Exhibit 10.1
STOCK ESCROW AGREEMENT
THIS STOCK ESCROW AGREEMENT (this "Agreement") is dated as
of November 2, 2004, among vFinance Investments Holdings, Inc., a Florida
corporation ("Buyer"), vFinance, Inc., a Delaware corporation ("Parent"),
Global Partners Securities, Inc. a New York corporation ("Global"), Xxxxx0.xxx,
Inc., a Florida corporation ("Level2") and Xxxxxxx & Xxxxxx, LLP, a
Massachusetts limited liability partnership, as escrow agent (the "Escrow
Agent"). Buyer, Parent, Global, Level2 and Escrow Agent are hereinafter, the
"Parties".
R E C I T A L S:
WHEREAS, pursuant to that certain Asset Purchase Agreement
dated as of the date hereof (the "Asset Purchase Agreement"), by and between
Buyer and Global, Buyer is inter alia acquiring certain of the assets of Global
("Assets");
WHEREAS, the Asset Purchase Agreement provides that, as of the
date hereof, Buyer shall deliver to the Escrow Agent (a) that number of
restricted shares of common stock, par value $0.01 per share, of Parent as set
forth in the Asset Purchase Agreement (the "APA Stock"), and (b) a warrant to
purchase that number of shares of common stock, par value $0.01 per share, of
Parent as set forth in the Asset Purchase Agreement (the "APA Warrant");
WHEREAS, pursuant to that certain Stock Purchase Agreement
dated as of the date hereof (the "Stock Purchase Agreement"), by and between
Buyer and Level2, Buyer is inter alia acquiring all of the issued and
outstanding capital stock of Equity Station, Inc. ("ESI") (the "ESI Stock");
WHEREAS, the Stock Purchase Agreement provides that, as of the
date hereof, Buyer shall deliver to the Escrow Agent (a) that number of
restricted shares of common stock, par value $0.01 per share, of Parent as set
forth in the Stock Purchase Agreement (the "SPA Stock"), and (b) a warrant to
purchase that number of shares of common stock, par value $0.01 per share, of
Parent as set forth in the Stock Purchase Agreement (the "SPA Warrant");
(collectively the APA Stock and the SPA Stock are hereinafter, the "Parent
Stock"; collectively the APA Warrant and the SPA Warrant are hereinafter, the
"Parent Warrants");
WHEREAS, it is contemplated under each of the Asset Purchase
Agreement and the Stock Purchase Agreement that Parent will deposit or cause to
be deposited into escrow certificates representing in the aggregate shares of
Parent Stock and warrants representing in the aggregate the Parent Warrants (the
"Escrow Shares") as set forth in Schedule A attached hereto to be held and
disbursed by the Escrow Agent in accordance with Section 7 of this Agreement;
WHEREAS, Level2 will deposit or cause to be deposited into
escrow certificates representing ESI Stock to be held and disbursed by the
Escrow Agent in accordance with Section 7 of this Agreement;
WHEREAS, the National Association of Securities Dealers, Inc.
("NASD") has not approved the transactions contemplated under the Asset Purchase
Agreement and Stock Purchase Agreement as of the date hereof;
WHEREAS, the Escrow Agent is willing to act as the Escrow
Agent hereunder;
NOW, THEREFORE, in consideration of the foregoing and the
mutual agreements contained herein, and intending to be legally bound hereby,
the parties hereby agree as follows:
SECTION 1. Appointment of Escrow Agent; Capitalized Terms.
(a) Buyer, Parent, Global and Level2 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;
(b) Capitalized terms used but not defined in this Agreement
have the meanings ascribed to them in the Asset Purchase Agreement or
the Stock Purchase Agreement, respectively.
SECTION 2. Establishment of the Escrow.
