Attached files
| file | filename |
|---|---|
| 8-K - WEB.COM GROUP, INC. | v192436_8k.htm |
| EX-99.2 - WEB.COM GROUP, INC. | v192436_ex99-2.htm |
| EX-99.3 - WEB.COM GROUP, INC. | v192436_ex99-3.htm |
| EX-10.17 - WEB.COM GROUP, INC. | v192436_ex10-17.htm |
Exhibit
99.1
ESCROW
AGREEMENT
This
Escrow Agreement dated this 30th day of July, 2010 (the “Escrow Agreement”), is entered into
by and among Web.com Group, Inc., a Delaware corporation (the “Purchaser”), Register.com
GP (Cayman) Ltd. (the “Seller
Representative,”
and together with Purchaser, the “Parties,”
and individually, a “Party”), and Wells
Fargo Bank, National Association, as escrow agent (“Escrow Agent”).
RECITALS
A. The
Parties, Register.com (Cayman) Limited Partnership, an exempted limited
partnership organized under the laws of the Cayman Islands (the “Company”) and holders of
equity interests in the Company (the “Sellers”) have entered
into that certain Purchase Agreement dated June 17, 2010 (as amended from time
to time, the “Purchase Agreement”). Capitalized
terms used but not defined herein shall have the meanings ascribed to them in
the Purchase Agreement.
B. Pursuant
to the Purchase Agreement, Purchaser agrees to place in escrow certain funds
otherwise payable to the Sellers and the individuals listed on Exhibit
D hereto (the
“Participating Bonus Plan
Participants”)
as security for and to be a source of funds for the payment of the
indemnification obligations set forth in the Purchase Agreement, and the Escrow
Agent agrees to hold and distribute such funds in accordance with the terms of
this Escrow Agreement.
C. Pursuant
to the Purchase Agreement, each of the Sellers and the Participating Bonus Plan
Participants appointed the Seller Representative as agent and attorney-in-fact
for each such Seller and Participating Bonus Plan Participant, for and on behalf
of each such Seller and Participating Bonus Plan Participant, with full power of
substitution to act in the name, place and stead of each Seller and
Participating Bonus Plan Participant with respect to all matters arising under
this Escrow Agreement, and all actions taken by the Seller Representative under
this Escrow Agreement will be binding upon each such Seller and Participating
Bonus Plan Participant as if expressly ratified and confirmed in writing by each
of them.
AGREEMENT
In
consideration of the promises and agreements of the Parties and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties and the Escrow Agent agree as follows:
ARTICLE
1
ESCROW
DEPOSIT
Section
1.1 Receipt of Escrow
Property. Upon execution hereof, Purchaser shall deliver to the Escrow
Agent the amount of $10,000,000 (ten million dollars) (the “Escrow Property”) in immediately
available funds. The percentage of the Escrow Property (and interest thereon) to
which each Seller and the Participating Bonus Plan Participant is entitled to is
set forth on Exhibit B-3.
1
Section
1.2
Investments.
(a)
The Escrow Agent is authorized and directed to deposit
into an account (the “Escrow Account”), transfer, hold
and invest the Escrow Property and any investment income thereon as set forth in
Exhibit A hereto, or as
set forth in any subsequent written instruction signed by each Party. Any
investment earnings and income on the Escrow Property shall become part of the
Escrow Property, and shall be disbursed in accordance with Section 1.3 of this
Escrow Agreement.
(b)
The Escrow Agent is hereby authorized and directed to sell or
redeem any such investments as it deems necessary to make any payments or
distributions required under this Escrow Agreement. The Escrow Agent shall have
no responsibility or liability for any loss which may result from any investment
or sale of investment made pursuant to this Escrow Agreement. The Escrow Agent
is hereby authorized, in making or disposing of any investment permitted by this
Escrow Agreement, to deal with itself (in its individual capacity) or with any
one or more of its affiliates, whether it or any such affiliate is acting as
agent of the Escrow Agent or for any third person or dealing as principal for
its own account. The Parties acknowledge that the Escrow Agent is not providing
investment supervision, recommendations, or advice.
Section
1.3
Disbursements.
(a) Subject
to Section 1.3(c), the Escrow Agent shall hold the Escrow Property in escrow
until the twelve (12) month anniversary of the date of this Escrow Agreement
(the “First Escrow Release
Date”), at
which time, without the need for any further action on the part of any Party,
the Escrow Agent is authorized and directed to disburse the First Anniversary
Disbursement to the Sellers and the Participating Bonus Plan Participants pro
rata based on the percentages set forth in Exhibit B-3. Subject to Section
1.3(c), the Escrow Agent shall hold the remainder of the Escrow Property in
escrow until the eighteen (18) month anniversary of the date of this Escrow
Agreement (the “Final Escrow Release
Date”), and
on the tenth (10th)
Business Day thereafter, without the need for any further action on the part of
any Party, the Escrow Agent is authorized and directed to disburse any remaining
Escrow Property to the Sellers and the Participating Bonus Plan Participants pro
rata based on the percentages set forth in Exhibit B-3. The First Anniversary
Disbursement shall be an amount computed by taking the difference of (i)
$5,000,000, minus (ii) any Paid Claim Amounts (as defined below), minus (iii)
any Claim Amounts subject to a Dispute Notice (as defined below). “Business
Day,” as used
hereunder, shall mean any day other than a Saturday, Sunday or any other day on
which the Escrow Agent located at the notice address set forth below is
authorized or required by law or executive order to remain closed.
