Title: Atlas Technology v. Oto Analytics, Interim Award, 10 July 2023

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# Atlas Technology v. Oto Analytics

 Atlas Technology Group LLC v. Oto Analytics LLC (fka Oto Analytics, Inc. and dba Womply), AAA Case No. 01-22-003-2725 

Nature of the proceedings: Domestic

Type of case: Commercial Arbitration

Industry:

Financial Services

Date of introduction: 1 Aug 2022

Status of the case:Concluded

 Claimant’s country of origin: [United States](https://jusmundi.com/en/d/profile/state/us)

Respondent's country of origin:[United States](https://jusmundi.com/en/d/profile/state/us)

Institution:[AAA (American Arbitration Association)](https://jusconnect.com/en/d/profile/institution/en-aaa-american-arbitration-association)

Rules of arbitration:

[AAA Commercial Arbitration Rules 2013](https://jusmundi.com/en/document/rule/en-commercial-arbitration-rules-of-the-american-arbitration-association-aaa-arbitration-rules-2013-tuesday-1st-october-2013)

Applicable law:Delaware (United States)

## Documents of the case

*   [Interim Award - 10 July 2023](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#decision_54487)
*   [Final Award - 24 Aug 2023](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-final-award-thursday-24th-august-2023#decision_54486)
*   [Disposition of Claimant’s R-50 Application for Correction/Clarification of Final Award - 30 Aug 2023](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-disposition-of-claimants-r-50-application-for-correction-clarification-of-final-award-wednesday-30th-august-2023#decision_54488)

 See all other documents 
*   [Verified Petition to Confirm Arbitration Award - 1 Sept 2023](https://jusmundi.com/en/document/other/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-verified-petition-to-confirm-arbitration-award-friday-1st-september-2023#other_document_34374)
*   [Unopposed Motion To Substitute Plaintiff - 1 May 2024](https://jusmundi.com/en/document/other/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-unopposed-motion-to-substitute-plaintiff-wednesday-1st-may-2024#other_document_40455)

[See the Arbitral Tribunal](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

Updated on:12 Sept 2023

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[See the Respondent(s)](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

*    en [](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)[![Image 44: PDF Jus Mundi](https://jusmundi.com/build/img/document/file-jusmundipdf.c8cc7ed4.svg)![Image 45: PDF Jus Mundi](https://jusmundi.com/build/img/document/file-jusmundipdf-solid.bc22ac57.svg)](https://jusmundi.com/en/document/decision/pdf/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023)[Request the PDF](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

*    [I Preliminary Statement](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392968) 

*    [II Procedural Background](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392969) 

*    [III Contentions of the Parties](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392970) 

*    [A. The Contract:](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392971) 

*    [B. Claimant Atlas's Contentions:](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392972) 

*    [C. Respondent Womply's Contentions:](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392973) 

*    [1. The Agreement was terminated before the Merger Transaction:](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392974) 

*    [2. No covered "Transaction" as defined in the Agreement occurred because the 2021 merger did not involve a "third party".](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392975) 

*    [3. Atlas is not entitled to any fee because in excess of $1,092,500,000.00 "remained" on the Company's balance sheet at closing.](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392976) 

*    [IV Discussion and Determination](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392977) 

*    [A. Was the Agreement Terminated Before the Merger Transaction?](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392978) 

*    [B. Was the 2021 Merger a "Transaction" as Defined in the Agreement?](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392979) 

*    [C. Is Atlas entitled to no fee because in excess of $1,092,500,000.00 "remained" on the Company's balance sheet prior to closing?](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#lvl_392980) 

## Interim Award

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[1]. 

 I, THE UNDERSIGNED ARBITRATOR, having been designated in accordance with the arbitration agreement between the above-named Parties in an Engagement Agreement dated February 5, 2019, having been duly sworn, and having duly considered the proofs and allegations of the Parties, hereby make this INTERIM AWARD as follows: 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## **I Preliminary Statement**

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[2]. 

 This arbitration involves a contract dispute arising from a February 5, 2019 Engagement Agreement ("Agreement") whereby Claimant Atlas Technology Group, LLC (hereinafter referred to as either "Atlas" or "Claimant") was retained by Respondent Oto Analytics, LLC (dba Womply) (hereinafter referred to as either "Womply" or "Respondent") as its exclusive investment banker to provide merger and acquisition advisory services. The Agreement provides for payment to Atlas of a 2.5% Project Completion Fee on the Aggregate Consideration paid under any covered Transaction occurring during the Agreement's term. Womply is a start-up, founded and led by Toby Scammell to sell marketing software on a subscription basis to small businesses throughout the United States. Womply's business grew incrementally over time with the assistance of two equity financing rounds, achieving annual revenues of $30 million by 2020, albeit losing $10 million per year. Due to the onset of the covid 19 pandemic and its resulting impact on small business economies in early 2020, Scammell deftly pivoted Womply to a new business model -- providing its existing small business customer base with software to facilitate obtaining U.S. Government-funded PPP loans. The change in Womply's business model resulted in a sudden and astounding inflow of revenue in excess of $1 billion during a short time span of just a few months. This good turn of events eventually led to Womply entering into a 2021 Merger Agreement whereby $1,092,500,000.00 was distributed to Womply's shareholders. Atlas has initiated this arbitration to collect its 2.5% fee under the Agreement with respect to that transaction in the amount of $27,212,500.00, plus interest and attorney's fees and costs. Womply, however, contends 1. the Agreement was terminated before the merger, either orally or by conduct of the parties; 2. a covered "Transaction" as defined in the Agreement did not occur because the merger did not involve a "third party"; and 3. Atlas is not entitled to a fee because in excess of $1,092,500,000.00 "remained" on the Company's balance sheet prior to closing, which under the terms of the Agreement reduced to zero any "Aggregate Consideration" as to which Atlas would be entitled to receive a 2.5% fee. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[3]. 

 Atlas disputes each of these arguments advanced by Womply. It contends the Agreement never expired; nor was it ever terminated by written notice – such notice being an express contractual requirement; that the transfer of 100% of Womply's equity to a new company formed by Womply to facilitate the merger was clearly a "Transaction" with a "third party" under the common meaning of the term; and, that the monies claimed by Womply to have reduced "Aggregate Consideration" to zero did not "remain" on the Company's balance sheet at closing under the common meaning of that term. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## **II Procedural Background**

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[4]. 

 This arbitration was initiated on August 1, 2022 by Atlas filing its form Demand seeking recovery of its 2.5% fee based on an alleged breach of contract. Womply submitted its Denial, Response, Affirmative Defenses, and Counterclaim on November 15, 2022. Atlas submitted its Answer to the Counterclaim on December 14, 2022.1 The arbitration is proceeding pursuant to the Commercial Arbitration Rules ("Rules") of the American Arbitration Association ("the AAA") amended and effective as of December 1, 2013. A preliminary conference was held on October 13, 2022 and evidentiary hearings were scheduled for April 3-5, 2023. The Parties thereafter engaged in mutual discovery, including production of documents and depositions. Claimant requested leave under R-33 of the Rules to submit a dispositive motion, for which leave was granted. After Respondent submitted its opposition to Claimant's motion, this tribunal determined there were disputed issues precluding a grant of the motion and that the matter should proceed to an evidentiary hearing. Thereafter, each Party submitted a Pre-Hearing Brief. 

 Womply's counterclaim sought return of a $500,000 fee that Womply had paid to Atlas for securing $15 million in interim financing because Atlas did not raise the targeted amount of $25 million. However, Womply effectively withdrew this counterclaim stating at page 13, at fn. 2 of its Pre-hearing brief that "it was not pressing such a claim at this time" and it did not pursue the counterclaim in the evidentiary hearing or in its post-hearing submittals. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[5]. 

