EXHIBIT 10.3
ESCROW AGREEMENT, dated as of June 19, 2002, by and among vFINANCE
INVESTMENTS, INC., SOMERSET FINANCIAL PARTNERS, INC., SOMERSET FINANCIAL GROUP,
INC., XXXXXXX XXXX, XXXXXXXX XXXXXXXX (each, an "Agreement Party") and XXXXXXX &
PRAGER, LLP (the "Escrow Agent")
Reference is made to that certain Select Asset Purchase Agreement ,
dated May 29, 2002 (the "Original Agreement"), as amended by that certain
Amendment to Select Asset Purchase Agreement, dated as of June 17, 2002 (the
"Amendment"; the Original Agreement, as amended by the Amendment, the
"Agreement"), among the Agreement Parties. Capitalized terms not otherwise
defined herein shall have the meanings ascribed to them in the Agreement, unless
the context otherwise requires.
This Escrow Agreement is intended to be the Escrow Agreement referred
to in the Agreement.
NOW, THEREFORE, the parties hereto do hereby agree as follows.
1. (a) (i) The Escrow Agent shall act as the escrow agent
for the parties to the Agreement contemplated by Sections 2.07 and 2.08 of the
Agreement.
(ii) The Escrow Agent is hereby authorized and
directed to hold the Escrow Shares (as defined below) and the Warrants, if any,
which are to be delivered to the Escrow Agent by the Buyer, in escrow pursuant
to the terms of the Agreement in accordance with the instructions provided below
in this Escrow Agreement.
(iii) The Escrow Shares shall be issued in the name
of "Xxxxxxx & Xxxxxx, LLP, as Escrow Agent" until released from escrow or
otherwise transferred or deposited by the Escrow Agent pursuant to the terms of
this Escrow Agreement. The Escrow Agent may represent the Escrow Shares, in
person or by designated proxy, at meetings of vFinance shareholders solely for
quorum purposes, but shall not vote the Escrow Shares for any purpose.
(b) The term "Escrow Shares" means (i) the Additional Shares,
unless (ii) either (x) the Delivery Conditions are not satisfied on the Closing
Date or (y) the provisions of Section 2.07(b)(ii) of the Agreement are
applicable, in which event it shall mean (1) the total of the Additional Shares
plus the Closing Shares (as defined below), less (2) the Closing Shares, if any,
released to the Seller pursuant to the provisions of Section 4(b)(ii) of this
Escrow Agreement.
(c) The term "Closing Shares" means (i) the Initial Shares,
unless the provisions of Section 2.07(b)(iv) of the Agreement are applicable, in
which event it shall mean the lower number of shares resulting from the
adjustment contemplated by such provision, less (ii) the Reserved Shares (as
defined below), if any.
1
(d) The term "First Target Escrow Shares" means the number of
shares equal to (i) the Escrow Shares, less (ii) 500,000 shares.
(e) The term "Second Target Escrow Shares" means the number of
shares equal to (i) the First Target Escrow Shares, plus (ii) 250,000 shares.
(f) The term "Monthly Average Shares" means the number of
shares equal to (i) the First Target Escrow Shares, divided by (ii) twelve (12).
(g) The term "Seller's Proportionate Release" means (x) the
number of Escrow Shares released at any time (other than pursuant to the
provisions of Section 4(b)(ii) of this Escrow Agreement) to the Seller pursuant
to the terms of this Escrow Agreement, divided by (y) the number of First Target
Escrow Shares; provided, however, that the cumulative total of the Seller's
Proportionate Release and the Buyer's Proportionate Release (as defined below)
shall in no event exceed 1.0.
(h) The term "Buyer's Proportionate Release" means (x) the
number of Escrow Shares released at any time to the Buyer pursuant to the terms
of this Escrow Agreement, divided by (y) the number of First Target Escrow
Shares; provided, however, that the cumulative total of the Seller's
Proportionate Release and the Buyer's Proportionate Release shall in no event
exceed 1.0.
(i) The term "Escrowed Warrants" means the Warrants, if any,
originally deposited in escrow.
