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Exhibit 10.37
ESCROW AGREEMENT
This ESCROW AGREEMENT (the "AGREEMENT"), dated as of ___________, ____,
by and among [NAME REORGANIZED CORPORATION] ("PARENT"), Caminus/DC Acquisition
Corp., a Delaware corporation and a wholly-owned subsidiary of Parent ("BUYER"
and, together with the Parent and all affiliates, assignees or successors of the
Parent or the Buyer, and each officer, director, and trustee of any of the
foregoing, the "BUYER PARTIES"), Xxx Xxxxxxxxx, Xxxx Xxxxxxxx, Xxxx X. Xxxxxx,
Xxxxxxx X. Xxxxxx, Xxxxxxx X. Xxxxxx, Xxxxx X. Xxxxxx, Xxxxxx X. Xxxx, Xxxx
Xxxxxxx, Xxxx X. Xxxxxxx, Xxxxxx X. Xxxxxx, Xxxx X. Xxxx and Xxxxx Xxxxxx (the
"ESCROWING SELLERS"), and [ESCROW AGENT TO BE NAMED BY CAMINUS WITH SELLER
REPRESENTATIVE'S CONSENT] (the "ESCROW AGENT").
WHEREAS, Parent has undergone a reorganization (the "REORGANIZATION")
into a subchapter C corporation;
WHEREAS, pursuant to a Purchase Agreement, dated as of July 30, 1999
(the "PURCHASE AGREEMENT"), among Caminus LLC, the Parent's predecessor in
interest ("CAMINUS"), the Buyer, the Shareholders (as defined in the Purchase
Agreement), and DC Systems, Inc., a Texas corporation, and the transactions
related thereto and contemplated thereby (collectively the "PURCHASE"), the
Buyer purchased from the Shareholders all of the capital stock of and all other
equity interests in DC Systems;
WHEREAS, in accordance with the terms of the Purchase Agreement,
Parent, Buyer and the Escrowing Sellers are required to enter into an escrow
agreement with the Escrow Agent, in substantially the form of this Agreement,
that establishes the terms pursuant to which the Escrow Agent will hold the
shares of capital stock of the Parent, as particularly described on SCHEDULE A,
which were exchanged in the Reorganization for notional share of Series A
membership interests in Caminus previously held by the Escrowing Sellers (the
"ESCROWED SHARES") and hold and distribute the Escrowed Shares pursuant to the
terms herein;
WHEREAS, at and from the Reorganization, Parent, Buyer and the
Escrowing Sellers desire to engage the Escrow Agent to assume certain
responsibilities and to perform certain duties as the escrow agent with respect
to the Escrowed Shares and the proceeds thereof, including the disbursement
thereof, upon the terms and conditions of this Agreement;
WHEREAS, the Escrow Agent is willing to assume such responsibilities
and to perform such duties on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants and agreements
set forth herein, the receipt, adequacy and sufficiency of which are hereby
acknowledged, the parties hereto, intending to be legally bound, agree as
follows:
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SECTION 1. Defined Terms. For purposes of this Agreement, and except as
otherwise specifically defined herein, capitalized terms have the meanings
assigned to them in the Purchase Agreement. Any capitalized terms defined within
the text of this Agreement shall have the meaning assigned to them where
defined. In addition, the following terms shall be defined as follows:
(a) "ADJUSTED VALUATION PER SHARE" shall mean the Valuation Per Share,
adjusted proportionately to reflect the exchange ratio in the Reorganization
whereby notional shares of Series A membership interests in Caminus were
exchanged for or converted into shares of Parent's capital stock.
(b) "BUYER CLAIM" shall mean any bona fide claim made in good faith
with respect to which the Buyer Parties are entitled to be indemnified by any
Escrowing Sellers pursuant to the Purchase Agreement, including, without
limitation:
(i) any claim with respect to which any Buyer Parties are
entitled to be indemnified pursuant to Section 6 of the Purchase Agreement;
(ii) the amount of any Expenses paid by DC Systems, or any
Outstanding Liabilities paid by DC Systems and not previously deducted from the
Purchase Price, in each case to the extent not reimbursed to DC Systems or the
Buyer by the Shareholders; and
(iii) any claim for damages or other remedies made or
threatened against any Buyer Parties by a third party that, if successful, would
give rise to such a claim.
plus any accrued interest thereon, calculated at the rate of
five percent (5.0%) per annum from the inception of the Loss
claimed..
