ESCROW AGREEMENT
ESCROW AGREEMENT ("Agreement") dated [Closing Date] by and among TERRA
NOVA ACQUISITION CORPORATION, a Delaware corporation ("Parent"), ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇ AND, IN HIS ABSENCE, ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, AS THE REPRESENTATIVE, being
the representative of the former stockholders of CLEARPOINT BUSINESS RESOURCES,
INC., a Delaware corporation (the "Representative"), and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, as escrow agent (the "Escrow Agent").
Parent, ClearPoint Business Resources, Inc. (the "Company"), all of the
stockholders of the Company, and CPBR Acquisition, Inc., a Delaware corporation
and wholly-owned subsidiary of Parent ("Merger Subsidiary"), are the parties to
an Agreement and Plan of Merger and Reorganization dated as of August 9, 2006
(the "Merger Agreement") pursuant to which the Merger Subsidiary has merged with
and into the Company so that the Company has become a wholly-owned subsidiary of
Parent. Pursuant to the Merger Agreement, Parent (i) is to be indemnified in
certain respects and (ii) may be entitled to the return, for cancellation, of
Adjustment Escrow Shares in certain circumstances. The parties desire to
establish escrow funds to serve as collateral security for the indemnification
obligations and to effectuate the return to Parent of Adjustment Escrow Shares
under the Merger Agreement. The Representative has been designated pursuant to
the Merger Agreement to represent all of the former stockholders of the Company
(the "Stockholders") and each Permitted Transferee (as hereinafter defined) of
the Stockholders (the Stockholders and all such Permitted Transferees are
hereinafter referred to collectively as the "Owners"), and to act on their
behalf for purposes of this Agreement. Capitalized terms used herein that are
not otherwise defined herein shall have the meanings ascribed to them in the
Merger Agreement.
The parties agree as follows:
1. (a) Concurrently with the execution hereof, each of the
Stockholders is delivering to the Escrow Agent, stock certificates issued in the
name of such Stockholder representing (i) ten percent (10%) of the total number
of shares of Parent Common Stock received by such Stockholder pursuant to the
Merger Agreement, together with ten (10) assignments separate from certificate,
executed in blank by such Stockholder, to be held in escrow pursuant to the
terms of this Agreement and Section 1.11(a) of the Merger Agreement (the
"Indemnity Escrow Fund") and (ii) a further ten percent (10%) of the total
number of shares of Parent Common Stock received by such Stockholder pursuant to
the Merger Agreement, together with ten (10) assignments separate from
certificate, executed in blank by such Stockholder, to be held in escrow
pursuant to the terms of this Agreement and Section 1.11(b) of the Merger
Agreement (the "Adjustment Escrow Fund" and, together with the Indemnity Escrow
Fund, each an "Escrow Fund" and, collectively, the "Escrow Funds"). The Escrow
Agent shall maintain a separate account for each Stockholder's, and subsequent
to any transfer permitted pursuant to Paragraph 1(e) hereof, each Owner's,
portion of each Escrow Fund.
(b) The Escrow Agent hereby agrees to act as escrow agent and to
hold, safeguard and disburse the Escrow Funds pursuant to the terms and
conditions hereof. It shall treat the each Escrow Fund as a trust fund in
accordance with the terms of this Agreement and not as the property of Parent.
The Escrow Agent's duties hereunder shall terminate upon its distribution of the
entire number of shares in each Escrow Fund in accordance with this Agreement.
(c) Except as herein provided, the Owners shall retain all of
their rights as stockholders of Parent with respect to shares of Parent Common
Stock constituting (i) the Indemnity Escrow Fund during the period ending on the
thirtieth day after the date that Parent files its Annual Report on Form 10-K
for the year ended December 31, 2007 (the "Indemnity Escrow Period") and (ii)
the Adjustment Escrow Fund until they are returned to the Owners in accordance
with Section 4 of this Agreement (the "Adjustment Escrow Period"), including, in
each case, without limitation, the right to vote their shares of Parent Common
Stock included in the Escrow Funds.
