ESCROW AGREEMENT
This Escrow Agreement is entered into as of December 31, 1997, by
and among SS&C Technologies, Inc., a Delaware corporation (the "Buyer"),
Xxxxxx X. Xxxxxx and Xxxxx X. Xxxxxx (the "Indemnification
Representatives") and American Stock Transfer & Trust Company (the "Escrow
Agent").
WHEREAS, the Buyer, Securities Software Acquisition Corp., a
wholly owned subsidiary of the Buyer (the "Subsidiary"), Xxxxxx Xxxxx
Systems, Inc., an Illinois corporation (the "Company"), and the
stockholders of the Company have entered into an Agreement and Plan of
Merger dated the date hereof (the "Merger Agreement"), pursuant to which
the Subsidiary will be merged with and into the Company which, as the
surviving corporation (the "Surviving Corporation"), will become a wholly
owned subsidiary of the Buyer.
WHEREAS, the Merger Agreement provides that an escrow account will
be established to secure the Stockholders' indemnification obligations to
the Indemnified Persons under the Merger Agreement on the terms and
conditions set forth herein.
WHEREAS, the parties hereto desire to establish the terms and
conditions pursuant to which such escrow account will be established and
maintained.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1 Defined Terms. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings given them in the Merger
Agreement.
2 Consent of Stockholders. By virtue of the Stockholders'
execution and approval of the Merger Agreement, the Stockholders receiving
shares of Buyer Common Stock pursuant to the Merger (the "Indemnifying
Stockholders") have, without any further act of any Stockholder, consented
to: (a) the establishment of this escrow to secure the Stockholders'
indemnification obligations under Article VI of the Merger Agreement in the
manner set forth herein, (b) the appointment of the Indemnification
Representatives as their representatives for purposes of this Agreement and
as attorneys-in-fact and agents for and on behalf of each Indemnifying
Stockholder, and the taking by the Indemnification Representatives of any
and all actions and the making of
any decisions required or permitted to be taken or made by them under this
Agreement and (c) all of the other terms, conditions and limitations in
this Agreement.
3 Escrow and Indemnification.
a. Escrow of Shares. On the Closing Date, the Buyer shall
deposit with the Escrow Agent a certificate for the number of Escrow Shares
specified in Section 1.5(a) of the Merger Agreement, issued in the name of
the Escrow Agent or its nominee. The Escrow Shares shall appear as issued
and outstanding on the balance sheet of the Buyer and shall be held 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.
The Escrow Shares shall be legally outstanding under applicable state law.
The Escrow Agent agrees to accept delivery of the Escrow Shares and to hold
the Escrow Shares in an escrow account (the "Escrow Account"), subject to
the terms and conditions of this Agreement.
b. Indemnification. The Indemnifying Stockholders have
agreed in Article VI of the Merger Agreement to indemnify and hold harmless
the Indemnified Persons from and against specified Damages. The Escrow
Shares and any other property held in the Escrow Account (together, the
"Escrow Property@) shall be security for such indemnity obligation of the
Indemnifying Stockholders, subject to the limitations, and in the manner
provided, in this Agreement.
c. Dividends, Etc. Any Buyer Common Stock distributable
to the Indemnifying Stockholders in respect of or in exchange for any of
the Escrow Shares, whether by way of stock dividends, stock splits or
otherwise, shall be delivered to the Escrow Agent, who shall hold such
Buyer Common Stock in the Escrow Account. Any such Buyer Common Stock shall
be issued in the name of the Escrow Agent or its nominee and shall be
considered Escrow Shares for purposes hereof. All dividends of cash or
other property (other than Buyer Common Stock) in respect of the Escrow
Shares shall be currently distributed to the Indemnifying Stockholders.