(j) The term "2.07 Conditions" means the satisfaction of both
of the following conditions:
(x) the Seller shall have satisfied both the Opinion Condition and the
Releases Condition and the Seller shall have provided to the Buyer and
Escrow Agent documentation required to reflect such satisfaction, and
(y) the Seller shall have demonstrated that the Seller has paid all
forms of compensation to Transferred Employees and other employees of
Seller contemplated by Section 2.07(b)(iii) of the Agreement.
The documentation reflecting the satisfaction of the 2.07 Conditions is referred
to, collectively, as the "2.07 Documentation."
(k) The term "Reserved Shares" means the shares referred to in
paragraph 2 of that certain letter agreement, dated June 18, 2002 (the "Letter
Agreement"), among the Agreement Parties, a copy of which Letter Agreement has
been provided to the Escrow Agent; provided, however, that, at such time as the
Escrow Agent receives the Reserved Shares Satisfaction (as defined below), any
Reserved Shares not released or to be released to the Buyer as provided herein
shall be deemed to be removed from the definition of Reserved Shares.
2
(l) The term "Holder" means each party to whom Escrow Shares
or Escrowed Warrants are to issued, as such parties are listed in the schedule
or schedules provided by the Seller which identify each such party and such
party's percentage allocation of each distribution of Escrow Shares or Warrants,
as the case may be, to be made to the Seller, provided that each such party
named in any such schedule satisfies the provisions of the Agreement and has
otherwise been approved or accepted by the Buyer, as contemplated by the
Agreement.
2. (a) (i) The following provisions apply in addition to,
and not in lieu of, the other provisions of this Escrow Agreement relating to
the release of the Escrowed Consideration to the Seller.
(ii) In order for the Escrow Agent to release any of
the Escrowed Consideration to the Seller (which term, for the purposes hereof,
shall mean SFP or its designee(s) as provided below), the 2.07 Conditions shall
have been satisfied and the Escrow Agent shall have received confirmation from
the Buyer of the sufficiency thereof; provided, however, that such confirmation
shall be deemed received by the Escrow Agent if the Buyer has not given written
notice to the contrary to the Escrow Agent by the tenth (10th) business day
after the date the Seller provides to the Escrow Agent proof of delivery to the
Buyer of the material claiming to constitute the 2.07 Documentation and copies
of the 2.07 Documentation.
(iii) It is the agreement of the Seller and the Buyer
that, within forty-five (45) days after the Closing Date (the close of business
on such forty-fifth day after the Closing Date, the "Target Date"), the Seller
must satisfy the 2.07 Conditions and provide the 2.07 Documentation to the
Buyer. If the 2.07 Conditions are not timely satisfied, the Escrow Agent shall
release the Escrowed Consideration to the Buyer.
(iv) If the Seller claims it has timely satisfied the
2.07 Conditions and provided the 2.07 Documentation to the Buyer, but the Buyer
either claims that such material was not timely provided or gives the Escrow
Agent written notice that the Buyer does not confirm the sufficiency thereof,
the Escrow Agent shall maintain the Escrowed Consideration in escrow pending
resolution of the dispute between the Buyer and the Seller regarding the
timeliness of the satisfaction of the 2.07 Conditions and/or the sufficiency of
the 2.07 Documentation is resolved. Such period shall be referred to as an
"Escrow Suspension Period."
(b) If the Seller timely satisfies the 2.07 Conditions and
timely provides the 2.07 Documentation which has been confirmed by the Buyer or
is deemed to have been confirmed (as provided in the immediately preceding
subparagraph (a) of this Section 2), the Escrow Agent shall release the Escrowed
Consideration to the Seller as provided in the following provisions of this
Escrow Agreement.