(d) During each of the Indemnity Escrow Period and the Adjustment
Escrow Period (each, an "Escrow Period"), all dividends payable in cash with
respect to the shares of Parent Common Stock included in the respective Escrow
Fund shall be paid to the Owners, but all dividends payable in stock or other
non-cash property ("Non-Cash Dividends") shall be delivered to the Escrow Agent
to hold in accordance with the terms hereof. As used herein, the term "Escrow
Fund" shall be deemed to include the Non-Cash Dividends distributed thereon, if
any.
(e) During each Escrow Period, no sale, transfer or other
disposition may be made of any or all of the shares of Parent Common Stock in
the respective Escrow Fund except (i) to a "Permitted Transferee" (as
hereinafter defined), (ii) by virtue of the laws of descent and distribution
upon death of any Owner, or (iii) pursuant to a qualified domestic relations
order; provided, however, that such permissive transfers may be implemented only
upon the respective transferee's written agreement to be bound by the terms and
conditions of this Agreement. As used in this Agreement, the term "Permitted
Transferee" shall include: (x) members of a Stockholder's "Immediate Family" (as
hereinafter defined); (y) an entity in which (A) a Stockholder and/or members of
a Stockholder's Immediate Family beneficially own 100% of such entity's voting
and non-voting equity securities, or (B) a Stockholder and/or a member of such
Stockholder's Immediate Family is a general partner and in which such
Stockholder and/or members of such Stockholder's Immediate Family beneficially
own 100% of all capital accounts of such entity; and (z) a revocable trust
established by a Stockholder during his lifetime for the benefit of such
Stockholder or for the exclusive benefit of all or any of such Stockholder's
Immediate Family. As used in this Agreement, the term "Immediate Family" means,
with respect to any Stockholder, a spouse, parents, lineal descendants, the
spouse of any lineal descendant, and brothers and sisters (or a trust, all of
whose current beneficiaries are members of an Immediate Family of the
Stockholder). In connection with and as a condition to each permitted transfer,
the Permitted Transferee shall deliver to the Escrow Agent an assignment
separate from certificate executed by the transferring Stockholder, or where
applicable, an order of a court of competent jurisdiction, evidencing the
transfer of shares to the Permitted Transferee, together with ten (10)
assignments separate from certificate executed in blank by the Permitted
Transferee with respect to the shares
2
transferred to the Permitted Transferee. Upon receipt of such documents, the
Escrow Agent shall deliver to Parent the original stock certificate out of which
the assigned shares are to be transferred, together with the executed assignment
separate from certificate executed by the transferring Stockholder, or a copy of
the applicable court order, and shall request that Parent issue new certificates
representing (m) the number of shares, if any, that continue to be owned by the
transferring Stockholder, and (n) the number of shares owned by the Permitted
Transferee as the result of such transfer. Parent, the transferring Stockholder
and the Permitted Transferee shall cooperate in all respects with the Escrow
Agent in documenting each such transfer and in effectuating the result intended
to be accomplished thereby. During each Escrow Period, no Owner shall pledge or
grant a security interest in such Owner's shares of Parent Common Stock included
in the respective Escrow Fund or grant a security interest in such Owner's
rights under this Agreement.
2. (a) Parent, acting through the current or former member or members
of Parent's Board of Directors who has or have been appointed by Parent to take
all necessary actions and make all decisions on behalf of Parent with respect to
its and the Company's rights to indemnification under Section 1.14(a) of the
Merger Agreement (the "Committee"), may make a claim for indemnification
pursuant to the Merger Agreement ("Indemnity Claim") against the Indemnity
Escrow Fund by giving notice (an "Indemnity Notice") to the Representative (with
a copy to the Escrow Agent) specifying (i) the covenant, representation,
warranty, agreement, undertaking or obligation contained in the Merger Agreement
which it asserts has been breached or otherwise entitles Parent or the Company
to indemnification, (ii) in reasonable detail, the nature and dollar amount of
any Indemnity Claim, and (iii) whether the Indemnity Claim results from a Third
Party Claim against Parent or the Company. The Committee also shall deliver to
the Escrow Agent (with a copy to the Representative), concurrently with its
delivery to the Escrow Agent of the Indemnity Notice, a certification as to the
date on which the Indemnity Notice was delivered to the Representative.
