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EXHIBIT 2.2
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of ________________, 1999 (including the
exhibits and schedules attached hereto, this "AGREEMENT"), is by and among Towne
Services, Inc., a Georgia corporation (the "PARENT"), Xxx Xxxx and Xxxxx
Xxxxxxx, each in their capacity as a Stockholder Representative (collectively,
the "STOCKHOLDERS' REPRESENTATIVES") and First Union National Bank, a National
Banking Association (the "ESCROW AGENT").
W I T N E S S E T H :
WHEREAS, the Parent, Forseon Corporation, a Delaware corporation (the
"COMPANY") and certain of the stockholders of Company (the "MANAGEMENT
STOCKHOLDERS") have entered into an Agreement and Plan of Merger, dated as of
March 25, 1999 (including the exhibits, annexes, schedules, amendments and
attachments thereto, the "MERGER AGREEMENT"), pursuant to which the Parent has
agreed to acquire all of the capital stock of Company through the merger of TSI
Acquisition One, Inc., a Georgia corporation and wholly-owned subsidiary of
Parent, with and into Company; and
WHEREAS, it is contemplated under the Merger Agreement that the Parent
will deposit or cause to be deposited into escrow a certificate representing ten
percent (10%) of the Parent Common Stock to be issued in connection with the
Merger (the "ESCROW SHARES") to be held and disbursed by the Escrow Agent in
accordance with this Agreement; and
WHEREAS, pursuant to the terms of the Merger Agreement the Escrow Shares
are to be held by the Escrow Agent to satisfy any obligation of Company and the
Company Stockholders to indemnify Parent and the Parent Indemnified Parties
under the terms of the Merger Agreement; and
WHEREAS, the Parent and the Company desire to appoint the Escrow Agent
as escrow agent for the purpose of receiving, holding and distributing the
Escrow Fund (as defined below), and the Escrow Agent is willing to act as the
Escrow Agent subject to and in accordance with the terms and conditions of this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the agreements
contained herein, and intending to be legally bound hereby, the parties hereby
agree as follows:
1. Definitions. Capitalized terms used but not defined herein shall have
the meanings provided in the Merger Agreement. As used in this
Agreement, the following terms shall have the following meanings:
(a) "Distribution Date" shall mean that date which is one year from
the Effective Time of the Merger.
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(b) "Value Per Share" shall mean the fair market value of a share of
Parent Common Stock at the Effective Time of the Merger.
2. Appointment and Agreement of Escrow Agent. The Parent and the
Stockholders' Representatives (on behalf of themselves and all Company
Stockholders) hereby appoint the Escrow Agent to serve as, and the
Escrow Agent hereby agrees to act as, escrow agent upon the terms and
conditions of this Agreement.
3. Establishment of the Escrow Fund.
(a) Pursuant to Section 2.1(d) of the Merger Agreement, the Parent
shall deliver the Escrow Shares to the Escrow Agent on the date
hereof. The Escrow Agent shall hold the Escrow Shares and any and
all substitutions and replacements thereof, all dividends, shares
and other amounts issued with respect thereto or earned thereon,
and all cash and non-cash proceeds from any sale or other
disposition thereof, if any (the "ESCROW FUND"), in escrow
pursuant to this Agreement.
(b) Each of the Parent and the Stockholders' Representatives confirms
to the Escrow Agent and to each other that the Escrow Fund is
free and clear of all Liens except as may be created or disclosed
by this Agreement and the Merger Agreement.
(c) The Escrow Agent acknowledges receipt of the Escrow Shares and
agrees to hold and disburse the Escrow Shares for the benefit of
Parent and the Company Stockholders, as the case may be, in
accordance with the provisions of this Agreement. The portion of
the Escrow Shares initially allocated to each Company Stockholder
is indicated on Exhibit A attached hereto. Exhibit A shall be
revised from time to time pursuant to changes to the Escrow Fund
made pursuant to Section 6 and pursuant to distributions made in
accordance with Section 4 below. The parties shall cooperate with
Escrow Agent and deliver to Escrow Agent such confirmations,
certificates, affirmations, information and other documents as
Escrow Agent shall reasonably request in the performance of its
obligations under this Agreement, including any and all such
items as Escrow Agent shall deem necessary to evidence
termination of this Agreement and to evidence the parties'
consent to the final distribution of the Escrow Fund in
accordance with the terms of this Agreement.