 Evidentiary hearings were held on April 3 and 4, 2023 at the offices of the American Arbitration Association in San Francisco, which were recorded and transcribed by Early K. Langley, CSR with Veritex Legal Solutions. Witnesses Tony Trousset, Bret Carroll, and Toby Scammell testified under oath both on direct and cross-examination. The Parties' pre-marked Joint Exhibits, Claimant's Exhibits and Respondent's Exhibits were admitted without objection as part of the evidentiary record of the proceedings. Following the evidentiary hearings each Party submitted a Closing Brief on April 28, 2023 and a Reply on May 12, 2023. The hearings were declared closed regarding this initial phase of the arbitration pursuant to R-39 (a) of the Rules as of June 6, 2023. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[6]. 

 Claimant has been represented in these proceedings by Howard Holderness with Greenberg Traurig, LLP and Christopher Kemper with KemperNorth. Respondent has been represented in these proceedings by Van C. Durrer, Jennifer Madden, and Destiny Almogue with Skadden, Arps, Slate, Meagher & Flom LLP & Affiliates. This tribunal appreciates the hard work, skill and professionalism of counsel for both Parties. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## **III Contentions of the Parties**

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## A. The Contract:

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[7]. 

 It is useful to begin by setting forth the provisions in the Parties' Agreement relevant to the disputed issues in this case. The Agreement provides, _inter alia_, as follows: 
Section 1. Services to be Rendered. ATG agrees to perform such of the following services as the Company reasonably and specifically requests:

(a) ATG will familiarize itself to the extent it deems appropriate and feasible with the business, operations, financial condition and prospects of the Company;

(b) ATG will assist the Company in identifying and evaluating candidates for a potential Transaction;

(c) ATG will contact one or more potential candidates which ATG and the Company have agreed may be appropriate for a potential Transaction, and may provide such potential candidates with information about the Company as may be appropriate, subject to customary business confidentiality;

(d) ATG will advise and assist the Company in considering the desirability of effecting a Transaction, and, if the Company believes such a Transaction to be desirable, in developing and implementing a general strategy for accomplishing the desired transaction;

(e) ATG will advise and assist the Company in the course of its negotiation and structuring of a Transaction and will participate in such negotiations as requested; and

(f) ATG will help manage the due diligence process for any Transaction.

For purposes of this Agreement, a Transaction shall mean any transaction or series or combination of related transactions whereby, directly or indirectly, a majority of the outstanding capital stock (excluding bona fide equity financings of the Company) or substantially all of the assets of the Company is transferred to a third party for consideration, including, without limitation, by means of a sale or exchange of capital stock or Company assets, a merger, a tender or exchange offer, a leveraged buy-out, a spin-off or a split-off, or any similar transaction. The Company, in its sole discretion, shall determine (without any obligation to ATG) whether to proceed with or consummate any Transaction.

Section 2. Fees. As compensation for the services rendered by ATG hereunder, the Company shall pay ATG as follows:

(a) An engagement fee in the amount of $100,000 to be paid within fourteen (14) days of the execution of this Agreement;

(b) If a Transaction is closed, the Company shall pay ATG a fee (the Project Completion Fee), based on the Company's Enterprise Value (as defined below) in cash at the closing of a Transaction, less the engagement fee. The Project Completion Fee shall be equal to two and a half percent (2.5%) of the Enterprise Value; provided, however, that the Project Completion Fee (if payable hereunder) shall not be less than $1,500,000 for any Transaction; and (c) If, in connection with a Transaction entered into prior to termination of this Agreement that is not completed, the Company receives a break-up fee, lock-up option, deposit, topping fee or other termination-related fee (collectively, a Termination Fee), the Company shall pay ATG a cash fee equal to thirty percent (3M) of such Termination Fee at such time that the Termination Fee is received by the Company. For purposes of this Agreement, the Enterprise Value shall mean the implied value of the entire Company. In the event of a Transaction, the Enterprise Value shall be based on the Aggregate Consideration (as defined below) paid in connection with the consummation of a Transaction. In the event of a Transaction that includes the sale of all of the equity or assets of the Company, the Enterprise Value shall equal the Aggregate Consideration.

For purposes of this Agreement, the Aggregate Consideration shall mean the total amount of cash and cash equivalents, along with the value as provided in the definitive agreements for such Transaction of all other property paid or payable directly or indirectly to the Company or any of its security holders in connection with a Transaction including (i) amounts paid to holders of any warrants or convertible securities of the Company and to holders of any options or stock appreciation rights issued by Company, (ii) the total amount of indebtedness for borrowed money or similar non-trade liabilities or obligations (including unfunded pension liabilities, guarantees, capitalized leases and the like) of the Company that is repaid, retired, extinguished or assumed in connection with the Transaction, (iii) all escrowed and earn-out payments (provided any Project Completion Fee with respect to earn-outs shall only be paid to ATG if and when paid to holders of the Company's capital stock), if any, and (iv) the fair market value of any assets of the Company or any securities which are retained by or otherwise distributed to its stockholders or affiliates in anticipation of or in connection with a Transaction. Further, the Aggregate Consideration shall be reduced by an amount equal to the cash, cash equivalents and marketable securities remaining on the Company's balance sheet at the closing of a Transaction. For clarity, the Aggregate Consideration shall not include any retention and/or similar payments made to service providers and employees of the Company which are primarily earned after the closing of the Transaction.

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## B. Claimant Atlas's Contentions:

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[8]. 

 Atlas contends this is a straightforward contract case about whether the fee provision in the Agreement was triggered by and should be enforced as a result of Womply closing a merger transaction in December 2021. It contends that under the Agreement Womply agreed to engage Atlas as its exclusive investment banker; that Atlas, an established investment bank, was tasked by the Agreement with identifying a range of strategic alternatives that might lead to a sale of Womply (the "M&A Mandate") and that Atlas did so; and, that in return for Atlas's services, Womply agreed to pay Atlas a 2.5 % fee ("Project Completion Fee") if a Transaction, as defined in the Agreement, closed. Atlas points out that "Transaction" is broadly defined to mean any transaction or series or combination of related transactions whereby, directly or indirectly, a majority of the outstanding capital stock (excluding bona fide equity financings of the Company) or substantially all of the assets of the Company is transferred to a third party for consideration, including, without limitation, by means of a sale or exchange of capital stock or Company assets, a merger, a tender or exchange offer, a leveraged buyout, a spin off or a split off, or any similar transaction. It notes that although the original Agreement did not encompass services related to a minority transaction, such as equity financing, the Parties, as indicated below, later modified their arrangement via two amendments to the Agreement to cover for Atlas's additional assistance regarding certain equity financing for a fixed fee. Atlas notes the Agreement expressly provided it would continue in effect until a Transaction closed or until one of the Parties provided written notice of termination; and, that if Womply were to terminate Atlas without cause, Womply would pay Atlas its 2.5% fee on any Transaction that occurred within twelve (12) months of the Agreement's termination, as set out and defined in Section 4 (a) of the Agreement (the "Tail Period"). 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[9]. 

