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EXHIBIT 2.2
OFFSET ESCROW AGREEMENT
THIS OFFSET ESCROW AGREEMENT (this "Agreement") is made and entered into
as of November 29, 1999 (the "Effective Date") by and among The TriZetto Group,
Inc., a Delaware corporation ("TriZetto"), the parties listed on Exhibit A
attached hereto (collectively, the "Xxxxxxx Securityholders," and each
individually, a "Xxxxxxx Securityholder"), ABS Capital Partners, L.P., as the
representative of the Xxxxxxx Securityholders (the "Representative"), and
Bankers Trust Company of California, N.A, as escrow agent (the "Escrow Agent").
RECITALS
WHEREAS, TriZetto, Xxxxxxx Corporation, a Delaware corporation
("Xxxxxxx"), and the Xxxxxxx Securityholders entered into a Stock Purchase
Agreement dated as of November 29, 1999 (the "Purchase Agreement"), pursuant to
which TriZetto will purchase all of the issued and outstanding shares of Xxxxxxx
capital stock (the "Xxxxxxx Stock") from the Xxxxxxx Securityholders;
WHEREAS, the Purchase Agreement and the Supplement to Xxxxxxx Disclosure
Schedule ("Supplement to Xxxxxxx Disclosure Schedule") each provides that a
portion of the consideration will be withheld from the Purchase Price (as
defined in the Purchase Agreement) and will be placed in an escrow established
in accordance with this Agreement to secure the offset obligations under Article
8 of the Purchase Agreement and the Supplement to Xxxxxxx Disclosure Schedule;
and
WHEREAS, the parties desire to enter into this Agreement to establish the
terms and conditions under which the escrow will be established and maintained.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises,
representations, warranties, covenants and agreements herein contained, the
parties hereto, intending to be legally bound, hereby agree as follows:
1. CERTAIN DEFINED TERMS.
1.1 TERMS DEFINED IN PURCHASE AGREEMENT AND THE SUPPLEMENT TO
XXXXXXX DISCLOSURE SCHEDULE. Capitalized terms used in this Agreement and not
otherwise defined herein shall have the same meanings given to such terms in the
Purchase Agreement and the Supplement to Xxxxxxx Disclosure Schedule.
1.2 ESCROW. As used herein, the "Escrow" means the escrow and the
Escrow Account (as defined in Section 3.1 below) established pursuant to this
Agreement in which the Escrowed Property (as defined in Section 1.3 below) will
be held to secure the offset rights of TriZetto in accordance with Article 8 of
the Purchase Agreement and the Supplement to Xxxxxxx Disclosure Schedule.
1.3 ESCROWED PROPERTY. As used herein, the "Escrowed Property"
means, collectively: (a) 366,524 shares of TriZetto Stock issued on the Closing
Date in connection with the purchase and sale of the Xxxxxxx Stock (the "Escrow
Shares") and the Stock Powers (as defined in Section 3.1 below) executed and
delivered by the Xxxxxxx Securityholders; (b) all interest or other amounts paid
with respect to such Escrow Shares; and (c) all other property
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(including Distributions and Secondary Distributions (as defined in Section 3.2
below)) other than cash dividends issued or paid with respect to any Escrow
Shares that are deposited in the Escrow Account pursuant to this Agreement, all
of which shall be deemed to be "Escrowed Property" upon deposit in the Escrow
Account. The number of Escrow Shares of each Xxxxxxx Securityholder that will be
placed in the Escrow Account is equal to each Xxxxxxx Securityholder's
proportionate share of the Escrowed Property set forth on Exhibit A hereto (the
"Pro Rata Share"). As used herein, the term "Escrowed Property" includes all
Distributions and Secondary Distributions (as defined in Section 3.2) on
Escrowed Property and the term "Escrow Shares" includes all Distributions and
Secondary Distributions on Escrowed Property consisting of stock or other
securities.
1.4 TERMINATION DATE. "Termination Date" means the one-year
anniversary of the date hereof.
2. APPOINTMENT OF ESCROW AGENT. TriZetto and the Xxxxxxx Securityholders
hereby mutually appoint and designate the Escrow Agent to receive the Escrow
Shares as set forth herein.
3. FORMATION OF ESCROW ACCOUNT.
3.1 DELIVERY AND DEPOSIT OF ESCROWED PROPERTY. Upon the execution of
this Agreement by all parties hereto, TriZetto will promptly deliver to the
Escrow Agent the Escrow Shares in the form of duly authorized and executed stock
certificates issued in the respective names of the Xxxxxxx Securityholders,
representing each Xxxxxxx Securityholder's Pro Rata Share of the Escrow Shares;
and (b) each Xxxxxxx Securityholder will promptly deliver to the Escrow Agent
duly executed Stock Assignments Separate From Certificate for such Xxxxxxx
Securityholder's Escrow Shares in the form of Exhibit B ("Stock Powers"), signed
in blank by such Xxxxxxx Securityholder. The Escrow Agent agrees to accept
delivery of the above-mentioned Escrowed Property, which shall be clearly
designated by TriZetto and the Xxxxxxx Securityholders, as applicable, as
"Escrowed Property", and to hold the same in escrow in an escrow account (the
"Escrow Account"), subject to the terms and conditions of this Agreement. The
Escrow Agent shall deliver a Receipt and Acknowledgement to the Representative
upon receipt of any Escrowed Property.