d. Voting of Shares. Indemnifying Stockholders shall be
entitled to vote their respective proportionate number of Escrow Shares set
forth on Attachment A. The Buyer shall give the Indemnification
Representatives at least as much notice of meetings of stockholders as it
gives its stockholders generally. The Indemnification Representatives shall
promptly inform each Indemnifying Stockholder of each such meeting and of
the matters to be considered at such meeting. The Indemnification
Representatives shall,
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in accordance with the instructions received from Indemnifying
Stockholders, direct the Escrow Agent in writing as to the exercise of any
voting rights pertaining to the Escrow Shares, and the Escrow Agent shall
comply with any such written instructions. In the absence of such
instructions, the Escrow Agent shall not vote any of the Escrow Shares. The
Indemnification Representatives shall have no obligation to solicit
consents or proxies from the Indemnifying Stockholders for purposes of any
such vote.
e. Transferability. The respective interests of the
Indemnifying Stockholders in the Escrow Account shall not be assignable or
transferable, other than by operation of law. Notice of any such assignment
or transfer by operation of law shall be given to the Escrow Agent and the
Buyer, and no such assignment or transfer shall be valid until such notice
is given.
4 Administration of Escrow Account. The Escrow Agent shall
administer the Escrow Account as follows:
a. If an Indemnified Person has incurred or suffered
Damages for which it is entitled to indemnification under Article VI of the
Merger Agreement, it shall, prior to the General Fund Termination Date (as
defined below) in the case of indemnification claimed under Sections
6.1(a), 6.1(b) and 6.1(c) of the Merger Agreement, prior to the
Intellectual Property Termination Date (as defined below) in the case of
indemnification claimed under Section 6.1(d) of the Merger Agreement, or
prior to the Tax Termination Date (as defined below) in the case of
indemnification claimed under Section 6.1(e) of the Merger Agreement, give
written notice of such claim (a "Claim Notice") to the Indemnification
Representatives and the Escrow Agent. Each Claim Notice shall state the
amount of claimed Damages (the "Claimed Amount"), the basis for such claim
and whether such claim is pursuant to Sections 6.1(a), 6.1(b) and/or 6.1(c)
of the Merger Agreement, pursuant to Section 6.1(d) of the Merger Agreement
or pursuant to Section 6.1(e) of the Merger Agreement. The date on which
the representations, warranties, covenants and agreements of the Company
and the Stockholders (other than Section 2.12(f) of the Merger Agreement),
and the related indemnification obligations in Sections 6.1(a), 6.1(b) and
6.1(c) of the Merger Agreement, expire in accordance with Section 6.3 of
the Merger Agreement shall be referred to herein as the "General Fund
Termination Date." The date on which the representations and warranties of
the Company and the Principal Stockholders contained in Section 2.12(f) of
the Merger Agreement, and the related indemnification obligations in
Section 6.1(d) of the Merger Agreement, expire in accordance with Section
6.3 of the Merger Agreement shall be referred to as the "Intellectual
Property Termination Date." The date on which the indemnification
obligations in Section 6.1(e) of the Merger Agreement expire in accordance
with Section 6.3 of the Merger
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Agreement shall be referred to as the "Tax Termination Date."
b. Within 20 days after delivery of a Claim Notice the
Indemnification Representatives shall provide to the Indemnified Person,
with a copy to the Escrow Agent, a written response (the "Response Notice")
in which the Indemnification Representatives shall: (i) agree that Escrow
Property having a Fair Market Value (as computed pursuant to Section 6)
equal to the full Claimed Amount may be released from the Escrow Account to
the Indemnified Person, (ii) agree that Escrow Property having a Fair
Market Value equal to part, but not all, of the Claimed Amount (the "Agreed
Amount") may be released from the Escrow Account to the Indemnified Person
or (iii) contest that any of the Escrow Property may be released from the
Escrow Account to the Indemnified Person. The Indemnification
Representatives may contest the release of Escrow Property having a Fair
Market Value equal to all or a portion of the Claimed Amount only based
upon a good faith belief that all or such portion of the Claimed Amount
does not constitute Damages for which the Indemnified Person is entitled to
indemnification under Article VI of the Merger Agreement. If no Response
Notice is delivered by the Indemnification Representatives within such
20-day period, the Indemnification Representatives shall be deemed to have
agreed that Escrow Property having a Fair Market Value equal to all of the
Claimed Amount may be released to the Indemnified Person from the Escrow
Account.