 Atlas explains that six months after Atlas started work on the ongoing M&A Mandate, Womply had not received an acceptable purchase offer and also had not secured funds from a Series C equity financing effort; that Womply therefore engaged Atlas to assist with such equity financing in addition to its existing M&A Mandate; that on August 5, 2019, the Parties entered into a First Amendment to the Agreement pursuant to which Atlas's services were expanded to include assistance with a Series C Financing effort (the "Financing Mandate") and which provided for a "Placement Fee" structure to compensate Atlas if a Financing closed; that after successfully securing a $15 million equity investment by Rakuten, Atlas remained in contact with Womply and actively stayed informed about its operations and finances, in preparation for Womply to return to the market to seek a liquidity event for its shareholders. Atlas further contends that in December 2021, unbeknownst to Atlas, Womply entered into and closed a Transaction via merger whereby 100% of the equity interest in Womply was sold and transferred for consideration to a corporation formed to facilitate the merger transaction ("Buyer"); that as a result, all of Womply's 200+ shareholders transferred their ownership of Womply to Buyer in return for $1.09 billion in consideration; that in return, Buyer, owned in whole by Scammell, acquired 100% of the equity of Womply and the entirety of its operational assets, inclusive of over $217,175,000 of cash that remained on the company's balance sheet at the close of the 2021 Transaction; that although Womply had deliberately concealed the 2021 Transaction from Atlas, Atlas independently learned of it in March 2022; that after discovering the existence of the 2021 Transaction, but lacking any details, Atlas's senior banker Bret Carroll contacted Womply's CEO Scammell via email on March 8, 2022, to obtain the details of the 2021 Transaction; that within an hour of receiving the inquiry from Carroll, Scammell responded that the Agreement had been terminated and that no Transaction had taken place; that for the next several months, Atlas contacted Scammell and his counsel on multiple occasions asking for an explanation of Scammell's stated position that the Agreement had been terminated and/or that no Transaction had occurred, but that Womply refused to provide any explanation or information to Atlas; that while Womply had the contractual right to terminate the M&A Mandate and the Agreement at any time by simply providing written notice of termination, it never exercised that right; that Womply's arguments that the Parties orally or by their conduct terminated the Agreement before the merger transaction are unavailing as contrary to the facts and applicable Delaware law; and, that Atlas was therefore left with no choice but to file its Demand for Arbitration (the "Demand") in this case. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## C. Respondent Womply's Contentions:

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[10]. 

 Respondent Womply has asserted the following arguments in its defense of Atlas's claim. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## 1. The Agreement was terminated before the Merger Transaction:

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[11]. 

 Womply contends the Agreement had expired or was terminated either orally or by conduct before the 2021 merger transaction. In its Answering Statement (denominated "Respondent Oto Analytics, LLC's Denial Response and Affirmative Defenses) Womply alleges the Agreement expired on March 31, 2020 by virtue of a termination provision in a Second Amendment to the Agreement that had extended the term for the interim minority financing on which Atlas had assisted Womply, noting that Atlas provided no additional services to Womply after that date.2 In its Pre-hearing Brief, Womply notes that no project update calls regarding possible mergers took place after July 18, 2019, indicating that the M&A Engagement had ended at the beginning of August 2019; that during 2020 Atlas engaged in sporadic communications, which mostly consisted of outreach emails sent by Atlas (from Bret Carroll) to Womply (typically to Mr. Scammell) that either went unanswered or to which Womply replied curtly as a business courtesy; that Womply understood these communications to be aimed by Atlas at securing more business regarding minority equity financing and not merger opportunities; that after receiving yet another outreach email from Bret Carroll on January 21, 2021, Mr. Scammell asked his assistant, Pamela Ogoy, to double-check that the Atlas Agreement had indeed been terminated as it was his understanding that the contract "was very clearly terminated, which is why we hadn't worked with them for two years."; that on or around February 24, 2021, Atlas unsuccessfully pitched new business to Womply, and Mr. Carroll sent unanswered follow-up emails to Mr. Scammell virtually weekly on March 23, 2021, April 8, 2021, April 14, 2021, and April 28, 2021 with Mr. Scammell instructing his assistant, "Don't respond to Brett–not meeting with them (hopefully ever again)."); that Mr. Carroll reached out one last time on June 22, 2021, noting that the parties had not spoken since Atlas's February 2021 pitch in response to which Mr. Scammell had confirmed to Mr. Carroll that Womply was not going to hire Atlas again by saying, "We're still slammed! [B]ut to set expectations, we don't expect needing support again." 

 Womply, in its Pre-Hearing Brief, explains the two amendments that dealt with the interim financing as follows: "The First Amendment had provided Atlas with an opportunity to generate fees for a qualifying "Financing" through December 15, 2019. However, as that date approached, and Womply still had only obtained the initial $15 million from the Rakuten Minority Investment and an additional $5 million from its preexisting Series A and B investors, Atlas therefore asked Womply for an extension through March 31, 2020, so that Atlas could have three more months to try to earn a larger fee. On December 23, 2019, the parties executed the Second Amendment giving Atlas this extension. Although Atlas's "Placement Fee" under the Second Amendment was not due until March 31, 2020, at Atlas's request, Womply agreed to pay Atlas the $500,000 Placement Fee before the end of 2019." [Citations omitted] 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[12]. 

 Based on the foregoing, Womply contends in its Pre-hearing Brief that Atlas and Womply agreed orally and by their conduct to terminate their engagement when the Second Amendment was concluded on March 31, 2020. It cites certain court decisions that have addressed contract interpretation within the mergers and acquisition context that have held a party's subsequent oral assurances and conduct be taken into consideration when evaluating the terms of an agreement. In its Post-Hearing brief, Womply notes Atlas's CEO Trousset had marked the Womply engagement "INACTIVE" in MadeMarket, an internal software tracking system used by Atlas. It argues there that the Parties' conduct supports only one logical conclusion: Atlas and Womply stopped working together on both the M&A Engagement and Financing at the end of Q1 2020 because the Agreement had a limited purpose that had, by that point, concluded. In this scenario, no written termination notice was required. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## 2. No covered "Transaction" as defined in the Agreement occurred because the 2021 merger did not involve a "third party".

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[13]. 

 Under the terms of the Agreement, a qualified "Transaction" occurs when "a majority of the outstanding capital stock (excluding bona fide equity financings of the Company) or substantially all of the assets of the Company is transferred to a third party for consideration[…]" See Exhibit J-2, Agreement § 1 (p. 2). Womply notes that Womply's CEO Scammell acquired a majority of Womply's outstanding capital stock in the December 2021 Merger via a holding company, Oto Holdco, LLC, formed to facilitate the merger transaction and solely owned and controlled by Scammell.3 Womply contends that at relevant times, Mr. Scammell was Womply's principal, co-founder, Chief Executive Officer, stockholder and board member—and not a "third party.", citing Third Party Definition, WEBSTER'S INT'L DICTIONARY, https://www.merriam-webster.com/dictionary/third%20party (last accessed Mar. 3, 2023) ("a person other than the principals"). It also notes that Atlas's Mr. Trousset acknowledged that Mr. Scammell is a "principal" of Womply. Therefore, Womply's argument goes, no qualifying "Transaction" was consummated under the Agreement that would allow Atlas to earn a "Project Completion Fee." Womply further argues that it is absurd to advocate that a banker should be paid to facilitate a transaction that involves the company's principals because such a situation would render the banker's role completely irrelevant, citing _In re Oneida, Ltd._, 400 B.R. at 389 (Bankr. S.D.N.Y. 2009) (citing _Lipper Holdings, LLC v. Trident Holdings_, LLC, 1 A.D.3d 170, 171, (1st Dep't 2003) ("[A]contract should not be interpreted to produce a result that is absurd, commercially unreasonable or contrary to the reasonable expectations of the parties."). Womply further contends the business that Atlas marketed on Womply's behalf in 2019 had completely transformed within one year of what it claims was the termination of the Atlas engagement on March 31, 2020; therefore, the analyses, marketing or any other services earlier performed by Atlas were utterly irrelevant to Womply's decision to engage in the December 2021 Merger. 

