Employee Stockholder Escrow Agreement - CMG Information Services Inc. and Kip A. Frey
EMPLOYEE STOCKHOLDER ESCROW AGREEMENT
THIS ESCROW AGREEMENT dated April 8, 1998 (this "Agreement") is among CMG
Information Services, Inc. (the "Buyer"), a Delaware corporation, and Kip A.
Frey, as the representative of the employee stockholders (the "Stockholder
Representative") of Accipiter, Inc. (the "Seller"), a Delaware corporation, and
State Street Bank and Trust Company, as escrow agent (the "Escrow Agent").
RECITALS
A. Pursuant to an Agreement and Plan of Merger dated the date hereof (the
"Merger Agreement") between the Buyer, the Seller, CMGI Acquisition Corporation
("Acquisition") and certain stockholders of the Seller, the Buyer is acquiring
the Seller through the merger of the Seller into Acquisition (the "Merger").
Capitalized terms used herein and not otherwise defined have the meanings
assigned to them in the Merger Agreement.
B. The individuals listed on Annex I (the "Employee Stockholders") agree
(i) to indemnify the Buyer as provided in Section 10 of the Merger Agreement and
(ii) that payment of the portion of the Merger Consideration placed in escrow
hereunder (the "Escrow Shares") is conditioned upon satisfaction of certain
operating conditions set forth herein. For purposes of this Agreement, the
phrase "pro rata" shall remain in proportion to each Employee Stockholder's
share allocation as set forth on Annex I.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree as
follows:
1. Contingent Consideration.
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(a) If the Company fails to meet certain performance targets (a "Default
Event"), then the Merger Consideration due the Employee Stockholders under the
Merger Agreement shall be reduced by the number of Escrow Shares as set forth
below:
If a Default Event occurs, the following number of Escrow Shares will
be forfeited:
<TABLE>
<CAPTION>
Percent of Projected Escrow Shares
Revenues Achieved Forfeited
--------------------- -------------
<S> <C>
Over 95% 0%
90 less than to less than or equal to 95% 1.67%
85 less than to less than or equal to 90% 3.34%
80 less than to less than or equal to 85% 5.00%
75 less than or equal to less than or equal to 80% 6.67%
Less than 75% 8.34%
</TABLE>
<PAGE>
**Confidential Treatment Requested.
Omitted information filed
separately with the Commission.
<TABLE>
<CAPTION>
Percent of Subscription Escrow Shares
Revenues Achieved Forfeited
----------------------- -------------
<S> <C>
Over 95% 0%
90 less than to less than or equal to 95% 1.67%
85 less than to less than or equal to 90% 3.34%
80 less than to less than or equal to 85% 5.00%
75 less than or equal to less than or equal to 80% 6.67%
Less than 75% 8.34%
</TABLE>
<TABLE>
<CAPTION>
Percent of Net Escrow Shares
Income Achieved Forfeited
------------------- -------------
<S> <C>
Over 95% 0%
90 less than to less than or equal to 95% 1.67%
85 less than to less than or equal to 90% 3.34%
80 less than to less than or equal to 85% 5.00%
75 less than or equal to less than or equal to 80% 6.67%
Less than 75% 8.34%
</TABLE>
For the year ending December 31, 1998, Projected Revenues are $[ ]**
Subscription Revenues are $[ ]** and Projected Net Income is $[ ]**. The
targets for the year ending December 31, 1999 will be agreed to in good faith by
the Stockholder Representative and the Buyer. There will be no targets for the
portion of the calendar year 2000 during which this Agreement is in place. The
above targets shall terminate and no Escrow Shares shall thereafter be forfeited
under this Section 1 if the Seller has merged with Engage, Inc. and the
operations of the merged entities are so integrated that the above targets
cannot be reasonably measured.