c. Notwithstanding any other provision herein: (i)
indemnification for Damages pursuant to Sections 6.1(a), 6.1(b) and 6.1(c)
of the Merger Agreement may not exceed, in the aggregate, 80% of the
initial Escrow Property (plus any Buyer Common Stock distributed in respect
thereof or exchange therefor), (ii) indemnification for Damages pursuant to
Section 6.1(d) of the Merger Agreement may not exceed, in the aggregate, 5%
of the initial Escrow Property (plus any Buyer Common Stock distributed in
respect thereof or in exchange therefor) and (iii) indmnification for
Damages pursuant to Section 6.1(e) of the Merger Agreement may not exceed,
in the aggregate, 15% of the initial Escrow Property (plus any Buyer Common
Stock distributed in respect thereof or in exchange therefor).
d. If the Indemnification Representatives in the Response
Notice agree (or are deemed to have agreed) that Escrow Property having a
Fair Market Value equal to all of the Claimed Amount may be released from
the Escrow Account to the Indemnified Person, the Escrow Agent shall,
promptly following the earlier of the required delivery date for the
Response Notice or the delivery of the Response Notice, transfer, deliver
and assign to the Indemnified Person such Escrow Property held in the
Escrow Account which has a Fair Market Value equal to the Claimed Amount
(or such lesser amount of Escrow
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Property as is then held in the Escrow Account or is available for
distribution pursuant to the limitations set forth in Section 4(c)).
e. If the Indemnification Representatives in the Response
Notice agree that Escrow Property having a Fair Market Value equal to part,
but not all, of the Claimed Amount may be released from the Escrow Account
to the Indemnified Person, the Escrow Agent shall promptly following the
delivery of the Response Notice transfer, deliver and assign to the
Indemnified Person such Escrow Property held in the Escrow Account which
has a Fair Market Value equal to the Agreed Amount (or such lesser amount
of Escrow Property as is then held in the Escrow Account or is available
for distribution pursuant to the limitations set forth in Section 4(c)).
f. If the Indemnification Representatives in the Response
Notice contest the release of Escrow Property having a Fair Market Value
equal to all or part of the Claimed Amount (the "Contested Amount"), the
matter shall be settled by binding arbitration in Hartford, Connecticut.
All claims shall be settled by three arbitrators in accordance with the
Commercial Arbitration Rules then in effect of the American Arbitration
Association (the "AAA Rules"), except that the selection of arbitrators
shall be as provided herein. The Indemnification Representatives and the
Indemnified Person shall each designate one arbitrator within 15 days of
the delivery of the Indemnification Representatives' Response Notice
contesting the Claimed Amount. The Indemnification Representatives and the
Indemnified Person shall cause such designated arbitrators mutually to
agree upon and designate a third arbitrator; provided, however, that (i)
failing such agreement within 45 days of delivery of the Indemnification
Representatives' Response Notice, the third arbitrator shall be appointed
in accordance with the AAA Rules and (ii) if either the Indemnification
Representatives or the Indemnified Person fails to timely designate an
arbitrator, the dispute shall be resolved by the one arbitrator timely
designated. The Indemnifying Stockholders and the Indemnified Person shall
pay the fees and expenses of their respectively designated arbitrators and
shall bear equally the fees and expenses of the third arbitrator. The
Indemnification Representatives and the Indemnified Person shall cause the
arbitrators to decide the matter to be arbitrated pursuant hereto within 60
days after the appointment of the last arbitrator. The arbitrators'
decision shall relate solely to whether the Indemnified Person is entitled
to receive the Contested Amount (or a portion thereof) pursuant to the
applicable terms of the Merger Agreement and this Agreement. The final
decision of the majority of the arbitrators shall be furnished to the