(c) "ESCROW AMOUNT" shall mean the Escrowed Shares held by the Escrow
Agent (together with any proceeds thereof, held by the Escrow Agent pursuant to
Section 5) at any point in time;
(d) "RELEASE DISTRIBUTION" shall mean the Escrow Amount, adjusted by
the amount of any outstanding Buyer Claims for which a written notice has been
provided by Buyer to the Escrow Agent pursuant to Section 7 on or before
December 31, 2000.
(e) "SELLER REPRESENTATIVE" shall mean, initially, _______________. Any
Escrowing Seller may require a vote of the Escrowing Sellers to remove the
Seller Representative by notice to the other Escrowing Sellers, proposing a
replacement Seller Representative and specifying the final date for voting,
which shall be no less than ten (10) and no more than twenty (20) business days
from such notice. An Escrowing Seller shall vote by giving notice of their votes
to the Seller Representative. The Seller Representative shall be removed and the
proposed Seller Representative shall become Seller Representative, after the end
of the voting period, if Escrowing Sellers holding a majority of the proportions
specified on SCHEDULE B have so voted, upon notice of the identity of the new
Seller Representative to such new Seller Representative, the Buyer, and the
Escrow Agent, and upon acceptance by such new Seller Representative. By entering
into this Agreement, each of the Escrowing Sellers agrees that the Seller
Representative shall have full authority to negotiate and compromise issues and
conclusively bind each of them to the
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resolution of Buyer Claims and all other disputes and matters that may arise
under this Agreement.
SECTION 2. APPOINTMENT OF THE ESCROW AGENT.
The parties hereto appoint and designate the Escrow Agent for the
purposes set forth herein, and the Escrow Agent hereby accepts such appointment
and designation. The Escrow Agent shall have all the rights, powers, duties and
obligations hereinafter provided, and agrees to perform only those duties as
expressly set forth herein and there shall be no implied duties imposed on the
Escrow Agent. The Escrow Agent shall have no responsibility to interpret the
terms of any party's obligations under the Purchase Agreement or any related
documents. Except as otherwise specifically provided herein, the Escrow Agent
shall not have the power to pledge, hypothecate, assign, sell, transfer or
otherwise dispose of or encumber the Escrow Amount. The Escrow Agent does not
have any interest in the Escrowed Shares deposited hereunder or the Escrow
Amount, but is serving as escrow agent and only has possession thereof.
Buyer and Seller Representative shall deliver to the Escrow Agent the
notices required to be delivered to the Escrow Agent pursuant to this Agreement,
but the Escrow Agent shall have no responsibility to confirm or verify the
accuracy of notices of Buyer or Seller Representative so delivered.
No provision of this Agreement shall require the Escrow Agent to expend
or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder. Upon distribution of the entire
Escrow Amount pursuant to the terms herein, the Escrow Agent shall be discharged
from all obligations under this Agreement and shall have no further duties or
responsibilities in connection herewith.
SECTION 3. DEPOSIT OF THE ESCROWED SHARES.
Buyer and the Escrowing Sellers will deliver the Escrowed Shares to the
Escrow Agent to be held for the benefit of the parties hereto and for delivery
to the applicable parties pursuant to the terms herein. The Escrow Agent will
confirm receipt of the Escrowed Shares by delivery of written notice to the
parties and will continue to hold the Escrowed Shares on behalf of such parties
as set forth herein.
SECTION 4. TERMS OF THE ESCROW.
(a) Except as otherwise provided in this Agreement, the Escrow Agent
shall hold the Escrow Amount until the date on which the entire Escrow Amount
has been distributed pursuant to this Agreement. In addition to distributions by
the Escrow Agent pursuant to Section 7, the Escrow Agent is hereby instructed
and shall release the Release Distribution on January 2, 2001 (the "RELEASE
DATE"). In the event that all of the Escrow Amount is not distributed on the
Release Date, pursuant to the terms hereof, the Escrow Agent shall continue to
hold such remaining portion of the Escrow Amount in accordance with the terms of
this Agreement, until the final resolution of all Buyer Claims. Upon
distribution of all of the Escrow Amount, the Escrow Agent shall be relieved and
discharged of all its rights, powers, duties and obligations herein and this
Agreement shall terminate.