 "Approval of Mergers and Merger Agreement. **WHEREAS**, the Board of Directors of the Company (the "Board") has formed a special committee (the "Special Committee") to, among other matters, consider a transaction whereby Toby Scammell, a holder of outstanding shares of the Company's common stock who also currently serves as the Company's Chief Executive Officer and a director of the Company, would acquire 100% of the outstanding equity interest of the Company (the "Transaction") and the Special Committee and the Board have determined that the Merger Agreement (the "Merger Agreement"), to be entered into by and among the Company (which shall be converted to a Delaware limited liability company after the First Merger (as defined below), Oto Holdco, LLC, a Delaware limited liability company (the "Buyer"), Westward Holdco, LLC, a Delaware limited liability company and a wholly-owned subsidiary of the Company ("Holdco"), Westward Midco, LLC, a Delaware limited liability company and a wholly-owned subsidiary of Holdco ("Midco"), Westward Merger Sub, LLC, a Delaware limited liability company and a wholly owned subsidiary of Midco ("Merger Sub") and the Shareholder Representative Services LLC, a Colorado limited liability company, solely in its capacity as representative of the securityholders of the Company for certain purposes described in the Merger Agreement, pursuant to which, among other things, (i) the Merger Sub will be merged with and into the Company (the "First Merger") with the Company surviving the First Merger on the terms and subject to the conditions set forth in the Merger Agreement and becoming a wholly owned subsidiary of Midco as a result of the First Merger, (ii) Holdco will be converted into a Delaware limited liability company, and in connection with such conversion, change its name to Oto Analytics, LLC and (iii) Midco will be merged with and into Buyer (the "Second Merger", and, together with the First Merger, the "Mergers"), with Buyer surviving the Second Merger on the terms and subject to the conditions set forth in the Merger Agreement, and the transactions contemplated thereby, including the Mergers, is fair to, and in the best interests of, the Company and its stockholders and other stakeholders; ..." Exhibit J-26. 

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[14]. 

 With respect to the provision in Section 1 of the Agreement requiring that "both [Womply] ... and [Atlas] promptly inform the other of inquiries of third parties which it receives concerning a Transaction.", Womply contends it was not obliged to disclose the 2021 merger to Atlas because it was not a covered "Transaction" and because the Agreement had been terminated by that time. 

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## 3. Atlas is not entitled to any fee because in excess of $1,092,500,000.00 "remained" on the Company's balance sheet at closing.

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[15]. 

 Womply denies Atlas is owed any "Project Completion Fee" even if the December 2021 Merger qualified as a "Transaction" because the "Aggregate Consideration" against which the Project Completion Fee is applied is less than $0. This is because, according to Womply, the Agreement requires Aggregate Consideration to be reduced by cash on Womply's Balance Sheet prior to closing.4 Although the parties did not define "cash at closing," Womply argues that it is logically and commonly understood in the merger context to mean "immediately preceding the merger" and not _after_ the closing.5; had Atlas desired "at the closing" to mean "after the closing," it could have negotiated for that language to be included in the Agreement. Womply further contends the term "Company" is defined in the Agreement to mean "Oto Analytics, Inc. (dba Womply, Inc.), along with its affiliates and subsidiaries. The term "Company", Womply argues, therefore includes future affiliates and subsidiaries like Holdco, Midco and Merger Sub (as those terms are each defined in the Merger Agreement), and the $1.09 billion transferred to any of these subsidiaries still remained on "the Company's" balance sheet for purposes of calculating "Aggregate Consideration" under the Agreement prior to the closing. According to Womply, the Buyer's, i.e. Holdco's, balance sheet is therefore irrelevant. The total amount of balance sheet cash allocated to stockholders in the December 2021 Merger—before reductions for contributions into escrow—was $1,090,984,577.30; however, according to Womply's argument, the cash on the Company's balance sheet "at the closing" was $1,413,347,000 (of which $1,413,287,000 had been generated by Womply's operations). Accordingly, Atlas is not owed a Project Completion Fee because the "Aggregate Consideration" under the Agreement is a negative number. 

 "Q. What is Womply's interpretation of those words at the closing on page 3 of J-2? A. So our interpretation of at the closing is the amount of money on the balance sheet immediately prior to the transaction taking place, which I think is the common understanding of what the amount on a balance sheet at close is." Scammell, Hearing TR 256:9-15. 

 Citing Law Insider, _Cash at Closing Definition_, LAW INSIDER https://www.lawinsider.com/dictionary/cash-at-closing (last visited Mar. 6, 2023); _see also_ John Downes & Jordan Elliot Goodman, _Barron's Financial Guides_, DICTIONARY OF FIN. AND INV. TERMS 97 (5th ed. 1998) (defining "close" in multiple financial scenarios including "in commodities trading, the period _just before_ the end of the session when trades marked for execution AT THE CLOSE are completed") (emphasis added). 

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[16]. 

 Womply also contends that while the term "Aggregate Consideration" was defined to include "all escrowed and earn-out payments", the Agreement also provided that "any Project Completion Fee with respect to earn-outs shall only be paid to ATG if and when paid to holders of the Company's capital stock."; that at the closing of the December 2021 Merger, a total of $630,720,000.00 was deposited in a "Secondary Escrow Fund.", the purpose of which was to cover payment of certain expenses and claims, including those related to investigations of Womply by the United States Congress, certain United States agencies, or other governmental entities with respect to Womply's conduct and operations related to the Paycheck Protection Program (so that if claims asserted post-closing resulted in significant liabilities for the Surviving Company (Oto Analytics, LLC), distributions to stockholders would not be clawed back); that although denominated an escrow account, this account is in fact an "earn-out", meaning that any Project Completion Fee is to be paid only after proceeds net of all claims and expenses are paid to the holders of the Company's capital stock. 

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## **IV Discussion and Determination**

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## A. Was the Agreement Terminated Before the Merger Transaction?

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[17]. 

 By its express terms, the Agreement continues in effect until it has been terminated by written notice: 
Section 4. Termination of Engagement. ATG's engagement hereunder shall terminate on the earlier of (a) the date a Transaction is completed or (b) the date on which either the Company or ATG at any time, with or without cause, gives written notice of termination to the other party; ... [Emphasis added]

Exhibit J-2.

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[18]. 

 It is undisputed that no written notice of termination was every sent by Womply.6

 Mr. Scammell also testified as follows: "Q. Since March of 2022, have you ever provided anybody at Atlas or its attorneys with any written notice of the termination, pursuant to Section 4 of the Engagement Agreement? And we can look at the Engagement Agreement, if you would like. A. I'm not aware of any written notice being provided since that date because, again, the agreement was terminated when we stopped working with them after the completion of our Series C fundraise." Hearing Tr., Day 2, at 280: 10-18. 

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[19]. 

 Womply has argued that the Agreement expired on March 31, 2020 by virtue of a termination provision in the Second Amendment to the Agreement that had extended the term for the interim minority financing on which Atlas had assisted Womply. However, the Second Amendment, the terms of which were negotiated between Mr. Scammell and Mr. Trousset, clearly stated that the Agreement continued to remain in effect notwithstanding the modified terms in the Amendment: 
2) No Further Amendment. Except as expressly modified by this Second Amendment, the Engagement Letter, as previously amended, shall remain unmodified and in full force and effect.

Exhibit J-9.

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[20]. 

 Womply has also variously relied on a number of additional theories in support of its termination argument, which Atlas has outlined and effectively countered in its post-hearing brief as follows: 
1. In his pre-hearing deposition, Mr. Scammell asserted the parties orally agreed to terminate the Agreement prior to executing each of the Amendments to the Agreement, but failed to memorialize this in the Amendments because Atlas tried to "sneak something past" him and were "scam artists" and "cockroaches" who hoped to "trap" Womply. (Exh. C-37, Scammell Depo. Tr., at 54:24-57:20; 125:15-18; 146:5-15). This is despite the fact Mr. Scammell had edited the First Amendment, reviewed the Second Amendment, and personally executed both on behalf of Womply. (Hearing Tr., Day 2, at 289:16-18; Exhs. J-8, J-9).