Indemnification Representatives, the Indemnified Person and the Escrow
Agent in writing and shall constitute a conclusive determination of the
issue in question, binding upon the Indemnification Representatives, the
Indemnifying Stockholders, the
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Indemnified Person and the Escrow Agent, and shall not be contested by any
of them. Such decision may be used in a court of law only for the purpose
of seeking enforcement of the arbitrators' award. After delivery of a
Response Notice that the Claimed Amount is contested by the Indemnification
Representatives, the Escrow Agent shall continue to hold in the Escrow
Account Escrow Property having a Fair Market Value sufficient to cover the
Contested Amount (up to the amount of Escrow Property then available in the
Escrow Account or that is available for distribution pursuant to the
limitations set forth in Section 4(c)), notwithstanding the occurrence of
the General Fund Termination Date, Intellectual Property Termination Date
or Tax Termination Date (as the case may be), until (i) delivery of a copy
of a settlement agreement executed by the Indemnified Person and the
Indemnification Representatives setting forth instructions to the Escrow
Agent as to the release of Escrow Property, if any, that shall be made with
respect to the Contested Amount or (ii) delivery of a copy of the final
award of the majority of the arbitrators setting forth instructions to the
Escrow Agent as to the release of Escrow Property, if any, that shall be
made with respect to the Contested Amount. The Escrow Agent shall thereupon
release Escrow Property from the Escrow Account (to the extent Escrow
Property is then held in the Escrow Account or is available for
distribution pursuant to the limitations set forth in Section 4(c)) in
accordance with such agreement or instructions.
5 Release of Escrow Property.
a. Promptly after the General Fund Termination Date, the
Escrow Agent shall distribute to the Indemnifying Stockholders the
difference between (x) 80% of the initial Escrow Property (plus any Buyer
Common Stock in respect thereof or in exchange therefor) and (y) any Escrow
Property (or Buyer Common Stock in respect thereof or in exchange therefor)
previously distributed to the Indemnified Persons pursuant to Section 4
hereof in respect of claims made pursuant to Sections 6.1(a), 6.1(b) and/or
6.1(c) of the Merger Agreement. Notwithstanding the foregoing, if an
Indemnified Person has previously given a Claim Notice pursuant to Sections
6.1(a), 6.1(b) and/or 6.1(c) of the Merger Agreement which has not then
been resolved in accordance with Section 4 hereof or Section 6.2 of the
Merger Agreement (as applicable), the Escrow Agent shall retain in the
Escrow Account an amount of Escrow Property having a Fair Market Value
equal to the Claimed Amount covered by any Claim Notice which has not then
been resolved (subject to the limitations set forth in Section 4(c)). Any
Escrow Property so retained in escrow shall be disbursed in accordance with
the terms of the resolution of such claims.
b. Promptly after the Intellectual Property Termination
Date, the Escrow Agent shall distribute to the Indemnifying Stockholders the
difference between (x) 5% of the initial Escrow Property (plus any Buyer
Common Stock in respect thereof or in exchange therefor) and (y) any Escrow
Property (or Buyer Common Stock in respect thereof or in exchange therefor)
previously distributed to the Indemnified Persons pursuant to Section 4
hereof in respect of claims made pursuant to Section 6.1(d) of the Merger
Agreement. Notwithstanding the foregoing, if an Indemnified Person has
previously given a Claim Notice pursuant to Section 6.1(d) of the Merger
Agreement which has not then been resolved in accordance with Section 4
hereof or Section 6.2 of the Merger Agreement (as applicable), the Escrow
Agent shall retain in the Escrow Account an amount of Escrow Property
having a Fair Market Value equal to the Claimed Amount covered by any Claim
Notice which has not then been resolved (subject to the limitations set
forth in Section 4(c)). Any Escrow Property so retained in escrow shall be
disbursed in accordance with the terms of the resolution of such claims.