(b) If
prior to the First Escrow Release Date or the Final Escrow Release Date,
Purchaser delivers a notice (a “Claim Notice”) to the Escrow
Agent and the Seller Representative stating that it has made and delivered to
the Seller Representative a claim for indemnification under the Article X of the
Purchase Agreement (a “Claim”) and specifying
the amount of the Loss if known, and, if not known, Purchaser’s reasonable good
faith estimate of the amount of the Loss thereunder (the specified amount of
such Loss being referred to as the “Claim Amount”), an amount
equal to the Claim Amount will be segregated from the Escrow Property released
on the First Escrow Release Date, or the Final Release Date, as applicable,
until disbursed in accordance with Section 1.3(c). If the Escrow Agent has not
received a Dispute Notice (as defined below) from Seller Representative within
twenty (20) Business Days following the Escrow Agent’s receipt of such Claim
Notice (such twenty (20) Business Day period being the “Dispute Period”), then the
Escrow Agent shall promptly distribute to the Purchaser the Claim Amount from
the Escrow Property (a “Paid Claim Amount”).
2
(c) If Seller
Representative in good faith delivers to the Escrow Agent and the Purchaser a
written objection (a “Dispute Notice”) to any Claim or
portion thereof specifying the nature and basis of such objection within the
Dispute Period, then, except as otherwise provided below, the Seller
Representative and the Purchaser shall attempt in good faith to agree upon the
rights of the respective parties with respect to such Claim. The Escrow Agent
shall not distribute to the Purchaser any portion of the Escrow Property that is
the subject of the Dispute Notice until the Escrow Agent receives either (i)
written instructions signed by the Purchaser and Seller Representative
authorizing the distribution to the Purchaser of an amount from the Escrow
Property in respect of the Claim that is the subject of the Dispute Notice or
(ii) a copy of a Final Determination (as defined below) establishing the
Purchaser’s right to indemnification in respect of the applicable Claim pursuant
to the Purchase Agreement. Upon receipt of such joint written instructions or
such Final Determination, as the case may be, the Escrow Agent shall distribute
to the Purchaser an amount from the Escrow Property in respect of the Claim
subject to dispute in accordance with such written instructions or Final
Determination. In the event that the Seller Representative is the prevailing
party in whole or in part in connection with any such dispute, the portion of
the Escrow Property that was the subject of such Dispute Notice and that is not
distributed to the Purchaser as provided in the immediately preceding sentence
shall remain Escrow Property and shall be available to satisfy subsequent Claims
until released as provided in Section 1.3(a) or Section 1.3(b) above. Any
Dispute Notice shall describe in reasonable detail the basis for any objection
to the matters set forth in the Claim Notice and the portion of such Claim (if
less than all) which is the subject of such Dispute Notice. If any Dispute
Notice includes an objection to only a portion of an Claim, the Escrow Agent
shall promptly distribute to the Purchaser the amount of the Escrow Property
equal to that portion of the Claim for which there is no objection, provided
that no such partial release by the Escrow Agent shall terminate or otherwise
prejudice any rights of the Purchaser with respect to amounts claimed in any
Claim Notice which are in excess of the amounts so released. The term “Final Determination” means a final
non-appealable order of a court of competent jurisdiction or a final
non-appealable arbitration decision directing delivery of the Escrow Property.
Purchaser and Seller Representative shall provide written advance notice of the
identity of the arbitrator. The Escrow Agent shall be entitled to receive and
may conclusively rely upon an opinion of counsel to the presenting party to the
effect that a court order is final and non-appealable and from a court of
competent jurisdiction. If, at the Final Escrow Release Date, there is remaining
any Escrow Property, no less than five (5) Business Days after the Final Escrow
Release Date, the Seller Representative shall provide written instructions to
the Escrow Agent to release to the Seller Representative from the Escrow
Property an amount equal to the Seller Representative’s out-of-pocket expenses
incurred as a result of the Seller Representative’s performance of its
obligations under the Purchase Agreement and each Transaction Document, up to an
aggregate amount of $250,000 (two hundred fifty thousand dollars). The Escrow
Agent shall promptly disburse such amount from the Escrow
Property.
3
Section 1.4 Income Tax Allocation and
Reporting.
(a) The
Parties agree that all interest and other income earned from investment of the
Escrow Property (“Generated Income”) shall be taxable to Purchaser and that any
taxes payable with respect to Generated Income shall be paid by the Purchaser.
At the written instruction of the Purchaser and the Seller Representative,
demonstrating the calculations set forth in this paragraph, the Escrow Agent
shall make distributions to the Purchaser, in connection with its quarterly
estimated payment dates, an amount equal to 40% of the excess of (i) the amount
of Generated Income attributable to the relevant quarterly period, over (ii) the
amount of imputed interest deemed to accrue under Sections 483 or 1274 of the
Code for such quarterly period with respect to the Escrow Property; provided, however, that such
distributions shall be reduced by any withholding and remittance done by the
Escrow Agent under paragraph (b) of this Section 1.4. The Escrow Agent shall
bear no responsibility for calculating or confirming any amount instructed for
disbursement herein, but shall be entitled to entirely rely on the instructions
provided to it in writing. The Parties agree that any amount distributed by the
Escrow Agent from the Escrow Property to the Sellers and Participating Bonus
Plan Participants pursuant to the terms of this Escrow Agreement (other than
amounts treated as interest for U.S. federal income tax purposes under Section
483 or 1274 of the Code) shall be treated for U.S. federal income tax purposes
as additional consideration paid to the Sellers and Participating Bonus Plan
Participants pursuant to the Purchase Agreement as and when such amount is
distributed. The Purchaser shall be responsible for all tax reporting required
with respect to any Generated Income and any other amounts derived hereunder,
and the Escrow Agent shall bear no tax reporting responsibilities
hereunder.