3.2 DISTRIBUTIONS, CONVERSIONS, VOTING AND RIGHTS OF OWNERSHIP. So
long as the Escrow is in effect, dividends payable in stock or securities of
TriZetto or of any other person, firm or entity or any other property, other
than cash dividends which shall be distributed directly to Xxxxxxx
Securityholders, or other distributions of any kind (including without
limitation shares of TriZetto Common Stock issued in connection with a
subdivision, split or recapitalization of TriZetto's Common Stock) that are
paid, issued or made by TriZetto in respect of the Escrow Shares that are
issuable by TriZetto or a third party upon the conversion or other exchange of
Escrow Shares in a merger, consolidation, liquidation, exchange of shares or
other transaction affecting the Escrow Shares or other Escrowed Property (the
"Distributions"), or in respect of any such Distributions ("Secondary
Distributions"), will be immediately delivered to the Escrow Agent and will be
held in the Escrow on the same terms and conditions as those applied hereunder
to the Escrow Shares, and the Xxxxxxx Securityholders will promptly sign and
deliver to the Escrow Agent new Stock Powers or other applicable instruments of
transfer for such Distributions and/or Secondary Distributions (duly executed in
blank by the Xxxxxxx Securityholders) to be held in the Escrow as Escrowed
Property pursuant to this Agreement. The
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Xxxxxxx Securityholders will have the right to exercise any and all rights to
vote the Escrow Shares deposited in the Escrow Account for their account so long
as such Escrow Shares are held in the Escrow and have not been released to
TriZetto as provided herein and TriZetto will take all steps necessary to allow
the exercise of such rights. While the stock certificates representing, and
Stock Powers for, Escrow Shares remain in the Escrow Agent's possession pursuant
to this Agreement, the Xxxxxxx Securityholders, will (subject to the provisions
of Sections 3.3 and 3.4 below) retain and be able to exercise all other
incidents of ownership of the Escrow Shares that are not inconsistent with the
terms and conditions of this Agreement. If reasonably requested to do so by
TriZetto or the Escrow Agent, each Xxxxxxx Securityholder shall promptly execute
and deliver to the Escrow Agent (or to TriZetto, as to Escrow Shares that are
released to TriZetto as provided herein) replacement Stock Powers for any Escrow
Shares or other shares of stock or securities that are or become Escrowed
Property. If requested by TriZetto, due to the failure of any Xxxxxxx
Securityholder to promptly execute and deliver replacement Stock Powers as
herein provided, the Representative, acting as attorney-in-fact for each Xxxxxxx
Securityholder, shall promptly execute on behalf of such Xxxxxxx Securityholder,
and deliver to the Escrow Agent, replacement Stock Powers for any Escrow Shares
or other shares of stock or securities that are or become Escrowed Property.
3.3 NO TRANSFER OR ENCUMBRANCE. Except to the extent expressly
permitted by the provisions of this Section 3.3, no Escrowed Property or any
beneficial interest therein may be sold, assigned, pledged, encumbered or
otherwise transferred (including without limitation by operation of law, other
than an exchange or conversion of shares in a merger or consolidation) by any
Xxxxxxx Securityholder or be taken or reached by any legal or equitable process
in satisfaction of any debt or other liability of a Xxxxxxx Securityholder
(other than such Xxxxxxx Securityholder's obligations under this Agreement)
prior to the delivery and release to the Xxxxxxx Securityholders of the Escrowed
Property by the Escrow Agent in accordance with the provisions of Section 4
hereof; provided, however, that any Xxxxxxx Securityholder may transfer its
share of the Escrowed Property hereunder so long as such transfer is (i) by
gift, (ii) upon death or permanent incapacity to his guardian, conservator,
executor, administrator, trustees or beneficiaries under his will, (iii) to his
spouse, children, stepchildren, grandchildren, parents, siblings or legal
dependents, (iv) to a trust of which the beneficiary or beneficiaries of the
corpus and the income shall be such a person, and all such persons agree to be
bound by the terms hereof, or (v) to partners of, or other persons legally
entitled to a distribution of property from, a Xxxxxxx Securityholder that is a
partnership or similar investment vehicle, provided that as a condition to any
such transfer, such partner or other person shall execute a joinder agreement
specifically agreeing to be bound by the terms hereof.
3.4 TREATMENT OF ESCROWED PROPERTY. The Escrowed Property shall be
held by the Escrow Agent as a trust fund and shall not be subject to any lien,
attachment, trustee process or any other judicial process of any creditor of any
party hereto.
3.5 INVESTMENT OF FUNDS. The cash portion of the Escrowed Property,
if any, shall be invested and reinvested by the Escrow Agent, upon the
instruction of the Representative, in U.S. Treasury obligations having a
maturity of not more than 90 days or in such other certificates of deposit or
instruments. All brokerage commissions and similar fees incurred in connection
with the investments shall be paid out of the Escrowed Property. All interest
income generated by such U.S. Treasury obligations, certificates of deposit or
instruments shall be deemed part of the Escrowed Property and at the Termination
Date, the income from the funds in the Escrow, if any, shall be paid to the
Xxxxxxx Securityholders in
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accordance with each Xxxxxxx Securityholder's Pro Rata Share. Subject to the
provisions of Section 7, the Escrow Agent shall not have any liability for loss
sustained as a result of (i) any investment made pursuant to the instructions of
the Representative, (ii) any liquidation of any investment prior to its
maturity, or (iii) the failure of the Representative to give the Escrow Agent
any instruction to invest or reinvest the cash portion of the Escrowed Amount or
any earnings thereon.
4. ADMINISTRATION OF ESCROW ACCOUNT. The Escrow Agent shall administer the
Escrow Account as follows:
4.1 LOCATION OF ESCROWED PROPERTY. The Escrow Agent shall keep all
of the Escrowed Property, and all documents related to the recordkeeping of the
Escrowed Property, at the office of the Escrow Agent identified in Section 10.1,
in a suitable place for safekeeping.
4.2 NOTICE OF CLAIMS FOR OFFSET RIGHTS AND INDEMNIFICATION. In the
event either TriZetto or the Xxxxxxx Securityholders gives a Claim Notice to
TriZetto or the Xxxxxxx Securityholders, as the case may be (as contemplated in
Article 8 of the Purchase Agreement and the Supplement to Xxxxxxx Disclosure
Schedule), the party providing such Claim Notice shall also give a copy of such
Claim Notice to the Escrow Agent.
4.3 RESOLUTION OF CLAIMS. As soon as practicable following
resolution of a Claim (in accordance with the procedure in Article 8 of the
Purchase Agreement and the Supplement to Xxxxxxx Disclosure Schedule for the
resolution of such Claims) for which the Escrow Agent has been provided a Claim
Notice pursuant to Section 4.2, the parties shall promptly provide or cause to
be provided to the Escrow Agent either (i) a written notice signed by TriZetto,
on the one hand, and the Representative, on the other hand, indicating that the
Claim or Claims specified in the Claim Notice have been resolved by the parties
through a mutually agreed upon resolution of the Claim or Claims, and
identifying the amount of any TriZetto Recoverable Loss and/or Xxxxxxx
Securityholders' Recoverable Loss upon which the parties have mutually agreed,
(ii) a written notice from the arbitrator or arbitrators who heard and decided
the Claim in accordance with Section 11.12 of the Purchase Agreement
(collectively, the "Arbitrator"), following final settlement of the Claim or
Claims in accordance with the procedure in Section 11.12 of the Purchase
Agreement, which notice shall indicate that the Claim or Claims specified in the
Claim Notice have been resolved, and identifying the amount of any TriZetto
Recoverable Loss and/or Xxxxxxx Securityholders' Recoverable Loss to which the
parties are entitled with respect to such Claim or Claims as determined by the
Arbitrator, or (iii) receipt of a court order or judgment directing the Escrow
Agent to act with respect to the distribution of any Escrowed Property (each
notice identified in (i), (ii) and (iii) above is referred to herein as a "Claim
Resolution Notice"). In the event that any Claim Resolution Notice fails to
indicate the amount of any TriZetto Recoverable Loss and/or Xxxxxxx
Securityholders' Recoverable Loss, the Escrow Agent shall promptly request such
information from TriZetto and the Representative, and TriZetto and the
Representative shall cause such information to be promptly forwarded to the
Escrow Agent.