c. Promptly after the Tax Termination Date, the Escrow
Agent shall distribute to the Indemnifying Stockholders all of the Escrow
Property then held in the Escrow Account. Notwithstanding the foregoing, if
an Indemnified Person has previously given a Claim Notice which has not
then been resolved in accordance with Section 4 hereof or Section 6.2 of
the Merger Agreement (as applicable), the Escrow Agent shall retain in the
Escrow Account an amount of Escrow Property having a Fair Market Value
equal to the Claimed Amount covered by any Claim Notice which has not then
been resolved (subject to the limitations set forth in Section 4(c)). Any
Escrow Property so retained in escrow shall be disbursed in accordance with
the terms of the resolution of such claims.
d. Any distribution of all or a portion of the Escrow
Property to the Indemnifying Stockholders shall be made in accordance with
the percentages set forth opposite such holders' respective names on
Attachment A attached hereto; provided, however, that the Escrow Agent
shall withhold the distribution of the portion of the Escrow Property
otherwise distributable to Indemnifying Stockholders who have not,
according to written notice provided by the Buyer to the Escrow Agent,
prior to such distribution, surrendered their respective Certificates
pursuant to the terms and conditions of the Merger Agreement. Any such
withheld shares shall be delivered to the Buyer promptly after the Tax
Termination Date, and shall be delivered by the Buyer to the Indemnifying
Stockholders to whom such shares would have otherwise been distributed upon
surrender of their respective Certificates. Distributions to the
Indemnifying Stockholders shall be made by mailing stock certificates or
other property to such holders at their respective addresses shown on
Attachment A (or such other address as may be provided in writing to the
Escrow Agent by any such holder). No fractional Escrow Shares shall be
distributed to
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Indemnifying Stockholders pursuant to this Agreement. Instead, the number
of shares that each Indemnifying Stockholder shall receive shall be rounded
up or down to the nearest whole number (provided that the Indemnification
Representatives shall have the authority to effect such rounding in such a
manner that the total number of whole Escrow Shares to be distributed
equals the number of Escrow Shares then held in the Escrow Account).
6 Valuation of Escrow Property. For purposes of this Agreement,
the Fair Market Value of the Escrow Property shall be the value of the
Escrow Shares determined in accordance with the following sentence, plus
the value of other property held in the Escrow Account. The value of the
Escrow Shares shall be determined based upon the closing price of the Buyer
Common Stock on the Nasdaq National Market at the Effective Time.
7 Fees and Expenses of Escrow Agent. The Buyer shall pay the fees
of the Escrow Agent for the services to be rendered by the Escrow Agent
hereunder.
8 Limitation of Escrow Agent's Liability.
a. The Escrow Agent shall incur no liability with respect
to any action taken or suffered by it in reliance upon any notice,
direction, instruction, consent, statement or other documents believed by
it to be genuine and duly authorized, nor for other action or inaction
except its own willful misconduct or gross negligence. The Escrow Agent
shall not be responsible for the validity or sufficiency of this Agreement.
In all questions arising under the Escrow 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
shall not be liable to anyone. The Escrow Agent shall 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 reasonably satisfactory to it.
b. The Buyer and the Indemnifying Stockholders hereby,
jointly and severally, agree to indemnify the Escrow Agent for, and hold it
harmless against, any loss, liability or expense incurred without gross
negligence or willful misconduct on the part of the Escrow Agent, arising
out of or in connection with its carrying out of its duties hereunder. The
Buyer, on the one hand, and the Indemnifying Stockholders, on the other
hand, shall each be liable for one-half of such amounts.
9 Liability and Authority of Indemnification Representatives;
Successors and Assignees.