3. Thirty-five (35) days after the Closing Date, the Buyer shall give
the Escrow Agent and the Seller written notice confirming that conditions of
clause (x) of Section 2.07(a)(ii) of the Agreement [regarding Key Transferred
Employees] has been satisfied (a "Confirmation Notice") or asserting that it has
not been satisfied (a "Non-Confirmation Notice"). If the Buyer issues a
Non-Confirmation Notice, the Seller may give written notice to the Buyer and the
Escrow Agent (a "Challenge Notice") within fifteen (15) days after the date of
the Non-Confirmation Notice. If a Challenge Notice is not timely given, the
Escrow Agent may release
3
the Escrowed Consideration to the Buyer and the Escrow Agent's obligations under
this Escrow Agreement shall terminate upon such release. If a Challenge Notice
is timely given, the Escrow Agent shall hold the Escrowed Consideration in
escrow pending the earliest of:
(i) agreement of the Buyer and the Seller, communicated in writing
signed by both of them delivered to the Escrow Agent, in which event
the Escrow Agent shall follow the directions regarding the release of
the Escrowed Consideration provided therein;
(ii) the final non-appealable determination of a court or other
tribunal of appropriate jurisdiction (a "Tribunal") as to the status of
the Non-Confirmation Notice, in which event, the Escrow Agent shall
follow the directions of such Tribunal, if specified in the decision,
or if not specified in the decision, then (x) if the Buyer's right to
issue to the Non-Confirmation Notice was upheld, the Escrow Agent may
release the Escrowed Consideration to the Buyer and the Escrow Agent's
obligations under this Escrow Agreement shall terminate upon such
release, or (y) if the Buyer's right to issue the Non-Confirmation
Notice was not upheld, the Escrow Agent shall hold the Escrowed
Consideration subject to release in accordance with the provisions of
Section 4 hereof; or
(iii) the date which is thirty (30) days after the First Anniversary
Date (the "Release Date"), unless on or before the Release Date, the
Escrow Agent has received written notice from counsel representing the
Seller to the effect that formal action has actually been filed in a
Tribunal (and that the Buyer is, or has been formally made, a party
thereto) to determine the right of the Buyer to issue the
Non-Confirmation Notice.
4. (a) (i) Beginning on the fifth business day following the
end of the first full calendar month after the Closing Date and continuing for
each calendar month thereafter for the following eleven (11) calendar months,
the Buyer shall deliver to the Seller and the Escrow Agent a written statement
of the Gross Production of the Transferred Employees for the preceding calendar
month (each, a "Monthly Statement").1 The calendar month as which the relevant
Monthly Statement is issued is referred to as the "Current Month."
(ii) The Monthly Statement shall also reflect the
accrued Gross Production of the Transferred Employees for all months preceding
the Current Month (the "Accrued Production") and the Average Monthly Production
(as defined below). The term "Average Monthly Production" means (x) the sum of
the Accrued Production plus the Gross Production of the Transferred Employees
for the Current Month (the "Aggregate Accrued Production"), divided by (y) the
number of full calendar months beginning with the first full calendar month
immediately after the Closing Date through and including the Current Month (the
"Total Number of Months").
4
(iii) The Buyer shall continue to issue Monthly
Statements (x) if a Challenge Notice was issued and (y) during an Escrow
Suspension Period.
(iv) In all events, however, the Buyer may stop
providing Monthly Statements to the Escrow Agent when all of the Escrowed
Consideration has been released from escrow hereunder.
(b) (i) The provisions of this Section 4(b) apply when,
but only when, both
(X) either (1) a Confirmation Notice has been given or (2) the
provisions of Section 3 would otherwise contemplate the release of
Escrow Shares to the Seller (other than pursuant to (A) an agreement of
the parties or (B) specific direction of a Tribunal), and
(Y) the 2.07 Conditions are timely satisfied.
(ii) Subject to the provisions of Section 4(b)(x)
hereof, all Closing Shares then in escrow which are not to be released to the
Buyer pursuant to the provisions of this Escrow Agreement shall be released to
the Seller if, in addition to the satisfaction of the provisions of Section
4(b)(i) hereof, all, but not less than all, of the Delivery Conditions shall
have been satisfied by the Target Date and the Escrow Agent shall have received
confirmation from the Buyer of such satisfaction; provided, however, that such
confirmation shall be deemed received by the Escrow Agent if the Buyer has not
given written notice to the contrary to the Escrow Agent by the tenth (10th)
business day after the date the Seller provides to the Escrow Agent proof of
delivery of a notice to the Buyer claiming that the Delivery Conditions have all
been satisfied by the Target Date.