2. After his deposition, Mr. Scammell claimed in his R-33 declaration that the Agreement was terminated _after_ the Amendments had been executed. In this version, the oral termination occurred during a phone call on March 25, 2020, between Mr. Scammell and Atlas' Tony Trousset and Bret Carroll. (Decl. of Toby Scammell in Support of Respondent's Response to Claimant's Dispositive Motion, March 6, 2023, at ¶5). Mr. Scammell claimed he remembered the later March 25, 2020 call and its content after his deposition. (Hearing Tr., Day 2, at 289:19-23; 290:4- 291:22). Both Mr. Trousset and Mr. Carroll emphatically denied termination of the Agreement was _ever_ discussed, on the March 25 call or at any other time. (Hearing Tr., Day 1, at 104:14-23; 142:19-143:18).

3. None of Mr. Scammell's alternative termination theories are supported by any details and are inconsistent with the evidentiary record. Mr. Scammell could not explain the terms of the alleged oral terminations – such as whether the Tail Period survived (Hearing Tr., Day 2, at 300:9-301:15)- or why an oral termination was necessary given that Womply could unilaterally terminate the Agreement any time by simple written notice. (Hearing Tr., Day 2, at 306:14-307:14). Nor is there a single document that explicitly, or by implication, supports or corroborates Mr. Scammell's oral termination scenarios.

4. The documentary evidence confirms Mr. Scammell knew the Agreement was still active as of January 21, 2021, and thereafter, since Mr. Scammell sent an email to his assistant, Pamela Ogoy, on that date instructing her to send Atlas a written notice terminating the Agreement. (Exh. J-17). In the email, Mr. Scammell did not inquire about the status of the Agreement, but rather his email notes the requirement of termination by written notice and plainly directed his assistant to either send the required termination notice or engage outside counsel to do so. But no such written termination notice was ever sent by Womply for reasons that have never been explained.

5. Less than a month after January 21, 2021, Mr. Scammell confirmed his knowledge of an active Agreement when he discussed "dumping" Atlas in an internal email. (Exh. R-59). But again, Womply opted not to send any written notice of termination (Hearing Tr., Day 2, at 280:10-280:18).

6. Meanwhile, with no indication or knowledge of Mr. Scammell's motives, Atlas continued to interact with its client in its professional capacity in the ordinary course. (_See, e.g.,_ Exhs. C-18; C-19; C-20; C-21; C-22; C-25; C-28; Hearing Tr., Day 1, at 66:5-18; 153:10-156:18). Further, the course and conduct of the company suggests there was never any termination. Womply data was admittedly and understandably shared with Atlas prior to March 25, 2020, and Mr. Scammell confirmed that he knew of no effort to cut off that access after he claimed Atlas was orally terminated. (Hearing Tr., Day 2, at 307:17-308:12).

7. Mr. Scammell's hearing testimony regarding how the Agreement was terminated in a manner consistent with the terms of the Agreement demonstrates the self-serving nature of his take on the relevant facts:

Q. Let me represent to you that Oto Analytics', or Womply's, denial response and affirmative defenses, at the first affirmative defense, say, The claims in the demand fail in whole or in part because Oto Analytics did not breach the agreement at the time the transaction in question occurred. Oto Analytics had an agreement with Atlas that terminated by its terms on March 31, 2020; therefore, no claim can be brought for separate subsequent transactions that took place. Do you, as you sit here today, believe that the agreement terminated by its terms on March 31st? A. Well, I can just give you my colloquial business understanding, which is -- Q. Just answer my questions.

A. Well, I'm not a lawyer, so I can't define for you what by its terms means. But you asked the question. I'll give you my understanding as the CEO of the company, which is: We terminated the agreement on March 31st. We paid Atlas $500,000, which they were not entitled to under the initial agreement. We did so in a show of good faith and as a thank you for their efforts in introducing us to Rakuten. And we all understood, based on conversations that we had at the time, that our working relationship with Atlas at that point in time was completely finished and we were done with them. So if that constitutes by its terms, then I think that's an accurate statement."

Hearing Tr 280:19-28:19.

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[21]. 

 Based on a preponderance of the evidence, and for all the reasons stated above, this tribunal determines that there was no oral or written termination of the Agreement. 

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[22]. 

 Womply has also contended the Agreement was terminated by the "conduct" of the Parties. The essence of this argument is that the Agreement somehow morphed from an M & A Engagement to an Interim Financing Engagement which by implication terminated the M & A aspect of the Agreement. This is of course belied by the express terms of the First and Second Amendments regarding interim financing which clearly stated the unmodified terms of the Agreement (which included payment of the "Project Completion Fee" in the event of a "Transaction") remained in effect notwithstanding the Amendments. Nor is this tribunal persuaded by Womply's argument that the Parties somehow mutually agreed to modify the termination provision in the Agreement based on any change in Atlas's tracking of the relationship on its internal systems, or, by virtue of Womply's rebuffing or not responding to Atlas's various attempts at follow-up communications after Ma3ch 31, 2020. 

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[23]. 

 Applicable legal principles under Delaware law also soundly support Atlas's position that the Agreement was not terminated either orally or by conduct of the Parties. The Supreme Court of Delaware has confirmed that a notice requirement in a commercial agreement is not a mere formality and must be adhered to by a party to preserve related rights. AB Stable VIII, _LLC. v. Maps Hotels & Resorts One, LLC_, 268 A.3d 198, 218 (Del. 2021) (seller's failure to comply with basic notice requirements under a purchase and sale agreement to get buyer's consent to make changes to the business was a breach of the agreement; ruling notice requirements are not a mere formality). See also, _Sarofim v. Interactive Capital Mgmt._, 2022 WL 17488113 (NY Slip Op Dec. 7, 2022), a New York court interpreting a contract governed by Delaware law.7

 Defendants contend that "substantial compliance" with the notice requirement is enough to establish their defense. This court is not persuaded. Under Delaware law (which governs the investor agreement), "substantial compliance" with notice provisions may be sufficient. But "[i]n order to deviate from the clear and unambiguous contract terms without consequence, a party must justify its deviation, by, for instance, showing that it has acted reasonably, in light of the circumstances, to substantially comply in a way that preserves the benefits of the contract to the counterparty." (Vintage Rodeo Parent, LLC v. Rent-a-Ctr., Inc., 2019 WL 1223026, *14 [Del. Ch, Mar. 14, 2019, No. 2018-0927-SG].). Accordingly, a "substantive" deviation from the notice provision will not be allowed as it would "make contractual notice a meaningless formality." For instance, in Vintage Rodeo Parent, LLC, the court rejected plaintiff's argument that the defendant's action implied its intention to extend the closing date, thus putting the plaintiff on notice of such extension. (See Vintage Rodeo Parent, LLC v. Rent-a-Ctr., Inc., 2019 WL 1223026, *14-15). 2022 WL 17488113 at *4. 

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[24]. 

 Cases relied upon by Womply regarding oral modifications and/or modification by conduct are not applicable. _Pepsi-Cola Bottling Co. of Asbury Park v. Pepsico, Inc._, 297 A.2d 28 (Del. 1972) involved price increases imposed on third party bottlers over an 18-year period after the initial contract was signed, which were announced by written notice to the bottlers – without complaint or objection from bottlers. When Pepsi sent out notices for another price increase, nearly two decades after the original contract was signed, two of the contracted bottlers objected based on language from the original contract. The court held that on those facts the parties' extensive course of action allowed for the price changes – because the bottlers had received written notices over several years and had not objected. No similar facts or extended communications between the parties implying modified terms of the Agreement are presented in this case. 

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[25]. 