(b) The Escrow Shares to be forfeited will be taken first, on a pro
rata basis, from any employees who have voluntarily left the employment of the
Buyer or any of its direct or indirect subsidiaries (other than termination by
reason of death, permanent disability, for "Good Reason" (as defined below), or
with the prior written approval of the Board of Directors of the Buyer) or have
been terminated from the employment of the Buyer for "Cause" (as defined below)
prior to or during the fiscal year in which the Default Event occurs. If such
forfeiture is insufficient to meet the number of Escrow Shares to be forfeited
as specified above, any additional Escrow Shares to be forfeited will be taken
from the Escrow Shares of all other Employee Stockholders on a pro rata basis.
(c) "Cause" in the event of a employee shall mean (i) conviction of a
felony or the conviction of any offense involving dishonesty or moral turpitude,
(ii) commission of any act of theft, fraud or dishonesty against, or involving
the records of the Buyer or any subsidiaries of the Buyer, (iii) material breach
of the employee's obligations pursuant to any confidentiality, invention or non-
competition agreement between the employee and the Buyer, which, if curable, is
not cured within thirty (30) days following written notice thereof by the Buyer,
(iv) intentional act or gross negligence that has a material detrimental effect
on the reputation or business of the Buyer or any subsidiary of the Buyer, or
(v) repeated failure or inability (other than as a result of physical
disability) to perform any duties reasonably assigned to the employee, which
failure or inability is not cured within thirty (30) days following written
notice thereof by the Buyer.
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(d) The employee shall have the right to terminate his or her
employment with the Buyer at any time for "Good Reason" in the event that, other
than for "Cause," if without the employee's prior written consent, (i) the Buyer
materially breaches the terms of employment with respect to the payment of
compensation or benefits or in any other material respect and any such breach is
not cured within thirty (30) days after the Buyer receives written notice
thereof, or (ii) the Buyer requires the employee, as a condition to employment,
to perform illegal or fraudulent acts or omissions; or (iii) the employee's
principal place of employment is moved more than fifty (50) miles from Raleigh,
North Carolina.
(e) Notwithstanding the foregoing, an individual Employee Stockholder
shall forfeit fifty percent of his or her Escrow Shares if such Employee
Stockholder shall voluntarily leave the employment of the Buyer or any of its
direct or indirect subsidiaries (other than termination by reason of death,
permanent disability, for "Good Reason" or with the prior written consent of the
Board of Directors of the Buyer) prior to the second anniversary of the
Effective Date. Any Escrow Shares forfeited under this Section 1(e) shall be
credited towards any Escrow Shares required to be forfeited to the Buyer
hereunder.
(f) If C/NET, Inc. exercises any portion of the 1999 Tranche, each
Employee Stockholder shall forfeit Escrow Shares equal to his, her or its pro
rata share of 38.5% of the shares the Buyer must deliver to C/NET, Inc. in
connection with such exercise (calculated on a net exercise basis).
(g) If this Agreement terminates with C/NET,Inc. not having exercised
any portion of the 1999 Tranche, each Employee Stockholder shall forfeit Escrow
Shares equal to his, her or its pro rata share of 38.5% of the shares that would
have been deliverable to C/NET, Inc. by the Buyer if the remaining portion had
been exercised (calculated on a net exercise basis) on the date of termination
of this Agreement.
2. Establishment of Escrow. The Buyer has delivered to the Escrow Agent
-----------------------
and the Escrow Agent acknowledges receipt of the Escrow Shares in the form of
certificates. The Escrow Shares shall be held in escrow in the name of the
Escrow Agent or its nominee, subject to the terms and conditions set forth
herein. Unless and until the Escrow Shares are returned to the Buyer or
delivered to Employee Stockholders pursuant to the terms of this Agreement, the
Escrow Agent shall vote the Escrow Shares in accordance with the written
instructions of the Stockholder Representative.