(a) Pursuant to the Asset Purchase Agreement and the Stock
Purchase Agreement, Parent shall deliver to the Escrow Agent on the date hereof
the certificates representing the Parent Stock and the Parent Warrants endorsed
in blank or accompanied by duly executed stock transfer powers or appropriate
transfer instruments. Level2 shall deliver to the Escrow Agent on the date
hereof the certificates representing the ESI Stock endorsed in blank or
accompanied by duly executed stock transfer powers or appropriate transfer
instruments. The Escrow Agent shall hold the Escrow Shares and ESI Stock in
escrow pursuant to this Agreement.
(b) Each of Parent and Level2 confirm to the Escrow Agent that
the Escrow Shares and ESI Stock, respectively, are free and clear of all liens,
claims and encumbrances except as may be created by this Agreement, the Asset
Purchase Agreement and the Stock Purchase Agreement.
SECTION 3. Purpose of the Escrow. The Escrow Shares and ESI
Stock will be deposited with the Escrow Agent and held by the Escrow Agent to
pay the Purchase Price under each of the Asset Purchase Agreement and Stock
Purchase Agreement under the terms and conditions herein, to secure: (a) the
indemnification obligations of Global contained in each of the Asset Purchase
Agreement and Level2 contained in the Stock Purchase Agreement, and (b) to
secure the Escrow Shares and ESI Stock pending NASD Approval.
SECTION 4. Percentage Interest in the Escrow Shares. Attached
hereto as Schedule A is a schedule listing each Global and Level2's initial
percentage interest in the Escrow Shares (the "Percentage Interest"). The
Percentage Interest of each of Global and Level2 shall be adjusted as necessary
to comply with this Agreement.
SECTION 5. Shareholder Rights.
(a) While any Escrow Shares and ESI Stock are held in escrow,
and pending the distribution thereof to Global, Level2, or Buyer as the case may
be, in connection with any distributions of Escrow Shares and ESI Stock in
accordance with Section 7 hereof, each of Global, Level2 and Buyer will have
full rights with respect solely to the Escrow Shares and ESI Stock issued in
such shareholder's name (including, without limitation, the right to vote such
shares as set forth in Section 5(b) below) and to receive distributions thereon.
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(b) Each of Global, Level2 and Buyer shall have the right to
exercise any voting rights solely with respect to the Escrow Shares and ESI
Stock attributable to such stockholder.
(c) Each of Global, Level2 and Buyer shall be responsible for
and shall pay and discharge all taxes, assessments and governmental charges
imposed on or with respect to the Escrow Shares and ESI Stock attributable to
such stockholder.
SECTION 6. Share Value. The parties hereto agree and
acknowledge that, for all purposes under this Agreement, each share of Parent
Stock held in escrow pursuant to this Agreement shall be valued at Twenty Cents
($0.20) (the "Share Value"), and each Warrant Share shall be valued at the
difference between $0.11 and the Fair Market Value of the Parent Stock at such
time (the "Warrant Value"). For purposes of this Agreement, "Fair Market Value"
shall mean the last reported sale price of Parent Stock, or in case no such
reported sale takes place on such day, the average of the last reported sales
prices for the last three trading days, in either case as officially reported by
the principal securities exchange on which the Parent Stock is listed or
admitted to trading or if the Parent Stock is not listed or admitted to trading
on any national securities exchange, the last reported sale price as furnished
by the NASD through NASDAQ or the OTC Bulletin Board if NASDAQ is no longer
reporting such information, or if the Parent Stock is not quoted on NASDAQ or
the OTC Bulletin Board, as determined in good faith by resolution of the
Parent's Board of Directors, based on the best information available to it for
the day immediately preceding such issuance or sale.
SECTION 7. Payments from the Escrow Funds.
(a) If, at any time on or prior to the Expiration Date (as
defined below), Buyer shall deliver to the Escrow Agent a certificate of Buyer,
executed by an authorized officer of Buyer (a "Buyer Certificate"), which Buyer
Certificate shall:
(i) state that Buyer has incurred Losses under the
Asset Purchase Agreement or the Stock Purchase Agreement (an "Indemnification
Item");
(ii) state the aggregate amount of such
Indemnification Item and the number of
shares of Parent Stock and/or Parent Warrants necessary to satisfy the
Indemnification Item based on the Share Value and the Warrant Value; and
(iii) specify in reasonable detail the nature and
amount of each individual
Indemnification Item, including whether such Indemnification Item results from a
breach of representation or warranty or covenant of Global or of Level2.
