EXECUTION COPY
ESCROW AGREEMENT (this
"Agreement") dated as of May 17, 1999,
by and among GREENFIELD HOLDINGS, LLC, a
Delaware limited liability company (the
"Investor"), XXXXXX XXXXXXXXXX, an
individual (the "Shareholder"),
GREENFIELD ONLINE, INC., a Connecticut
corporation (the "Company"), and
SunTrust BANK, Atlanta (the "Escrow
Agent").
The Investor, the Shareholder, and the Company are parties to
a Stock Purchase and Redemption Agreement, dated as of May 12, 1999 (as amended,
the "Purchase Agreement"). This Agreement is being executed and delivered in
connection with the transactions contemplated by the Purchase Agreement.
Capitalized terms used but not otherwise defined in this Agreement shall have
the meanings given such terms in the Purchase Agreement as in effect on the date
of this Agreement.
ACCORDINGLY, the parties hereto hereby agree as follows:
1. Certain Defined Terms.
As used in this Agreement, the following terms shall have the
following meanings:
"Claim" means any claim for indemnification of Losses asserted
by the Investor on its own behalf or on behalf of the Company against the Escrow
Account (as defined below) in accordance with and subject to the limitations set
forth in Article VIII of the Purchase Agreement and pursuant to this Agreement.
"Direction Letter" means a joint letter of direction executed
by the Investor and the Shareholder and delivered to the Escrow Agent. A
Direction Letter shall (i) clearly identify itself as a Direction Letter
delivered pursuant to this Agreement, and (ii) may direct the Escrow Agent to
pay all or a specified portion of the Escrow Funds (as defined below) (and, if
less than all of the Escrow Funds, the Direction Letter shall clearly state the
"net amount payable") to a specified Person or Persons at a specified time or
times and in a specified manner or manners, and (iii) may contain such other
directions to the Escrow Agent as may be required by this Agreement, reasonably
requested by the Escrow Agent or mutually agreeable to the Investor and the
Shareholder.
"Release Date" means the first anniversary of the Closing
Date.
2. Appointment of Escrow Agent. The Company, the Shareholder and the
Investor hereby designate and appoint the Escrow Agent to serve in accordance
with the terms and conditions of this Agreement, and the Escrow Agent hereby
agrees to act as such, upon the terms and conditions provided in this Agreement.
3. Escrow Funds.
(a) Deposit of Escrow Funds. Concurrently with the execution and
delivery of this Agreement, the Company shall deliver or cause to be delivered
to the Escrow Agent, in accordance with the terms of the Purchase Agreement,
$1,600,000 in cash into an escrow account to be known as the "Escrow Account."
The amount deposited into the Escrow Account, together with any proceeds of
investments thereof (including any Escrow Income (as defined in Section 3(e)),
that may be held in the Escrow Account from time to time are hereinafter
referred to collectively as "Escrow Funds." The Escrow Agent shall keep
appropriate records to reflect the current value from time to time of the Escrow
Funds, including appropriate adjustments for disbursements and income earned or
losses in respect thereof, if any. Subject to the Escrow Agent's right to resign
pursuant to Section 6 hereof, all Escrow Funds shall be held by the Escrow Agent
pursuant to this Agreement as a source of recourse for certain indemnity
obligations under the Purchase Agreement. Without limiting the foregoing, the
Escrow Agent will not make any payment or distribution of Escrow Funds except as
and in the manner expressly provided by this Agreement.
(b) Rights to Escrow Funds. Except as expressly provided herein, no
Person shall have any right, title or interest in or possession of any of the
Escrow Funds. Therefore, except as otherwise provided in Section 3(f) hereof,
(i) neither the Company, the Investor nor the Shareholder shall have the ability
to pledge, convey, hypothecate or grant a security interest in any portion of
the Escrow Funds unless and until such assets have been disbursed to such party
in accordance with Section 4 or Section 5 below and (ii) until disbursed
pursuant to Section 4 or Section 5 below, the Escrow Agent shall be in sole
possession of the Escrow Funds and will not act or be deemed to act as custodian
for any party for purposes of perfecting a security interest therein.
Accordingly, except as provided in Section 3(f) hereof, no Person shall have any
right to have or to hold any of the Escrow Funds as collateral for any
obligation or be able to obtain a security interest in any assets (tangible or
intangible) contained in or relating to the Escrow Funds.