3. Amounts Earned on Escrow Shares: Tax Matters. All cash amounts
--------------------------------------------
earned on the Escrow Shares (cash dividends or other distributions) shall be
distributed pro rata to the Employee Stockholders from time to time upon the
request of the Stockholder Representative. The parties agree that to the extent
permitted by applicable law, the Employee Stockholders will include all amounts
earned on the Escrow Shares in their gross income (based upon each Employee
Stockholder's pro rata share of the Escrow Shares) for federal, state and local
income tax (collectively, "income tax") purposes and pay any income tax
resulting therefrom. Any shares of Seller Common Stock distributed with respect
to the Escrow Shares pursuant to a stock split, stock dividend or similar action
shall be treated as Escrow Shares for all purposes. The parties hereto agree to
provide the Escrow Agent with a certified tax identification number by signing
and returning a Form W-9 (or Form W-8, in the case of non-U.S. persons) to the
Escrow Agent within 30 days from the date hereof. The parties hereto understand
that, in the event their tax identification numbers are not certified to the
Escrow Agent, the Internal Revenue Code may require withholding of a portion of
any distribution or
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other income earned on the Escrow Shares in accordance with the Internal Revenue
Code, as amended from time to time.
4. Claims Against Escrow Shares.
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(a) At any time or times prior to the Expiration Date (as defined
below), the Buyer may make claims (each a "Claim") (i) against up to fifty
percent of the Escrow Shares for amounts due for indemnification under the
Merger Agreement as agreed to by each Employee Stockholder in an indemnification
agreement delivered to the Buyer on the date hereof or (ii) against up to fifty
percent of the Escrow Shares as specified in Section 1 hereunder. The Buyer
shall notify the Stockholder Representative and the Escrow Agent in writing of
each such Claim, including a brief description of the amount and nature of such
Claim and the value per share of the Escrow Shares as set forth in this Section.
Each such notice delivered to the Escrow Agent by the Buyer shall contain a
representation of the Buyer to the effect that the Buyer has delivered a copy of
such notice to the Stockholder Representative prior to or simultaneously with
its delivery to the Escrow Agent. In the event that the amount subject to the
Claim is unliquidated, the Buyer shall make a good faith estimate as to the
amount of the Claim for purposes of determining the number of Escrow Shares, if
any, to be withheld by the Escrow Agent if such claim is not resolved or
otherwise adjudicated by the Expiration Date. If the Stockholder Representative
disputes such Claim, the Stockholder Representative shall give written notice
thereof to the Buyer and to the Escrow Agent within thirty (30) days after the
date the Buyer's notice of Claim was delivered to the Stockholder
Representative, in which case the Escrow Agent shall continue to hold the Escrow
Shares in accordance with the terms of this Agreement; otherwise, such Claim
shall be deemed to have been acknowledged to be payable in shares out of the
Escrow Shares in the full amount thereof as set forth in the Claim and the
Escrow Agent shall use its best efforts to pay such Claim from the Escrow Shares
to the Buyer within three (3) business days after expiration of that thirty-day
period. The Escrow Agent shall effect such payment of Escrow Shares to the
Buyer by surrendering such Escrow Shares to the Buyer's transfer agent (Bank of
Boston, c/o Boston EquiServe, L.P., Mail Stop 45-02-09, P. O. Box 644, Boston,
MA 02102) for cancellation upon receipt by the Escrow Agent of a copy of a
letter from the Buyer to the Buyer's transfer agent, instructing such transfer
agent to issue a new certificate to the Escrow Agent for the remaining Escrow
Shares after giving effect to such payment. If the amount of the Claim exceeds
the aggregate value of the Escrow Shares, the Escrow Agent shall have no
liability or responsibility for any deficiency. The value per share of the
Escrow Shares for purposes of this Agreement shall be the closing price for the
Escrow Shares for the ten (10) trading days preceding the date of the notice by
the Buyer of any Claim and such value shall be set forth in any such notice.
The Escrow Agent may rely conclusively on the per share value set forth therein
for the purpose of determining the amount of shares required to pay a Claim.