The Escrow Agent shall, promptly upon receipt of such Buyer
Certificate, deliver a copy of such Buyer Certificate to Global and/or Level2 as
applicable. For purposes of this Agreement, the "Expiration Date" shall be the
date which is 15 days after the first three complete calendar months of trading
by Global's emerging markets group debt traders that become associated with, or
work for, Buyer or Parent as a result of this transaction after transfer of
Global's clearing arrangement for this group with Jefferies from Global to
Parent, and the date which is 15 days after the first four complete calendar
months of trading using Xxxxxxx Xxxxx as ESI's clearing firm.
(b) If Global or Level2 shall object to any amount claimed in
connection with any Indemnification Item specified in any Buyer Certificate,
Global and/or Level2 shall, within fifteen (15) Business Days after delivery by
the Escrow Agent to either party of such Buyer Certificate, deliver to the
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Escrow Agent a certificate, executed by an authorized officer of Global and/or
Level2, as applicable (a "Seller Certificate"), (i) specifying each such amount
to which the Seller objects and (ii) specifying in reasonable detail the nature
and basis for each such objection. Promptly upon receipt of a Seller
Certificate, the Escrow Agent shall deliver a copy of such Seller Certificate to
Buyer and Parent. If the Escrow Agent shall not have received a Seller
Certificate objecting to the amount claimed with respect to an Indemnification
Item within such fifteen (15) Business Day period after delivery to Global
and/or Level2, as applicable, of a Buyer Certificate specifying such
Indemnification Item, Global and Level2, as applicable, shall be deemed to have
acknowledged the correctness of the amount claimed on such Buyer Certificate
with respect to such Indemnification Item, and the Escrow Agent shall
thereafter, as soon as administratively practicable, but subject to Section 7(g)
hereof, deliver to Buyer (such delivery to be applied to each of Global and
Level2's percentage interest in the Escrow Shares in accordance with their
respective percentage responsibility for such Indemnification Items) such number
of Escrow Shares, as specified in the Buyer Certificate, equal to the lesser of
(A) the amount claimed in the Buyer Certificate with respect to such
Indemnification Item with Warrant Value (with respect to the Warrant Shares) and
the Share Value (with respect to the Escrow Shares) and (B) the number of
Warrant Shares and Escrow Shares then remaining in escrow.
(c) If the Escrow Agent receives, within fifteen (15) Business
Days after delivery to Global and Level2 of a Buyer Certificate, a Seller's
Certificate objecting to the amount claimed with respect to any Indemnification
Item specified in such Buyer Certificate, the amount so objected to shall be
held by the Escrow Agent and shall not be released from escrow except in
accordance with either (a) written instructions executed by each of Global
and/or Level2, as applicable, and Buyer or (b) written instructions of Buyer
consistent with the final nonappealable judgment of a court having jurisdiction
over the matters relating to the claim by Buyer for indemnification from Global
and/or Level2, as the case may be, after which time the Escrow Agent shall, as
soon as administratively practicable, subject to Section 7(g) hereof, deliver to
Buyer (such delivery to be applied to each of Global and Level2's percentage
interest in the Escrow Shares in accordance with their respective percentage
responsibility for such Indemnification Items) such number of Escrow Shares, as
specified in such judgment, or if not so specified, as specified in joint
written instructions signed by Buyer, Global and Level2.