(c) Payments from Escrow Funds. Any payment to be made by the Escrow
Agent pursuant to this Agreement shall be made by check or wire transfer (upon
receipt of written wire transfer instructions of the recipient) out of the
Escrow Account and the Escrow Agent shall make such payment out of and to the
extent of any cash on hand from the Escrow Account before liquidating
prematurely any Permitted Investments to obtain cash to make such payment.
(d) Investment of Escrow Funds. From time to time and in the same
manner used to make investments for its own account or for the account of others
for which it holds funds in escrow, the Escrow Agent will invest any cash in the
Escrow Funds in Permitted Investments. As used in this Agreement, "Permitted
Investments" means (i) direct obligations of the United States or any agency
thereof, or obligations guaranteed by the United States or any agency thereof,
(ii) commercial paper rated at least A-1 by Standard & Poor's Corporation and
P-1 by Xxxxx'x Investors Service, Inc., (iii) time deposits with, including
certificates of deposit issued by, any office located in the United States of
any bank or trust company which is organized under the laws of the United States
or any State thereof and has capital, surplus and undivided profits aggregating
at least $500,000,000 and which issues (or the parent of which issues)
certificates of deposit or commercial paper with a rating described in clause
(ii) above (a
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"Qualified Financial Institution"), (iv) repurchase agreements with a Qualified
Financial Institution, or (v) the Federated Treasury Money Market Obligation
Fund; provided that, in each case, any investment referred to in clauses (i)
through (iv) above matures within ninety (90) days or less from the date of
acquisition thereof by the Escrow Agent.
(e) Escrow Income. The Escrow Agent shall retain as part of the
Escrow Funds all income, interest, increments and gains of all kinds earned on
funds in the Escrow Account (collectively referred to herein as "Escrow
Income").
(f) Security Interests in Escrow Funds. It is the intent of the
parties hereto that the Investor and the Shareholder shall have no interest in
the Escrow Funds (other any rights to be enforced solely on behalf of the
Company in accordance with this Agreement) and that neither a voluntary or
involuntary case under any applicable bankruptcy, insolvency or similar law nor
the appointment of a receiver, trustee, custodian or similar official in respect
of the Investor or the Shareholder (any of which is referred to herein as a
"Bankruptcy Event") shall give rise to any other interest in the Escrow Funds or
affect, modify, convert or otherwise change such interest. Accordingly, in order
to assure the foregoing result even if it is determined by a court of competent
jurisdiction (whether or not in connection with a Bankruptcy Event) that any
such Person has an interest in the Escrow Funds that is greater than such
interest, the parties hereto agree as follows:
(i) the Investor hereby grants (effective as of the date hereof)
to the Company a first priority security interest in, and hereby
pledges and assigns to the Company, all of its right, title and
interest in the Escrow Funds, if any, to secure the Investor's
obligations hereunder. The Escrow Agent hereby agrees to act as bailee
and possessory agent on behalf of the Company in respect of the
Company's security interest in the Escrow Funds. The Escrow Agent
shall, upon receipt of indemnification satisfactory to it from the
Company for its fees and expenses incurred in connection with taking
such actions, take all actions as may be reasonably requested in
writing of it by the Company to further perfect or maintain the
security interest created by the Investor hereunder in the Escrow
Funds. Such security interest shall automatically be released with
respect to any funds properly distributed from the Escrow Funds
pursuant to the terms of this Agreement;
(ii) the Shareholder hereby grants (effective as of the date
hereof) to the Company a first priority security interest in, and
hereby pledges and assigns to the Company, all of his right, title and
interest in the Escrow Funds, if any, to secure the Shareholder's
obligations hereunder. The Escrow Agent hereby agrees to act as bailee
and possessory agent on behalf of the Company in respect of the
Company's security interest in the Escrow Funds. The Escrow Agent
shall, upon receipt of indemnification satisfactory to it from the
Company for its fees and expenses incurred in connection with taking
such actions, take all actions as may be reasonably requested in
writing of it by the Company to further perfect or maintain the
security interest created by the Shareholder hereunder in the Escrow
Funds. Such security interest shall automatically be released with
respect to any funds properly distributed from the Escrow Funds
pursuant to the terms of this Agreement.