All Claims paid out of the Escrow Shares shall be rounded to the nearest whole
share. Under no circumstances shall the Employee Stockholders or the
Stockholder Representative have any right to substitute other property for the
Escrow Shares or to change the per share value stated herein.
(b) If the Stockholder Representative gives notice to the Buyer and
the Escrow Agent pursuant to Section 4(a) disputing a Claim, no distribution of
the Escrow Shares shall be made by the Escrow Agent to the Buyer or to the
Employee Stockholders of the Set Aside Amount (as defined in Section 5(a)) with
respect to such Claim until either (i) such disputed Claim has been resolved as
evidenced by a written notice executed by the Buyer and the Stockholder
Representative instructing the Escrow Agent as to the distribution of such
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Set Aside Amount or portion thereof or (ii) such dispute shall have been
adjudicated in accordance with the arbitration procedures described in Section
5(b).
5. Disputed Claims.
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(a) If the Stockholder Representative disputes a Claim as above
provided and subject to Section 4, the Escrow Agent shall set aside a portion of
the Escrow Shares equal to the amount of the Claim as set forth in the notice of
the Claim (the "Set Aside Amount"). In the event the Buyer notifies the Escrow
Agent in writing that it has made out-of-pocket expenditures or anticipates that
it will incur legal expenses in connection with any such disputed Claim with
respect to which it is entitled to be indemnified under the Merger Agreement, a
portion of the Escrow Shares equal to such incurred or anticipated expenditures
shall also be set aside and added to and become a part of the Set Aside Amount,
provided that in the event that it shall be agreed (as evidenced by a written
notice executed by the Buyer and the Stockholder Representative as described in
Section 4(b)) or determined through an arbitration proceeding described in
Section 5(b) that the Buyer is not entitled to indemnification with respect to
such Claim, the Buyer shall not be entitled to such shares.
(b) If the Escrow Agent does not receive written notice executed by
the Buyer and the Stockholder Representative within sixty (60) days after the
Stockholder Representative sends notice of such dispute to the effect that the
disputed Claim has been resolved, the Claim shall be referred to an arbitrator
chosen by agreement of the Stockholder Representative and the Buyer. If no
agreement is reached regarding selection of the arbitrator within thirty (30)
days after written request from either party to the other, the Buyer or the
Stockholder Representative may submit the matter in dispute to the American
Arbitration Association (the "Association"), to be settled by arbitration in
Boston, Massachusetts in accordance with the commercial arbitration rules of the
Association. The Buyer and the Stockholder Representative agree to act in good
faith to mutually select an arbitrator. The fees and expenses of any
arbitration shall be borne by the Employee Stockholders and the Buyer in such
proportions as shall be determined by the arbitrator, or if there is no such
determination, then such fees and expenses shall be borne equally by the
Employee Stockholders, on the one hand, and the Buyer, on the other hand. In no
event shall the Escrow Agent or Stockholder Representative (in such capacity) be
responsible for any fees or expenses of any party to any arbitration proceeding.
The determination of the arbitrator as to the amount, if any, of the Claim that
is properly allowable shall be conclusive and binding upon the parties hereto
and judgment may be entered thereon in any court having jurisdiction. The
Escrow Agent shall make payment of such Claim, as and to the extent allowed, to
the Buyer out of the Set Aside Amount within three (3) business days following
its receipt of a copy of the arbitration award determination.