(iii) If the Average Monthly Production reflected in
a Monthly Statement is $350,000 or more, the Escrow Agent shall release to the
Seller the number of Escrow Shares equal to (x) the Monthly Average Shares
multiplied by the Total Number of Months, less (y) the number of Escrow Shares
previously released to the Seller hereunder.
(iv) If the Aggregate Accrued Production at any time
prior to the First Anniversary Date equals $4,200,000 or more, the Escrow Agent
shall release to the Seller the number of Escrow Shares equal to (x) the First
Target Escrow Shares, less (y) the number of Escrow Shares previously released
to the Seller hereunder. Thereafter no additional Escrow Shares shall be
released to the Seller except pursuant to Section 4(b)(v) or (vi) hereof.
(v) If the Aggregate Accrued Production at any time
prior to the First Anniversary Date equals $6,000,000 or more, the Escrow Agent
shall release to the Seller the number of Escrow Shares equal to (x) the Second
Target Escrow Shares, less (y) the number of Escrow Shares previously released
to the Seller hereunder. Thereafter no additional Escrow Shares shall be
released to the Seller except pursuant to Section 4(b)(vi) hereof.
(vi) If the Aggregate Accrued Production at any time
prior to the First Anniversary Date equals $8,000,000 or more, the Escrow Agent
shall release to the Seller the number of Escrow Shares equal to (x) the Escrow
Shares, less (y) the number of Escrow Shares previously released to the Seller
hereunder.
5
(vii) Whenever this Agreement contemplates that
Escrow Shares are to be released in whole or in part to the Seller, the Escrow
Agent will submit all or a portion of the certificates or other evidence of
record ownership of the Escrow Shares then held in escrow by the Escrow Agent to
the vFinance transfer agent sufficient to effectuate the issuance of the
relevant released Escrow Shares in the name of the Seller. When the Escrow Agent
receives such certificates so issued in the name of the Seller, the Escrow Agent
shall deliver such certificates issued to the Seller to Xxxxxxx Xxxx ("Xxxx") by
hand, messenger, express mail or overnight courier, as may be selected by the
Escrow Agent. The Escrow Agent is not responsible for the issuance or for any
delay in the issuance or delivery of the certificates by the vFinance transfer
agent. The Escrow Agent shall not be required to deliver, provide or obtain an
opinion of counsel regarding any such issuance of the Escrow Shares in the name
of any Holder.
(viii) If the Monthly Statement for the month ending
on the First Anniversary Date reflects an Aggregate Accrued Production of less
than $8,000,000, then the Escrow Agent shall (i) release to the Seller such
number of Escrow Shares as are to be released to the Seller in accordance with
the provisions of Section 4(b) hereof and (ii) release to the Buyer any
remaining Escrowed Consideration.
(ix) The provisions of this subparagraph (ix) apply
if the Escrowed Consideration includes the Escrowed Warrants.
(X) Whenever this Agreement contemplates that Escrow Shares are to be
released in whole or part to the Seller (other than pursuant to the
provisions of Section 4(b)(ii) of this Escrow Agreement) or the Buyer,
as the case may be, the Escrow Agent will, contemporaneous with such
release, release to (1) the Seller the number of Warrants equal to the
Escrowed Warrants, multiplied by the Seller's Proportionate Release,
and (2) the Buyer the number of Warrants equal to the Escrowed
Warrants, multiplied by the Buyer's Proportionate Release.
(Y) If the Escrow Agent is releasing all of the Closing Shares to the
Seller pursuant to the provisions of Section 4(b)(ii) of this Escrow
Agreement, all Escrowed Warrants still in escrow shall be released to
the Seller.