(b) If the Representative shall give a notice to the Committee
(with a copy to the Escrow Agent) (a "Counter Indemnity Notice"), within 30 days
following the date of receipt (as specified in the Committee's certification) by
the Representative of a copy of the Indemnity Notice, disputing whether the
Indemnity Claim is indemnifiable under the Merger Agreement, the Committee and
the Representative shall attempt to resolve such dispute by voluntary settlement
as provided in Section 2(c) below. If no Counter Indemnity Notice with respect
to an Indemnity Claim is received by the Escrow Agent from the Representative
within such 30-day period, the Indemnity Claim shall be deemed to be an
Established Claim (as hereinafter defined) for purposes of this Agreement.
(c) If the Representative delivers a Counter Indemnity Notice to
the Escrow Agent, the Committee and the Representative shall, during the period
of 60 days following the delivery of such Counter Indemnity Notice or such
greater period of time as the parties may agree to in writing (with a copy to
the Escrow Agent), attempt to resolve the dispute with respect to which the
Counter Indemnity Notice was given. If the Committee and the Representative
shall reach a settlement with respect to any such
3
dispute, they shall jointly deliver written notice of such settlement to the
Escrow Agent specifying the terms thereof. If the Committee and the
Representative shall be unable to reach a settlement with respect to a dispute,
such dispute shall be resolved by arbitration pursuant to Section 2(d) below.
(d) If the Committee and the Representative cannot resolve a
dispute prior to expiration of the 60-day period referred to in Section 2(c)
above (or such longer period as the parties may have agreed to in writing), then
such dispute shall be submitted (and either party may submit such dispute) for
arbitration before a single arbitrator in Wilmington, Delaware, in accordance
with the commercial arbitration rules of the American Arbitration Association
then in effect and the provisions of Section 10.12 of the Merger Agreement to
the extent that such provisions do not conflict with the provisions of this
paragraph. The Committee and the Representative shall attempt to agree upon an
arbitrator; if they shall be unable to agree upon an arbitrator within 10 days
after the dispute is submitted for arbitration, then either the Committee or the
Representative, upon written notice to the other, may apply for appointment of
such single arbitrator by the American Arbitration Association in accordance
with its rules. Each party shall pay the fees and expenses of counsel used by it
and 50% of the fees and expenses of the arbitrator and of other expenses of the
arbitration. The arbitrator shall render his decision within 90 days after his
appointment and may award costs to either the Committee or the Representative
if, in his sole opinion reasonably exercised, the claims made by any other party
had no reasonable basis and were arbitrary and capricious. Such decision and
award shall be in writing and shall be final and conclusive on the parties, and
counterpart copies thereof shall be delivered to each of the parties. Judgment
may be obtained on the decision of the arbitrator so rendered in any court
having jurisdiction and may be enforced in any such court. If the arbitrator
shall fail to render his decision or award within such 90-day period, either the
Committee or the Representative may apply to any Delaware state court sitting in
New Castle County, Delaware, or any federal court sitting in such county then
having jurisdiction, by action, proceeding or otherwise, as may be proper to
determine the matter in dispute consistently with the provisions of this
Agreement. The parties consent to the exclusive jurisdiction of the Delaware
state courts sitting in New Castle County or any federal court having
jurisdiction and sitting in such county for this purpose. The prevailing party
(or either party, in the case of a decision or award rendered in part for each
party) shall send a copy of the arbitration decision or of any judgment of the
court to the Escrow Agent.
(e) As used in this Agreement, "Established Claim" means any (i)
Indemnification Claim deemed established pursuant to the last sentence of
Section 2(b) above, (ii) Indemnification Claim resolved in favor of Parent or
the Company by settlement pursuant to Section 2(c) above, resulting in a damages
award to Parent or the Company, (iii) Indemnification Claim established by the
decision of an arbitrator pursuant to Section 2(d) above, resulting in a damages
award to Parent, (iv) Third Party Claim that has been sustained by a final
determination (after exhaustion of any appeals) of a court of competent
jurisdiction, or (v) Third Party Claim that the Committee and the Representative
have jointly notified the Escrow Agent has been settled in accordance with the
provisions of the Merger Agreement; provided that, subject to the terms of the
Merger Agreement, no Indemnification Claim shall become an Established Claim
unless
4
and until the aggregate amount of indemnification Losses, as set forth in
Section 7.4(c) of the Merger Agreement, exceeds $475,000, in which event the
amount payable with respect to all Established Claims shall only be the amount
in excess of $375,000.