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The parties hereto agree and acknowledge that the establishment and maintenance
of the Escrow Funds hereunder is intended to constitute possession of the Escrow
Funds for the purposes of perfecting the security interests therein created by
this Section 3(f).
(g) Waiver of Liens, Etc. Notwithstanding anything to the contrary
contained herein or under applicable law, the Escrow Agent hereby waives all
liens, rights of set off, security interests or any other encumbrances
whatsoever in respect of the Escrow Funds, as such may relate to any obligation
of the Shareholder or the Investor to the Escrow Agent.
4. Claims, Procedures and Payment from Indemnification Escrow Account. The
Escrow Funds in the Escrow Account shall be held and disposed of by the Escrow
Agent for the benefit of the Company, the Investor or the Shareholder, as
follows:
(a) General.
(i) The Investor shall notify the Escrow Agent, the Company, and
the Shareholder in writing of the details of any Claim in respect of
any Losses for which the Investor claims it or the Company is entitled
to indemnification from the Shareholder under the Purchase Agreement.
The Investor and the Shareholder agree to use good faith efforts to
resolve amicably all Claims, to respond to requests made by the other
as promptly as is reasonably practicable under the circumstances and to
provide each other with all information reasonably requested by the
other to enable the other to assess the basis for any Claim (or any
objection to the assertion of such a Claim), or the magnitude of any
Claim, asserted. Without limiting the foregoing, the Shareholder shall
respond in writing to any Claim asserted by the Investor on behalf of
the Company as promptly as is reasonably practicable under the
circumstances, but in all events within 30 days after receipt by the
Shareholder of a notice of Claim, specifying either that (and the
extent to which) the Shareholder consents to the payment of such Claim
asserted by the Investor on behalf of the Company or that the
Shareholder objects to the payment of such Claim and stating its
reasons therefor. The Shareholder will provide the Escrow Agent with a
copy of its written response to the Claim.
(ii) If (and to the extent that) the Shareholder consents to the
payment of a Claim, the Investor and the Shareholder shall deliver, as
promptly as is reasonably practicable under the circumstances, but in
all events within 30 days after receipt by the Shareholder of notice of
such Claim, to the Escrow Agent a Direction Letter specifying the
amount that the Shareholder has consented to be paid to the Company or
the Investor with respect to such Claim (to the extent of such consent,
an "Allowed Claim") and the date such payment is due to be made to the
Company from the Escrow Account. The Escrow Agent shall pay the Allowed
Claim out of the Escrow Account in accordance with the Direction
Letter. With respect to Allowed Claims that constitute Third Party
Claims, at the time when payment of such Allowed Claim becomes due
pursuant to the Purchase Agreement, the Investor and the Shareholder
will deliver a Direction Letter to the Escrow Agent, and the Escrow
Agent will make payment of such amount from the Escrow Account pursuant
to the Direction Letter.
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(iii) If the Shareholder objects to the payment of a Claim (or
any portion thereof) and refuses to sign the Direction Letter submitted
to him by the Investor in connection with such Claim (or such portion
thereof) as provided in Section 4(a)(ii) above (each such Claim or
portion thereof being a "Disputed Claim"), then (A) the Investor and
the Shareholder will deliver a Direction Letter pursuant to Section
4(a)(ii) above with respect to the payment of the undisputed portion
(if any) of such Claim and (B) the Investor and the Shareholder shall
use their best efforts to resolve such Disputed Claim. If the parties
are unable to resolve the Disputed Claim within 15 days after the date
the Shareholder objects to the payment of the Disputed Claim, then such
Disputed Claim shall be settled in accordance with the dispute
resolution mechanisms provided for in Article VIII of the Purchase
Agreement (the mechanism provided for in Article VIII being referred to
as a "Proceeding"), provided that the prevailing party or parties (as
determined by the mediator or the court adjudicating an action brought
hereunder upon the failure of mediation) shall be entitled to receive
from the non-prevailing party or parties, and the non-prevailing party
or parties shall pay, all reasonable costs and expenses incurred by the
prevailing party or parties in connection with the resolution of the
Disputed Claim, including reasonable attorneys' fees and the fees and
expenses of the Escrow Agent to the extent that they relate solely
thereto (collectively, "Litigation Expenses"). Notwithstanding anything
to the contrary contained in this Agreement, Litigation Expenses shall
be governed in all respects by, and borne by the parties as set forth
in, this Section 4(a)(iii).