4.4 DELIVERY OF ESCROW STATEMENT. No Escrowed Property shall be
released prior to the Termination Date. No more than ten business days after the
Termination Date, the Escrow Agent shall deliver to TriZetto and the
Representative an escrow statement identifying the following (the "Escrow
Statement"):
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(a) the value of the Escrowed Property in the Escrow Account,
as determined in accordance with this Section 4.4;
(b) the aggregate amount of all TriZetto Recoverable Losses
identified in all Claim Resolution Notices received by the Escrow Agent;
(c) the aggregate amount of all Xxxxxxx Securityholders'
Recoverable Losses identified in all Claim Resolution Notices received by the
Escrow Agent;
(d) a statement to the effect that either:
(i) the aggregate amount of all TriZetto Recoverable
Losses exceeds the aggregate amount of all Xxxxxxx Securityholders' Recoverable
Losses, and the amount of the excess of such TriZetto Recoverable Losses
("TriZetto Recovery Amount"), or
(ii) the aggregate amount of all Xxxxxxx
Securityholders' Recoverable Losses exceeds the aggregate amount of all TriZetto
Recoverable Losses, and the amount of the excess of such Xxxxxxx
Securityholders' Recoverable Losses ("Xxxxxxx Securityholders' Recovery
Amount"); and
(e) a list of all Claims with respect to which the Escrow
Agent received a Claim Notice prior to the Termination Date but for which no
Claim Resolution Notice has yet been received ("Outstanding Claims"), and the
value of any TriZetto Recoverable Loss and/or Xxxxxxx Securityholders'
Recoverable Loss identified in such Claim Notice(s).
For purposes of determining the value of the Escrowed Property to be reported in
the Escrow Statement, the value of all Escrowed Property that is cash shall be
the value of such cash in U.S. dollars, and the value of the Escrow Shares shall
be equal, on a per share basis, to the average closing sales price of the
TriZetto Stock as reported on the Nasdaq National Market ("NMS") (or other
exchange or similar market on which the TriZetto Stock is regularly traded if
not then traded on NMS) for the 20 trading days preceding the Termination Date.
The value of any other Escrowed Property (other than cash and Escrow Shares)
shall be determined by TriZetto and the Representative (in the event TriZetto
and the Representative are unable to mutually agree on a value of such property
within 30 days after a request by the Escrow Agent for such a determination, the
parties shall submit the dispute to arbitration in accordance with the procedure
specified in Section 11.12 of the Purchase Agreement, which arbitration decision
shall be final and binding for purposes of determining the value of such
Escrowed Property). TriZetto and the Representative shall each review the
accuracy and completeness of the Escrow Statement, and shall notify each other
and the Escrow Agent of any discrepancy asserted in good faith within 10
business days (the "Objection Notice Period") of receipt of the Escrow Statement
("Objection to Escrow Statement Notice").
4.5 RELEASE OF ESCROWED PROPERTY - NO OUTSTANDING CLAIMS. In the
event neither party has timely submitted an Objection to Escrow Statement Notice
to the Escrow Agent (or the Escrow Agent has delivered the Final Escrow
Statement in accordance with Section 4.7 below, as the case may be) and assuming
there are no Outstanding Claims, then, promptly following the expiration of the
Objection Notice Period (or the delivery of the Final Escrow Statement, as
applicable), the Escrow Agent shall release the Escrowed Property as follows:
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(a) If prior to the Termination Date, the Escrow Agent did not
receive any Claim Resolution Notices, then the Escrow Agent shall deliver to
each of the Xxxxxxx Securityholders an amount of the Escrowed Property
representing such Xxxxxxx Securityholder's Pro Rata Share of the Escrowed
Property, free and clear of the Escrow created by this Agreement.
(b) If, prior to the Termination Date, the Escrow Agent
received one or more Claim Resolution Notices, then:
(i) if the Escrow Agent reported a TriZetto Recovery
Amount in the Escrow Statement (or Final Escrow Statement, as applicable), the
Escrow Agent shall deliver to TriZetto such Escrowed Property with a value (as
determined in accordance with Section 4.4) equal to the TriZetto Recovery Amount
(subject to the limitations set forth in Section 4.8(a)), which Escrowed
Property shall be in such proportions of Escrow Shares and other Escrowed
Property as may be requested by the Representative (subject to the availability
of such type(s) of Escrowed Property at such time) and, to the extent
practicable, shall be pro rata based on each Xxxxxxx Securityholders' Pro Rata
Share of the Escrowed Property, and shall deliver to each of the Xxxxxxx
Securityholders an amount of the remaining Escrowed Property (following the
distribution to TriZetto of the TriZetto Recovery Amount), if any, representing
such Xxxxxxx Securityholder's Pro Rata Share of such remaining Escrowed
Property, free and clear of the Escrow created by this Agreement; and
(ii) if the Escrow Agent reported a Xxxxxxx
Securityholders' Recovery Amount in the Escrow Statement (or Final Escrow
Statement, as applicable), the Escrow Agent shall deliver to each of the Xxxxxxx
Securityholders an amount of the Escrowed Property representing such Xxxxxxx
Securityholder's Pro Rata Share of the Escrowed Property, free and clear of the
Escrow created by this Agreement.
4.6 RELEASE OF ESCROWED PROPERTY - OUTSTANDING CLAIMS. In the event
neither party has timely submitted an Objection to Escrow Statement Notice to
the Escrow Agent (or the Escrow Agent has delivered the Final Escrow Statement
in accordance with Section 4.7 below, as the case may be) and assuming there are
one or more Outstanding Claims, then, promptly following the expiration of the
Objection Notice Period (or the delivery of the Final Escrow Statement, as
applicable), the Escrow Agent shall release the Escrowed Property as follows:
(a) If, prior to the Termination Date, the Escrow Agent did
not receive any Claim Resolution Notices, then the Escrowed Property shall be
distributed in accordance with Section 4.5(a); provided that, the Escrow Agent
shall retain in the Escrow pursuant to the terms of this Agreement such Escrowed
Property having a value (as determined in accordance with Section 4.4) equal to
125% of the excess of (i) the aggregate amount of all TriZetto Recovery Losses
identified in the Claim Notice(s) for such Outstanding Claims over (ii) the
amount of any Xxxxxxx Securityholders' Recoverable Losses reported by the Escrow
Agent on the Escrow Statement (or Final Escrow Statement, as applicable) (the
"Holdback Property").