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a. The Indemnification Representatives shall incur no
liability to the Indemnifying Stockholders with respect to any action taken
or suffered by them in reliance upon any note, direction, instruction,
consent, statement or other documents believed by them to be genuinely and
duly authorized, nor for other action or inaction except their own willful
misconduct or gross negligence. The Indemnification Representatives may, in
all questions arising under the Escrow Agreement, rely on the advice of
counsel and for anything done, omitted or suffered in good faith by the
Indemnification Representatives based on such advice, the Indemnification
Representatives shall not be liable to the Indemnifying Stockholders.
b. In the event of the death or permanent disability of
either Indemnification Representative, or his or her resignation as an
Indemnification Representative, a successor Indemnification Representative
shall be appointed by the other Indemnification Representative or, absent
its appointment, a successor Indemnification Representative shall be
elected by a majority vote of the Indemnifying Stockholders, with each such
Indemnifying Stockholder (or his or her successors or assigns) to be given
a vote equal to the number of votes represented by the Company Shares held
by such Indemnifying Stockholder immediately prior to the Effective Time.
Each successor Indemnification Representative shall have all of the power,
authority, rights and privileges conferred by this Agreement upon the
original Indemnification Representatives, and the term "Indemnification
Representatives" as used herein shall be deemed to include successor
Indemnification Representatives.
c. The Indemnification Representatives, acting jointly
but not singly, shall have full power and authority to represent the
Indemnifying Stockholders, and their successors, with respect to all
matters arising under this Agreement and all actions taken by any
Indemnification Representative hereunder shall be binding upon the
Indemnifying Stockholders, and their successors, as if expressly confirmed
and ratified in writing by each of them. Without limiting the generality of
the foregoing, the Indemnification Representatives, acting jointly but not
singly, shall have full power and authority to interpret all of the terms
and provisions of this Agreement, to compromise any claims asserted
hereunder and to authorize payments to be made with respect thereto, on
behalf of the Indemnifying Stockholders and their successors. All actions
to be taken by the Indemnification Representatives hereunder shall be
evidenced by, and taken upon, the written direction of a majority thereof.
10 Amounts Payable by Indemnifying Stockholders. The amounts
payable by the Indemnifying Stockholders under this Agreement (i.e., the fees
8
and expenses of arbitrators payable pursuant to Section 4(f) and the
indemnification obligations pursuant to Section 8(b)) shall be payable
solely as follows. The Indemnification Representatives shall notify the
Escrow Agent of any such amount payable by the Indemnifying Stockholders as
soon as they become aware that any such amount is payable, with a copy of
such notice to the Buyer. On the sixth business day after the delivery of
such notice, the Escrow Agent shall first disburse property other than
Escrow Shares ("other property") held in the Escrow Account to the party to
whom such amount is owed in accordance with the instructions of the
Indemnification Representatives, and, if there is insufficient other
property for such disbursements, sell such number of Escrow Shares (up to
the number of Escrow Shares then available in the Escrow Account), subject
to compliance with all applicable securities laws, as is necessary to raise
such amount; provided that if the Buyer delivers to the Escrow Agent (with
a copy to the Indemnification Representatives), within five business days
after delivery of such notice by the Indemnification Representatives, a
written notice contesting the legitimacy or reasonableness of such amount,
then the Escrow Agent shall not disburse other property or sell Escrow
Shares to raise the disputed portion of such claimed amount, and such
dispute shall be resolved by the Buyer and the Indemnification
Representatives in accordance with the procedures set forth in Section 4(f).
11 Termination. This Agreement shall terminate upon the later of
the Tax Termination Date or the distribution by the Escrow Agent of all of
the Escrow Property in accordance with this Agreement; provided that the
provisions of Sections 8 and 9 shall survive such termination.
12 Notices. All notices, instructions and other communications
given hereunder or in connection herewith shall be in writing. Any such
notice, instruction or communication shall be sent either (i) by registered
or certified mail, return receipt requested, postage prepaid, or (ii) via a
reputable nationwide overnight courier service, in each case to the address
set forth below. Any such notice, instruction or communication shall be
deemed to have been delivered two business days after it is sent by
registered or certified mail, return receipt requested, postage prepaid, or
one business day after it is sent via a reputable nationwide overnight
courier service.
If to the Buyer: Copy to:
SS&C Technologies, Inc. Xxxx X. Xxxxxxx, Esq.