6. Termination. This Agreement shall terminate two (2) years after
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April 8, 1998 (the "Expiration Date"), provided that there are no outstanding
Claims as to which the Escrow Agent has received notice pursuant to Section 4 on
or prior to the Expiration Date; otherwise this Agreement shall continue in
effect until the resolution of all such Claims for which notice has been
received on or prior to the Expiration Date. The Buyer shall give the Escrow
Agent prompt written notice of the occurrence of the Expiration Date. Upon
receipt of such notice or as soon thereafter as is practicable, the Escrow Agent
shall distribute the Escrow Shares less (i) the amount of any then existing Set
Aside Amounts and (ii) the amount specified in any notice of a Claim delivered
to the Escrow Agent on or within thirty (30) days prior to the Expiration Date
with respect to which no Set Aside Amount has yet been established. At such
time thereafter as any remaining Claim hereunder has been resolved and the
Escrow Agent
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has received a written notice executed by the Buyer and the Stockholder
Representative to that effect (or a copy of an arbitration award pursuant to
Section 5(b) to that effect) and any amounts to be distributed to the Buyer in
connection therewith have been so distributed, the Escrow Agent shall distribute
any portion of the remaining Escrow Shares pro rata to the Employee Stockholders
(except to the extent that a Claim resulted from an Employee Stockholder's
breach of a representation or warranty, individually, as opposed to a breach by
the Seller, in which case the distribution to such Employee Stockholder shall be
appropriately reduced). Upon the resolution of all outstanding Claims
hereunder, the Escrow Agent shall distribute the remaining amount, if any, of
the Escrow Shares pro rata to the Employee Stockholders (except to the extent
that a Claim resulted from an Employee Stockholder's breach of a representation
or warranty, individually, as opposed to a breach by the Seller, in which case
the distribution to such Employee Stockholder shall be appropriately reduced)
and this Agreement shall terminate. The Escrow Agent shall effect such
distributions of Escrow Shares as it is required to make to the Employee
Stockholders under this Agreement by surrendering such Escrow Shares to the
Buyer's stock transfer agent for cancellation upon receipt by the Escrow Agent
of a copy of a letter from the Buyer to the Buyer's stock transfer agent,
instructing such transfer agent to issue such shares to the Employee
Stockholders.
7. The Escrow Agent.
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(a) Notwithstanding anything herein to the contrary, the Escrow Agent
shall promptly dispose of all or any part of the Escrow Shares as directed by a
writing jointly signed by the Stockholder Representative and the Buyer. The
reasonable fees and expenses of the Escrow Agent in connection with its
execution and performance of this Agreement as set forth on Annex II hereto
shall be borne by the Buyer. The Escrow Agent shall not be liable for any act
or omission to act under this Agreement, including any and all claims made
against the Escrow Agent as a result of its holding the Escrow Shares in its own
name, except for its own gross negligence or willful misconduct. The Escrow
Agent shall not be liable for, and the Buyer and the Employee Stockholders shall
jointly and severally indemnify the Escrow Agent against any losses or claims
(including reasonable court costs, attorneys' fees and costs and other out-of-
pocket expenses) arising out of any action taken or omitted in good faith
hereunder. The Escrow Agent may consult counsel satisfactory to it, including
house counsel, and the advice or opinion of such counsel shall be full and
complete authorization and protection in respect of any action taken, suffered
or omitted by it hereunder in good faith and in accordance with the advice or
opinion of such counsel.. The Escrow Agent may decline to act and shall not be
liable for failure to act if in doubt as to its duties under this Agreement. In
no event shall the Escrow Agent be liable for indirect, punitive, special or
consequential damages. The Escrow Agent may act upon any instrument or
signature believed by it to be genuine and may assume that any person purporting
to give any notice or instruction hereunder, reasonably believed by it to be
authorized, has been duly authorized to do so. The Escrow Agent's duties shall
be determined only with reference to this Agreement and applicable law and the
Escrow Agent is not charged with knowledge of or any duties or responsibilities
in connection with any other document or agreement, including without
limitation, the Merger Agreement.
(b) The Escrow Agent shall have the right at any time to resign
hereunder by giving written notice of its resignation to the parties hereto, at
the addresses set forth herein or at such other address as the parties shall
provide, at least thirty (30) days prior to the date specified for such
resignation to take effect. In such event the Buyer, with the approval of the
Stockholder Representative which will not be unreasonably withheld, shall
appoint a successor escrow agent within that thirty-day period; if the Buyer
does not designate
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a successor escrow agent within such period, the Escrow Agent may appoint a
successor escrow agent or may apply to a court of competent jurisdiction for the
appointment of such successor. Upon the effective date of such resignation, the
Escrow Shares together with all cash and other property then held by the Escrow
Agent hereunder shall be delivered by it to such successor escrow agent or as
otherwise shall be designated in writing by the Buyer and the Stockholder
Representative.