(b) If, prior to the Termination Date, the Escrow Agent
received one or more Claim Resolution Notices, then the Escrowed Property shall
be distributed in accordance with Section 4.5(b); provided that, the Escrow
Agent shall retain in the Escrow pursuant to the terms of this Agreement the
Holdback Property.
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(c) Any Holdback Property retained in Escrow shall be
distributed only upon the receipt by the Escrow Agent of Claim Resolution
Notices for all Outstanding Claims. If the aggregate amount of all TriZetto
Recoverable Losses identified on the Claim Resolution Notices for all such
Outstanding Claims exceeds the aggregate amount of all Xxxxxxx Securityholders'
Recoverable Losses identified on the Claim Resolution Notices for all such
Outstanding Claims (the "Final TriZetto Recovery Amount"), then the Escrow Agent
shall, promptly following receipt of Claim Resolution Notices for all
Outstanding Claims, deliver to TriZetto such Holdback Property with a value (as
determined in accordance with Section 4.4) equal to the Final TriZetto Recovery
Amount (subject to the limitation set forth in Section 4.8(a)), which Holdback
Property shall be in such proportions of Escrow Shares and other Escrowed
Property as may be requested by the Representative (subject to the availability
of such type(s) of Escrowed Property at such time) and, to the extent
practicable, shall be pro rata based on each Xxxxxxx Securityholders' Pro Rata
Share of the Escrowed Property, and shall deliver to each of the Xxxxxxx
Securityholders an amount of the remaining Holdback Property (following the
distribution to TriZetto of the Final TriZetto Recovery Amount), if any,
representing such Xxxxxxx Securityholder's Pro Rata Share of such remaining
Holdback Property, free and clear of the Escrow created by this Agreement. If,
instead, the aggregate amount of all Xxxxxxx Securityholders' Recoverable Losses
identified on the Claim Resolution Notices for all such Outstanding Claims
exceeds the aggregate amount of all TriZetto Recoverable Losses identified on
the Claim Resolution Notices for all such Outstanding Claims (or if there are no
such TriZetto Recoverable Losses), then the Escrow Agent shall, promptly
following receipt of Claim Resolution Notices for all Outstanding Claims,
deliver to each of the Xxxxxxx Securityholders an amount of the Holdback
Property representing such Xxxxxxx Securityholder's Pro Rata Share of such
Holdback Property, free and clear of the Escrow created by this Agreement.
4.7 DISPUTES REGARDING THE ACCURACY OF THE ESCROW STATEMENT.
(a) In the event either party timely submits an Objection to
Escrow Statement Notice, TriZetto, the Representative and the Escrow Agent shall
undertake in good faith to or to have their representatives promptly meet and
attempt to resolve all disputes regarding the accuracy of the Escrow Statement.
(b) If TriZetto and the Representative are able to resolve all
disputes regarding the accuracy of the Escrow Statement within 30 days after the
date of the Objection to Escrow Statement Notice, then TriZetto and the
Representative shall promptly provide written instructions to the Escrow Agent
regarding the appropriate revisions to the Escrow Statement.
(c) If TriZetto and the Representative are unable to resolve
all disputes regarding the accuracy of the Escrow Statement within 30 days after
the date of the Objection to Escrow Statement Notice, the resolution of the
disputes shall be referred to and settled by arbitration in accordance with
Section 11.12 of the Purchase Agreement. Following settlement by arbitration,
the Arbitrator shall distribute to TriZetto, the Representative and the Escrow
Agent written instructions regarding the appropriate revisions to the Escrow
Statement.
(d) Following receipt of the written instructions regarding
revisions to the Escrow Statement from the parties or the Arbitrator, as
applicable, as contemplated in Subsections (b) and (c) above (the "Written
Instructions"), the Escrow Agent shall promptly deliver a revised Escrow
Statement (the "Revised Escrow Statement") to TriZetto and the
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Representative. TriZetto and the Representative shall have five business days
from the date they receive the Revised Escrow Statement to notify the other
party and the Escrow Agent of any discrepancies regarding the accuracy of the
Revised Escrow Statement (provided that such discrepancies shall be limited to
discrepancies regarding the Escrow Agent's failure to follow the Written
Instructions). Any such discrepancies shall be promptly communicated to the
other party and the Escrow Agent and the Revised Escrow Statement shall be
further revised accordingly. If necessary (and if applicable), the parties will
consult the Arbitrator to assist in the resolution of any such discrepancies.
(e) Following finalization and recirculation of the Revised
Escrow Statement in accordance with Subsection (d) hereof (the "Final Escrow
Statement"), the Escrow Agent shall distribute the Escrowed Property in
accordance with the procedures specified in Sections 4.5 or 4.6, as applicable;
it being understood, that, for purposes of Sections 4.5 and 4.6, all references
to amounts and information identified on the Escrow Statement shall be deemed to
refer to amounts and information identified on the Final Escrow Statement.
(f) Notwithstanding anything herein to the contrary, the
Escrow Agent shall have no liability with respect to the accuracy or
completeness of the Escrow Statement, any Revised Escrow Statement or any Final
Escrow Statement (except as a result of the gross negligence or willful
misconduct of the Escrow Agent).
4.8 EXCESS RECOVERABLE LOSSES.
(a) EXCESS TRIZETTO RECOVERABLE LOSSES. In the event that,
following the resolution of all Outstanding Claims (or, if there are no
Outstanding Claims, then as reported in the Escrow Statement or Final Escrow
Statement, as applicable), there is a TriZetto Recovery Amount that has not
already been satisfied in accordance with instructions set forth in a Claim
Resolution Notice, such unsatisfied TriZetto Recovery Amount shall be satisfied
in accordance with Section 4.5(b)(i) or 4.6(c), as applicable, up to the amount
of the aggregate value of the Escrowed Property (as determined in accordance
with Section 4.4). TriZetto shall not be entitled to receive any amounts in
excess of the value of the Escrowed Property.