(d) Within five (5) business days following the Expiration
Date, Buyer shall deliver to the Escrow Agent (with copies to Parent, Global and
Level2) written instructions for the release of the Escrow Shares (the
"Distribution Notice") which notice shall include a computation of the Actual
Revenues (defined below) and the number of Escrow Shares to be delivered to each
of Global and Level2, or to be returned to the Parent, as follows:
(i) if the actual aggregate revenues generated
from ESI during the three complete calendar
months following thirty (30) days of trading
using Xxxxxxx Xxxxx as ESI's clearing firm
("ESI Revenue") is $500,000 or more, then
the Escrow Agent shall, as soon as
administratively practicable after receipt
of the Distribution Notice, and subject to
Section 7(g) hereof, deliver to Level2 its
respective Escrow Shares pursuant to the
Distribution Notice (the "ESI Escrow
Shares").
(ii) if ESI Revenue is less than $500,000, then
the Escrow Agent shall, as soon as
administratively practicable after receipt
of the Distribution Notice, subject to
Section 7(g) hereof, deliver (i) to Parent
the Cancelled Shares (as defined herein) and
(ii) to Level2 its respective remaining pro
rata ESI Escrow Shares after reducing such
ESI Escrow Shares by the amount of Cancelled
Shares, as determined below in this Section
7 (e).
(iii) if the actual aggregate revenue generated
by Vfinance's equity trading group
(consisting of the former Global traders,
as well as Vfinance's traders) during the
three complete calendar months following the
date hereof, combined with the actual
aggregate revenue generated by (y) the
former Global ITG agency business and (z)
the former Global emerging markets debt
group, that become associated with Vfinance
as a result of the acquisition, during the
three complete calendar months following the
transfer of Global's clearing arrangement
with Jefferies from Global to Vfinance (the
"Global Increment") is more than $1,000,000
above the monthly average of revenues
generated by Vfinance's trading group for
the twelve months prior to the quarter ended
June 30, 2004 times three, then the Escrow
Agent shall, as soon as administratively
practicable after receipt of the
Distribution Notice, and subject to Section
7(g) hereof, deliver to Global its
respective Escrow Shares pursuant to the
Distribution Notice (the "Global Escrow
Shares").
(iv) if the Global Increment is less than
$1,000,000, then the Escrow Agent shall, as
soon as administratively practicable after
receipt of the Distribution Notice, subject
to Section 7(g) hereof, deliver (i) to
Parent the Cancelled Shares (as defined
herein) and (ii) to Global its respective
remaining pro rata Global Escrow Shares
after reducing such Global Escrow Shares by
the amount of Cancelled Shares, as
determined below in this Section 7 (e).
(e) Notwithstanding anything contained in this Section 7 to the
contrary, following the Expiration Date, Buyer shall be entitled to assert
claims against the Escrow Shares in respect of Losses that were incurred prior
to the Expiration Date. Such Losses may include Losses associated with Vfinance
not meeting the revenue performance targets described in (d) above, with such
Losses calculated according to the following formula ("Formula"). For Level2,
Escrow Shares subject to cancellation (the "Cancelled Shares") as a result of
not meeting the revenue targets indicated in this Section 7 shall equal total
ESI Escrow Shares multiplied by X where X, expressed as a percentage, equals the
difference of A minus B, where A equals the percentage by which the ESI Revenue
is below $500,000 and where B equals the percentage by which the total revenue
of Parent for that same three month period (less the ESI Revenue and the Global
Increment) ("Parent Revenue") is less than $6,970,000, which is the adjusted
quarterly revenue figure for Parent based on its trailing twelve months
revenuesFor example: if ESI Revenue is 20% less than $500,000 (such that A
equals 20) and Parent Revenue is 10% less than $6,970,000 (such that B equals
10), then X would equal 10% and the amount of Cancelled Shares would be equal to
10% of the ESI Escrow Shares. For Global, Escrow Shares subject to cancellation
as a result of not meeting the revenue targets indicated in this Section 7 shall
equal total Global Escrow Shares multiplied by Y where Y, expressed as a
percentage, equals the difference of C minus B, where C equals the percentage by
which the Global Increment is below $1,000,000. For example: if the Global
Increment is 20% less than $1,000,000 (such that C equals 20) and Parent Revenue
is 10% less than $6,970,000 (such that B equals 10), then Y would equal 10% and
the amount of Cancelled Shares would be equal to 10% of the Global Escrow
Shares. For the purposes of this calculation, Parent may not apply revenues of
any new acquisitions closed after September 30, 2004 to the $6,970,000 figure.