(c) In the event that the Escrow Agent should at any time be
confronted with inconsistent or conflicting claims or demands by the other
parties hereto, the Escrow Agent shall have the right to interplead the parties
in any court of competent jurisdiction and request that such court determine the
respective rights of the parties with respect to this Agreement and, upon doing
so, the Escrow Agent shall be released from any obligations or liability to the
other parties as a consequence of any such claims or demands.
(d) The Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder, either directly or
by or through its agents or attorneys. Nothing in this Agreement shall be deemed
to impose upon the Escrow Agent any duty to qualify to do business or to act as
fiduciary or otherwise in any jurisdiction other than the Commonwealth of
Massachusetts. The Escrow Agent shall not be responsible for and shall not be
under a duty to examine, inquire into or pass upon the validity, binding effect,
execution or sufficiency of this Agreement or of any amendment or supplement
hereto.
(e) The Buyer and the Stockholder Representative, jointly and
severally, agree to assume any and all obligations imposed now or hereafter by
any applicable tax law with respect to the payment of Escrow Funds under this
Agreement and to indemnify and hold the Escrow Agent harmless from and against
any taxes, additions for late payment, interest, penalties and other expenses,
that may be assessed against the Escrow Agent on any such payment or other
activities under this Agreement. The Buyer and Stockholder Representative
undertake to instruct the Escrow Agent in writing with respect to the Escrow
Agent's responsibility for withholding and other taxes, assessments or other
government charges, certifications and governmental reporting in connection with
its acting as Escrow Agent under this Agreement. The Buyer and Stockholder
Representative, jointly and severally, agree to indemnify and hold the Escrow
Agent harmless from any liability on account of taxes, assessments or other
government charges, including, without limitation, the withholding or deduction
or the failure to withhold or deduct same, and any liability for failure to
obtain proper certifications or to properly report to governmental authorities,
to which the Escrow Agent may be or become subject in connection with or which
arises out of this Agreement, including costs and expenses (including reasonable
legal fees and expenses, interest and penalties.
(f) The Escrow Agent shall be entitled to reimbursement on demand for
all expenses incurred in connection with the administration of the escrow
created hereby which are in excess of its compensation for normal services
hereunder, including, without limitation, payment of all legal fees and expenses
incurred by the Escrow Agent in connection with the resolution of any Claim by
any party hereunder.
8. Stockholder Representative.
--------------------------
(a) In the event the Stockholder Representative shall die or resign
or otherwise terminate his status as such, his successor shall be Chris Evans or
such other person as the Stockholder Representative may appoint. If the
successor Stockholder Representative
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shall die or resign or otherwise terminate his status as such, his successor
shall be any person appointed by such successor Stockholder Representative or,
in the case of the death of the successor Stockholder Representative or his
failure to appoint a successor after a vacancy has been created, elected by the
vote or written consent of a majority in interest of the Employee Stockholders.
All decisions of the Stockholder Representative shall be binding upon the
Employee Stockholders. The Stockholder Representative shall keep the Employee
Stockholders reasonably informed of his or her material decisions.
(b) The Stockholder Representative is authorized to take any action
deemed by him appropriate or necessary to carry out the provisions of, and to
determine the rights of the Employee Stockholders under this Agreement. The
Stockholder Representative shall serve as the agent of the Employee Stockholders
for all purposes related to this Agreement, including without limitation service
of process upon the Employee Stockholders. By execution of this Agreement, the
Stockholder Representative accepts and agrees to diligently discharge the duties
and responsibilities of the Stockholder Representative set forth in this
Agreement. The authorization and designation of the Stockholder Representative
under this Section 8(b) shall be binding upon the successors and assigns of each
Employee Stockholder. The Buyer and the Escrow Agent shall be entitled to rely
upon such authorization and designation and shall be fully protected in dealing
with the Stockholder Representative, and shall have no duty to inquire into the
authority of any person reasonably believed by any of them to be the Stockholder
Representative.