(b) EXCESS XXXXXXX SECURITYHOLDERS' RECOVERABLE LOSSES. In the
event that, following the resolution of all Outstanding Claims (or, if there are
no Outstanding Claims, then as reported in the Escrow Statement or Final Escrow
Statement, as applicable) there is a Xxxxxxx Securityholders' Recovery Amount,
(i) the Escrowed Property shall be released to the Xxxxxxx Securityholders
pursuant to the terms of this Agreement; and (ii) TriZetto shall pay to each of
the Xxxxxxx Securityholders such Xxxxxxx Securityholder's Pro Rata Share of the
Xxxxxxx Securityholders' Recoverable Losses in accordance with the requirements
and subject to the dollar limitations in Article 8 of the Purchase Agreement and
the Supplement to Xxxxxxx Disclosure Schedule. Nothing in this Section 4.8 shall
be deemed to affect TriZetto's obligations with respect to the satisfaction of
any future claims by Xxxxxxx Securityholders in accordance with the terms of
Article 8 of the Purchase Agreement and the Supplement to Xxxxxxx Disclosure
Schedule.
4.9 NO RESPONSIBILITY OF ESCROW AGENT TO RESOLVE DISPUTE; AMBIGUITY
OR DISPUTE. If any controversy arises involving any party to this Agreement
(other than the Escrow Agent) concerning the subject matter of this Agreement,
including any Claim, TriZetto Recoverable Losses, Xxxxxxx Securityholders'
Recoverable Losses, Escrow Statement, Revised
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Escrow Statement or Final Escrow Statement, the Escrow Agent will not be
required to determine the controversy or to take any action until such dispute
has been resolved. If the Escrow Agent is uncertain as to its duties and rights
hereunder, or in the event of any other dispute between or among the parties
hereto and/or any other person or entity with respect to the Escrowed Property,
the Escrow Agent shall be entitled, as its sole option, to refuse to comply with
any demands, claims or instructions and to refrain from taking any action other
than to keep the Escrowed Account and all Escrowed Property in the Escrow until
the Escrow Agent is directed otherwise by joint written instructions signed by
the parties hereto, or by a court order, and the Escrow Agent is authorized to
deliver the Escrowed Property to, or commence an interpleader action in, any
court of competent jurisdiction, whereupon the Escrow Agent shall be relieved of
any further obligation pursuant hereto. The Escrow Agent shall not be or become
liable in any way for actions taken in accordance with this Section 4.9.
4.10 DELIVERY METHODS. Delivery of Escrowed Property by the Escrow
Agent shall be by nationally recognized overnight courier. The Escrow Agent
shall not be responsible for obtaining insurance in connection with such
delivery.
4.11 POWER TO TRANSFER ESCROW AMOUNTS. The Escrow Agent is hereby
granted the power to effect any transfer of Escrowed Property permitted or
required by this Agreement in accordance with its terms.
5. FEES AND EXPENSES OF ESCROW AGENT AND REPRESENTATIVE.
5.1 ESCROW AGENT. TriZetto shall pay the fees of the Escrow Agent
for the services to be rendered by the Escrow Agent hereunder; provided,
however, that any extraordinary fees and expenses referred to in Section 5.3
below, including, without limitation, any fees or expenses incurred by the
Escrow Agent in connection with a dispute over the distribution of Escrowed
Property will be paid 50% by TriZetto and 50% by the Xxxxxxx Securityholders.
5.2 REPRESENTATIVE. The Representative will not be entitled to
receive any compensation from TriZetto or the Xxxxxxx Securityholders in
connection with this Agreement; however, the Xxxxxxx Securityholders shall
indemnify and promptly reimburse the Representative for all reasonable expenses
actually incurred by the Representative in connection with the performance of
its duties hereunder (including, but not limited to, all losses, costs and
expenses which the Representative may incur as a result of involvement in any
legal proceedings arising from the performance of its duties hereunder) pro rata
according to the Xxxxxxx Securityholders' respective Pro Rata Share. TriZetto
shall not have any obligation to reimburse the Representative for any expenses
whatsoever.
5.3 ESCROW AGENT'S EXTRAORDINARY FEES. TriZetto and the
Representative hereby acknowledge that all fees and usual charges for services
of the Escrow Agent hereunder shall be considered compensation for ordinary
services as contemplated by this Agreement. In the event that the Escrow Agent
renders any service not provided for in this Agreement, or if the parties hereto
request a substantial modification of the terms of this Agreement, or if any
controversy arises and/or the Escrow Agent is made a party to any litigation
pertaining to this Agreement or its subject matter, then the Escrow Agent shall
be compensated for such extraordinary services and reimbursed for all reasonable
costs, attorney's fees and expenses incurred by the Escrow Agent in rendering
such extraordinary services (except to the extent that
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the Escrow Agent is not entitled to indemnification pursuant to Section 7.3
hereof), which costs, fees and expenses shall be borne by TriZetto and the
Xxxxxxx Securityholders as provided in Section 5.1 above.
6. LIABILITY AND AUTHORITY OF REPRESENTATIVE; SUCCESSORS AND ASSIGNEES.
6.1 LIMITS ON LIABILITY. The Representative shall incur no liability
with respect to any action taken or suffered by him in his capacity as
Representative in reliance upon any note, direction, instruction, consent,
statement or other documents believed by it in good faith to be genuinely and
duly authorized, nor for other action or inaction except its own willful
misconduct or gross negligence. The Representative may, in all questions arising
under this Escrow Agreement, rely on the advice of counsel, and for anything
done, omitted or suffered in good faith by the Representative based on such
advice, the Representative shall not be liable to anyone.
6.2 SUCCESSOR REPRESENTATIVES. In the event of the death or
permanent disability of the Representative, or the resignation of Representative
as the representative of the Xxxxxxx Securityholders hereunder, a successor
Representative shall be elected by a majority vote of the Xxxxxxx
Securityholders, with each such Xxxxxxx Securityholder (or his successors or
assigns) to be given a weighted vote based on such Xxxxxxx Securityholder's Pro
Rata Share. Each successor Representative shall have all of the power,
authority, rights and privileges conferred by this Agreement upon the original
Representative, and the term "Representative" as used herein shall be deemed to
include each successor Representative.