(b) Prior
to Closing, the Parties shall provide the Escrow Agent with certified tax
identification numbers by furnishing appropriate forms W-9 or W-8 and such other
forms and documents that the Escrow Agent may request. The Parties understand
that if such tax reporting documentation is not provided and certified to the
Escrow Agent, the Escrow Agent may be required by the Internal Revenue Code of
1986, as amended, and the regulations promulgated thereunder, to withhold tax on
a portion of any Generated Income.
(c) To
the extent that the Escrow Agent becomes liable for the payment of any taxes in
respect of Generated Income, the Escrow Agent shall be authorized to deduct from
the Escrow Property such taxes, including any late payment, interest, penalty or
other cost or expense that may be assessed against the Escrow Agent, on or with
respect to the Escrow Property and the investment thereof unless such tax, late
payment, interest, penalty or other expense was directly caused by the gross
negligence or willful misconduct of the Escrow Agent or its breach of this
Agreement.
Section 1.5 Termination. Upon the
disbursement of all of the Escrow Property, including any interest and
investment earnings thereon, this Escrow Agreement shall terminate and be of no
further force and effect except that the provisions of Sections 1.4(c), 3.1 and
3.2 hereof shall survive termination.
4
ARTICLE
2
DUTIES
OF THE ESCROW AGENT
Section
2.1 Scope of Responsibility.
Notwithstanding any provision to the contrary, the Escrow Agent is
obligated only to perform the duties specifically set forth in this Escrow
Agreement, which shall be deemed purely ministerial in nature. Under no
circumstances will the Escrow Agent be deemed to be a fiduciary to any Party or
any other person under this Escrow Agreement. The Escrow Agent will not be
responsible or liable for the failure of any Party to perform in accordance with
this Escrow Agreement. The Escrow Agent shall neither be responsible for, nor
chargeable with, knowledge of the terms and conditions of any other agreement,
instrument, or document other than this Escrow Agreement, whether or not an
original or a copy of such agreement has been provided to the Escrow Agent; and
the Escrow Agent shall have no duty to know or inquire as to the performance or
nonperformance of any provision of any such agreement, instrument, or document.
References in this Escrow Agreement to any other agreement, instrument, or
document are for the convenience of the Parties, and the Escrow Agent has no
duties or obligations with respect thereto. This Escrow Agreement sets forth all
matters pertinent to the escrow contemplated hereunder, and no additional
obligations of the Escrow Agent shall be inferred or implied from the terms of
this Escrow Agreement or any other agreement.
Section
2.2 Attorneys and Agents. The
Escrow Agent shall be entitled to rely on and shall not be liable for any action
taken or omitted to be taken by the Escrow Agent in accordance with the advice
of counsel or other professionals retained or consulted by the Escrow Agent. The
Escrow Agent shall be reimbursed as set forth in Section 3.1 for any and all
compensation (fees, expenses and other costs) paid and/or reimbursed to such
counsel and/or professionals. The Escrow Agent may perform any and all of its
duties through its agents, representatives, attorneys, custodians, and/or
nominees.
Section
2.3 Reliance. The Escrow Agent
shall not be liable for any action taken or not taken by it in accordance with
the written direction or written consent of the Parties or their respective
agents, representatives, successors, or assigns. The Escrow Agent shall not be
liable for acting or refraining from acting upon any written notice, request,
consent, direction, requisition, certificate, order, affidavit, letter, or other
paper or document reasonably believed by it to be genuine and correct and to
have been signed or sent by the proper person or persons, without further
inquiry into the person’s or persons’ authority. Concurrent with the execution
of this Escrow Agreement, the Parties shall deliver to the Escrow Agent
authorized signers’ forms in the form of Exhibit
B-l and Exhibit
B-2 to this Escrow Agreement.
Section
2.4 Right Not Duty Undertaken. The
permissive rights of the Escrow Agent to do things enumerated in this Escrow
Agreement shall not be construed as duties.
Section
2.5 No Financial Obligation. No
provision of this Escrow Agreement shall require the Escrow Agent to risk or
advance its own funds or otherwise incur any financial liability or potential
financial liability in the performance of its duties or the exercise of its
rights under this Escrow Agreement.
5
ARTICLE
3
PROVISIONS
CONCERNING THE ESCROW AGENT
Section 3.1 Indemnification. The Parties,
jointly and severally, shall indemnify, defend and hold harmless the Escrow
Agent from and against any and all loss, liability, cost, damage and expense,
including, without limitation, attorneys’ fees and expenses or other
professional fees and expenses which the Escrow Agent may suffer or incur by
reason of any action, claim or proceeding brought against the Escrow Agent,
arising out of or relating in any way to this Escrow Agreement or any
transaction to which this Escrow Agreement relates, unless such loss, liability,
cost, damage or expense shall have been finally adjudicated to have been
directly caused by the willful misconduct or gross negligence of the Escrow
Agent or its breach of this Escrow Agreement. The provisions of this Section 3.1
shall survive the resignation or removal of the Escrow Agent and the termination
of this Escrow Agreement.