 Nor is _Good v. Moyer_, 2012 WL 4857367 (Del. Super. Ct. Oct. 10, 2012) cited by Womply, applicable to this case. There, the court ruled that an implied contract claim could proceed because it had determined that the defendant in question was not a party to the original, written agreement. Also, _Leo Katz & Elso Indust., Inc. v. Adjustable Steel Prod. Co._, 1989 WL 64072 (Del. Super. Ct. June 14, 1989), cited by Womply, is distinguishable as there was an issue of fact regarding the terms of an alleged oral settlement agreement when a written contract was negotiated but unexecuted. Also distinguishable is _Stone Key Partners LLC v. Monster Worldwide, Inc._, 333 F.Supp.3d 316 (S.D.N.Y. 2018), aff'd, 788 F.App'x 50 (2d Cir. 2019 (based on New York and not the contractually applicable Delaware law) where the termination provision in question was ambiguous in that a notice of termination could, but did not have to be, in writing, a fact conceded at trial, and, had language indicating it could be terminated upon "completion.". This allowed the court to admit extrinsic evidence to resolve the ambiguity. There is no such ambiguity in the language of the Agreement in this case. 

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[26]. 

 Womply's contention that the Agreement was terminated orally or by the conduct of the Parties is therefore unsupported by the evidentiary record or by applicable legal principles. 

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[27]. 

 Womply suggests certain equitable considerations should be taken into account in this tribunal's determinations regarding resolution of various issues in this matter, noting that Atlas did not perform any further substantive analysis that led to the 2021 merger and therefore characterizing any recovery of a fee by Atlas in this case as a "windfall". It is noteworthy, however, in terms of equitable considerations, that after the Second Amendment was concluded, and despite the continuing existence of the Agreement, Womply intentionally shut Atlas out from any further advisory services and deliberately concealed from Atlas any communications or negotiations or prospects regarding the transaction that eventually became the December 2021 merger transaction. This conduct was in clear breach of Womply's express promises in Sections 1 and 4 of the Agreement to keep Atlas informed of any such communications: 
The Company will furnish, and, if the Company enters into negotiations with a counterparty regarding a possible Transaction, will request such counterparty to furnish, to ATG such information as ATG reasonably requests in connection with the performance of its services hereunder (Exh. J-2 at 2);

In order to coordinate most effectively the activities of the Company and ATG contemplated by this Agreement, both the Company (including management or other officers and directors of the Company) and ATG will promptly inform the other of inquiries of third parties which it receives concerning a Transaction. (_Id._ at 2-3); and

The Company agrees to notify ATG in writing within five (5) business days of entering into an agreement for a Transaction where such transaction will or may entitle ATG to fees under Section 4(a) above. (_Id._ at 5).

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[28]. 

 To the extent Atlas was required to perform services in conjunction with the 2021 Transaction, Womply prevented Atlas from doing so by deliberately concealing every aspect of the 2021 Transaction process. 

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[29]. 

 Also, the sequence of events around January 21, 2021, when Mr. Scammell asked his assistant, Ms. Godoy, to check whether the Agreement had been formally terminated, suggests Womply may well have been aware that had it sent a written notice of termination at that time, it would have triggered the one-year tail period under the Agreement, from January 21, 2021, to January 21, 2022, thereby entitling Atlas to its fee for any "Transaction" closed during that tail period, including the 2021 Merger that was closed on December 31, 2021. This might explain why Womply chose not to send a written notice at that time. 

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[30]. 

 The foregoing considerations militate against any arguable equitable adjustment that might favor Womply in this arbitration or that would modify the clear contractual terms and obligations of the Parties' freely negotiated Agreement. 

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## B. Was the 2021 Merger a "Transaction" as Defined in the Agreement?

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[31]. 

 A "Transaction" under the Agreement requires the following three elements: i) the transfer of a majority of the outstanding capital stock of the company, ii) to a third party, iii) for consideration. A Transaction may be structured as "a merger", "a leveraged buyout" or "any similar transaction." (Exh. J-2 at 2). The 2021 Merger satisfied each of these elements. Womply does not deny that all outstanding capital stock of Womply was transferred through the 2021 Merger; nor does Womply allege the absence of consideration for the transfer. Instead, Womply contends that the 2021 Merger was not a "Transaction" because the newly formed entity that acquired 100% of Womply capital stock, Oto Holdings, LLC ("Buyer") was not a "third party." In his testimony, Mr. Scammell claimed that Buyer was not a "third party" because he (through a holding company), owned 100% of Buyer and he, personally, therefore was not a third party for purposes of the Agreement. (Hearing Tr., Day 2, at 255:2-23). 

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[32]. 

 But both Mr. Scammell and Buyer clearly are third parties to the Agreement, the only two Parties to the Agreement being Womply and Atlas. Mr. Scammell, personally, was not a party to the Agreement, a fact acknowledged in his testimony that the Agreement was between "[his] company and the Atlas company." (Hearing Tr., Day 2, at 318:20-319:23). Mr. Scammell's assertion that he is a "party" is also contrary to the plain terms of the Agreement, which identifies the parties in the introductory paragraph and reiterates, in Section 10, that the Agreement is for the benefit of Womply only, to the exclusion of its directors, officers and shareholders. (Exh. J-2 at 10). The argument that Buyer is also a party to the Agreement is in conflict with the indisputable fact that Buyer did not exist until two years after the Agreement was signed. (Hearing Tr., Day 2, at 316:9-19) and was a separate legal entity specially formed in preparation for the 2021 Merger. (_Id._). 

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[33]. 

 Atlas's citation of _Carapico v. Philadelphia Stock Exch., Inc._, 791 A.2d 787, 793 (Del. Ch. 2000) (quoting _Skourasv. Admiralty Enterprise, Inc.,_ 386 A.2d 674, 681 (Del. Ch. 1978) confirms the basic principle of separateness of legal entities ("Mere control and even total ownership of one corporation by another is not sufficient to warrant the disregard of a separate corporate entity. Absent a showing of a fraud or that a subsidiary is in fact the mere alter ego of the parent, a common central management alone is not a proper basis for disregarding separate corporate existence"). 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[34]. 

 Also, as noted by Atlas, Delaware law regarding contract interpretation requires that undefined words – such as "third party" – are to be given their plain meaning based upon the definition provided by a dictionary. _Lorillard Tobacco Co. v. American Legacy Found.,_ 903 A.2d 728, 739 (Del. 2006) (court will enforce the parties' words and the plain meaning of those words where no special meaning is intended.8

 Further case support has been provided by Atlas as follows: Delaware law is clear that "courts will not alter the terms of a bargain sophisticated parties entered into willingly because a party now regrets the deal." _AllianceData Sys. Corp. v. Blackstone Capital Partners V L.P.,_ 963 A.2d 746, 770 (Del. Ch. 2009). As stated in _Allied Capital Corp. v. GC-Sun Holdings, L.P._, 910 A.2d 1020, 1035 (Del. Ch. 2006),"courts [and arbitrators] should be most chary about implying a contractual protection when the contract could easily have been drafted to expressly provide for it." _See also, DeLucca v. KKAT Mgmt., L.L.C._, 2006 WL 224058, at *2 (Del. Ch. Jan. 23, 2006) ("[I]t is not the job of a court to relieve sophisticated parties of the burdens of contracts they wish they had drafted differently but in fact did not."). 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[35]. 

 Atlas has also cited the following dictionary definitions of "third party" in a contractual context that are consistent in its support of Atlas's position that the ordinary meaning of "third party" to a contract is any person or entity that is not a direct party to the agreement. (_See_ Claimant's Pre-Hearing Brief at 25). 
1. Third party, n (1818) A person who is not a party to a lawsuit, agreement, or other transaction but who is usu. Somehow implicated in it; someone other than the principal parties. – Also termed outside party; third person. Black's Law Dictionary, Ninth Edition 2009, at 1617.