(iv) No later than two business days following the final
resolution of the Disputed Claim (whether by judgment, decree,
settlement or otherwise), the Investor and the Shareholder shall
deliver a Direction Letter to the Escrow Agent regarding payment of
such Disputed Claim and the Escrow Agent shall make payment out of the
Escrow Account in accordance with that Direction Letter.
(v) If the Shareholder fails to respond to the notice of a Claim
pursuant to Section 4(a)(i) within 30 days of the receipt of such
notice, the Investor shall redeliver such notice to the Escrow Agent,
the Company and the Shareholder accompanied by instructions for the
method and place of payment of such Claim in the event the Shareholder
again fails to respond. The Escrow Agent shall also promptly deliver a
copy of such second notice to the Shareholder upon the Escrow Agent's
receipt of same. If the Shareholder fails to respond to such second
notice within 15 days after being delivered by the Escrow Agent, the
Shareholder shall be deemed to have agreed to the validity of the Claim
for the full amount thereof and to have consented to the payment
thereof. The Escrow Agent shall make payment of such amount from the
Escrow Account pursuant to the instructions accompanying the second
notice from the Investor.
(b) Other. In addition to the foregoing procedure, the Escrow Agent
may make payments from the Escrow Account at any time, pursuant to and (i) upon
receipt by the Escrow Agent of any Direction Letter, or (ii) 30 days after
receipt by the Escrow Agent of any order, judgment or decree ordering the
release of all or a specified portion of the Escrow Account, accompanied by an
opinion of counsel of the recipient to the effect that such order, judgment or
decree represents a final adjudication of the rights of the parties by a court
of competent
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jurisdiction, and that the time for appeal from such order, judgment or decree
has expired without an appeal having been noticed, filed or perfected (a "Final
Order").
(c) Limitation on Recourse to Escrow Account. Notwithstanding
anything to the contrary in this Agreement, the Company shall have recourse to
the Escrow Account only in respect of Claims; provided, however, that the
amounts available for payment of any Claim shall be limited as funds are
released from the Escrow Account in accordance with Section 5 below; and,
provided further, however, that the Company shall not have any recourse to the
Escrow Account in respect of any Claim which arises or is asserted after the
Release Date (whether or not any funds remain in escrow after the Release Date).
If the amount of any payment to be made with respect to any Claim or any
Disputed Claim resolved in the Investor's favor (on behalf of the Company)
exceeds the amount that is available therefor pursuant to this Section 4(c), the
Escrow Agent is hereby authorized to make payment to the Company upon receipt of
a Direction Letter or Final Order of the total amount available therefor out of
the Escrow Account and upon such payment, this Agreement shall terminate and the
Escrow Agent shall be released from any further duty or obligation hereunder.
5. Release of Escrow Funds.
(a) Release from Escrow Account. Not more than two business days
after the Release Date, the Investor shall deliver to the Shareholder a schedule
(the "Schedule of Claims") of outstanding Claims asserted by the Investor on
behalf of the Company on or before the Release Date, and the amount with respect
to each such Claim to be held in escrow until such Claim is resolved. Such
amount shall not exceed the greatest amount the Investor asserts (on behalf of
itself or on behalf of the Company in its reasonable good faith discretion) is
owing or, in the case of a then unliquidated Claim, could reasonably expect to
become owing, with respect to such Claim. Promptly (but in any event within
three (3) business days) after the Schedule of Claims is produced, the Escrow
Agent shall release from the Escrow Account and promptly pay to the Shareholder
the amount (if positive) by which the balance in the Escrow Account exceeds the
aggregate amount of all amounts payable with respect to Claims listed on the
Schedule of Claims. If the Investor fails to deliver a Schedule of Claims within
two days after the Release Date, the Escrow Agent shall within three business
days after the Release Date, release to the Shareholder the balance in the
Escrow Account which is not subject to any Claims.