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For the purposes of this Section 7(e), Parent Revenue shall not include
any revenues or earnings associated with any acquisitions or mergers consummated
after September 30, 2004; and if B or X or Y is a negative number, then B or X
or Y, as the case may be, shall be equal to zero. Furthermore, in order to
aggregate the cumulative impact of the revenues generated for the benefit of
both Global and Level2 shareholders, in the event that Escrow Shares held for
Global or Level 2 are subject to cancellation as a result of a failure to
achieve either of the revenue targets specified above, any excess revenue above
the thresholds set forth above (by either Global's units or Level2's) may be
credited to either Global or Level 2 (whosever's revenue target missed its xxxx)
for the purposes of the Formula described above. For purposes of clarification,
if ESI Revenue for the relevant performance measurement period equals $575,000
(leaving an extra $75,000), and the Global Increment is less than $1,000,000,
then up to $75,000 may be added to the Global Increment prior to determining the
Global Cancelled Shares, if any.
(f) With respect to Indemnification Items resulting from a breach of a
representation or warranty or covenant of the Asset Purchase Agreement in the
case of Global or the Stock Purchase Agreement in the case of Level2, any Escrow
Shares transferred out of escrow pursuant to Section 7(b) shall be transferred
out of such Party's Percentage Interest in the Escrow Shares and shall not be
accounted against the Percentage Interest of the other in the Escrow Shares, and
the Percentage Interests shall be adjusted accordingly.
(g) Notwithstanding anything contained in this Section 7 to the
contrary, no Escrow Shares or ESI Stock shall be delivered by the Escrow Agent
while NASD Approval is pending.
SECTION 8. Reversion of the Escrow Shares and ESI Stock. If
the NASD rejects the transfer of control as contemplated under the Asset
Purchase Agreement and Stock Purchase Agreement, the Escrow Agent shall, as soon
as reasonably practicable, deliver the Parent Stock and the Parent Warrants to
Parent and the ESI Stock to Level2.
SECTION 9. Maintenance of the Escrow Shares and ESI Stock. The
Escrow Agent shall continue to maintain the Escrow Shares and ESI Stock until
the earlier of (i) the time at which there shall not be Parent Warrants, Parent
Stock and ESI Stock in escrow, and (ii) the termination of this Agreement.
SECTION 10. Assignment of Rights to the Escrow Shares;
Assignment of Obligations; 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 that Buyer and Parent may assign to any of
their Affiliates or to any Person who purchases or acquires Buyer or Parent,
respectively. This Agreement shall be binding upon and inure solely to the
benefit of the parties hereto and their permitted assigns.
SECTION 11. Escrow Agent.
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(a) Except as expressly contemplated by this Agreement or by
joint written instructions from Buyer, Parent, Global and Level2, the Escrow
Agent shall not sell, transfer or otherwise dispose of in any manner all or any
portion of the Parent Warrants, Parent Stock and ESI Stock, 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 and no implied covenants shall be read into this
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Agreement against the Escrow Agent. Without limiting the generality of the
foregoing, the Escrow Agent shall have no duty to take action to preserve or
exercise rights in any property held by it hereunder.
(c) In the performance of its duties hereunder, the Escrow
Agent shall be entitled to rely without any investigation into the underlying
facts upon any certificate, statement, opinion, report, notice, request,
consent, order, approval, document, instrument, signature or other paper
document 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.
(d) The Escrow Agent shall not be liable for any error of
judgment, or any action 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 advice or opinion of such counsel.
(e) The Escrow Agent shall have no duty as to the collection
of dividends, distributions or income on the Parent Warrants, Parent Stock and
ESI Stock or as to the preservation of any rights pertaining thereto, and shall
not be under any duty to give the Parent Warrants, Parent Stock and ESI Stock
held by it hereunder any greater degree of care than it gives its own similar
property.