2. Third parties. A term used to include all persons who are not parties to the contract, agreement, or instrument of writing by which their interest in the thing conveyed is sought to be affected. Black's Law Dictionary, Revised Fourth Edition, 1968, at 1278-9.

3. Third party n 1: a person other than the principals. Websters Third New International Dictionary, 1993, at 2378.

4. Third party - n. a person who is not a party to a contract or a transaction, but has an involvement (such as one who is a buyer from one of the parties, was present when the agreement was signed or made an offer that was rejected). The third party normally has no legal rights in the matter, unless the contract was made for the third party's benefit. Law.com/People's Law Dictionary, https://dictionary.law.com/Default.aspx?selected=2120

5. "[A] party or person besides the two primarily concerned, as in a law case or the like." Savage Servs. Corp., 25 F.4th at 936-37. Oxford English Dictionary, https://www.oed.com/view/Entry/200849?redirectedFrom=third+party#eid

6. "[O]ne other than the principals involved in a transaction". Kemper Prime Indus. Partners v. Montgomery Watson Ams., Inc., No. 97 C 4278, 2007 U.S. Dist. LEXIS 7268, at *9 (N.D. Ill. Jan. 30, 2007)

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[36]. 

 There is no indication in the Agreement that the parties intended any other definition for "third party" than the common definitions above. Accordingly, this tribunal determines that any person or party other than Atlas or Womply who is not a party to the Agreement is therefore a "third party", which would include Buyer. There is no ambiguity here and the dictionary definitions cited by Atlas above are dispositive on this issue. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)
## C. Is Atlas entitled to no fee because in excess of $1,092,500,000.00 "remained" on the Company's balance sheet prior to closing?

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[37]. 

 Atlas has outlined its position on this issue in its Post-hearing Brief (Closing Statement) as follows: 
Pursuant to Section 2(b) of the Agreement, Atlas is entitled to a Project Completion Fee equal to 2.5% of the Aggregate Consideration paid or payable to Womply's shareholders in conjunction with the 2021 Merger. The Agreement requires that the Project Completion Fee be paid to Atlas "in cash at the closing of a Transaction, less the engagement fee." (Exh. J-2). The term "Aggregate Consideration" is defined in the Agreement to expressly cover, "the total amount of cash and cash equivalents, along with the value as provided in the definitive agreements for such Transaction of all other property paid or payable directly or indirectly to the Company or any of its security holders in connection with a Transaction." (_Id._). The 2021 Merger Agreement defines the total Aggregate Consideration to be paid or payable to Womply shareholders as, "$1,092,500,000.00 less the amount of Excess Third Party Expenses." (Exh J-24 at A-1). Respondent provided no evidence of Excess Third Party Expenses.9

Womply asserts that the total Aggregate Consideration, set forth above, must be reduced by the cash on the company's balance sheet "prior to the closing" such that Aggregate Consideration is a negative number. (Respondent's Pre-Hearing Brief at 3). To support this contention, Womply relies on the following language in the Agreement:

"Further, the Aggregate Consideration shall be reduced by an amount equal to the cash, cash equivalents and marketable securities remaining on the Company's balance sheet at the closing of a Transaction." In short, Womply's wished-for language – "prior to closing" – is not language that exists in the Agreement. Rather, the Agreement plainly states that any reduction to Aggregate Consideration is limited to cash "remaining" on the Company's balance sheet "at closing."

Atlas supports its position further as follows:

... Delaware courts interpret contracts by giving plain meaning to undefined words. The word "remaining" is defined by Webster's as: "left over after a part has been destroyed, taken, used, or lost." (https://www.merriam-webster.com/dictionary/remaining). In simple terms, the cash "left over" on the company's balance sheet at closing, after the Aggregate Consideration was transferred to the Paying Agent (as defined in the Merger Agreement), was $217,175,000 (Exh. J-26 at Exh. B). In accordance with the Agreement, Atlas is not claiming and has not claimed 2.5% on the $217,175,000 remaining on the balance sheet at closing, which was transferred by way of the 2021 Merger to Buyer, tax free.

 In its Pre-Hearing Brief (p. 29, n. 13) Atlas noted: "Respondent has not provided any documentary evidence supporting the 'Excess Third Party Expenses.'" In its Post-hearing Brief (Closing Statement) (P. 10, n.8) Atlas again stated: "Respondent has not provided any documentary evidence supporting a reduction of the Aggregate Consideration due to 'Excess Third Party Expenses', and further Mr. Scammell offered no testimony on this point." Atlas's calculation of the 2.5% Fee which it seeks to recover does not reduce Aggregate Consideration to account for such Expenses. However, Womply's Post-Hearing Reply Brief at p. 5, n.3 states: "Contrary to Atlas's assertion (Claimant's Closing Statement at 10), Womply provided evidence of $2,515,422.69 in Excess Third Party Expenses. **Exhibit J-31**, Womply Funds Flow ("Third Party Expenses" tab). That entry in Exhibit J-31 does indeed contain a breakdown list of various legal and other administrative expenses totaling $2,515,422.69. Given that Atlas was clearly aware of the accounting in Exhibit J-31 and in fact cited this exhibit at p.10 of its Post-Hearing Brief (Closing Statement) in support of its calculation of Aggregate Consideration, this tribunal will credit Womply with those expenses in the final calculation of Atlas's Fee entitlement as discussed later in this Interim Award. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[38]. 

 As further noted by Atlas in its Post-Hearing Brief, its position is entirely consistent with the terms of the Merger Agreement (Exh. J-24) as the Aggregate Consideration did not "cycle through" the various entities created to effectuate the 2021 Merger as Womply suggests, but was rather transferred directly off Womply's balance sheet to the Paying Agent. Atlas also notes that the tax-free transfer of the cash remaining on the balance sheet (in the amount of $217,175,000) would not have been possible if the cash had been distributed to Womply shareholders and then re-contributed to Buyer. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[39]. 

 Womply, on the other hand, bases its contrary position on an improper insertion of "prior to" into the language of the Agreement, and, also, on the unsupported contention that because the term "Company" in the Agreement includes Womply's affiliates and subsidiaries, "the $1.09 billion that "cycled through" any of these subsidiaries still "remained" on "the Company's" balance sheet for purposes of reducing Aggregate Consideration pursuant to the Balance Sheet Exclusion. This argument is inconsistent with the terms of the Merger Agreement, relies on a demonstrative (R-68 "Merger Flowcharts") that is not evidence, and depends on testimony by Mr. Scammell regarding the flow of funds, the reliability of which was undermined on cross-examination (Exh. J-24 at 12; Hearing Tr., Day 2, at 354:18-25) and the credibility of which is also brought into question due to the inconsistencies in Mr. Scammell's self-serving testimony regarding the claimed oral termination of the Agreement in March, 2020. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[40]. 

 This tribunal also does not credit Womply's underlying contract interpretation argument that the purpose of the Balance Sheet Exclusion was intended to insure Atlas would not be paid a fee on any revenue generated from Womply's operations or monies that it raised on its own. That Mr. Scammell may have personally held such an understanding regarding the purpose of this provision is irrelevant; under the objective theory of contracts, an uncommunicated intent by a party that is not consistent with the language of the contract does not satisfy the fundamental requirement of mutual agreement. There is no evidence that such an interpretation of the provision was ever communicated to or acknowledged by Atlas. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[41]. 