(d) The parties shall cooperate with each other to insure the proper
and timely disbursement of the Escrow Fund in accordance with the
terms of this Agreement.
4. Distributions from the Escrow Fund. The Escrow Agent shall make
distributions of the Escrow Fund in accordance with the following:
(a) Pursuant to the procedures set forth in this Agreement and the
Merger Agreement, the Escrow Agent shall distribute to Parent, a
number of Escrow Shares equal to the dollar amount sought by
Parent or any Parent Indemnified Parties, divided by the Value
Per Share, in respect of all Indemnifiable Damages which may be
owed
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to Parent or any other Parent Indemnified Parties, as the case
may be, as indicated on a Notice of Claim submitted by Parent or
any other Parent Indemnified Parties in accordance with this
Agreement, that arise out of or result from any of the events
listed in Sections 10.1(a), (b) or (c) of the Merger Agreement.
Claims under Notices of Claims which are the subject of an
objection by the Stockholder Representatives shall be governed by
Article 10 of the Merger Agreement and Section 4(g) hereof.
(b) In no event shall the actual damages chargeable by Parent or any
other Parent Indemnified Party for claims considered "general
contingencies" under a "pooling of interests" exceed the product
of (i) ten percent (10%) of the Value Per Share multiplied by
(ii) the number of shares of Parent Common Stock issued as Merger
Consideration. All "general contingencies" shall be settled and
resolved no later than (i) the date of the first audit of
financial statements containing combined operations for those
items that would be expected to be encountered in the audit
process, or (ii) one year after the Effective Time for other
items. All "specific contingencies" shall be resolved as promptly
as practicable; however, the parties acknowledge that some
specific contingencies may not be resolved until after one year
from the Effective Time. In such event, a Notice of Claim shall
be submitted by Parent to the Escrow Agent (with a copy sent to
the Stockholders' Representatives) with respect to any unresolved
specific contingencies and the requisite number of Escrow Shares
(as provided in paragraph (e) below) shall be held back in escrow
beyond the Distribution Date until such claims are resolved. Any
such distribution shall be made 30 days after receipt by the
Escrow Agent of such Notice of Claims if the Escrow Agent does
not receive a written objection to such distribution from the
Stockholder Representatives within 30 days after receipt by the
Escrow Agent of such Notice of Claims. Claims under Notices of
Claims which are the subject of an objection by the Stockholder
Representatives shall be governed by Article 10 of the Merger
Agreement and Section 4(g) hereof.
(c) The Escrow Agent shall distribute to the appropriate party in
accordance with a written disbursement notice signed by both
Parent and the Stockholder Representatives and delivered to the
Escrow Agent.
(d) The Escrow Agent shall distribute to Parent, a number of Escrow
Shares equal to the dollar amount awarded to Parent in response
to a Notice of Claim divided by the Value Per Share, if such
Notice of Claim is accompanied by and in accordance with a final
arbitration award or judgment of a court of competent
jurisdiction against the Company in favor of Parent or the Parent
Indemnified Parties.
(e) The Escrow Agent shall distribute to the Company Stockholders on
the Distribution Date, the Escrow Shares remaining following any
distributions under a., b., c. or d. above, if any, less a number
of Escrow Shares equal to the quotient of the dollar amount of
all pending and disputed claims under all Notices of Claims
divided by the Value Per Share.
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(f) Escrow Shares left following the Distribution Date shall be
distributed in accordance with a., b., c. and d. above, or to the
Company Stockholders upon delivery by a Stockholder
Representative of a request for distribution of the remaining
shares accompanied by a final arbitration award or judgment of a
court of competent jurisdiction dismissing all pending and
disputed claims.
(g) No later than 290 days subsequent to the Effective Time, Parent
shall deliver to the Stockholder Representatives a list of all
Indemnifiable Damages remaining subject to this Agreement, and
the total damages relating to each item (the "CLAIMS SCHEDULE").