6.3 AUTHORITY OF REPRESENTATIVE. The Representative shall have full
power and authority to represent the Xxxxxxx Securityholders and their
successors with respect to all matters arising under this Agreement or related
to the subject matter hereof and all actions taken by the Representative
hereunder shall be binding upon each and all of the Xxxxxxx Securityholders and
their successors, as if expressly confirmed and ratified in writing by each of
them. Without limiting the generality of the foregoing, the Representative shall
have full power and authority to interpret all of the terms and provisions of
this Agreement, to compromise and settle any claims asserted hereunder and to
authorize payments to be made with respect thereto, on behalf of the Xxxxxxx
Securityholders and their successors. The Xxxxxxx Securityholders have consented
to the appointment of the Representative as representative of the Xxxxxxx
Securityholders and as the attorney-in-fact and agent for and on behalf of each
Xxxxxxx Securityholder for the purposes of taking actions and executing
agreements and documents on behalf of any of the Xxxxxxx Securityholders as
provided in this Agreement, and, subject to the express limitations set forth
below, the taking by the Representative of any and all actions and the making of
any decisions required or permitted to be taken by him under this Agreement,
including, but not limited to, the exercise of the power to authorize delivery
to TriZetto of Escrowed Property and to take all actions necessary in the
judgment of the Representative for the accomplishment of the foregoing and all
of the other terms, conditions and limitations of this Agreement. The
Representative will have unlimited authority and power to act on behalf of each
Xxxxxxx Securityholder with respect to this Agreement and the disposition,
settlement or other handling of all claims, rights or obligations arising under
this Agreement with respect to Escrowed Property so long as all Xxxxxxx
Securityholders are treated in the same manner (unless the Xxxxxxx
Securityholders otherwise consent). The Xxxxxxx Securityholders will be bound by
all actions taken by the Representative in connection with this Agreement, and
TriZetto will be entitled to rely on any action or decision of the
Representative.
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7. LIMITATION OF ESCROW AGENT'S RESPONSIBILITY AND LIABILITY.
7.1 LIMITATION OF RESPONSIBILITY. The Escrow Agent's duties are
limited to those set forth in this Agreement, and the Escrow Agent, acting as
such under this Agreement, is not charged with knowledge of or any duties or
responsibilities under any other document or agreement, including, without
limitation, the Purchase Agreement and the Supplement to Xxxxxxx Disclosure
Schedule. The Escrow Agent may execute any of its powers or responsibilities
hereunder and exercise any rights hereunder either directly or by or through its
agents or attorneys. Nothing in this Escrow Agreement will be deemed to impose
upon the Escrow Agent any duty to qualify to do business or to act as a
fiduciary or otherwise in any jurisdiction. The Escrow Agent will not be
responsible for, and will not be under a duty to examine into or pass upon, the
validity, binding effect, execution or sufficiency of this Agreement or of any
agreement mandatory or supplemental hereto.
7.2 LIMITATION OF LIABILITY. The Escrow Agent will incur no
liability with respect to any action taken, not taken or suffered by it in
reliance upon any notice, direction, instruction, consent, statement or other
document believed by it to be genuine and duly authorized, nor for any other
action or inaction, except its own gross negligence or willful misconduct. In
all questions arising under this Agreement, the Escrow Agent may rely on the
advice of counsel, and for anything done, omitted or suffered in good faith by
the Escrow Agent based on such advice, the Escrow Agent will not be liable to
anyone, provided that the Escrow Agent shall have used reasonable care in the
selection of such counsel. The Escrow Agent will not be required to take any
action hereunder involving any expense unless the payment of such expense is
made or provided for in a manner satisfactory to it. The Escrow Agent will not
be liable for any action taken or omitted to be taken by it in good faith unless
a court of competent jurisdiction determines that the Escrow Agent's gross
negligence or willful misconduct was the cause of any loss to TriZetto, the
Representative, or any Xxxxxxx Securityholder. The Escrow Agent makes no
representation or warranty with respect to, and is not responsible for, the
Escrowed Amount, other than any losses resulting from its gross negligence or
willful misconduct. The Escrow Agent will have no duty to solicit the delivery
from TriZetto of any Escrowed Property. The Escrow Agent will have no obligation
with respect to the Escrowed Property other than to (i) keep safely all property
held in escrow, (ii) withhold the release of Escrowed Property to the Xxxxxxx
Securityholders, or (iii) release the Escrowed Property to TriZetto, as the case
may be, to the extent expressly provided in this Agreement.
7.3 INDEMNITY. TriZetto and each of the Xxxxxxx Securityholders
(each an "Indemnifying Party" and together the "Indemnifying Parties"), each
hereby severally, but not jointly, covenants and agrees to reimburse, indemnify
and hold harmless the Escrow Agent and its employees officers, directors and
agents from and against any loss, damage or liability suffered, incurred by or
asserted against the Escrow Agent (including amounts paid in settlement of any
action, suit, proceeding, or claim brought or threatened to be brought and
including reasonable expenses of legal counsel) arising out of, in connection
with or based upon any act or omission by the Escrow Agent relating in any way
to this Agreement or the Escrow Agent's services hereunder; provided, however,
that neither TriZetto, on the one hand, or the Xxxxxxx Securityholders, on the
other hand, shall be responsible for more than half of any liability imposed
upon or incurred by the Escrow Agent under this Section 7.3 unless TriZetto, on
the one hand, or any of the Xxxxxxx Securityholders on the other hand, was the
sole cause of a liability to be imposed upon or incurred by the Escrow Agent, in
which event, TriZetto or the Xxxxxxx Securityholders, as applicable, shall be
solely responsible for the liability imposed upon or
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incurred by the Escrow Agent; provided further, that the liability of any
Xxxxxxx Securityholder shall be limited to such Xxxxxxx Securityholder's pro
rata share of the liability of all of the Xxxxxxx Securityholders hereunder,
based on the number of shares of Xxxxxxx stock held by such Xxxxxxx
Securityholder; provided further, that each of TriZetto and the Xxxxxxx
Securityholders shall have rights of contribution against each other to effect
and enforce the rights and obligations set forth in this sentence; and provided
further, that a party that caused a liability to be imposed upon or incurred by
the Escrow Agent is not entitled to any contribution from the other party under
this Escrow Agreement or otherwise. This indemnity will not apply to any such
loss, damage or liability arising from the gross negligence or willful
misconduct on the Escrow Agent's part. Anything in this Agreement to the
contrary notwithstanding, in no event will any party be liable for special,
indirect or consequential damage or loss of any kind whatsoever (including but
not limited to lost profits) suffered or incurred by any other party, even if
such party has been advised of the likelihood of such loss or damage and
regardless of the form of action.