 This tribunal also finds persuasive the logic of Atlas's argument that Aggregate Consideration necessarily includes the $1.09 billion of Aggregate Consideration that was paid or is payable directly to Womply's security holders; that the Agreement expressly establishes that assets distributed to shareholders and affiliates are expressly included as part of Aggregate Consideration, stating in relevant part (emphasis added): "(iv) the fair market value of any assets of the Company or any securities which are retained by or otherwise distributed to its stockholders _**or affiliates**_ in anticipation of or in connection with a Transaction". (Exh. J-2 at 3); that in any case, it cannot be disputed that the $1.09 billion in Aggregate Consideration was transferred off Womply's balance sheet to the Wilmington Trust at least _three days_ prior to closing, as was required by the Merger Agreement; and, that if Womply's assertion were accurate, i.e. that the entire $1.09 billion of Aggregate Consideration remained on the company's balance sheet at the closing, it would require the absurd result that the selling equity holders received nothing under the Transaction. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[42]. 

 On balance, this tribunal finds that Atlas's interpretation of the Agreement is the more plausible and therefore the correct one, that it is supported by the evidence and applicable legal principles, and that Atlas is entitled to recover its 2.5% Project Completion Fee based on Aggregate Consideration of ($1,090,984,577.3), subject to some limited additional adjustment of that amount as further discussed below. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[43]. 

 This tribunal dismisses Respondent's counterclaim in this matter for the reasons set forth in footnote 1, _supra_, and for lack of any evidentiary proof. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[44]. 

 An issue also exists regarding Womply's position that Atlas is not entitled to the portion of the Project Completion Fee derived from the $630,720,000 of Aggregate Consideration placed into the Secondary Escrow unless and until these funds are released to the selling shareholders. (Respondent's Pre-Hearing Brief at 36-38). As indicated above, Womply claims the terms "escrow" and "earn-out" are interchangeable and that therefore the proviso in the Agreement applicable to an earn-out ["(provided any Project Completion Fee with respect to earn-outs shall only be paid to ATG if and when paid to holders of the Company's capital stock)."] also applies to funds in the Secondary Escrow. But, as Atlas has persuasively argued, that claim is not supported by the language of the Agreement, testimony at the hearing or common sense. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[45]. 

 The Agreement states Aggregate Consideration includes, "all escrowed and earn-out payments." It is undisputed that in negotiating the Agreement Womply modified this quoted language by adding the parenthetical language: "provided any Project Completion Fee **with respect to earn-outs**shall only be paid to ATG if and when paid to holders of the Company's capital stock." [Emphasis added] The parenthetical proviso refers only to earn-out payments – not escrowed funds. Under the rule of contract interpretation cited by Atlas, _expressio unius est exclusio alterius (_ utilized by Delaware courts in interpreting contract language – see _Miramar Police Officers' Ret. Plan v. Murdoch_, 2015 WL 1593745, at *8 (Del. Ch. Apr. 7, 2015)), the expression of one thing in a contract is to the exclusion of another, unstated thing. Here, Womply negotiated a deferred Project Completion Fee specifically and _only_ for consideration derived from an "earn-out", which by implication excludes escrows, which are separately addressed in the Agreement. Stated otherwise, Womply could have negotiated for or required in the Agreement a similar proviso for escrowed funds just as it did for earn-outs, but did not do so. Accordingly, Atlas is due the portion of the Project Completion Fee derived from and related to the Secondary Escrow funds as required by Section 2(b) of the Agreement, regardless of if or when those funds are released to selling shareholders. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[46]. 

 Atlas has explained in its Post-Hearing Reply its calculation of the Project Completion Fee to which it is entitled as follows: 
Pursuant to the Agreement, the Project Completion Fee is equal to 2.5% of the Aggregate Consideration, which includes all cash and cash equivalents paid or payable to selling shareholders in conjunction with the Transaction. Here, there is a reasoned disagreement as to the Aggregate Consideration, with Atlas asserting the total Aggregate Consideration is $1,092,500,000, as set out and defined in the 2021 Merger agreement (less "Excess Third Party Expenses"), and Respondent producing a Womply Funds Flow spreadsheet stating that the Aggregate Consideration paid or payable to selling shareholders is $1,090,984,577.31. Because Womply provided no evidence of "Excess Third Party Expenses" to support the reduction of the topline Aggregate Consideration set out in the 2021 Merger agreement, no reduction is justified. Accordingly, the appropriate Project Completion Fee is $27,212,500 ($1,092,500,000 x 2.5% - $100,000 creditable engagement fee).

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[47]. 

 Atlas evidently assumes that the difference between its $1,092,500,000 number and Womply's $1,090,984,577 number (which difference is $1,515,423) is accounted for by the Excess Third Party Expenses" which were to be excluded from the Aggregate Consideration but for which Atlas contends Womply has not provided proof. However, as indicated in footnote 9, _supra_, this tribunal is prepared to credit Womply in the calculation of the amount of Atlas's fee with the $2,515,422.69 in Third Party Expenses reflected in Exhibit J-31. The discrepancy regarding the amount of the presumed creditable expenses, which appears to be an even $1,000,000 ($2,515,422.69 versus $1,515,423), suggests this may be due to an accounting entry or error that needs to be clarified or adjusted (perhaps related to the $1,000,000 "expense carve-out" noted in the flow of funds tab in J-31). 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[48]. 

 Accordingly, this tribunal reserves final decision as to the exact amount of the Project Completion Fee to be awardable to Atlas pending 1) clarification of any error or calculation discrepancy to be addressed following issuance of this Interim Award; and 2. recalculation of the amount of Atlas's fee taking into account the $2,515,422.69 in Third Party Expenses. This tribunal therefore reserves its jurisdiction regarding resolution of these residual matters for determination as part of the agreed bifurcated second phase of this arbitration regarding the award of attorney's fees and costs and the award of interest as provided for in Procedural Order No. 1 for this arbitration. Although this Interim Award is not intended as a final award that is either confirmable as a judgment, subject to interim appeal, or as to which any time limit regarding a petition to vacate may apply, this tribunal's determinations specified in this Interim Award regarding the Parties various claims and defenses are firm. Leaving the aforementioned discrepancy and recalculation as open issues for clarification in the next phase is not an invitation for submittal of any further arguments or requests for reconsideration regarding the matters already addressed in this Interim Award. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[49]. 

 Claimant Atlas shall by July 26, 2023: 
1. Submit its position regarding the amount of Aggregate Consideration as to which the 2.5% Project Completion Fee is to be applied in the Final Award in this matter, adjusted for the $2,515,422.69 in Excess Third Party Expenses and any further adjustment warranted by what Atlas contends is the explanation for the $1,000,000 discrepancy noted above.

2. Submit its request for an award of attorneys' fees and costs, including the evidentiary support for its request (costs to exclude amounts paid to the AAA for fees, administrative costs and arbitrator compensation, which will be finally allocated in the Final Award in this matter following an accounting of such fees and compensation by the AAA), including the contractual and legal support for such an award of attorneys' fees and costs.

3. Atlas shall also by said date submit its claim for the calculation of pre-award interest on the amount to be awarded to it for the Project Completion Fee, the amount of the rate, the legal basis for the amount of the rate, calculation of the total interest owed as of the date of Atlas's submittal, as well as a daily amount of interest to continue thereafter.

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[50]. 

 Respondent Womply shall submit its responses to each of the three Items listed above by August 4, 2023. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[51]. 

 Claimant may submit a brief Reply by August 11, 2023. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[52]. 

 The Parties may agree to reasonable modifications of the above schedule by written agreement and notification to this tribunal. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[53]. 

 This tribunal reserves the option of scheduling a conference following these supplemental submittals if necessary to clarify any remaining issues or hear argument. 

[](https://jusmundi.com/en/document/decision/en-atlas-technology-group-llc-v-oto-analytics-llc-fka-oto-analytics-inc-and-dba-womply-interim-award-monday-10th-july-2023#)

[54]. 

 Following completion of the remaining second, bifurcated phase of this proceeding, this tribunal will issue its Final Award in this matter. 
Dated: July 10, 2023

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 Interim Award - 10 July 2023 

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