(Z) In the event any Escrow Warrants are to be delivered to the Seller,
the Escrow Agent, will, if necessary, submit all or a portion of the
Warrants then held in escrow by the Escrow Agent to vFinance sufficient
to effectuate the issuance of the relevant released Warrants in the
name of the Seller. When the Escrow Agent receives such replacement
Warrants so issued in the name of the Seller, the Escrow Agent shall
deliver such Warrants issued to the Seller to Xxxx by hand, messenger,
express mail or overnight courier, as may be selected by the Escrow
Agent. The Escrow Agent is not responsible for the issuance or for any
delay in the issuance or delivery of the Warrant certificates by
vFinance.
(x) Any other provision of this Escrow Agreement to
the contrary, the Escrow Agent shall not release the Reserved Shares to the
Seller until such time as the Buyer confirms to the Escrow Agent that the
condition in paragraph 2 of the Letter Agreement has been satisfied or that the
Buyer waives such condition (the "Reserved Shares Satisfaction"). At the
6
time the Escrow Agent receives the Reserved Shares Satisfaction, the Escrow
Agent will recompute the number of Escrow Shares which would have been released
to the Seller under the provisions of this Escrow Agreement from the Closing
Date through and including the date of the receipt of the Reserved Shares
Satisfaction if there had been no Reserved Shares (the "Adjusted Released
Shares"). The Escrow Agent shall release to the Seller the number of the Escrow
Shares equal to (i) the Adjusted Released Shares less (ii) the number of Escrow
Shares previously released to the Seller. No additional Escrowed Warrants shall
be released to the Seller at such time. If the Buyer or any of its Affiliates
makes a payment on account of the matter referred to in paragraph 2 of the
Letter Agreement, the Escrow Agent shall release the Reserved Shares to the
Buyer and the shares so released shall be permanently deemed Reserved Shares.
(xi) The Seller agrees that all Escrow Shares and
Escrowed Warrants, if any, respectively, released to the Seller shall be
allocated to the respective Holders in accordance with the schedule or schedules
provided by the Seller, provided that each such Holder satisfies the provisions
of the Agreement and has otherwise been approved or accepted by the Buyer, as
contemplated by the Agreement. The Seller, for itself and each Holder,
recognizes that only whole shares can be issued to each Holder with respect to
Escrow Shares or Escrowed Warrants. The Escrow Agent may adjust (up or down) the
number of shares issued to any Holder in connection with each release by up to
one share for each issuance to adjust for fractional shares which otherwise
would be issued to such Holder or to all Holders as a group in connection with
that release.
(c) If on the First Anniversary Date, there is a Confirmation
Challenge outstanding and none of the events referred to in clauses (i), (ii) or
(iii) of Section 3 has occurred, then the Escrow Agent may release to the Buyer:
(X) the number of Escrow Shares equal to (x) the Escrow Shares, less
(y) the sum of (1) the number of Escrow Shares which would have been
released to the Seller pursuant to the Monthly Statements for all
periods through and including the First Anniversary Date if no
Non-Confirmation Notice had ever been issued by the Buyer, plus (2) the
number of Escrow Shares which had otherwise previously been released to
the Buyer and/or the Seller, and
(Y) the number of Warrants equal to (x) the Escrowed Warrants, less (y)
the sum of (1) the number of Warrants which would have been released to
the Seller pursuant to the Monthly Statements for all periods through
and including the First Anniversary Date if no Non-Confirmation Notice
had ever been issued by the Buyer, plus (2) the number of Escrowed
Warrants which had otherwise previously been released to the Buyer
and/or the Seller.
(d) Anything herein to the contrary notwithstanding, (i) the
Buyer may direct the Escrow Agent in writing to release all or a portion of the
Escrowed Consideration then being held in escrow to the Seller and (ii) the
Seller may direct the Escrow Agent to release all or a portion of the Escrowed
Consideration then being held in escrow to the Buyer. Subsequent releases of
Escrow Shares or the Escrowed Warrants held in escrow, as the case may be, shall
not exceed the Escrow Shares or the Escrowed Warrants remaining in escrow.
7
5. The Escrow Agent's duties hereunder may be altered, amended,
modified or revoked only by a writing signed by the party to be charged
therewith.