7.4 PARTICIPATION IN DEFENSE OF THE ESCROW AGENT. Each Indemnifying
Party may participate at its own expense in the defense of any claim or action
that may be asserted against the Escrow Agent, and if the Indemnifying Parties
so elect, the Indemnifying Parties may assume the defense of such claim or
action; provided, however, that if there exists a conflict of interest that
would make it inappropriate for the same counsel to represent both the Escrow
Agent and the Indemnifying Parties, the Escrow Agent's retention of separate
counsel will be reimbursable as provided in Section 7.3. The Escrow Agent's
right to indemnification hereunder will survive the Escrow Agent's resignation
or removal as escrow agent hereunder and will survive the termination of this
Agreement by lapse of time or otherwise.
7.5 NOTICE OF CLAIMS AGAINST ESCROW AGENT. The Escrow Agent will
notify each Indemnifying Party by letter, or by telephone or telecopy confirmed
by letter sent U.S. first class mail, registered or certified, of any receipt by
the Escrow Agent of a written assertion of a claim against the Escrow Agent
related to this Agreement, or any action commenced against the Escrow Agent,
within 10 business days after the Escrow Agent's receipt of written notice of
such claim. However, the Escrow Agent's failure to so notify each Indemnifying
Party will not operate in any manner whatsoever to relieve an Indemnifying Party
from any liability that it may have otherwise than on account of this Section 7;
provided, however, that, in the event the Escrow Agent fails to so notify each
Indemnifying Party and an Indemnifying Party is prejudiced thereby, then such
Indemnifying Party will not have liability to Escrow Agent under this Section 7.
7.6 RELIANCE. The Escrow Agent shall be entitled to rely upon any
court order, judgment, certification, instruction, award, 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 thereof. The Escrow Agent may
act in reliance upon any instrument comporting with the provisions of this
Agreement or signature reasonably believed by it to be genuine, and may
reasonably assume that any person purporting to give notice or receipt or advice
or to make any statement or to execute any document in connection with the
provisions hereof has been duly authorized to do so.
7.7 NO IMPLIED DUTIES; COLLATERAL AGREEMENTS. The Escrow Agent shall
not be obligated to perform any duties that are not expressly set forth in this
Agreement, and no implied covenants or obligations shall be inferred from this
Agreement against the Escrow
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Agent. The Escrow Agent shall not be bound in any way by any contract or
agreement between the other parties or among the other parties and any third
parties, whether or not the Escrow Agent has knowledge of any such contract or
agreement or of its terms or conditions.
8. SUCCESSOR ESCROW AGENT. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow Agent
may resign at any time and be discharged from its duties or obligations
hereunder by giving a written resignation to the parties to this Escrow
Agreement, specifying not less than 30 days prior written notice of the date
when such resignation shall take effect; provided, however, that no such
resignation shall become effective until the appointment of a successor Escrow
Agent and acceptance of such appointment by such successor Escrow Agent.
TriZetto may appoint a successor Escrow Agent without the consent of the
Representative so long as such successor is a bank with assets of at least Five
Hundred Million Dollars ($500,000,000) which has no direct depository or lending
relationship with TriZetto or any of the Xxxxxxx Securityholders and which is
qualified to do business in the State of California, and may appoint any other
successor Escrow Agent with the written consent of the Representative, which
shall not be unreasonably withheld. If, within such notice period, TriZetto
provides to the Escrow Agent written instructions with respect to the
appointment of a successor Escrow Agent in accordance with this Section 8 and
directions for the transfer of any Escrowed Property then held by the Escrow
Agent to such successor, the Escrow Agent shall act in accordance with such
instructions and promptly transfer such Escrowed Property to such designated
successor. If no successor Escrow Agent is appointed within 60 days of the date
specified for the Escrow Agent's resignation to take effect, any party hereto
(including the Escrow Agent) shall have the right to apply to a court of
competent jurisdiction for such appointment at the expense of TriZetto. Each
successor Escrow Agent shall execute and deliver an instrument accepting such
appointment and shall, without further acts, be vested in all the estates,
properties, rights, powers and duties of the Escrow Agent or any other
predecessor Escrow Agent as if originally named as Escrow Agent hereunder.
9. TERMINATION. This Agreement shall terminate upon the earlier of (a) the
release by the Escrow Agent of all of the Escrowed Property in accordance with
this Agreement following the Termination Date, or (b) the delivery of written
notice of earlier termination executed by or on behalf of TriZetto and the
Representative. In the event that a contest exists on the Termination Date, the
Escrow shall continue in place until the dispute is resolved pursuant to Section
7. This Escrow Agreement shall not be otherwise terminated. The obligations and
liabilities of the Escrow Agent hereunder will terminate on termination of the
Escrow Agreement. Irrespective of the date on which the obligations and
liabilities of the Escrow Agent hereunder shall be terminated, the rights of the
Escrow Agent and the obligations of the parties under Sections 5 and 7.3 shall
survive, notwithstanding termination of this Escrow Agreement or the resignation
of the Escrow Agent.
10. MISCELLANEOUS.
10.1 NOTICES. All notices required or permitted hereunder shall be
in writing and shall be deemed effectively given: (a) upon personal delivery to
the party to be notified; (b) when sent by confirmed facsimile if sent during
normal business hours of the recipient, if not, then on the next business day;
(c) five business days after having been sent by registered or certified mail,
return receipt requested, postage prepaid; or (d) two business days after
deposit with a nationally recognized overnight courier, specifying two day
delivery, with written verification of receipt. All communications shall be sent
to the parties at the following addresses
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or facsimile numbers specified below (or at such other address or facsimile
number for a party as shall be designated by ten business days advance written
notice to the other parties hereto):
IF THE ESCROW AGENT:
Bankers Trust Company of California, N.A
0000 Xxxx Xx. Xxxxxx Xxxxx
Xxxxx Xxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxx
IF TO TRIZETTO TO:
The TriZetto Group, Inc.
000 Xxx Xxxxxxx Xxxxx, Xxxxx 000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
WITH A COPY TO:
Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx
000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000
Xxxxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: X.X. Xxxxxx, Esq.
IF TO XXXXXXX, TO:
Xxxxxxx Corporation
0 Xxxxxxxx Xxxxxx
Xxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
WITH A COPY TO:
Xxxxx & Xxxxxxx, L.L.P.
Columbia Square
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000
Attn: Xxxxxx X. Xxxxxxx, Esq.
IF TO THE XXXXXXX SECURITYHOLDERS:
The address set forth on Exhibit A attached hereto.
IF TO THE REPRESENTATIVE:
The address of the Representative set forth on Exhibit A attached
hereto.