If the Stockholder Representatives dispute the correctness of the
Claims Schedule, they, acting together, shall notify Parent of
their objections within ten (10) business days after delivery of
the Claims Schedule and shall set forth in reasonable detail in
such notice the reason for the Stockholder Representatives'
objections. If the Stockholder Representatives fail to deliver
such notice within such time period, the Company and the Company
Stockholders shall be deemed to have accepted Parent's
calculation of the Specified Liabilities and other items set
forth on the Claims Schedule. If the Stockholder Representatives
deliver such notice, Parent and the Stockholder Representatives
shall endeavor in good faith to resolve their dispute concerning
the Claims Schedule within fifteen (15) business days after the
receipt by Parent of such notice. If they are unable to do so
within such 15-business-day period, the dispute shall be
submitted to an audit partner experienced in the technology-based
retail inventory tracking and analysis industry of an independent
nationally-recognized accounting firm in the United States as
shall be mutually acceptable to Parent, on the one hand, and the
Stockholder Representatives, on the other hand (an "INDEPENDENT
ACCOUNTING FIRM"), whom the parties initially designate to be
PriceWaterhouseCoopers, LLP, who shall act as an expert and not
as an arbitrator, and who shall resolve the dispute within 30
days of the submission of such dispute, or if no such Independent
Accounting Firm is available to a mutually agreed neutral
arbitrator (the "ARBITRATOR"). The decision of the Independent
Accounting Firm or the Arbitrator, as the case may be, as to the
Claims Schedule shall be final and binding upon Parent and the
Company Stockholders. The expense of the Independent Accounting
Firm or the Arbitrator, as the case may be, shall be borne in
proportion to the difference between the final determined amount
of the Independent Accounting Firm or the Arbitrator, as the case
may be, and such amounts proposed by Parent, on the one hand, and
the Stockholder Representatives acting for the Company
Stockholders on the other hand. The Stockholder Representatives
and Parent shall cooperate with the other party in the
determination of the Claims Schedule, including without
limitation, allowing the Stockholder Representatives access after
the Effective Time to the books and records of the Surviving
Corporation and to the accounting and other representatives and
advisors of the Surviving Corporation and its books and records
for the purposes of making such determination. Within three
business days following final determination of the Claims
Schedule, the Escrow Agent shall return to Parent that portion of
the Escrow Fund, valued at the Value Per
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Share, of Parent Common Stock equal to the total Indemnifiable
Damages listed on the Claims Schedule and/or deliver the
remaining portion of the Escrow Fund to the Company Stockholders
hereunder in accordance with the written instructions of the
Stockholders' Representatives.
(h) If any certificate representing shares of Parent Common Stock is
to be made in a name other than that in which the certificate
theretofore surrendered for exchange is registered, it shall be a
condition of such exchange that the certificate so surrendered be
properly endorsed or otherwise in proper form for transfer and
that the person requesting such transfer either pay to Parent any
transfer or other Taxes required by reason of the transfer to a
person other than the registered holder of the certificate
surrendered or establish to the satisfaction of Parent that such
Tax has been paid or is not payable.
(i) If the Merger Agreement is terminated, the Stockholders'
Representatives and the Parent shall notify the Escrow Agent in
writing to such effect, and the Escrow Agent shall, immediately
after its receipt of such notice, return all contents of the
Escrow Fund to Parent.
5. Suspension of Performance; Disbursement Into Court. If at any time there
shall exist any dispute among the Parent, Parent Indemnified Parties,
the Company, any of the Company Stockholders, and the Escrow Agent, or
between any of them, with respect to the holding or disposition of any
portion of the Escrow Shares or any other obligations of the Escrow
Agent under this Agreement, or if at any time the Escrow Agent is unable
to determine, to the Escrow Agent's sole satisfaction, the proper
disposition of any portion of the Escrow Shares or the Escrow Agent's
proper actions with respect to his obligations under this Agreement, or
if Parent and the Stockholder Representatives have not within 30 days of
the furnishing by the Escrow Agent of a notice of resignation, appointed
a successor escrow agent to act under this Agreement, then the Escrow
Agent may, in its sole discretion:
(a) suspend the performance of any of its obligations (including
without limitation any disbursement obligations) under this
Agreement until such dispute or uncertainty shall be resolved to
the sole satisfaction of the Escrow Agent or until a successor
escrow agent shall have been appointed (as the case may be);
provided, however, that the Escrow Agent shall continue to
maintain the Escrow Fund and hold the certificates for the Escrow
Shares; and/or
(b) petition (by means of an interpleader action or any other
appropriate method) any court of competent jurisdiction in any
venue convenient to the Escrow Agent, for instructions with
respect to such dispute or uncertainty, and to the extent
required by law, deliver to such court, for holding and
disposition in accordance with the instructions of such court,
the certificates for the Escrow Shares.