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(b) The Escrow Agent shall allocate all distributions of the Escrow
Amount to the Escrowing Sellers, pursuant to this Agreement, according to the
proportions specified on SCHEDULE B; provided that, if any Escrowing Seller
directs a sale of shares pursuant to Section 5(a), the Escrow Agent shall make
the following special allocations:
(i) The Escrow Agent shall hold the proceeds of such Directed
Sale (as hereinafter defined) separately and shall, upon any distribution of the
Escrow Amount, allocate such separate proceeds (together with any interest
thereon) to such Escrowing Seller.
(ii) The Escrow Agent shall decrease the number of Escrowed
Shares that would otherwise be allocated to such Escrowing Seller by the number
of shares sold in such Directed Sale.
SECTION 5. PROCEEDS.
(a) To the extent that, in any initial public offering of the Parent's
equity securities after the Reorganization or thereafter, any Escrowing Seller
would otherwise be entitled to sell any Escrowed Shares, if such Escrowing
Seller had received such shares free of escrow upon the Reorganization, such
Escrowing Seller shall be entitled to direct the Escrow Agent to sell Escrowed
Shares up to a number corresponding to such Escrowing Seller's proportion of the
Escrowed Amount as specified on SCHEDULE B. The Escrow Agent shall make any such
sale (a "DIRECTED SALE") only upon delivery of (i) written instructions from the
Escrowing Seller, specifying the number of shares to be sold, and (ii) a letter
from the Parent (which shall be provided on behalf of an Escrowing Seller upon
such Escrowing Seller's reasonable request) stating that such Escrowing Seller
is authorized to sell such Escrowed Shares as part of an initial public
offering, pursuant to an effective registration statement under the Securities
Act of 1933, as amended, or thereafter. In executing any such sale, the Escrow
Agent may select any securities broker or dealer that, in its opinion, is
capable of properly executing the transaction, and it may agree to such
commissions, fees and other charges (which will be paid from the proceeds of any
such sale) as it shall deem reasonable in the circumstances. The Escrow Agent
shall hold the proceeds of any such sale in accordance with the terms of this
Agreement.
(b) The Escrow Agent shall hold any dividends or other distributions
with respect to the Escrowed Shares in accordance with the terms of this
Agreement.
(c) The Escrow Agent shall collect all interest payments on cash and
cash equivalents included in the Escrow Amount, and shall hold the same as part
of the Escrow Amount for the benefit of the parties hereto, subject to Buyer's
right to request distributions thereof in accordance with Section 7 and subject
to the payments in accordance with Section 4. Any cash in the Escrow Amount
shall be invested in debt obligations issued or guaranteed as to principal or
interest by the United States or any agency or instrumentality thereof, or as
otherwise agreed by the parties hereto from time to time.
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SECTION 6. REPORTING BY THE ESCROW AGENT.
The Escrow Agent agrees to keep records of the Escrow Amount. The
Escrow Agent shall furnish to Buyer and Seller Representative itemized summaries
of the Escrow Amount, including all transactions made pursuant to Section 4 and
Section 7.
SECTION 7. BUYER CLAIMS.
(a) Buyer shall assert any Buyer Claim by notice in writing (the
"NOTICE") to the Seller Representative and the Escrow Agent. The Notice shall
specify, to the extent known, the amount of the claim and the circumstances
surrounding the claim.
(b) The Escrow Agent shall take action as follows with respect to any
claim with respect to which it has received a Notice:
(i) The Escrow Agent shall promptly send a copy of such Notice
to the Seller Representative.
(ii) In the event that the Escrow Agent shall receive written
directions signed by both Buyer and the Seller Representative setting forth the
nature and amount (which shall include any expenses incurred by the Buyer
Parties in connection therewith) of such claim, and a stipulation by the Seller
Representative that such claim is not being contested or disputed by the Seller
Representative, the Escrow Agent shall, within fifteen (15) days following the
receipt of such directions, distribute to the Buyer a portion of the Escrow
Amount equal to the amount of such claim.