6. The Escrow Agent shall be obligated only for the performance of such
duties as are specifically set forth herein and may rely and shall be protected
in relying or refraining from acting on any instrument reasonably believed by
the Escrow Agent to be genuine and to have been signed or presented by the
proper party or parties, whether such instrument (or a copy thereof) is received
by the Escrow Agent by mail, hand delivery, or facsimile or other electronic
transmission. The Escrow Agent shall not be personally liable for any act the
Escrow Agent may do or omit to do hereunder as the Escrow Agent while acting in
good faith, and any act done or omitted by the Escrow Agent pursuant to the
advice of the Escrow Agent's attorneys-at-law shall be conclusive evidence of
such good faith.
7. The Escrow Agent is hereby expressly authorized to disregard any and
all warnings given by any of the parties hereto or by any other person or
corporation, excepting only orders or process of courts of law and is hereby
expressly authorized to comply with and obey orders, judgments or decrees of any
court. In case the Escrow Agent obeys or complies with any such order, judgment
or decree, the Escrow Agent shall not be liable to any of the parties hereto or
to any other person, firm or corporation by reason of such decree being
subsequently reversed, modified, annulled, set aside, vacated or found to have
been entered without jurisdiction.
8. The Escrow Agent shall not be liable in any respect on account of
the identity, authorities or rights of the parties executing or delivering or
purporting to execute or deliver the Agreement or any documents or papers
deposited or called for hereunder.
9. The Escrow Agent shall be entitled to employ such legal counsel and
other experts as the Escrow Agent may deem necessary to advise the Escrow Agent
properly in connection with the Escrow Agent's duties hereunder, may rely upon
the advice of such counsel, and may pay such counsel reasonable compensation
therefor. The Escrow Agent has acted as legal counsel for the Buyer and certain
of its Affiliates, and may continue to act as legal counsel for such party or
parties from time to time, notwithstanding its duties as the Escrow Agent
hereunder. The Seller consents to the Escrow Agent's acting in such capacity as
legal counsel for the Buyer and such Affiliates and waives any claim that such
representation represents a conflict of interest on the part of the Escrow
Agent. The Seller understands that the Buyer and the Escrow Agent are relying
explicitly on the foregoing provision in entering into this Escrow Agreement.
10. (a) The Escrow Agent's responsibilities as escrow agent
hereunder shall terminate if the Escrow Agent shall resign by written notice to
the Seller and the Buyer. In the event of any such resignation, the Buyer and
the Seller shall appoint a successor Escrow Agent.
(b) If the Escrow Agent gives such notice of resignation while
holding any Escrowed Consideration, the Escrow Agent shall hold such Escrowed
Consideration in escrow until the earliest of (i) written direction from the
Seller and the Buyer with respect thereto, (ii) the appointment of a successor
Escrow Agent, or (iii) ten (10) days after the date such resignation notice is
given to the Seller and the Buyer. The holding of the Escrowed Consideration
under such circumstances is as an accommodation to the parties and the Escrow
Agent shall not be obligated to take any other action with respect thereto. If
no successor
8
Escrow Agent is designated and no directions are provided, the Escrow Agent may
then return the Escrowed Consideration to the party which deposited them in
escrow or deposit it in a court of competent jurisdiction, in each case without
further obligation to any party.
11. If the Escrow Agent reasonably requires other or further
instruments in connection with this Escrow Agreement or obligations in respect
hereto, the necessary parties hereto shall join in furnishing such instruments.
12. It is understood and agreed that should any dispute arise with
respect to the delivery and/or ownership or right of possession of the Escrowed
Consideration held by the Escrow Agent hereunder, the Escrow Agent is authorized
and directed in the Escrow Agent's sole discretion (1) to retain in the Escrow
Agent's possession without liability to anyone all or any part of said Escrowed
Consideration until such disputes shall have been settled either by mutual
written agreement of the parties concerned or by a final order, decree or
judgment of a court of competent jurisdiction after the time for appeal has
expired and no appeal has been perfected, but the Escrow Agent shall be under no
duty whatsoever to institute or defend any such proceedings or (2) to deliver
the Escrowed Consideration held by the Escrow Agent hereunder to a state or
federal court having competent subject matter jurisdiction and located in the
State and City of New York in accordance with the applicable procedure therefor.