(b) Final Release from Escrow Account. Upon (i) the final resolution
of each Disputed Claim (if any), the Escrow Agent shall make payment with
respect to such Disputed Claim to the Company or the Investor, as the case may
be (unless such Disputed Claim is resolved in favor of the Shareholder, in which
case it shall remain as part of the Escrow Funds), and (ii) the final resolution
of all Claims that have been asserted by the Investor (on behalf of itself or on
behalf of the Company) on or before the Release Date, all amounts remaining in
the Escrow Account shall be paid over and distributed to the Shareholder, this
Agreement shall terminate, and the Escrow Agent shall be released from any
further duty or obligation hereunder.
(c) Payments. At any time the Escrow Agent is required to distribute
or pay over any amounts held by or received by it under any of the provisions of
this Agreement, such distribution and payment shall be effected by either (i)
issuance of the Escrow Agent's check in
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the appropriate amount payable to the appropriate Person or (ii) by wire
transfer to the appropriate person in immediately available funds.
6. Escrow Agent.
(a) Protection of Escrow Agent. In consideration of this escrow by
the Escrow Agent, the parties hereto agree that:
(i) the Company, the Shareholder and the Investor may examine the
Escrow Funds at any time during regular business hours and upon prior
written notice at the office of the Escrow Agent and the Escrow Agent
shall periodically provide a written accounting of the Escrow Funds to
the Company, the Shareholder and the Investor in accordance with the
Escrow Agent's standard practices, but in no event less often than
monthly;
(ii) the Escrow Agent's duties and responsibilities shall be
limited to those expressly set forth in this Agreement, and the Escrow
Agent shall not be subject to, nor obliged to recognize, any other
agreement between, or direction or instruction of, any or all of the
parties hereto even though reference thereto may be made herein;
provided, however, that this Agreement may be amended at any time or
times in accordance with Section 8(g) below;
(iii) subject to Sections 3(f) and 7(e) hereof, no assignment of
the interest of any of the parties or their successors shall be binding
upon the Escrow Agent unless and until written evidence of such
assignment shall be filed with and accepted by the Escrow Agent;
(iv) the Escrow Agent shall exercise the same degree of care
toward the Escrow Funds as it exercises toward its own similar property
or similar property held in escrow for the account of others (whichever
degree of care is higher), and shall not be held to any higher standard
of care under this Agreement;
(v) the Escrow Agent makes no representation as to the validity,
value, genuineness or collectibility of any security or other document
or instrument held by or delivered to it;
(vi) the Escrow Agent shall not be called upon to advise any
party as to selling or retaining, or taking or refraining from taking
any action with respect to, any securities or other property deposited
hereunder;
(vii) provided that it is not grossly negligent in doing so, the
Escrow Agent shall be entitled to rely upon any order, judgment,
Direction Letter, certification, instruction, notice or other writing
delivered to it in compliance with the provisions of this Agreement
without being required to determine the authenticity or the correctness
of any fact stated therein or the propriety or validity or service
thereof; the Escrow Agent may act in reliance upon any instrument
comporting with the provisions of this Agreement or signature believed
by it to be genuine and may assume that any Person purporting to give
notice or receipt or advice or make any statement or execute any
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document in connection with the provisions hereof has been duly
authorized to do so; the Escrow Agent may act pursuant to the advice of
counsel chosen by it with respect to any matter relating to this
Agreement and shall not be liable for any action taken or omitted in
accordance with such advice;
(viii) notwithstanding anything herein to the contrary, the
Escrow Agent shall be under no duty to monitor or enforce compliance by
any Person with any term or provision of the Purchase Agreement;
(ix) if the Escrow Agent shall be uncertain as to its duties or
rights hereunder or shall receive instructions from any of the
undersigned with respect to any property held by it in escrow pursuant
to this Agreement which, in the opinion of the Escrow Agent, are in
conflict with any of the provisions of this Agreement, the Escrow Agent
shall be entitled to refrain from taking any action until it shall be
directed otherwise by a Direction Letter or Final Order;
(x) if the Escrow Agent becomes involved in litigation in
connection with this Agreement, it shall have the right to retain
counsel, and shall be reimbursed for all reasonable costs and expenses,
including its reasonable attorneys' fees and expenses, incurred in
connection therewith; subject to the provisions of Section 4(a)(iii)
hereof, such costs and expenses shall be paid by the Company, provided
that the Escrow Agent shall not be entitled to any reimbursement for
its fees and expenses incurred as a result of its gross negligence or
willful misconduct;
(xi) the Escrow Agent shall not be liable hereunder for, and,
subject to the provisions of Section 4(a)(iii) hereof, the Company
agrees to indemnify the Escrow Agent for and hold it harmless as to,
any loss, liability or expense, including attorneys' fees and expenses,
paid or incurred by the Escrow Agent in connection with the Escrow
Agent's duties under this Agreement, unless such loss, liability or
expense was paid or incurred in violation of Section 6(b)(ii) or as a
result of the Escrow Agent's gross negligence or willful misconduct;
(xii) the Escrow Agent may, in its sole and absolute discretion,
resign in a manner consistent with Section 6(c) hereof; and
(xiii) the Company, the Investor and the Shareholder may jointly
remove and replace the Escrow Agent at any time, subject to the
provisions of Section 6(c).