(f) The Escrow Agent shall be reimbursed upon request for all
expenses, disbursements and advances, including reasonable fees of outside
counsel and of all persons not regularly in its employ, if any, incurred or made
by it in connection with the carrying out of its duties under this Agreement and
in connection with any dispute regarding the performance of its duties
hereunder. All such fees and expenses shall be the joint responsibility of
Buyer, Global and Level2.
(g) The Buyer, Parent, Global and Level2 shall reimburse and
indemnify the Escrow Agent and its officers, directors, partners, employees and
agents for, and hold it harmless against and reimburse the Escrow Agent for, any
loss, injuries, penalties, stamp or other taxes, actions, suits, liability,
damage or expense, including, without limitation, reasonable attorneys' and
consultant's fees, incurred without gross negligence, bad faith or willful
misconduct on the part of the Escrow Agent, directly or indirectly related to,
or arising out of, or in connection with the acceptance of, or the performance
of, its duties and obligations under this Agreement.
(h) The Escrow Agent may at any time resign by giving at least
thirty (30) days' prior written notice of resignation to the Buyer, Global and
Level2. The Buyer, Global and Level2 may at any time jointly remove the Escrow
Agent by giving least thirty (30) days' 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 reasonably acceptable to the Buyer, Parent Global
and Level2, shall be appointed by Buyer by written instrument executed by the
Buyer 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 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 Buyer or the
successor Escrow Agent, execute and deliver to such successor Escrow Agent all
the right, title and interest hereunder in and to the Escrow Shares and ESI
Stock 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 twenty (20) days of a notice of resignation by the Escrow Agent, the
Escrow Agent's sole responsibility shall thereafter be to hold the Escrow Shares
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and ESI Stock until the earlier of (i) its receipt of designation of a successor
Escrow Agent in a joint written instruction by the Buyer, Global and Level2 and
(ii) termination of this Agreement in accordance with its terms. If no successor
Escrow Agent shall have been appointed within twenty (20) days, the Escrow Agent
may apply to a court of competent jurisdiction for such appointment.
(i) The Escrow Agent does not have any interest in the Parent
Warrants, the Parent Stock or the ESI Stock deposited hereunder but is serving
as escrow holder only and having only possession thereof. Buyer, Global and
Level2 shall pay or reimburse the Escrow Agent upon request for any transfer
taxes or other taxes relating to the Escrow Shares and ESI Stock incurred in
connection herewith and shall indemnify and hold harmless the Escrow Agent from
any amounts that it is obligated to pay in the way of such taxes. This Section
10(i) and Section 10(g) above shall survive notwithstanding any termination of
this Escrow Agreement or the resignation of the Escrow Agent.
(j) The Escrow Agent makes no representation as to the
validity, value, genuineness or collectability of any security or other document
or instrument held by or delivered to it.
(k) The Escrow Agent shall not be called upon to advise any
party as to the wisdom in selling or retaining, or taking or refraining from
taking any action with respect to any securities or other property deposited
hereunder.
(l) In the event of any disagreement between the other parties
hereto resulting in adverse claims or demands being made in connection with the
Escrow Shares and the ESI Stock, or in the event that the Escrow Agent in good
faith is in doubt as to what action it should take hereunder, the Escrow Agent
shall be entitled to retain the Escrow Shares and ESI Stock until the Escrow
Agent shall have received (i) a final nonappealable order of a court having
jurisdiction directing delivery of the Escrow Shares and ESI Stock or (ii) a
written agreement executed by the other parties hereto directing delivery of the
Escrow Shares and ESI Stock, in which event the Escrow Agent shall disburse the
Escrow Shares and ESI Stock in accordance with such order, judgment or
agreement. Any court order shall be accompanied by a legal opinion of counsel
for the presenting party satisfactory to the Escrow Agent to the effect that
said order or judgment is final and nonappealable. The Escrow Agent shall act on
such court order or judgment and legal opinion without further question.