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The Escrow Agent shall have no liability to the Parent, Parent
Indemnified Parties, Company, any of the Company Stockholders or any
other person with respect to any such suspension of performance or
disbursement into court, specifically including any liability or claimed
liability that may arise, or be alleged to have arisen, out of or as a
result of any delay in the disbursement of the Escrow Shares or any
delay in or with respect to any other action required or requested of
the Escrow Agent.
6. Dividends; Voting and Other Rights. Prior to disbursement from the
Escrow Fund, any and all cash dividends or other cash or non-cash income
or proceeds with respect to the Escrow Shares shall be paid into and
become part of the Escrow Fund and shall be disbursed in accordance with
Section 4 hereof in the same manner as the Escrow Shares to which such
dividends, income or proceeds relates. Each Company Stockholder shall
have the right to direct the Escrow Agent in writing as to the exercise
of voting rights with respect to his or her Escrow Shares, and the
Escrow Agent shall comply with any such directions if received in a
timely manner. In the absence of such directions, the Escrow Agent shall
not vote any Escrow Shares.
7. Investments.
(a) Subject to restrictions on transfer imposed by "pooling of
interests" and applicable law, the cash portion, if any, of the
Escrow Fund shall be invested and reinvested by the Escrow Agent
in Permitted Investments (as defined below) as directed by the
Stockholder Representatives. In giving such instructions, the
Stockholder Representatives shall undertake in good faith to
direct the making of Permitted Investments that mature or are
subject to redemption on or prior to the date or dates on which
the Stockholder Representatives reasonably anticipate that
distributions will be required from the Escrow Fund, but the
Escrow Agent shall, upon written instructions from the
Stockholder Representatives, have the authority to liquidate any
investments in order to make distributions pursuant to this
Agreement. The Escrow Agent shall have no liability for losses
arising from liquidations of investments. The Escrow Agent may
make all Permitted Investments through its own bond department or
the trust department of any bank or trust company under common
control with the Escrow Agent or through the trust department of
any bank with which the Escrow Agent has a correspondent
relationship.
(b) For the purposes of this Agreement, "Permitted Investments" shall
be denominated in U.S. dollars and shall be limited to:
(i) direct general obligations of, or obligations the payment
of principal of and interest on which are unconditionally
guaranteed by, the United States of America, any agency
thereof, any State, or any political subdivision or other
agency thereof;
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(ii) certificates of deposit or other evidences of indebtedness
issued by any bank which is insured by the Federal Deposit
Insurance Corporation;
(iii) prime commercial paper (including variable demand notes)
of companies whose commercial paper is rated A-1 or P-1 by
Moody's or Standard & Poor's;
(iv) repurchase agreements collateralized by United States
treasuries; and
(v) A money market fund maintained by the Escrow Agent.
In the absence of written instructions, the funds will be
invested in accounts or funds described in clause (v).
(c) All income and profits arising from Permitted Investments of all
or any portion of the Escrow Fund shall be reinvested by the
Escrow Agent and made a part of the principal of the Escrow Fund.
Such income and profits shall be distributed to the parties on
the Distribution Date as set forth in Section 4 hereof.
8. Stock Splits; Stock Dividends. In the event of any stock split or stock
dividend with respect to Parent Common Stock that becomes effective
during the term of this Agreement, the additional shares so issued with
respect to the Escrow Shares shall be added to the Escrow Shares and
subject to the escrow covered by this Agreement and any other references
herein to a specific number of shares of Parent Common Stock, the Value
Per Share, and any other references herein to prices for or the number
of shares of Parent Common Stock shall be adjusted accordingly.