(b) Fees and Expenses. In consideration for performance of its duties
hereunder, the Escrow Agent shall be entitled to receive the following
compensation:
(i) an annual fee of $3,500 payable in advance by the Company (so
long as the Escrow Agent continues to serve as such under this
Agreement at the time of payment) at the Closing and on the first
anniversay of the Closing Date; and
(ii) reimbursement, payable semi-annually in arrears upon
submission to the Company of a reasonably detailed accounting therefor,
of all reasonable expenses, disbursements or advances made or incurred
by the Escrow Agent in implementing any
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of the provisions of this Agreement, including its attorneys' fees and
expenses, except any such expense, disbursement or advance as may arise
from the Escrow Agent's gross negligence or willful misconduct
(provided that the Company shall not be obligated to reimburse the
Escrow Agent for such expenses to the extent they exceed $1,000 in the
aggregate in any calendar year unless the Company shall have consented
previously in writing to such additional expenditures). Reasonable
expenses for extraordinary services will be determined based on time
and scope of duties.
(c) New Escrow Agent. If the Escrow Agent shall be removed as escrow
agent by the Company, the Investor and the Shareholder or shall resign or
otherwise cease to act as escrow agent, the Investor and the Shareholder shall
mutually agree upon a successor which successor shall be deemed to be the Escrow
Agent for all purposes of this Agreement. If a successor escrow agent has not
been appointed and accepted such appointment by the end of the 30-day period
following such removal, resignation or cessation, the Escrow Agent may apply to
any court in which it is permitted to commence litigation pursuant to Section
7(c) hereof for the appointment of a successor Escrow Agent and deposit the
Escrow Funds with the then chief or presiding judge of such court (and upon so
depositing such property and filing its complaint in interpleader, it shall be
relieved of all responsibility under the terms hereof as to the property so
deposited), and the costs, expenses and reasonable attorneys' fees which the
Escrow Agent incurs in connection with such a proceeding shall be borne by the
Company. The removal, resignation or other ceasing to act as escrow agent by the
Escrow Agent or any successor thereto shall have no effect on this Agreement or
any of the rights of the parties hereunder, all of which shall remain in full
force and effect.
(d) Survival of Obligations. The agreements contained in Section 6(a)
and, with respect to amounts accrued prior to termination, withdrawal or
removal, Section 6(b) shall survive termination of this Agreement and, with
respect to any Escrow Agent, the withdrawal or removal of such Escrow Agent.
(e) Taxes. Each party hereto to whom the Escrow Funds shall be
distributed in accordance with the terms hereof shall be responsible for the
payment of all income taxes on the income generated by the Escrow Funds in the
proportion by which the amount of the Escrow Funds distributed to such party
bears to $1,600,000.
7. Miscellaneous.
(a) Notices. All notices, demands or other communications to be given
or delivered under or by reason of the provisions of this Agreement will be in
writing and will be deemed to have been given when personally delivered
(including by Federal Express or other reputable courier service) or sent by
facsimile transmission (with confirmed receipt). Notices, demands and
communication to the Company, the Shareholder, the Investor or the Escrow Agent
will, unless another address is specified in writing, be sent to the respective
address indicated below:
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(i) if to the Escrow Agent to:
SunTrust Bank, Atlanta
Corporate Trust Division
00 Xxxx Xxxxx, 00xx Xxxxx
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx Xxxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(ii) if to the Company to:
Greenfield Online, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxxx 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Tax ID Number: 00-0000000
(iii) if to the Investor to:
Greenfield Holdings, LLC
c/o InSight Capital Partners III, L.P.