Section 3.2 Limitation of Liability. The
Escrow Agent SHALL NOT be liable, directly or indirectly, for any (i) damages,
losses or expenses arising out of the services provided hereunder, other than
damages, losses or expenses which have been finally adjudicated to have DIRECTLY
resulted from the Escrow Agent’s gross negligence or willful misconduct, or (ii)
special, indirect or consequential damages or losses of any kind whatsoever
(including without limitation lost profits), even if the Escrow Agent has been
advised of the possibility of such losses or damages and regardless of the form
of action.
Section 3.3 Resignation or Removal. The
Escrow Agent may resign by furnishing written notice of its resignation to the
Parties, and the Parties may remove the Escrow Agent by furnishing to the Escrow
Agent a joint written notice of its resignation or removal along with payment of
all fees and expenses to which it is entitled through the date of termination.
Such resignation or removal, as the case may be, shall be effective thirty (30)
days after the delivery of such notice or upon the earlier appointment of a
successor, and such removal shall be effective upon the date specified in the
joint written notice of removal, and in either case the Escrow Agent’s sole
responsibility thereafter shall be to safely keep the Escrow Property and to
deliver the same to a successor escrow agent as shall be appointed by the
Parties, as evidenced by a joint written notice filed with the Escrow Agent or
in accordance with a court order. If the Parties have failed to appoint a
successor escrow agent prior to the expiration of thirty (30) days following the
delivery of such notice of resignation or the date specified in the joint
written notice of removal, the Escrow Agent may petition any court of competent
jurisdiction for the appointment of a successor escrow agent or for other
appropriate relief, and any such resulting appointment shall be binding upon the
Parties.
6
Section 3.4 Compensation. The Escrow Agent
shall be entitled to compensation for its services as stated in the fee schedule
attached hereto as Exhibit
C, which compensation shall be paid by the Purchaser. The fee agreed upon for
the services rendered hereunder is intended as full compensation for the Escrow
Agent’s services as contemplated by this Escrow Agreement; provided, however,
that in the event that the conditions for the disbursement of funds under this
Escrow Agreement are not fulfilled, or the Escrow Agent renders any service not
contemplated in this Escrow Agreement, or there is any assignment of interest in
the subject matter of this Escrow Agreement, or any material modification
hereof, or if any material controversy arises hereunder, or the Escrow Agent is
made a party to any litigation pertaining to this Escrow Agreement or the
subject matter hereof, then the Escrow Agent shall be compensated for such
extraordinary services and reimbursed for all costs and expenses, including
reasonable attorneys’ fees and expenses, occasioned by any such delay,
controversy, litigation or event. If any amount due to the Escrow Agent
hereunder is not paid within thirty (30) days of the date due, the Escrow Agent
in its sole discretion may charge interest on such amount up to the highest rate
permitted by applicable law. The Escrow Agent shall have, and is hereby granted,
a prior lien upon the Escrow Property with respect to its unpaid fees,
non-reimbursed expenses and unsatisfied indemnification rights, superior to the
interests of any other persons or entities and is hereby granted the right to
set off and deduct any unpaid fees, non-reimbursed expenses and unsatisfied
indemnification rights from the Escrow Property.
Section
3.5 Disagreements. If any
conflict, disagreement or dispute arises between, among, or involving any of the
parties hereto concerning the meaning or validity of any provision hereunder or
concerning any other matter relating to this Escrow Agreement, or the Escrow
Agent is in doubt as to the action to be taken hereunder, the Escrow Agent may,
at its option, retain the Escrow Property until the Escrow Agent (i) receives a
Final Determination directing delivery of the Escrow Property; (ii) receives a
written agreement executed by each of the parties involved in such disagreement
or dispute directing delivery of the Escrow Property, and upon receipt of either
(i) or (ii) hereof, the Escrow Agent shall be authorized to disburse the Escrow
Property in accordance with such final court order, arbitration decision, or
agreement; or (iii) files an interpleader action in any court of competent
jurisdiction, and upon the filing thereof, the Escrow Agent shall be relieved of
all liability as to the Escrow Property and shall be entitled to recover
attorneys’ fees, expenses and other costs incurred in commencing and maintaining
any such interpleader action. The Escrow Agent shall be entitled to act on any
such agreement or Final Determination without further question, inquiry, or
consent.
Section
3.6 Merger or Consolidation. Any
corporation or association into which the Escrow Agent may be converted or
merged, or with which it may be consolidated, or to which it may sell or
transfer all or substantially all of its corporate trust business and assets as
a whole or substantially as a whole, or any corporation or association resulting
from any such conversion, sale, merger, consolidation or transfer to which the
Escrow Agent is a party, shall be and become the successor escrow agent under
this Escrow Agreement and shall have and succeed to the rights, powers, duties,
immunities and privileges as its predecessor, without the execution or filing of
any instrument or paper or the performance of any further act.