(f) (i) Promptly after an Indemnity Claim becomes an Established
Claim, the Committee and the Representative shall jointly deliver a notice to
the Escrow Agent (a "Joint Indemnity Notice") directing the Escrow Agent to pay
to Parent, and the Escrow Agent promptly shall, subject to Sections 2(f)(ii) and
(iii), pay to Parent, an amount (in shares of Parent Common Stock) equal to the
aggregate dollar amount of the Established Claim (or, if at such time there
remains in the Indemnity Escrow Fund less than the full amount so payable, the
full amount remaining in the Indemnity Escrow Fund).
(ii) Payment of an Established Claim shall be made in shares
of Parent Common Stock, pro rata from the Indemnity Escrow Fund account
maintained on behalf of each Owner. For purposes of each payment, such shares
shall be valued at the "Fair Market Value" (as defined below). However, in no
event shall the Escrow Agent be required to calculate Fair Market Value or make
a determination of the number of shares to be delivered to Parent in
satisfaction of any Established Claim; rather, such calculation shall be
included in and made part of the Joint Indemnity Notice. The Escrow Agent shall
transfer to Parent out of the Indemnity Escrow Fund that number of shares of
Parent Common Stock necessary to satisfy each Established Claim, as set out in
the Joint Indemnity Notice. Any dispute between the Committee and the
Representative concerning the calculation of Fair Market Value or the number of
shares necessary to satisfy any Established Claim, or any other dispute
regarding a Joint Indemnity Notice, shall be resolved between the Committee and
the Representative in accordance with the procedures specified in Section 2(d)
above, and shall not involve the Escrow Agent. Each transfer of shares in
satisfaction of an Established Claim shall be made by the Escrow Agent
delivering to Parent one or more stock certificates held in each Owner's account
evidencing not less than such Owner's pro rata portion of the aggregate number
of shares specified in the Joint Indemnity Notice, together with assignments
separate from certificate executed in blank by such Owner and completed by the
Escrow Agent in accordance with instructions included in the Joint Indemnity
Notice. Upon receipt of the stock certificates and assignments, Parent shall
deliver to the Escrow Agent new certificates representing the number of shares
owned by each Owner after such payment. The parties hereto (other than the
Escrow Agent) agree that the foregoing right to make payments of Established
Claims in shares of Parent Common Stock may be made notwithstanding any other
agreements restricting or limiting the ability of any Owner to sell any shares
of Parent stock or otherwise. The Committee and the Representative shall be
required to exercise utmost good faith in all matters relating to the
preparation and delivery of each Joint Indemnity Notice. As used herein, "Fair
Market Value" means the average reported closing price for the Parent Common
Stock for the ten trading days ending on the last trading day prior to the day
the Established Claim is paid.
(iii) Notwithstanding anything herein to the contrary, at
such time as an Indemnification Claim has become an Established Claim, the
Representative
5
shall have the right to substitute for the Escrow Shares that otherwise would be
paid in satisfaction of such claim (the "Claim Shares"), cash in an amount equal
to the amount of the Established Claim ("Substituted Cash"). In such event (i)
the Joint Indemnity Notice shall include a statement describing the substitution
of Substituted Cash for the Claim Shares, and (ii) substantially
contemporaneously with the delivery of such Joint Indemnity Notice, the
Representative shall cause currently available funds to be delivered to the
Escrow Agent in an amount equal to the Substituted Cash. Upon receipt of such
Joint Indemnity Notice and Substituted Cash, the Escrow Agent shall (y) in
payment of the Established Claim described in the Joint Indemnity Notice,
deliver the Substituted Cash to Parent in lieu of the Claim Shares, and (z)
cause the Claim Shares to be returned to the Representative.