Corporate Place Xxxx and Xxxx LLP
000 Xxxxxxxxxx Xxxxxx 00 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000 Xxxxxx, XX 00000
Attn: Chief Executive Officer
9
If to the Indemnification Representatives: Copy to:
Xxxxxx X. Xxxxxx Xxxxxxx X. Xxxxxx, Esq.
Xxxxx X. Xxxxxx Xxxxx, Xxxxx & Xxxxx
c/x Xxxxxx Xxxxx Systems, Inc. 000 Xxxxx Xx Xxxxx Xxxxxx
00 Xxxx Xxxxxx Xxxxxxx, XX 00000
Xxxxx 000
Xxxxxxx, XX 00000
If to the Escrow Agent:
American Stock Transfer
& Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxxx
Any party may give any notice, instruction or communication in
connection with this Agreement using any other means (including personal
delivery, telecopy or ordinary mail), but no such notice, instruction or
communication shall be deemed to have been delivered unless and until it is
actually received by the party to whom it was sent. Any party may change
the address to which notices, instructions or communications are to be
delivered by giving the other parties to this Agreement notice thereof in
the manner set forth in this Section 12.
13 Successor Escrow Agent. In the event the Escrow Agent becomes
unavailable or unwilling to continue in its capacity herewith, the Escrow
Agent may resign and be discharged from its duties or obligations hereunder
by delivering a resignation to the parties to this Escrow Agreement, not
less than 60 days' prior to the date when such resignation shall take
effect. The Buyer may appoint a successor Escrow Agent without the consent
of the Indemnification Representatives so long as such successor is a bank
with assets of at least $500 million, and may appoint any other successor
Escrow Agent with the consent of the Indemnification Representatives, which
consent shall not be unreasonably withheld. If, within such notice period,
the Buyer provides to the Escrow Agent written instructions with respect to
the appointment of a successor Escrow Agent and directions for the transfer
of any Escrow Property then held by the Escrow Agent to such successor, the
Escrow Agent shall act in accordance with such instructions and promptly
transfer such Escrow Property to such designated successor.
14 General.
a. Governing Law; Assigns. This Agreement shall be
governed by and construed in accordance with the internal laws of the State
of Delaware without regard to conflict-of-law principles and shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns.
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b. Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
c. Entire Agreement. Except for those provisions of the
Merger Agreement referenced herein, this Agreement 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, written or oral, between the parties with respect to the
subject matter hereof.
d. Waivers. No waiver by any party hereto of any
condition or of any breach of any provision of this Escrow Agreement shall
be effective unless in writing. No waiver by any party of any such
condition or breach, in any one instance, shall be deemed to be a further
or continuing waiver of any such condition or breach or a waiver of any
other condition or breach of any other provision contained herein.
e. Amendment. This Agreement may be amended only with the
written consent of the Buyer, the Escrow Agent and the Indemnification
Representatives.
[Remainder of page intentionally left blank.]
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IN WITNESS WHEREOF, the parties have duly executed this Agreement
as of the day and year first above written.
SS&C TECHNOLOGIES, INC.
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxx
ESCROW AGENT
American Stock Transfer & Trust Company
Name:
Title:
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ATTACHMENT A
Indemnifying Stockholder Percentage of Interest
Xxxxxx X. Xxxxxx 70.192%
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Xxxxx X. Xxxxxx 14.423
0000 Xxxxxxxx Xxxxx
Xxxx Xxxxx, XX 00000
Xxxxxxx X. Xxxxx 9.615
00000 Xxxxxx Xxxx
Xxxxxxxxx, XX 00000
Xxxx X. Xxxxxx 3.846
00 Xxxxxx Xxxxxx
Xxx Xxx, Xx 00000
Xxxxx X. Xxxxxxx 1.924
0000 X. Xxxxxxxx Xxxxx
Xxxx 0 X.X.
Xxxxxxx, XX 00000 ______
100.0%
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