9. Maintenance of the Escrow Fund; Termination of the Escrow Fund. The
Escrow Agent shall continue to maintain the Escrow Fund and hold the
Escrow Shares until the earlier of (i) the time at which the Escrow Fund
is disbursed in accordance with Section 4 hereof and (ii) the
termination of this Agreement. Notwithstanding the foregoing, the Escrow
Agent shall have the power to release and transfer portions of the
Escrow Fund whenever the Escrow Agent shall be required to release all
or any portion of the Escrow Fund pursuant to Section 4 hereof.
10. Assignment; Successors. This Agreement may not be assigned by operation
of law or otherwise without the express written consent of the other
parties hereto (which consent may be granted or withheld in the sole
discretion of such other parties); provided, however, that the Parent
may, without the consent of the other parties, assign this Agreement
prior to the disbursement of the Escrow Fund and delivery of the Escrow
Fund pursuant to Section 4 hereof to an entity who controls Parent or to
an entity controlled by Parent to which the Parent has assigned any of
its rights under the Merger Agreement, but no such assignment shall
relieve the Parent of any of its obligations under this Agreement. This
Agreement shall be binding upon and inure solely to the benefit of the
parties hereto and their permitted assigns.
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11. Escrow Agent.
(a) Except as expressly contemplated by this Agreement or by written
instructions given by a Company Stockholder after Parent has
advised Escrow Agent in writing that the ASR 135 restriction
period has expired, the Escrow Agent shall not sell, transfer or
otherwise dispose of in any manner all or any portion of the
Escrow Fund, except pursuant to an order of a court of competent
jurisdiction.
(b) The duties and obligations of the Escrow Agent shall be
determined solely by this Agreement, and the Escrow Agent shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Agreement. The
Escrow Agent shall neither be responsible for or under, nor
chargeable with knowledge of the terms and conditions of, any
other agreement, instrument or document in connection herewith,
including but not limited to the Merger Agreement.
(c) In the performance of its duties hereunder, the Escrow Agent
shall be entitled to rely upon any document, instrument or
signature believed by it in good faith to be genuine and signed
by any party hereto or an authorized officer or agent thereof,
and shall not be required to investigate the truth or accuracy of
any statement contained in any such document or instrument. The
Escrow Agent may assume that any person purporting to give any
notice in accordance with the provisions of this Agreement has
been duly authorized to do so. The Escrow Agent shall have no
responsibility for the contents of any such writing contemplated
herein and may conclusively rely without any liability upon the
contents thereof.
(d) The Escrow Agent shall not be liable for any error of judgment,
or any action taken, suffered or omitted to be taken, hereunder
except in the case of its gross negligence, bad faith or willful
misconduct. The Escrow Agent may consult with counsel of its own
choice and shall have full and complete authorization and
protection for any action taken or suffered by it hereunder in
good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection or
protection of the Escrow Fund or income thereon, nor as to the
preservation of any rights pertaining thereto, beyond the safe
custody of any such property actually in its possession.
(f) The Escrow Agent shall be paid its fees and shall be reimbursed
upon request for all expenses, disbursements and advances,
including reasonable fees of outside counsel, if any, incurred or
made by it in connection with the preparation of this Agreement
and the carrying out of its duties under this Agreement. All such
fees and expenses shall be the responsibility of the Parent.
(g) To the extent that the Escrow Agent becomes liable for the
payment of Taxes, including withholding Taxes, in respect of
income derived from the investment of funds held hereunder and/or
possession of the Escrow Shares or any payment
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made hereunder, the Escrow Agent may pay such Taxes. The Escrow
Agent may withhold from any payment of monies held by it
hereunder such amount, as directed by the Company and the Parent
in writing, to be sufficient to provide for the payment of such
Taxes not yet paid, and may use the sum withheld for that
purpose. Each of the Company and the Parent shall furnish to
Escrow Agent such information as may be reasonably requested by
the Escrow Agent so that the Escrow Agent may prepare and file
with the Internal Revenue Service any required Tax reports.