3. On the first Business Day after the expiration of the
Indemnity Escrow Period, the Committee and the Representative shall jointly
deliver a written notice instructing the Escrow Agent, upon receipt upon receipt
thereof, to distribute and deliver to each Owner certificates representing the
shares of Parent Common Stock then in such Owner's account in the Indemnity
Escrow Fund, unless at such time there are any Indemnity Claims with respect to
which Indemnity Notices have been received but which have not been resolved
pursuant to Section 2 hereof or in respect of which the Escrow Agent has not
been notified of, and received a copy of, a final determination (after
exhaustion of any appeals) by a court of competent jurisdiction, as the case may
be (in either case, "Pending Claims"), and which, if resolved or finally
determined in favor of Parent, would result in a payment to Parent, in which
case such joint written notice shall instruct to Escrow Agent to retain, and the
Escrow Agent shall retain, and the total amount of such distributions to such
Owner shall be reduced by, the "Pending Claims Reserve" (as hereafter defined).
The Committee and the Representative shall certify to the Escrow Agent the Fair
Market Value to be used in calculating the Pending Claims Reserve and the number
of shares of Parent Common Stock to be retained therefor. Thereafter, if any
Pending Claim becomes an Established Claim, the Committee and the Representative
shall deliver to the Escrow Agent a Joint Indemnity Notice directing the Escrow
Agent to pay to Parent an amount in respect thereof determined in accordance
with Section 2(f) above, and to deliver to each Owner shares of Parent Common
Stock then in such owner's account in the Indemnity Escrow Fund having a Fair
Market Value equal to the amount by which the remaining portion of his account
in the Indemnity Escrow Fund exceeds the then Pending Claims Reserve (determined
as set forth below), all as specified in a Joint Indemnity Notice. If any
Pending Claim is resolved against Parent, the Committee and the Representative
shall deliver to the Escrow Agent a Joint Indemnity Notice directing the Escrow
Agent to pay to each Owner the amount by which the remaining portion of his
account in the Indemnity Escrow Fund exceeds the then Pending Claims Reserve.
Upon resolution of all Pending Claims, the Committee and the Representative
shall deliver to the Escrow Agent a Joint Indemnity Notice directing the Escrow
Agent shall pay to such Owner the remaining portion of his or her account in the
Indemnity Escrow Fund.
As used herein, the "Pending Claims Reserve" shall mean, at the
time any such determination is made, that number of shares of Parent Common
Stock in the Indemnity Escrow Fund having a Fair Market Value equal to the sum
of the aggregate
6
dollar amounts claimed to be due with respect to all Pending Claims (as shown in
the Indemnity Notices of such Claims).
4. (a) Upon receipt by Parent from the Company of the schedules
referred to in Section 1.5(b) of the Merger Agreement, Parent shall calculate
the Aggregate Parent Common Stock Number and, if the Aggregate Parent Common
Stock Number, as so calculated, is less than the number of Closing Date Shares,
shall deliver a notice ("Adjustment Notice") to the Representative, with a copy
to the Escrow Agent, setting forth such calculation and stating the Aggregate
Parent Common Stock Number and the number of Adjustment Escrow Shares to be
returned to Parent for cancellation pursuant to Section 1.5(c)(ii) of the Merger
Agreement. Parent also shall deliver to the Escrow Agent (with a copy to the
Representative), concurrently with its delivery to the Escrow Agent of the
Adjustment Notice, a certification as to the date on which the Adjustment Notice
was delivered to the Representative.
(b) If the Representative shall give a notice to Parent
(with a copy to the Escrow Agent) (a "Counter Adjustment Notice"), within 30
days following the date of receipt (as specified in the Committee's
certification) by the Representative of a copy of the Adjustment Notice,
disputing Parent's calculation of the Aggregate Parent Common Stock Number, the
Committee and Parent shall attempt to resolve such dispute by voluntary
settlement in the manner provided in Section 2(c) or, if the dispute is not so
resolved, by arbitration in the manner provided in Section 2(d). If no Counter
Adjustment Notice is received by the Escrow Agent from the Representative within
such 30-day period, the calculation of the Aggregate Parent Common Stock Number
shall be deemed to be established as set forth in the Adjustment Notice for all
purposes of this Agreement.