Section
3.7 Attachment of Escrow Property;
Compliance with Legal Orders. In the event that any Escrow Property shall
be attached, garnished or levied upon by any court order, or the delivery
thereof shall be stayed or enjoined by an order of a court, or any order,
judgment or decree shall be made or entered by any court order affecting the
Escrow Property, the Escrow Agent is hereby expressly authorized, in its sole
discretion, to respond as it deems appropriate or to comply with all writs,
orders or decrees so entered or issued, or which it is advised by legal counsel
of its own choosing is binding upon it, whether with or without jurisdiction. In
the event that the Escrow Agent obeys or complies with any such writ, order or
decree it shall not be liable to any of the Parties or to any other person, firm
or corporation, should, by reason of such compliance notwithstanding, such writ,
order or decree be subsequently reversed, modified, annulled, set aside or
vacated.
7
Section
3.8 Force Majeure. The Escrow
Agent shall not be responsible or liable for any failure or delay in the
performance of its obligation under this Escrow Agreement arising out of or
caused, directly or indirectly, by circumstances beyond its reasonable control,
including, without limitation, acts of God; earthquakes; fire; flood; wars; acts
of terrorism; civil or military disturbances; sabotage; epidemic; riots;
interruptions, loss or malfunctions of utilities, computer (hardware or
software) or communications services; accidents; labor disputes; acts of civil
or military authority or governmental action; it being understood that the
Escrow Agent shall use commercially reasonable efforts which are consistent with
accepted practices in the banking industry to resume performance as soon as
reasonably practicable under the circumstances.
ARTICLE
4
MISCELLANEOUS
Section
4.1 Successors and Assigns. This
Escrow Agreement shall be binding on and inure to the benefit of the Parties and
the Escrow Agent and their respective successors and permitted assigns. No other
persons shall have any rights under this Escrow Agreement. No assignment of the
interest of any of the Parties shall be binding unless and until written notice
of such assignment shall be delivered to the other Party and the Escrow Agent
and shall require the prior written consent of the other Party and the Escrow
Agent (such consent not to be unreasonably withheld).
Section
4.2 Escheat. The Parties are aware
that under applicable state law, property which is presumed abandoned may under
certain circumstances escheat to the applicable state. The Escrow Agent shall
have no liability to the Parties, their respective heirs, legal representatives,
successors and assigns, or any other party, should any or all of the Escrow
Property escheat by operation of law.
Section
4.3 Notices. All notices,
requests, demands, and other communications required under this Escrow Agreement
shall be in writing, in English, and shall be deemed to have been duly given if
delivered (i) personally, (ii) by facsimile transmission with written
confirmation of receipt, (iii) by overnight delivery with a reputable national
overnight delivery service, or (iv) by mail or by certified mail, return receipt
requested, and postage prepaid. If any notice is mailed, it shall be deemed
given five business days after the date such notice is deposited in the United
States mail. If notice is given to a party, it shall be given at the address for
such party set forth below. It shall be the responsibility of the Parties to
notify the Escrow Agent and the other Party in writing of any name or address
changes. In the case of communications delivered to the Escrow Agent, such
communications shall be deemed to have been given on the date received by the
Escrow Agent.
If to
Purchaser:
Web.com
Group, Inc.
12808
Gran Bay Parkway West
Jacksonville,
FL 32258
Attention:
Chief Executive Officer
Telephone:
(904) 680-6600
Facsimile:(904)
880-0350
8
with a
copy to (which copy shall not constitute notice):
Cooley
LLP
Five Palo
Alto Square
3000 El
Camino Real
Palo
Alto, CA 94306
E-Mail:
fultonjf@cooley.com and dnaftulin@cooley.com
Facsimile:
(650) 849-7400
Attention:
James F. Fulton, Jr., and Danielle Naftulin Reed
If to
Seller Representative:
Register.com
GP (Cayman) Ltd.
c/o
Vector Capital Corporation
One
Market Street
Steuart
Tower
23rd
Floor
San
Francisco, CA 94105
Attention:
Chief Executive Officer, General Counsel
Telephone:
(415) 293-5000
Facsimile:
(415) 293-5100
with a
copy to (which copy shall not constitute notice):
Shearman
& Sterling LLP
525
Market Street
San
Francisco, CA 94105
Facsimile:
(415) 616-1240
E-Mail:
michael.kennedy@shearman.com and steve.camahort@shearman.com
Attention:
Michael J. Kennedy and Steve L. Camahort
If to the
Escrow Agent:
Wells
Fargo Bank, National Association
7000
Central Parkway NE, Suite 550
Atlanta,
GA 30328
Attention:
Stefan Victory; Corporate, Municipal and Escrow Solutions
Telephone:
770-551-5117
Facsimile:
770-551-5118
Section 4.4 Governing Law. This Escrow
Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware.
Section 4.5 Entire Agreement. This Escrow
Agreement sets forth the entire agreement and understanding of the parties
related to the Escrow Property.
Section 4.6 Amendment. This Escrow
Agreement may be amended, modified, superseded, rescinded, or canceled only by a
written instrument executed by the Parties and the Escrow
Agent.
9
Section 4.7
Waivers. The failure of
any party to this Escrow Agreement at any time or times to require performance
of any provision under this Escrow Agreement shall in no manner affect the right
at a later time to enforce the same performance. A waiver by any party to this
Escrow Agreement of any such condition or breach of any term, covenant,
representation, or warranty contained in this Escrow Agreement, in any one or
more instances, shall neither be construed as a further or continuing waiver of
any such condition or breach nor a waiver of any other condition or breach of
any other term, covenant, representation, or warranty contained in this Escrow
Agreement.