(c) The Stockholder Representative (i) shall not be liable to any of
the Employee Stockholders for any error of judgment, or action taken or omitted
in good faith, or mistake of fact or law unless caused by his own gross
negligence or willful misconduct, (ii) shall be entitled to treat as genuine any
letter or other document furnished to him by the Buyer, the Employee
Stockholders or the Escrow Agent and believed by him to be genuine and to have
been signed and presented by the proper party or parties and (iii) shall be
reimbursed from the proceeds of Escrow Shares otherwise immediately deliverable
to the Employee Stockholders under this Agreement for counsel fees and other
out-of-pocket expenses incurred by the Stockholder Representative in connection
with this Agreement. Such reimbursement shall be made out of the net proceeds
of Escrow Shares by the Escrow Agent as provided in Section 8(d). The Employee
Stockholders shall jointly and severally indemnity the Stockholder
Representative against any losses or claims (including reasonable out-of-pocket
expenses) arising out of any action taken or omitted in good faith hereunder.
(d) The Stockholder Representative shall not be entitled to any
compensation for services hereunder. To the extent the Stockholder
Representative shall incur reasonable out-of-pocket costs in the performance of
his duties hereunder, the Stockholder Representative shall be authorized to
direct the Escrow Agent with prior notice to the Buyer to either (i) sell in the
open market that number of Escrow Shares (up to one percent of the Escrow
Shares) sufficient to generate net proceeds to reimburse the Stockholder
Representative for such out-of-pocket costs or (ii) deliver or cause to be
delivered to the Stockholder Representative such number of Escrow Shares (up to
one percent of the Escrow Shares) as are equal to such out-of-pocket costs
divided by the closing price of the Escrow Shares on the business day prior to
such determination. The Escrow Agent shall have sole discretion as to which of
such methods it will use to effect such reimbursement.
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9. Jurisdiction.
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Each of the parties hereto irrevocably submits to the jurisdiction of
the federal and state courts located in the Commonwealth of Massachusetts and
the State of North Carolina for the purposes of any suit or other proceeding
arising out of the transactions contemplated by this Agreement. Each of the
parties further agrees to commence any such suit or proceeding only in one of
the federal or state courts located in the Commonwealth of Massachusetts or the
State of North Carolina and to not attempt to transfer such suit or proceeding
to a court outside of the Commonwealth of Massachusetts after such suit has been
commenced.
10. Governing Law. This Agreement is governed by the laws of the
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Commonwealth of Massachusetts and shall inure to the benefit of and be binding
upon the successors, assigns, heirs and personal representatives of the parties
hereto.
11. Counterparts. This Agreement may be executed in two or more
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counterparts, all of which documents shall be considered one and the same
document.
12. Notices. Any notice or other communication required or permitted
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hereunder shall be in writing and shall be deemed given when delivered in
person, by overnight courier, by facsimile transmission (with receipt confirmed
by telephone or by automatic transmission report) or two business days after
being sent by registered or certified mail (postage prepaid, return receipt
requested), as follows:
To the Buyer:
CMG Information
Services, Inc.
100 Brickstone Square, 1st Floor
Andover, MA 01810
Attention: Chief Financial Officer
Telephone: 781/684-3660
Facsimile: 781/684-3172
with a copy to:
Palmer & Dodge LLP
One Beacon Street
Boston, MA 02108
Attention: William Williams
Telephone: 617/573-0100
Facsimile: 617/227-4420
To the Stockholder Representative:
Kip A. Frey
c/o Accipiter, Inc.