13. Each of the Agreement Parties agree jointly and severally, to
indemnify and hold harmless the Escrow Agent from any and all claims,
liabilities, costs or expenses in any way arising from or relating to the duties
or performance of the Escrow Agent hereunder other than any such claim,
liability, cost or expense to the extent the same shall have been determined by
final, unappealable judgment of a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of the Escrow Agent.
14 Any notice required or permitted hereunder shall be given in manner
provided in the Section headed "NOTICES" in the Agreement, the terms of which
are incorporated herein by reference. For such purposes, the address of the
Escrow Agent shall be (subject to change as provided in such Section):
Xxxxxxx & Xxxxxx, LLP
00 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Fax: (000) 000-0000
eMail: skrieger @xxxxxxxxx.xxx
15. (a) With respect to any action to be taken by or on behalf of the
Seller hereunder, the Escrow Agent may rely on action taken by the Seller's
Authorized Person. The Seller may, by written notice given from time to time,
designate one or more persons to be the person (the "Seller's Authorized
Person") who can act on behalf of the Seller for all matters relating to this
Escrow Agreement. Any such notice can designate a new person to be a Seller's
Authorized Person in addition to or in the place of any then current Seller's
Authorized Person and shall be effective only upon the Escrow Agent's actual
receipt thereof. The authority of a person identified as a Seller's Authorized
Person shall continue until the Escrow Agent actually
9
receives a written notice from the Seller that such authority has been
terminated. The initial Seller's Authorized Person shall be Xxxxxxx Xxxx.
(b) With respect to any action to be taken by or on behalf of
the Buyer hereunder, the Escrow Agent may rely on action taken by the Buyer's
Authorized Person. The Buyer may, by written notice given from time to time,
designate one or more persons to be the person (the "Buyer's Authorized Person")
who can act on behalf of the Buyer for all matters relating to this Escrow
Agreement. Any such notice can designate a new person to be a Buyer's Authorized
Person in addition to or in the place of any then current Buyer's Authorized
Person and shall be effective only upon the Escrow Agent's actual receipt
thereof. The authority of a person identified as a Buyer's Authorized Person
shall continue until the Escrow Agent actually receives a written notice from
the Buyer that such authority has been terminated. The initial Buyer's
Authorized Person shall be Xxxxxxx Xxxxxxx.
16. By signing this Escrow Agreement, the Escrow Agent becomes a party
hereto only for the purpose of this Escrow Agreement; the Escrow Agent does not
become a party to the Agreement.
17. This instrument shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and permitted assigns and
shall be governed by the laws of the State of New York without giving effect to
principles governing the conflicts of laws. A facsimile transmission of these
instructions signed by the Escrow Agent shall be legal and binding on all
parties hereto.
18. There is no party who is intended to be a third party beneficiary
of this Escrow Agreement.
19. The parties hereto hereby waive a trial by jury in any action,
proceeding or counterclaim brought by either of the parties hereto against the
other in respect of any matter arising out of or in connection with this Escrow
Agreement.
[Balance of page intentionally left blank]
10
20. The rights and obligations of any party hereto are not assignable
without the written consent of the other parties hereto. This Escrow Agreement
constitutes the entire agreement amongst the parties with respect to the subject
matter hereof.
vFINANCE INVESTMENTS, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Executive Officer
SOMERSET FINANCIAL PARTNERS, INC.
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
SOMERSET FINANCIAL GROUP, INC.
By: /s/ Xxxxxxx Xxxx
----------------
Name: Xxxxxxx Xxxx
Title: Chief Executive Officer
XXXXXXX XXXX
By: /s/ Xxxxxxx Xxxx
----------------
XXXXXXXX XXXXXXXX
By: /s/ Xxxxxxxx Xxxxxxxx
---------------------
XXXXXXX & XXXXXX LLP
By: /s/XXXXXXX & PRAGER LLP
-----------------------