10.2 AMENDMENT. This Agreement may be amended by the written
agreement of TriZetto, the Escrow Agent and the Representative, provided that,
if the Escrow Agent does not agree to an amendment agreed upon by TriZetto and
the Representative, the
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Escrow Agent will resign (which resignation shall be effective immediately and,
in any event, prior to the effective date of the amendment) and TriZetto will
appoint a successor Escrow Agent in accordance with Section 8 hereof. No such
amendment may treat any one Xxxxxxx Securityholder differently from the other
Xxxxxxx Securityholders unless consented to in writing by Xxxxxxx
Securityholders having beneficial ownership of a majority of the Escrow Shares,
including the consent of any Novalis Securityholder who is to be treated
differently.
10.3 WAIVER. At any time prior to the termination of this Agreement
in accordance with Section 9, any party hereto may with respect to any other
party hereto (a) extend the time for performance of any of the obligations or
other acts, (b) waive any inaccuracies in the representations and warranties
contained herein or in any document delivered pursuant hereto, or (c) waive
compliance with any of the agreements or conditions contained herein. Any such
extension or waiver shall be valid if set forth in an instrument in writing
signed by the party or parties to be bound thereby.
10.4 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE. No
failure or delay on the part of any party hereto in the exercise of any right
hereunder shall impair such right or be construed to be a waiver of, or
acquiescence in, any breach of any representation, warranty or agreement herein,
nor shall any single or partial exercise of any such right preclude other or
further exercise thereof or of any other right. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
10.5 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
10.6 SEVERABILITY. If any term or other provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner adverse to
any party. Upon such determination that any term or other provision is invalid,
illegal or incapable of being enforced, the parties hereto shall negotiate in
good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible, in an acceptable manner, to the end that
transactions contemplated hereby are fulfilled to the extent possible.
10.7 ENTIRE AGREEMENT. Except as otherwise set forth in the Purchase
Agreement, the Supplement to Xxxxxxx Disclosure Schedule and this Agreement (and
the schedules and exhibits attached hereto) constitutes the entire understanding
and agreement of the parties with respect to the subject matter of this
Agreement and supersedes all prior agreements or understandings, both oral and
written, among the parties, or any of them, with respect to the subject matter
hereof and, except as otherwise expressly provided herein.
10.8 BENEFITS; ASSIGNMENT. This Agreement shall be binding upon and
shall inure to the benefit of the parties and their respective successors and
assigns as permitted hereunder. No party may assign this Agreement or assign its
respective rights or delegate their duties (by operation of law or otherwise),
without the prior written consent of the other party (except as expressly
contemplated in Section 8 hereof and except for the assignment of any of a
Xxxxxxx Securityholder's rights to the extent such rights are assigned to a
person or entity entitled to a distribution of property held by such Xxxxxxx
Securityholder.
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10.9 ADDITIONAL ACTIONS AND DOCUMENTS. Each of the parties hereby
agrees to take or cause to be taken such further actions to execute, deliver and
file or cause to be executed, delivered and filed such further documents and
instruments, and to use reasonable efforts to obtain such consents, as may be
necessary or as may be reasonably requested in order to fully effectuate the
purposes, terms and conditions of this Agreement.
10.10 GOVERNING LAW. This Agreement will be governed by, and
construed in accordance with the laws of the State of Delaware as applied to
contracts that are executed and performed in Delaware, without regard to choice
of law provisions thereof.
10.11 COUNTERPARTS. This Agreement may be executed and delivered in
one or more counterparts, and by the different parties hereto in separate
counterparts, each of which when executed and delivered shall be deemed to be an
original but all of which taken together shall constitute one and the same
agreement. This Agreement shall become effective when counterparts have been
signed by each of the parties and delivered to all of the other parties hereto.
10.12 GENDER. For purposes of this Agreement, references to the
masculine gender shall include feminine and neuter genders and entities.
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IN WITNESS WHEREOF, the parties have duly executed and delivered this
Offset Escrow Agreement as of the day and year first above written.
THE TRIZETTO GROUP, INC., THE "COMPANY"
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
BANKERS TRUST COMPANY OF CALIFORNIA, N.A.,
"ESCROW AGENT"
By:
------------------------------------
Name:
------------------------------------
Title:
------------------------------------
ABS CAPITAL PARTNERS, L.P.,
"REPRESENTATIVE"
By: ABS Partners, L.P.,
its General Partner
By:
------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: General Partner
"XXXXXXX SECURITYHOLDERS"
ABS CAPITAL PARTNERS, L.P.
By: ABS Partners, L.P.,
its General Partner
By:
------------------------------------
Name: Xxxxxxxxx X. Xxxxxx
Title: General Partner
18
BANCBOSTON INVESTMENTS INC.
By:
------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
ST. XXXX FIRE AND MARINE INSURANCE
COMPANY
By:
------------------------------------
Name: Xxxxxxx X. Xxx
Title: Authorized Representative
ST. XXXX VENTURE CAPITAL V, L.L.C.`
By:
------------------------------------
Name: Xxxxxxx X. Xxx
Title:
------------------------------------
EDISON VENTURE FUND III, L.P.
By: Edison Partners III, L.P.,
its General Partner
By:
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: General Partner
XXXXX EMPLOYEE FUND, L.P.
By:
--------------------------------------
Name:Xxxxx X. Xxxxxx
Title: General Partner
XXXXX PARTNERS II, L.P.
By: GWW Partners, L.P.,
its General Partner
By:
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
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XXXXX PARTNERS INTERNATIONAL II, L.P.
By: GWW Partners, L.P.,
its General Partner
By:
----------------------------------
Name: Xxxxx X. Xxxxxx
Title: General Partner
20
EXHIBIT A
LISTING OF XXXXXXX STOCKHOLDERS AND ESCROWED AMOUNTS
[Omitted pursuant to Item 601 of Regulation S-K - information is not material
to an investment decision]
A-1
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EXHIBIT B
STOCK ASSIGNMENT SEPARATE FROM CERTIFICATE
FOR VALUE RECEIVED, the undersigned hereby sells, assigns and transfers an
aggregate of ___________________ (______) shares of Common Stock of The TriZetto
Group, Inc., a Delaware corporation (the "Company"), standing in the
undersigned's name on the books of said Company represented by Certificate No.
___ to ________________________.
The undersigned further does hereby irrevocably constitute and appoint
Bankers Trust Company of California, N.A, as escrow agent under the Offset
Escrow Agreement dated as of November __, 1999 by and among the TriZetto Group,
Inc., the parties listed on Exhibit A thereto, ABS Capital Partners, L.P. and
Bankers Trust Company of California, N.A, its attorney-in-fact, with full power
of substitution, to transfer said stock on the books of the Company.
Dated:
--------------------------- ----------------------------------------
B-1