(iii) In the event Buyer shall have asserted (in accordance
with this Section 7) that a claim has arisen hereunder, and, within a period of
thirty (30) days following the date of the Notice of the claim, the Escrow Agent
has not been notified by the Seller Representative of its determination that
such claim be litigated or otherwise contested or that such claim is in the
process of being litigated or otherwise contested, the Escrow Agent shall
thereupon pay the amount of such claim to Buyer from the Escrow Amount. If the
Escrow Agent shall be notified by the Seller Representative, within such 30-day
period, of its determination that such claim shall be litigated or otherwise
contested, or that such claim is in the process of being litigated or otherwise
contested, the Escrow Agent shall promptly transmit a copy of such notice to
Buyer and the claim shall not be paid by the Escrow Agent until the occurrence
of an event referenced in paragraph (iv) below.
(iv) In the event Buyer shall have asserted (in accordance
with this Section 7) that a claim has arisen, and shall have furnished the
Escrow Agent an affidavit certifying under penalty of law to the Escrow Agent
and the Seller Representative that all matters disputed by the Seller
Representative in connection with such claim have been resolved or adjudicated
pursuant to the arbitration procedure set forth in Section 7.6 of the Purchase
Agreement or, if applicable, by a court or courts of competent jurisdiction and
that the time for appeal for such adjudication has terminated without an appeal
having been taken, then in such event Buyer shall also provide to the Escrow
Agent, along with such affidavit, copies of all applicable decisions of the
arbitrator or non-appealable final court orders with respect thereto ("DECISIONS
AND ORDERS"). Upon receipt of the foregoing affidavit and related Decisions and
Orders, the Escrow Agent shall, within fifteen (15) days
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following the receipt of such materials, make distributions from the Escrow
Amount to the Buyer or the Escrowing Sellers, as applicable, based upon the
resolution of the applicable Buyer Claim(s) as specified in the Decisions and
Orders. At the same time that such affidavit and Decisions and Orders are
provided to the Escrow Agent, the Buyer shall also provide a copy thereof to the
Seller Representative.
Notwithstanding the foregoing, prior to the time a claim is paid by the
Escrow Agent in accordance with the terms of this Agreement, Buyer and
the Seller Representative may agree on the value of any claim and
notify the Escrow Agent, in a writing signed by the Seller
Representative and the Buyer, of such agreement. Upon receipt of the
foregoing agreement, the Escrow Agent shall thereupon pay the agreed
upon value of such claim to Buyer from the Escrow Amount.
SECTION 8. VALUATION OF DISTRIBUTIONS. For purposes of any distribution of
Escrowed Shares hereunder in satisfaction of a Buyer Claim, the parties agree
that the Escrow Agent shall value such shares as follows (in each case, the
determination of valuation to be made as of the first business day following the
receipt of materials specified in Section 7(b) hereof that are required in order
for the Escrow Agent to make a distribution to Buyer):
(a) If such shares are listed on any established stock exchange or a
national market system, including without limitation, the National Market System
("NMS") of the National Association of Securities Dealers, Inc. Automated
Quotation ("NASDAQ") System, the value of a share shall be the closing sales
price for such share (or the closing bid, if no sales are reported) as quoted on
that system or exchange (or the exchange with the greatest volume of trading in
such shares) on the last market trading day prior to the day of determination,
as reported in the Wall Street Journal or any other source that the Board of
Directors of Parent considers reliable (a "RELIABLE SOURCE").
(b) If the shares are quoted on the NASDAQ System (but not on the
NASDAQ NMS) or are regularly quoted by recognized securities dealers but selling
prices are not reported, the value of a share shall be the mean between the high
bid and low asked prices for such a share on the last market trading day prior
to the day of determination, as reported by a Reliable Source.
(c) Prior to the initial public offering of Parent's equity securities
pursuant to underwritten offering registered under the Securities Act of 1933,
as amended, or in the absence of any established market for such shares, the
value of a share shall be the Adjusted Valuation Per Share.
SECTION 9. COMPENSATION AND REIMBURSEMENT OF THE ESCROW AGENT.
(a) For services rendered hereunder, Buyer and Escrowing Sellers (as a
group) shall equally pay the Escrow Agent compensation as set forth on SCHEDULE
C, from and after the date hereof for the services to be rendered herein.
(b) Buyer and Escrowing Sellers (as a group) shall equally reimburse
the Escrow Agent upon request for all reasonable expenses and disbursements
incurred or made by the Escrow Agent in implementing any of the provisions of
this Agreement, including
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compensation and the expenses and disbursements of its counsel, except any such
expense or disbursement as may arise from its gross negligence or willful
misconduct.