4000 Wake Forest Road, Suite 200
Raleigh, NC 27609
Telephone: 919/872-7755
Facsimile: 919/872-1714
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with a copy to:
Hutchison & Mason PLLC
4011 Westchase Boulevard, Suite 400
Raleigh, NC 27607
Attention: Fred Hutchison
Telephone: 919/829-9600
Facsimile: 919/829-9696
To the Escrow Agent:
State Street Bank and Trust Company
Corporate Trust
Two International Place
Boston, MA 02110
Attention: Virginia Jones
Telephone: 617/664-5215
Facsimile: 617/664-5365
Any party may by notice given in accordance with this section to the other
parties designate another address or person for receipt of notices hereunder.
13. Binding Effect. This Agreement shall be binding upon the respective
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parties hereto and their heirs, executors, successors and assigns.
14. Modifications. This Agreement may not be altered or modified without
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the consent of the parties hereto, which consent shall not constitute a waiver
of any of the terms or conditions of this Agreement, unless such waiver is
specified in writing, and then only to the extent so specified. A waiver of any
of the terms and conditions of this Agreement on one occasion shall not
constitute a waiver of the other terms and conditions of this Agreement or of
such terms and conditions on any other occasion.
15. Reproduction of Documents. This Agreement and all documents relating
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thereto, including, without limitation (a) consents, waivers and modifications
which may hereafter be executed, and (b) certificates and other information
previously or hereafter furnished, may be reproduced by any photographic,
photostatic, microfilm, optical disk, micro-card, miniature photographic or
other similar process. The parties hereto agree that any such reproduction shall
be admissible in evidence as the original itself in any judicial or
administrative proceeding, whether or not the original is in existence and
whether or not such reproduction was made by a party in the regular course of
business, and that any enlargement, facsimile or further reproduction shall
likewise be admissible in evidence.
-10-
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Agreement under
seal as of the date first stated above.
CMG INFORMATION SERVICES, INC.
By /s/ Andrew J. Hajducky III
-----------------------------------------
Name: Andrew J. Hajducky III
Title: Chief Financial Officer
STOCKHOLDER REPRESENTATIVE
By /s/ Kip A. Frey
------------------------------------------
Kip A. Frey
ESCROW AGENT
By /s/ Patrick E. Thebado
------------------------------------------
Name: Patrick E. Thebado
Title: Assistant Vice President
-11-
<PAGE>
ANNEX I
Pro Rata Interests
------------------
<TABLE>
<CAPTION>
Stockholder Number of Shares
- ----------- ----------------
<S> <C>
Chris Evans 28,545
Alex Herring 5,786
Jane Foreman 2,314
Keith Bolick 160
Scott Bradley 1,317
William Burden 117
Martin Buskirk 171
Douglas Edwards 44
Rainy Jepson 124
Jeff Jordan 129
Richard Kong 502
Wendy Kong 73
Tom Kressly 161
Sean McClellan 1,422
Robert Sands 1,453
Kathleen Bagley 89
John M. Turner 21
Rodrigo DeGuzeman 50
George Browning 412
Maribeth Roach 153
Kip Frey 4,596
Leo Guy Taylor 82
Roger Edgar 47
Marq Mellor 11
Phyllis Morris 36
Chrisseas Clemons 36
Susan Free 25
Ruby Dyer 25
Laura Major 25
David Reitmeyer 25
Allen Wyke 25
Lauren Cambra 25
Dana Wimple 25
Brian Handly 25
Jeff Wood 25
Graham Best 25
Wesley Satterwhite 18
Total 48,119
</TABLE>
<PAGE>
ANNEX II
Escrow Agent Fees
-----------------
Acceptance Fee: Waived
Administrative Fee: $2,500.00 per year or part thereof, plus
$35.00 per stockholder
Out-of-Pocket Expenses: At cost
Legal Fees (Peabody & Arnold) At cost