000 Xxxx 00xx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Attention: Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Tax ID Number: 00-0000000
with a copy to:
X'Xxxxxxxx Graev & Karabell, LLP
00 Xxxxxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxx X. Nissan, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000;
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(iv) if to the Shareholder to:
Xxxxxx Xxxxxxxxxx
c/o Greenfield Consulting, Inc.
000 Xxxxxxxxx Xxxxxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
Tax ID Number: ###-##-####
with a copy to:
Xxxxxxxx & Xxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
(b) Governing Law. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO
ANY CHOICE OF LAW OR CONFLICTING PROVISION OR RULE (WHETHER OF THE STATE OF NEW
YORK OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF NEW YORK TO BE APPLIED. IT IS THE INTENTION OF THE
PARTIES HERETO THAT THE SITUS OF THE ESCROW ACCOUNT BE, AND IT SHALL BE
ADMINISTERED IN, THE STATE IN WHICH THE PRINCIPAL OFFICE OF THE ESCROW AGENT
FROM TIME TO TIME ACTING HEREUNDER IS LOCATED.
(c) Jurisdiction and Venue. The parties to this Agreement agree that
any and all actions arising under or in respect of this Agreement (including,
without limitation, the resolution of any Disputed Claims) shall be litigated
exclusively in any federal or state court of competent jurisdiction located in
the State of New York. By execution and delivery of this Agreement, each party
to this Agreement irrevocably submits to the personal and exclusive jurisdiction
of such courts for itself, himself or herself and in respect of its, his or her
property with respect to such action. Each party to this Agreement agrees that
venue would be proper in any of such courts, and hereby waives any objection
that any such court is an improper or inconvenient forum for the resolution of
any such action. The parties further agree that the mailing by certified or
registered mail, return receipt requested, to the addresses specified for notice
in this Agreement, of any process or summons required by any such court shall
constitute valid and lawful service of process against them, without the
necessity for service by any other means provided by statute or rule of court.
(d) Counterparts. This Agreement may be executed in separate
counterparts, each of which will be an original and all of which taken together
will constitute one and the same agreement.
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(e) Successors and Assigns. None of the parties hereto shall assign
or agree to assign or grant to any other party any rights under this Agreement,
including without limitation any rights in or to the Escrow Funds, without the
prior written consent of the other parties hereto, and this Agreement shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and permitted assigns.
(f) Specific Performance. The obligations of the parties hereto
(including the Escrow Agent) are unique in that time is of the essence, and any
delay in performance hereunder by any party will result in irreparable harm to
the other parties hereto. Accordingly, any party may seek specific performance
and/or injunctive relief before any court of competent jurisdiction, in order to
enforce this Agreement or to prevent violations of the provisions hereof, and no
party shall object to specific performance or injunctive relief as an
appropriate remedy. The Escrow Agent acknowledges that its obligations, as well
as the obligations of the other parties hereto are subject to the equitable
remedy of specific performance and/or injunctive relief.
(g) Amendment, Waiver, etc. This Agreement may only be amended,
modified, altered or revoked by a written instrument, signed by the parties
hereto; provided that no amendment or modification will be made to Section 6
hereof without the written consent of the Escrow Agent. The Investor and the
Shareholder agree to give the Escrow Agent advance written notice of any
amendment or modification to this Agreement and to provide the Escrow Agent
promptly with copies of any such amendment or modification.
(h) Captions. The paragraph captions used herein are for reference
purposes only, and shall not in any way affect the meaning or interpretation of
this Agreement.
(i) Effectiveness. This Agreement shall be effective upon the
consummation of the transactions contemplated by the Purchase Agreement.
* * * * *
12
IN WITNESS WHEREOF, the parties hereunto have duly caused this
Escrow Agreement to be executed as of the day first above written.
SUNTRUST BANK, ATLANTA
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: Trust Officer
GREENFIELD ONLINE, INC.
By: /s/ Xxxx Xxxxxx
---------------------------
Name: Xxxx Xxxxxx
Title: President + CEO
GREENFIELD HOLDINGS, LLC
By: /s/ Xxxxxxx Xxxxxx
---------------------------
Name: Xxxxxxx Xxxxxx
Title: President
/s/ Xxxxxx Xxxxxxxxxx
----------------------------
Xxxxxx Xxxxxxxxxx