SECTION 10. RESPONSIBILITIES OF THE ESCROW AGENT.
(a) The Escrow Agent shall exercise the same degree of care toward the
Escrow Amount as it exercises toward its own similar property and shall not be
held to any higher standard of care under this Agreement. The Escrow Agent shall
hold the Escrow Amount in safe keeping and make distributions of the Escrow
Amount as provided herein.
(b) The Escrow Agent shall not be liable hereunder except for its own
gross negligence or willful misconduct, and Parent, Buyer and the Escrowing
Sellers, severally and not jointly, agree to indemnify the Escrow Agent for, and
hold it harmless as to, any loss, liability, or expense, including attorney's
fees, incurred without gross negligence or willful misconduct on the part of the
Escrow Agent and arising out of or in connection with the Escrow Agent's duties
under this Agreement. In no event shall the Escrow Agent be liable (i) for
acting in accordance with instructions from Buyer, the Seller Representative or
any agent of either of them as provided in this Agreement, (ii) for acting in
accordance with the procedures set forth in Section 7, (iii) for special or
consequential damages, or (iv) at any time for any amount in excess of the value
of the Escrow Amount.
(c) The Escrow Agent shall be entitled to rely upon any order,
judgment, certification, instruction, notice or other writing delivered to it in
compliance with the provisions of this Agreement without being required to
determine the authenticity or the correctness of any fact stated therein or the
propriety or validity or service thereof. The Escrow Agent may act in reliance
upon any instrument comporting with the provisions of this Agreement or
signature believed by it to be genuine and may assume that any person purporting
to give notice of receipt or advice or make any statement or execute any
document in connection with the provisions hereof has been duly authorized to do
so.
(d) The Escrow Agent may consult with legal counsel in connection with
its duties under this Agreement and shall be fully protected in any act it
takes, suffers, or permits in good faith in accordance with such advice.
(e) In the event of any ambiguity in the provisions of this Agreement
or any dispute, controversy or conflicting claims by or among the undersigned
and/or any other person or entity with respect to any funds deposited hereunder,
the Escrow Agent shall be entitled, at its sole option, to refuse to comply with
any and all claims, demands or instructions with respect to such funds so long
as such dispute, controversy or conflict shall continue, and the Escrow Agent
shall not be or become liable in any way to the undersigned for its failure or
refusal to comply with such conflicting claims, demands or instructions,
provided that the Escrow Agent has not acted with willful misconduct, gross
negligence or bad faith. The Escrow Agent shall be entitled to refuse to act
until, at its sole option, either (i) such dispute, controversy or conflicting
claims shall have been finally determined by a court of competent jurisdiction
or settled by agreement between the conflicting parties as evidenced in a
writing satisfactory to the Escrow Agent, or (ii) the Escrow Agent shall have
received security or an indemnity satisfactory to the Escrow Agent sufficient to
save the Escrow Agent harmless from and against any and all loss, liability or
expense that the
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Escrow Agent may incur by reason of its acting. The Escrow Agent may in addition
elect in its sole option to commence an interpleader action or seek other
judicial relief or orders as the Escrow Agent may deem necessary.
SECTION 11. RESIGNATION OR REMOVAL OF THE ESCROW AGENT.
(a) The Escrow Agent may resign and be discharged from its duties or
obligations hereunder by giving not less than thirty (30) days' prior written
notice of its resignation to Buyer and Seller Representative specifying a date
on which such resignation shall take effect. If, within such notice period,
Buyer and Seller Representative provide the Escrow Agent with written
instructions signed by each of them with respect to the appointment of a
successor Escrow Agent and directions for the transfer of the Escrow Amount then
held by the Escrow Agent to such successor, then the Escrow Agent shall act in
accordance with such instructions and promptly transfer the Escrow Amount to
such designated successor. If no such instructions are provided, the Escrow
Agent may itself appoint a successor Escrow Agent or may file an action for
interpleader in any state or federal court of competent jurisdiction, and, by
placing the deposits then held by the Escrow Agent with such successor or court,
be released and discharged from any further or continuing right, liability, duty
or obligation under this Agreement.
(b) Buyer and Seller Representative may remove the Escrow Agent upon
written notice to the Escrow Agent signed by Buyer and Seller Representative.