(m) The Escrow Agent shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance with any
direction of the Parties given under this Agreement.
(n) None of the provisions of this Agreement shall require the
Escrow Agent to expend or risk its own funds or otherwise to incur any
liability, financial or otherwise, in the performance of any of its duties
hereunder, or in the exercise of any of its rights or powers if it shall have
reasonable grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not assured to it.
(o) Whenever in the administration of the provisions of this
Agreement the Escrow Agent shall deem it necessary or desirable that a matter be
provided or established prior to taking or suffering any action to be taken
hereunder, such matter (unless other evidence in respect thereof be herein
specifically prescribed) may, in the absence of gross negligence, bad faith or
willful misconduct on the part of the Escrow Agent, be deemed to be conclusively
proved and established by a certificate signed by Buyer, Parent, Global and
Level2 and delivered to the Escrow Agent and the Escrow Agent shall, in the
absence of gross negligence, bad faith or willful misconduct on the part of the
Escrow Agent, be entitled to rely in full thereon.
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(p) The Parties acknowledge that the Escrow Agent is acting as
legal counsel to Parent and Buyer with regard to the business and affairs of the
Parent, the Buyer, the Asset Purchase Agreement and the Stock Purchase Agreement
and the transactions contemplated in connection therewith. In the event of a
dispute with regard to the Parent, the Buyer, Global and/or Xxxxx 0, the Asset
Purchase Agreement and the Stock Purchase Agreement and the transactions
contemplated in connection therewith or this Agreement, the Escrow Agent shall
have the right to continue to represent the Parent and Buyer, including with
respect to any dispute concerning the Buyer's rights to the Escrow Shares,
whether or not the Escrow Agent places the Escrow Shares or the ESI Stock into
the custody of a court.
(q) The Escrow Agent may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents, attorneys, custodians or nominees appointed with due care, and shall not
be responsible for any bad faith, willful misconduct or gross negligence on the
part of any agent, attorney, custodian or nominee so appointed.
(r) Any corporation or other entity into which the Escrow
Agent may be merged or converted or with which it may be consolidated, or any
corporation or other entity resulting from any merger, conversion or
consolidation to which the Escrow Agent shall be a party, or any corporation or
other entity succeeding to the business of the Escrow Agent shall be the
successor of the Escrow Agent hereunder without the execution or filing of any
paper with any Party hereto or any further act on the part of any of the Parties
hereto except where an instrument of transfer or assignment is required by law
to effect such succession, anything herein to the contrary notwithstanding.
(s) The Parties each (for itself and any person or entity
claiming through it) hereby releases, waives, discharges, exculpates and
covenants not to xxx the Escrow Agent for any action taken or omitted under this
Agreement except to the extent caused by the Escrow Agent's gross negligence,
bad faith or willful misconduct. Anything in this Agreement to the contrary
notwithstanding, in no event shall the Escrow Agent be liable for special,
indirect, consequential or punitive 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.
SECTION 12. Termination. This Agreement shall terminate on the
later of: (a) the date on which there are no Escrow Shares, ESI Stock or other
property remaining in escrow and (b) ten (10) business days following the date
on which all claims made in Buyer Certificates delivered to the Escrow Agent
prior to the Expiration Date shall have been resolved.
SECTION 13. Notices. All notices, requests, claims, demands
and other communications hereunder shall be in writing and shall be deemed given
when delivered personally (including delivery by recognized courier service,
such as Federal Express), delivered by facsimile transmission or on the fifth
(5th) succeeding business day after being mailed postage prepaid, by registered
or certified mail 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 12):
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(a) if to Parent:
vFinance, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxx Xxx Xxxx Xxxx.
Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
(b) if to the Buyer:
vFinance Investments Holdings, Inc.