Section 4.8
Headings. Section
headings of this Escrow Agreement have been inserted for convenience of
reference only and shall in no way restrict or otherwise modify any of the terms
or provisions of this Escrow Agreement.
Section 4.9
Counterparts. This
Escrow Agreement may be executed in one or more counterparts, each of which when
executed shall be deemed to be an original, and such counterparts shall together
constitute one and the same instrument.
[The
remainder of this page left intentionally blank.]
10
IN
WITNESS WHEREOF, this Escrow Agreement has been duly executed as of the date
first written above.
|
REGISTER.COM
GP (CAYMAN) LTD.
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||
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By:
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/s/ Alex Slusky
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Name:
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Alex Slusky
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Title:
|
Managing Partner
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WEB.COM
GROUP, INC.
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||
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By:
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/s/
David L.
Brown
|
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Name:
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David L. Brown
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|
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Title:
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Chief Executive Officer and
President
|
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WELLS
FARGO BANK, NATIONAL
ASSOCIATION,
as Escrow Agent
|
||
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By:
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/s/ Elizabeth T. Wagner
|
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Name:
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Elizabeth T. Wagner
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Title:
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Vice-President
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S-1
EXHIBIT
A
Agency
and Custody Account Direction
For
Cash Balances
Wells
Fargo Money Market Deposit Accounts
Direction
to use the following Wells Fargo Money Market Deposit Accounts for Cash Balances
for the escrow account or accounts (the “Account”)
established under the Escrow Agreement to which this Exhibit
A is
attached.
You are
hereby directed to deposit, as indicated below, or as I shall direct further in
writing from time to time, all cash in the Account in the following money market
deposit account of Wells Fargo Bank, National Association:
Wells
Fargo Money Market Deposit Account (MMDA)
I
understand that amounts on deposit in the MMDA are insured, subject to the
applicable rules and regulations of the Federal Deposit Insurance Corporation
(FDIC), in the basic FDIC insurance amount of $100,000 per depositor, per
insured bank. This includes principal and accrued interest up to a total of
$100,000. Note: On May 20,
2009, FDIC deposit insurance temporarily increased from $100,000 to $250,000 per
depositor through December 31, 2013.
I
acknowledge that I have full power to direct investments of the
Account.
I
understand that I may change this direction at any time and that it shall
continue in effect until revoked or modified by me by written notice to
you.
|
/s/
David
Baylor
|
/s/ David L.
Brown
|
|
|
Name:
David Baylor
|
Name:
David L. Brown
|
|
|
Authorized
Representative
|
Authorized
Representative
|
|
|
Seller
Representative
|
Web.com
Group, Inc.
|
|
|
Date
|
Date
|
|
|
/s/
Roy
Kelvin
|
||
|
Name:
Roy Kelvin
|
||
|
Authorized
Representative
|
||
|
Seller
Representative
|
||
|
Date
|
EXHIBIT
B-1
Certificate
as to Authorized Signatures
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as authorized representatives of the Seller
Representative and are authorized to initiate and approve transactions of all
types for the escrow account or accounts established under the Escrow Agreement
to which this Exhibit
B-1 is attached, on behalf of the Seller Representative.
|
Name
/ Title
|
Specimen
Signature
|
|
|
David
Baylor
|
/s/ David
Baylor
|
|
|
Name
|
Signature
|
|
|
COO
|
||
|
Title
|
|
|
|
Roy
Kelvin
|
/s/ Roy
Kelvin
|
|
|
Name
|
Signature
|
|
|
CFO
|
||
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
EXHIBIT
B-2
Certificate
as to Authorized Signatures
The
specimen signatures shown below are the specimen signatures of the individuals
who have been designated as authorized representatives of Web.com Group, Inc.
and are authorized to initiate and approve transactions of all types for the
escrow account or accounts established under the Escrow Agreement to which this
Exhibit
B-2 is attached,
on behalf of Web.com Group,
Inc.