Such removal shall take effect upon delivery of the Escrow Amount to a successor
Escrow Agent designated in writing by Buyer and Seller Representative, and the
Escrow Agent shall thereupon be discharged from all rights, powers, duties or
obligations under this Agreement and shall have no further rights, powers,
duties or obligations in connection herewith. The Escrow Agent shall deliver the
Escrow Amount within five (5) days of receiving the designation of a successor
Escrow Agent.
(c) If after thirty (30) days from the date of delivery of its written
notice of intent to resign or of Buyer and Seller Representative's notice of
removal the Escrow Agent has not received a written designation of a successor
Escrow Agent, the Escrow Agent's sole responsibility shall be in its sole
discretion either to retain custody of the Escrow Amount until it receives such
designation, or to apply to a court of competent jurisdiction for appointment of
a successor Escrow Agent and after such appointment to have no further rights,
powers, duties or obligations in connection herewith.
SECTION 12. MISCELLANEOUS.
(a) Construction. Throughout this Agreement, as the context requires,
(i) the singular tense and number includes the plural, and the plural tense and
number includes the singular; (ii) the past tense includes the present, and the
present tense includes the past; and (iii) references to parties, sections, and
schedules mean the parties, sections, and schedules of and to this Agreement.
All schedules referred to in this Agreement are hereby incorporated in and made
part of this Agreement. The section headings in this Agreement are inserted only
as a matter of convenience, and in no way define, limit, extend, or interpret
the scope of this Agreement or of any particular section. If there is any
apparent conflict or inconsistency between the provisions set forth in this
Agreement, and the provisions set
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forth in any schedule or exhibit, to the extent possible such provisions shall
be interpreted in a manner so as to make them consistent. If it is not possible
to interpret such provisions consistently, the provisions set forth in the body
of this Agreement shall prevail.
(b) Entire Agreement. This Agreement together with the Purchase
Agreement and Related Agreements (as defined in the Purchase Agreement) and the
certificates and other instruments delivered in connection herewith or therewith
constitutes the entire agreement among the parties and supersedes all prior
agreements, representations, warranties, statements and understandings, whether
oral or written, with respect to the subject matter hereof and thereof, except
as specifically set forth in any document signed by all the parties hereto which
expressly amends this Agreement.
(c) Notices. Any notices or other communications required or permitted
hereunder shall be in writing and shall be delivered by personal service, fax or
certified mail (postage prepaid), to such address as may be designated from time
to time by the relevant party, and which initially shall be:
If to the Parent or Buyer:
Caminus LLC
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx, President
With a copy to:
GFI Energy Ventures LLC
00000 Xxx Xxxxxxx Xxxx., Xxxxx 000
Xxx Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxx, Principal
With a copy to:
Irell & Xxxxxxx LLP
000 Xxxxx Xxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
If to the Escrow Agent:
____________________
____________________
____________________
____________________
Fax: _______________
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With a copy to:
____________________
____________________
____________________
____________________
Fax: _______________
If to any Escrowing Seller:
[SELLER REPRESENTATIVE]
____________________
____________________
____________________
Fax: _______________
With a copy to:
[DC SYSTEMS' COUNSEL]
____________________
____________________
____________________
Fax: _______________
Any notice sent by certified mail shall be deemed to have been given
three (3) days after the date on which it is mailed. If notice is given by fax,
notice shall be deemed given when such notice is transmitted to the appropriate
fax numbers specified in this Section 12(c). Notice by personal service shall be
deemed given when received.
(d) Governing Law. This Agreement shall be governed by the laws of New
York applicable to contracts executed and wholly performed therein, without
giving effect to the conflict of laws provisions thereof.
(e) Arbitration. Any controversy, dispute, or claim between or among
the parties, whether arising under the common law or any statute, including any
claim arising out of, in connection with, or in relation to the interpretation,
performance or breach of this Agreement (a "DISPUTED MATTER"), will be resolved
exclusively by arbitration, before a panel of three arbitrators, conducted in
the Borough of Manhattan, New York City, New York, in accordance with the
Commercial Arbitration Rules of the American Arbitration Association ("AAA"),
and judgment upon any award rendered by the arbitrator may be entered by any
court of appropriate jurisdiction. Such arbitration will be administered by the
AAA if either of the parties requests such administration. Subject to Section
12(f), the parties shall, initially, bear the costs of arbitration (including
arbitrators' fees) equally.