0000 Xxxxx Xxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxx, LLP
000 Xxxx Xxx Xxxx Xxxx.
Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
(c) if to Global:
Global Partners Securities, Inc.
c/o Xxxxx Xxxxxxxxxxx
0000 Xxxxx Xxxxxx - XX
Xxxxxxxxx, XX 00000
Attention: President
Facsimile No.: (000) 000-0000
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with a copy to:
Xxxxx Xxxxxxxxxxx
0000 Xxxxx Xxxxxx - XX
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(d) if to Level2: Xxxxx0.xxx, Inc.
C/o Wasserstrom Giulianti, P.A.
0000 Xxxxx Xxxxxx
Xxxxxxxx Xxxxxx-Xxxxxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxx Xxxxxxxxxxx
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxxxx
0000 Xxxxx Xxxxxx - XX
Xxxxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
(e) if to Escrow Agent:
Xxxxxxx & Xxxxxx, LLP
000 Xxxx Xxx Xxxx Xxxx.
Xxxxx 0000
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile No.: (000) 000-0000
SECTION 14. Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of Florida without
regard to its conflict of law principles. The parties hereto hereby irrevocably
submit to the jurisdiction of any federal or state court sitting in Broward
County, Florida in any action or proceeding arising out of or relating to this
Agreement and irrevocably waive the defense of an inconvenient forum to the
maintenance of any such action or proceeding.
SECTION 15. Amendments. This Agreement may not be amended or
modified except (a) by an instrument in writing signed by, or on behalf of, the
Parties hereto or (b) by a waiver in accordance with Section 15 of this
Agreement.
SECTION 16. Waiver. Any Party to this Agreement may (a) extend
the time for the performance of any obligations or other acts of any other party
hereto or (b) waive compliance with any agreements or conditions contained
herein. Any such extension or waiver shall be valid only if set forth in an
instrument in writing signed by the party 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 as a waiver of any other
term or condition, of this Agreement. The failure of any party to assert any of
its rights hereunder shall not constitute a waiver of any of such rights.
-11-
SECTION 17. 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 hereby are
consummated as originally contemplated to the greatest extent possible.
SECTION 18. Entire Agreement. This Agreement constitutes the
entire agreement of the Parties hereto with respect to the subject matter hereof
and supersedes all prior agreements and undertakings, both written and oral,
among the parties hereto with respect to the subject matter hereof.
SECTION 19. No Third Party Beneficiaries. This Agreement shall
be binding upon and inure solely to the benefit of the Parties hereto and their
permitted assigns, 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.
SECTION 20. Headings. The descriptive headings contained in
this Agreement are for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
SECTION 21. Counterparts. This Agreement may be executed in
one or more counterparts, and by 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.
[Signatures appear on the next page]
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IN WITNESS WHEREOF, each of the Parties hereto has duly
executed, or has caused this Agreement to be duly executed by its duly
authorized representative, as of the date first written above.
VFINANCE INVESTMENTS HOLDINGS, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: President
VFINANCE, INC.
By: /s/ Xxxxxxx Xxxxxxx
--------------------
Name: Xxxxxxx Xxxxxxx
Title: Chief Executive Officer & President
GLOBAL PARTNERS SECURITIES, INC.
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXX0.XXX, INC.
By: /s/ Xxxxxx Xxxxx
------------------
Name: Xxxxxx Xxxxx
Title: President
XXXXXXX & XXXXXX, LLP
By: /s/ Xxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxx X. Xxxxxxx
Title: Partner
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SCHEDULE A
Initial Percentage Number of Shares Initial Percentage
Number of Shares Interest Underlying Parent Interest
Name of Parent Stock in Parent Stock Warrants in Parent Warrants
--------------- --------------- -------- ------------------
Global 4,162,345 50.0% 1,649,864 50.0%
Level2 4,162,345 50.0% 1,649,864 50.0%
Total 8,324,690 1 100.0% 3,299,728 100.0%
--------
1 Note that this total excludes 150,000 shares to be distributed to Xxxxx
X. Xxxxxxxx, which are not subject to this Escrow Agreement.
-14-
