrow Agreement.
Annex
III
Escrow
Agent’s Compensation:
Attached