|
Name
/ Title
|
Specimen Signature
|
|
|
David L. Brown
|
/s/ David L. Brown
|
|
|
Name
|
Signature
|
|
|
President and Chief Executive
Officer
|
||
|
Title
|
||
|
Kevin Carney
|
/s/ Kevin Carney
|
|
|
Name
|
Signature
|
|
|
Chief Financial Officer
|
||
|
Title
|
||
|
Matthew P. McClure
|
/s/ Matthew P. McClure
|
|
|
Name
|
Signature
|
|
|
Chief Legal Officer &
Secretary
|
||
|
Title
|
||
|
Name
|
Signature
|
|
|
Title
|
EXHIBIT
B-3
Pro
Rata Escrow Amount
Exhibit
B-3
|
Recipient
|
Pro Rata % For
First Escrow
Release Date
|
Maximum Pro Rata %
For Final Escrow Release
Date*
|
Minimum Pro Rata %
For Final Escrow Release
Date*
|
|||||||||
|
* Actual Pro Rata % to be
determined by the Seller
Representative on the Final Escrow
Release Date
|
* Actual Pro Rata % to be
determined by the Seller
Representative on the Final
Escrow Release Date
|
|||||||||||
|
Vector
Capital III International LP
|
43.521 | % | 43.521 | % | 40.675 | % | ||||||
|
Vector
Entrepreneur Fund III LP
|
1.779 | % | 1.779 | % | 1.663 | % | ||||||
|
Vector
Capital II LP
|
0.619 | % | 0.619 | % | 0.578 | % | ||||||
|
Vector
Member Fund II LP
|
0.539 | % | 0.539 | % | 0.504 | % | ||||||
|
Vector
Entrepreneur Fund II LP
|
0.399 | % | 0.399 | % | 0.373 | % | ||||||
|
Vector
Capital II International LP
|
7.822 | % | 7.822 | % | 7.310 | % | ||||||
|
Rock
Meng
|
0.025 | % | 0.025 | % | 0.023 | % | ||||||
|
Samuel
Elder
|
0.013 | % | 0.013 | % | 0.012 | % | ||||||
|
Dominic
Ang
|
0.054 | % | 0.054 | % | 0.050 | % | ||||||
|
Vector
Register.com International LP
|
8.038 | % | 8.038 | % | 7.513 | % | ||||||
|
Valhalla
Partners LP
|
6.343 | % | 6.343 | % | 5.929 | % | ||||||
|
Sonostar
Capital Partners LLC
|
0.634 | % | 0.634 | % | 0.593 | % | ||||||
|
Barington
Companies Equity Partners LP
|
3.806 | % | 3.806 | % | 3.557 | % | ||||||
|
Ramius
Value and Opportunity Master Fund Ltd
|
5.718 | % | 5.718 | % | 5.344 | % | ||||||
|
Ramius
Enterprise Master Fund Ltd.
|
2.261 | % | 2.261 | % | 2.113 | % | ||||||
|
Register.com
GP (Cayman) Ltd
|
0.690 | % | 0.690 | % | 0.645 | % | ||||||
|
Larry
Kutscher
|
4.964 | % | 4.964 | % | 4.640 | % | ||||||
|
Ramius
Private Select Ltd
|
11.050 | % | 11.050 | % | 10.328 | % | ||||||
|
Barington
Offshore Advisors II, L.L.C.
|
0.004 | % | 0.004 | % | 0.004 | % | ||||||
|
Barington
Offshore Advisors, L.L.C.
|
0.283 | % | 0.283 | % | 0.264 | % | ||||||
|
KBL:
Special Opportunities Investing
|
0.095 | % | 0.095 | % | 0.089 | % | ||||||
|
The
Yeshiva Rabbi Chaim Berlin Fund
|
0.012 | % | 0.012 | % | 0.012 | % | ||||||
|
HSH
Nordbank Securities S.A.
|
0.012 | % | 0.012 | % | 0.011 | % | ||||||
|
Unihold
ApS
|
0.009 | % | 0.009 | % | 0.008 | % | ||||||
|
Harvey
A. Hoffman IRA Rollover
|
0.013 | % | 0.013 | % | 0.012 | % | ||||||
|
Christian
Olesen Holdings A/S
|
0.025 | % | 0.025 | % | 0.023 | % | ||||||
|
Novellus
Lombard Alternative Strategy
|
0.035 | % | 0.035 | % | 0.033 | % | ||||||
|
Oppenheimer
& Co. Inc., Nathan Gantcher IRA
|
0.016 | % | 0.016 | % | 0.015 | % | ||||||
|
Premium
Series PCC Ltd. Acting for and on behalf of Cell C196
|
0.583 | % | 0.583 | % | 0.544 | % | ||||||
|
V.
Rorsgaard Trading A/S
|
0.012 | % | 0.012 | % | 0.012 | % | ||||||
|
Citco
Global Custody (NA) N.V. obo Absolute Eagles Fund, Ltd.
|
0.069 | % | 0.069 | % | 0.064 | % | ||||||
|
The
Endeavor Diversified Fund Class A
|
0.006 | % | 0.006 | % | 0.006 | % | ||||||
|
HSBC
Private Bank (Suise) SA
|
0.005 | % | 0.005 | % | 0.005 | % | ||||||
|
The
Endeavor Diversified Fund Class B
|
0.006 | % | 0.006 | % | 0.006 | % | ||||||
|
Sorana
A/S
|
0.021 | % | 0.021 | % | 0.019 | % | ||||||
|
Banque
et Caisse D’Epargne de L’Etat / Client Acct
|
0.007 | % | 0.007 | % | 0.006 | % | ||||||
|
Citco
Global Custody NV - Ref 15611
|
0.026 | % | 0.026 | % | 0.024 | % | ||||||
|
Bejerno
Holding Aps
|
0.009 | % | 0.009 | % | 0.008 | % | ||||||
|
TD
Ameritrade, FBO Joseph Ludwig, IRA Account 917-983420
|
0.012 | % | 0.012 | % | 0.011 | % | ||||||
|
BNP
Paribas Aribtrafe SNC #311
|
0.031 | % | 0.031 | % | 0.029 | % | ||||||
|
Citco
Global Custody NC Ref UBS AG Zurich
|
0.002 | % | 0.002 | % | 0.002 | % | ||||||
|
Barington
Capital Group, LP
|
0.428 | % | 0.428 | % | 0.400 | % | ||||||
|
Citco
Global Custody NV JPMS
|
0.003 | % | 0.003 | % | 0.003 | % | ||||||
|
Roni
Jacobson
|
0.000 | % | 1.235 | % | 0.000 | % | ||||||
|
Gary
Michel
|
0.000 | % | 2.080 | % | 0.000 | % | ||||||
|
Myles
Trachtenberg
|
0.000 | % | 0.728 | % | 0.000 | % | ||||||
|
Sandy
Ross
|
0.000 | % | 0.728 | % | 0.000 | % | ||||||
|
Stuart
Horowitz
|
0.000 | % | 1.040 | % | 0.000 | % | ||||||
|
Jason
Teichman
|
0.000 | % | 0.728 | % | 0.000 | % |
EXHIBIT
C
FEES
OF ESCROW AGENT
|
Wells
Fargo Corporate Trust Services
Schedule
of Fees for Escrow Agent Services
Web.com
Escrow Account
Approximately
$10,000,000
Page
1 of 2
|
 |
|
Acceptance
Fee:
|
Waived
|
Initial
Fees as they relate to Wells Fargo Bank acting in the capacity of Escrow Agent –
includes review of the Escrow Agreement; acceptance of the escrow appointment;
setting up of Escrow Account(s) and accounting records; and coordination of
receipt of funds for deposit to the Escrow Account(s). Acceptance Fee payable at
time of Escrow Agreement execution.