(c) Promptly upon the Aggregate Parent Common Stock Number
becoming established either as set forth in the Adjustment Notice, by resolution
of Parent and the Representative or by arbitration, as the case may be, upon
receipt of a joint written notice from Parent and the Representative, the Escrow
Agent shall deliver to Parent, for cancellation, that number of Adjustment
Escrow Shares equal to the difference between the number of Closing Date Shares
and the Aggregate Parent Common Stock Number as so established and shall
distribute and deliver certificates representing the remaining Adjustment Escrow
Shares to the Owners, in each case in proportion to the amounts of Adjustment
Escrow Shares deposited in each such Owner's account in the Adjustment Escrow
Fund.
5. The Escrow Agent, the Committee, Parent and the Representative
shall cooperate in all respects with one another in the calculation of any
amounts determined to be payable to Parent and the Owners in accordance with
this Agreement and in implementing the procedures necessary to effect such
payments.
6. (a) The Escrow Agent undertakes to perform only such duties
as are expressly set forth herein. It is understood that the Escrow Agent is not
a trustee or fiduciary and is acting hereunder merely in a ministerial capacity.
7
(b) The Escrow Agent shall not be liable for any action
taken or omitted by it in good faith and in the exercise of its own best
judgment, and may rely conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Escrow Agent), statement, instrument, report or other
paper or document (not only as to its due execution and the validity and
effectiveness of its provisions, but also as to the truth and acceptability of
any information therein contained) which is believed by the Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced by a
writing delivered to the Escrow Agent signed by the proper party or parties and,
if the duties or rights of the Escrow Agent are affected, unless it shall have
given its prior written consent thereto.
(c) The Escrow Agent's sole responsibility upon receipt of
any notice requiring any payment to Parent pursuant to the terms of this
Agreement or, if such notice is disputed by the Committee or the Representative,
the settlement with respect to any such dispute, whether by virtue of joint
resolution, arbitration or determination of a court of competent jurisdiction,
is to pay to Parent the amount specified in such notice, and the Escrow Agent
shall have no duty to determine the validity, authenticity or enforceability of
any specification or certification made in such notice.
(d) The Escrow Agent shall not be liable for any action
taken by it in good faith and believed by it to be authorized or within the
rights or powers conferred upon it by this Agreement, and may consult with
counsel of its own choice and shall have full and complete authorization and
indemnification under Section 6(g), below, for any action taken or suffered by
it hereunder in good faith and in accordance with the opinion of such counsel.
(e) The Escrow Agent may resign at any time and be
discharged from its duties as escrow agent hereunder by its giving the other
parties hereto written notice and such resignation shall become effective as
hereinafter provided. Such resignation shall become effective at such time that
the Escrow Agent shall turn over the Escrow Funds to a successor escrow agent
appointed jointly by the Committee and the Representative. If no new escrow
agent is so appointed within the 60 day period following the giving of such
notice of resignation, the Escrow Agent may deposit the Escrow Funds with any
court it reasonably deems appropriate.
(f) In the event of a dispute between the parties as to the
proper disposition of an Escrow Fund, the Escrow Agent shall be entitled (but
not required) to deliver such Escrow Fund into the United States District Court
for the Southern District of New York and, upon giving notice to the Committee
and the Representative of such action, shall thereupon be relieved of all
further responsibility and liability.
(g) The Escrow Agent shall be indemnified and held harmless
by Parent from and against any expenses, including counsel fees and
disbursements, or loss suffered by the Escrow Agent in connection with any
action, suit or other proceeding
8
involving any claim which in any way, directly or indirectly, arises out of or
relates to this Agreement, the services of the Escrow Agent hereunder, or the
Escrow Funds held by it hereunder, other than expenses or losses arising from
the gross negligence or willful misconduct of the Escrow Agent. Promptly after
the receipt by the Escrow Agent of notice of any demand or claim or the
commencement of any action, suit or proceeding, the Escrow Agent shall notify
the other parties hereto in writing. In the event of the receipt of such notice,
the Escrow Agent, in its sole discretion, may commence an action in the nature
of interpleader in an appropriate court to determine ownership or disposition of
the Escrow Fund in question or it may deposit such Escrow Fund with the clerk of
any appropriate court and be relieved of any liability with respect thereto or
it may retain such Escrow Fund pending receipt of a final, non-appealable order
of a court having jurisdiction over all of the parties hereto directing to whom
and under what circumstances the shares of Parent Common Stock in such Escrow
Fund are to be disbursed and delivered.