(h) Parent shall reimburse and indemnify the Escrow Agent, its
employees, directors, officers and agents for, and hold each
harmless against, any loss, liability or expense, including,
without limitation, reasonable attorneys' fees, incurred without
gross negligence, bad faith or willful misconduct on the part of
the Escrow Agent arising out of, or in connection with the
acceptance of, or the performance of, its duties and obligations
under this Agreement; provided that the Company Stockholders
shall reimburse and indemnify the Escrow Agent for, and hold it
harmless against, any such loss, liability or expense incurred as
a result of gross negligence, bad faith or willful misconduct on
the part of Company, the Company Stockholders or the
Stockholders' Representatives. 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 such other parties thereof in writing; but
the failure by the Escrow Agent to give such notice shall not
relieve such party from any liability which it may have to the
Escrow Agent hereunder, except to the extent such indemnifying
party is materially prejudiced by such failure. For the purposes
hereof, the term "expense or loss" shall include all amounts paid
or payable to satisfy any claim, demand or liability, or in
settlement of any claim, demand, action, suit or proceeding
settled with the express written consent of the indemnifying
party, and all reasonable costs and expenses, including, but not
limited to, counsel fees and disbursements paid or incurred in
investigating or defending against any such claim, demand,
action, suit or proceeding. The Escrow Agent shall have no right
of setoff under this Agreement or otherwise against amounts in
the Escrow Fund.
(i) The Escrow Agent may at any time resign by giving 20 business
days' prior written notice of resignation to the Stockholders'
Representatives and the Parent. The Stockholders' Representatives
and the Parent may at any time jointly remove the Escrow Agent by
giving 10 business days' prior written notice signed by each of
them to the Escrow Agent. If the Escrow Agent shall resign or be
removed, a successor Escrow Agent, which shall be a bank or trust
company having assets in excess of $1 billion, shall be appointed
by the Stockholders' Representatives and the Parent by written
instrument executed by the Stockholders' Representatives and the
Parent and delivered to the Escrow Agent and to such successor
Escrow Agent and, thereupon, the resignation or removal of the
predecessor Escrow Agent shall become effective and such
successor Escrow Agent, without any
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further act, deed or conveyance, shall become vested with all
right, title and interest to all cash and property held hereunder
of such predecessor Escrow Agent, and such predecessor Escrow
Agent shall, on the written request of the Stockholders'
Representatives, the Parent or the successor Escrow Agent,
deliver to such successor Escrow Agent all the right, title and
interest hereunder in and to the Escrow Fund and the Escrow
Shares of such predecessor Escrow Agent and all other rights
hereunder of such predecessor Escrow Agent. If no successor
Escrow Agent shall have been appointed within 20 business days of
a notice of resignation by the Escrow Agent, the Escrow Agent's
sole responsibility shall thereafter be to hold the Escrow Fund
and the Escrow Shares until its receipt of designation of a
successor Escrow Agent, and the Escrow Agent shall be entitled to
apply to a court of competent jurisdiction for the appointment of
a successor. Upon its resignation and delivery of the Escrow Fund
and the Escrow Shares as set forth above, the Escrow Agent shall
be discharged from any and all further obligations arising in
connection with the escrow contemplated by this Agreement.
12. Termination. This Escrow Agreement shall terminate on the date on which
there is no property remaining in the Escrow Fund and the Escrow Shares
have been delivered or returned in accordance with Section 4 hereof;
provided that the rights of the Escrow Agent and the other parties
hereto under Section 4 hereof shall survive the termination hereof and
the resignation or removal of the Escrow Agent; provided further that
nothing herein shall relieve any party from liability for any breach of
this Agreement.
13. Further Assurances. From time to time on and after the date hereof, the
other parties hereto shall deliver or cause to be delivered to the
Escrow Agent such further documents and instruments and shall do and
cause to be done such further acts as the Escrow Agent shall reasonably
request (it being understood that the Escrow Agent shall have no
obligation to make any such request) to carry out more effectively the
provisions and purposes of this Agreement, to evidence compliance
herewith or to secure itself that it is protected in acting hereunder.
14. Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given or made (and shall be
deemed to have been duly given or made upon receipt) by delivery in
person, by courier service, by telecopy or by registered or certified
mail (postage prepaid, return receipt requested) to the respective
parties at the following addresses (or at such other address for a party
as shall be specified in a notice given in accordance with this Section
14):
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if to the Parent:
Towne Services, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Telecopy: 000-000-0000
Attention: Xxxx X. Xxxxxxx, Chief Executive Officer
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxx & Scarborough, L.L.P.
000 Xxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
if to the Stockholders' Representatives:
Forseon Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Xxxxx Xxxxxxx, Senior Vice President and
Chief Financial Officer
with a copy (which shall not constitute notice) to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
0 Xxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopy: (000) 000-0000
Attention: Xxxx X. Xxxxxxxxx, Esq.
if to the Escrow Agent, to:
First Union National Bank
000 Xxxxxxxxx Xxxxxx, XX
Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Telecopy: (000) 000-0000
Attention: Ms. Xxxxxx Xxxxx
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with a copy (which shall not constitute notice) to:
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Telecopy:
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Attention:
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15. Headings. The descriptive headings contained in this Agreement are
included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
16. Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law or
public policy, all other terms and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic and
legal substance of the transactions contemplated by this Agreement is
not affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties hereto shall negotiate in good
faith to modify this Agreement so as to effect the original intent of
the parties as closely as possible in a mutually acceptable manner in
order that the transactions contemplated by this Agreement are
consummated as originally contemplated to the greatest extent possible.
17. Entire Agreement. This Agreement and the Merger Agreement constitute the
entire agreement of the parties hereto with respect to the subject
matter hereof and supersede all prior agreements and undertakings, both
written and oral, among the Company, the Parent and the Escrow Agent
with respect to the subject matter hereof.
18. No Third Party Beneficiaries. This Agreement is for the sole benefit of
the parties hereto, their permitted assigns and the Company Stockholders
and nothing herein, express or implied, is intended to or shall confer
upon any other Person any legal or equitable right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.
19. Amendment. This Agreement may not be amended or modified except: (i) by
an instrument in writing signed by, or on behalf of, the Company, the
Parent and the Escrow Agent; or (ii) by a waiver in accordance with
Section 20 hereof.
20. Waiver. Any party hereto (the "WAIVING PARTY") may: (i) extend the time
for the performance of any obligation or other act of any other party
hereto owed to the Waiving Party; or (ii) waive compliance with any
agreement or condition contained herein (it being understood and agreed
that such an extension or waiver shall not constitute, by itself, an
extension or waiver by any other party hereto of any such obligation,
act, agreement or condition owed to, or for the benefit of, such third
party). Any such extension or waiver shall be valid only if set forth in
an instrument in writing signed by the party or parties to be bound
thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term
or condition, or a waiver of any other term or condition, of this
Agreement. The failure
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of any party to assert any of its rights hereunder shall not constitute
a waiver of any of such rights.
21. Governing Law. This Agreement shall be governed by the laws of the State
of Georgia. All actions and proceedings arising out of or relating to
this Agreement shall be heard and determined in any Georgia state or
federal court and the parties hereto irrevocably submit to the
jurisdiction of such courts and waive any defense of an inconvenient
forum to the maintenance of any such action or proceeding.
22. Counterparts. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate
counterparts, each of which when executed shall be deemed to be an
original but all of which when taken together shall constitute one and
the same agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed as of the date first written above by their respective
officers thereunto duly authorized.
TOWNE SERVICES, INC.
By
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Name:
Title:
STOCKHOLDERS' REPRESENTATIVE
------------------------------------------
Xxx Xxxx
------------------------------------------
Xxxxx Xxxxxxx
FIRST UNION NATIONAL BANK
By
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Name:
Title:
13
14
Forseon Corporation acknowledges and agrees to the foregoing provisions of this
Escrow Agreement and hereby constitutes and appoints the Escrow Agent as its
attorney-in-fact for the purpose of effecting any and all transfers of any
portion of the Escrow Fund contemplated or required by this Agreement. Pursuant
to this authority, the Escrow Agent shall have authority to take such action and
execute on behalf of Company such documents as may be necessary to effect
transfers of Escrow Shares or other property in the Escrow Fund, including
without limitation, stock powers and transfer orders.
FORSEON CORPORATION
By
-------------------------------------
Name:
Title:
14