|
Escrow
Account Administration Fee:
|
$3,500
|
For
ordinary administrative services by Escrow Agent – includes daily routine
account management; investment transactions; cash transactions processing
(including wire and check processing); monitoring claim notices pursuant to the
agreement; disbursement of funds in accordance with the agreement; tax reporting
for one entity; and providing trust account statements to all applicable
parties. This fee is payable in advance per escrow account established per year,
with the first installment due at the time of Escrow Agreement execution. The
fee covers a full year or any part thereof and therefore will not be prorated or
refunded in a year of early termination.
|
Out-of-Pocket
Expenses
|
At
Cost
|
We will
charge for out-of-pocket expenses in response to specific tasks assigned by the
client or provided for in the escrow agreement. Possible expenses would be, but
are not limited to, express mail and messenger charges, travel expenses to
attend closing or other meetings. There are no charges for indirect
out-of-pocket expenses.
|
Account
Administration:
|
If
selected to provide escrow agent services, this account relationship will be
managed in our Atlanta office by:
Stefan
Victory
Vice
President and Relationship Manager
Wells
Fargo Bank, N.A., Corporate Trust Services
7000
Central Parkway NE, Suite 550, Atlanta, GA 30328
Tel:
770-551-5117 Fax: 770-551-5118
Email:
stefan.victory@wellsfargo.com
|
On-Line
Statements:
|
Included
|
Web based
access to PDF monthly account statements with email notification when new
reports are available.
NOTE:
This Schedule of Fees is subject to periodic review and adjustment by Wells
Fargo. Nothing contained herein shall be deemed to be Wells Fargo’s acceptance
of appointment as custodian or such other related capacity, which is contingent
upon final review, acceptance, and execution of governing documents. Appointment
is subject to due diligence and conflict check.
|
Wells
Fargo Corporate Trust Services
Schedule
of Fees for Escrow Agent Services
Web.com
Escrow Account
Approximately
$10,000,000
Page
2 of 2
|
|
Wells
Fargo’s bid is based on the following assumptions:
|
·
|
Number
of Escrow Accounts to be established: One
(1)
|
|
·
|
Number
of Deposits to Escrow Account: Not more than One
(1)
|
|
·
|
Number
of Withdrawals from Escrow Account: Not more than One
(1)
|
|
·
|
Term
of Escrow: Not more than One (1)
Year
|
|
·
|
Appointment
subject to receipt of requested due diligence information as per the USA
Patriot Act
|
|
·
|
This
proposal assumes that balances in the account will be invested in a Wells
Fargo Money Market Demand Account (MMDA) or Institutional Money Market
Account (IMMA)
|
|
·
|
All
funds will be received from or distributed to a domestic or an approved
foreign entity
|
|
·
|
If
the account(s) does not open within three (3) months of the date shown
below, this proposal will be deemed to be null and
void
|
|
·
|
The
charges for performing services not contemplated at the time of the
execution of the governing documents, or not specifically covered
elsewhere in this schedule, will be determined by appraisal in amounts
commensurate with the service to be
provided
|
|
·
|
Should
anticipated documentation change substantially or the transaction become
increasingly complex prior to final closing, Wells Fargo reserves the
right to adjust its fees
|
|
·
|
Billings
over 30 days past due are subject to a 1.5% per month late payment penalty
on balance due.
|
Dated: July
27, 2010
|
By:
|
/s/
Robert Buker III
|
|
|
Robert
Buker III
|
||
|
Vice
President, Business Development
|
||
|
Wells
Fargo Corporate Trust and Escrow Services
|
||
|
301
South College Street, 17th
Flr., Charlotte, NC 28202
|
||
|
Cell:
904-502-9761
|
||
|
robert.buker@wellsfargo.com
|
||
EXHIBIT
D
PARTICIPATING
BONUS PLAN PARTICIPANTS
Roni
Jacobson
Gary
Michel
Myles
Trachtenberg
Sandy
Ross
Stuart
Horowitz
Jason
Teichman