(h) The Escrow Agent shall be entitled to reasonable
compensation from Parent for all services rendered by it hereunder. The Escrow
Agent shall also be entitled to reimbursement from Parent for all reasonable
documented expenses paid or incurred by it in the administration of its duties
hereunder including, but not limited to, all counsel, advisors' and agents' fees
and disbursements and all taxes or other governmental charges.
(i) From time to time on and after the date hereof, the
Committee and the Representative shall deliver or cause to be delivered to the
Escrow Agent such further documents and instruments and shall do or cause to be
done such further acts as the Escrow Agent shall reasonably request to carry out
more effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
(j) Notwithstanding anything herein to the contrary, the
Escrow Agent shall not be relieved from liability hereunder for its own gross
negligence or its own willful misconduct.
7. This Agreement expressly sets forth all the duties of the
Escrow Agent with respect to any and all matters pertinent hereto. No implied
duties or obligations shall be read into this Agreement against the Escrow
Agent. The Escrow Agent shall not be bound by the provisions of any agreement
among the parties hereto except this Agreement and shall have no duty to inquire
into the terms and conditions of any agreement made or entered into in
connection with this Agreement, including, without limitation, the Merger
Agreement.
8. This Agreement shall inure to the benefit of and be binding
upon the parties and their respective heirs, successors, assigns and legal
representatives, shall be governed by and construed in accordance with the law
of Delaware applicable to contracts made and to be performed therein except that
issues relating to the rights and obligations of the Escrow Agent shall be
governed by and construed in accordance with the law of New York applicable to
contracts made and to be performed therein. This
9
Agreement cannot be changed or terminated except by a writing signed by the
Committee, the Representative and the Escrow Agent.
9. The Committee, Parent and the Representative each hereby
consents to the exclusive jurisdiction of the Delaware state courts sitting in
New Castle County and federal courts sitting in such county with respect to any
claim or controversy arising out of this Agreement. Service of process in any
action or proceeding brought against the Committee, Parent or the Representative
in respect of any such claim or controversy may be made upon it by registered
mail, postage prepaid, return receipt requested, at the address specified in
Section 10, with a copy delivered by nationally recognized overnight carrier to
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, The Chrysler Building, ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇.▇.
▇▇▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
10. All notices and other communications under this Agreement
shall be in writing and shall be deemed given if given by hand or delivered by
nationally recognized overnight carrier, or if given by telecopier and confirmed
by mail (registered or certified mail, postage prepaid, return receipt
requested), to the respective parties as follows:
A. If to the Committee, to it at:
▇/▇ ▇▇▇▇▇▇▇▇▇ Management Corp.
▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇
Attention: ▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇
Telecopier No.: 416-644-6001
with a copy to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
The Chrysler Building
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
B. If to the Representative, to him at:
c/o ClearPoint Business Resources, Inc.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Blank Rome LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telecopier No.: ▇▇▇-▇▇▇-▇▇▇▇
C. If to the Escrow Agent, to it at:
Continental Stock Transfer & Trust Company
▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telecopier No.: 212-509-5150
D. If to Parent, to it at the addresses listed above
for the Committee and the Representative
or to such other person or address as any of the parties hereto shall specify by
notice in writing to all the other parties hereto.
11. (a) If this Agreement requires a party to deliver any notice
or other document, and such party refuses to do so, the matter shall be
submitted to arbitration pursuant to Section 2(d) of this Agreement.
(b) All notices delivered to the Escrow Agent shall refer to
the provision of this Agreement under which such notice is being delivered and,
if applicable, shall clearly specify the aggregate dollar amount due and payable
to Parent and the number of shares of Parent Common Stock to be returned to
Parent.
(c) This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original instrument and all
of which together shall constitute a single agreement.
11
IN WITNESS WHEREOF, each of the parties hereto has duly executed
this Agreement on the date first above written.
CLEARPOINT BUSINESS RESOURCES, INC.
(formerly known as Terra Nova Acquisition
Corporation)
By:_________________________________
Name: ______________________________
Title: _____________________________
THE REPRESENTATIVE
____________________________________
Name:
ESCROW AGENT
CONTINENTAL STOCK TRANSFER &
TRUST COMPANY
By:_________________________________
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman
12