(f) Costs and Attorneys Fees. In any dispute between or among the
parties concerning any provision of this Agreement or their rights and duties
under it, the party prevailing in such dispute shall be entitled, in addition to
such other relief as may be granted, to an award of its reasonable attorneys'
and expert witness fees and court costs (including the costs of the arbitration
procedure described in Section 12(e) and the fees of
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the arbitrators in any such procedure) incurred by reason of the arbitration of
the dispute, the enforcement of any arbitration award, and any other court or
other proceedings related to such dispute. For purposes of this Section 12(f),
the prevailing party is the party that most closely obtains the relief it sought
whether or not the suit or other legal proceeding is settled or carried out to
its conclusion.
(g) Remedies Not Exclusive. No remedy conferred by any of the specific
provisions of this Agreement is intended to be exclusive of any other remedy,
and each and every remedy will be cumulative and will be in addition to every
other remedy given hereunder or now or hereafter existing at law or in equity or
by statute or otherwise. The election of any one or more remedies will not
constitute a waiver of the right to pursue other available remedies.
(h) Severability. The validity, legality or enforceability this
Agreement shall not be affected even if one or more of the provisions of this
Agreement shall be held to be invalid, illegal or enforceable in any respect;
provided, however, that if such invalidity, illegality or unenforceability shall
have material adverse effect on the transactions contemplated by this Agreement
such that the intent of this Agreement will not be achieved, the aggrieved party
which shall be materially and adversely affected thereby may terminate this
Agreement and abandon the transactions contemplated hereby by giving notice to
the other parties at any time prior to the Closing Date.
(i) Counterparts. This Agreement may be executed in any number of
counterparts which together shall be one and the same instrument.
(j) Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties, their respective successors and permitted
assigns. No party may assign any rights or obligations under this Agreement
without the prior written consent of each other party, which consent shall not
be unreasonably withheld.
(k) Waivers Strictly Construed. With regard to any power, remedy or
right provided herein or otherwise available to any party hereunder no waiver or
extension of time shall be effective unless expressly contained in a writing
signed by the waiving party; and no alteration, modification or impairment shall
be implied by reason of any previous waiver, extension of time, delay or
omission in exercise, or other indulgence.
(l) Third-Party Benefits. None of the provisions of this Agreement will
be for the benefit of, or enforceable by, any third-party beneficiary.
(m) Specific Performance. In the event of any actual or threatened
default in, or breach of, any of the terms, conditions and provisions of this
Agreement, the party or parties who are thereby aggrieved shall have the right
to specific performance and adjunction in addition to any and all other rights
and remedies at law or equity, and such rights and remedies shall be
accumulative.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
day and year first written above.
Caminus LLC,
a Delaware limited liability company
By:__________________________________
Name: Xxxxx X. Xxxxxx
Its: President
CAMINUS/DC ACQUISITION CORP.,
a Delaware corporation
By:__________________________________
Name: Xxxxx X. Xxxxxx
Its: President
[ESCROW AGENT],
a [_______________]
By:__________________________________
Name:________________________________
Its:_________________________________
_____________________________________
XXX XXXXXXXXX
_____________________________________
XXXX XXXXXXXX
_____________________________________
XXXX X. XXXXXX
-12-
13
_____________________________________
XXXXXXX X. XXXXXX
_____________________________________
XXXXXXX X. XXXXXX
_____________________________________
XXXXX X. XXXXXX
_____________________________________
XXXXXX X. XXXX
_____________________________________
XXXX XXXXXXX
_____________________________________
XXXX X. XXXXXXX
_____________________________________
XXXXXX X. XXXXXX
_____________________________________
XXXX X. XXXX
_____________________________________
XXXXX XXXXXX
-13-
14
SCHEDULE A
ESCROWED SHARES
A-1
15
SCHEDULE B
SELLERS SPECIFICATIONS
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ADDITIONAL NOTICE PROPORTION OF
SHAREHOLDER NOTICE ADDRESS ADDRESS DISTRIBUTIONS
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X-0
00
XXXXXXXX X
XXX XXXXXXXX
ESCROW AGENT SERVICES AND CHARGES
C-1
