Exhibit 10.4
EXECUTION COPY
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of May 11, 2000, among XxxXxxx.xxx, Ltd.,
a Delaware corporation ("PARENT"), the individuals and entities listed on
SCHEDULE I hereto (each, a "SHAREHOLDER" and together, the "SHAREHOLDERS"), and
United States Trust Company of New York, as escrow agent (the "ESCROW AGENT").
WHEREAS, concurrently with the execution and delivery of this
Agreement and pursuant to an Agreement and Plan of Merger dated as of April 25,
2000 (the "MERGER AGREEMENT"; capitalized terms not defined herein shall have
the meanings ascribed to them in the Merger Agreement) among Parent, Resumix
Acquisition Corp., a Delaware corporation, Resumix, Inc., a Delaware corporation
("RESUMIX"), and the Shareholders, Parent is issuing to the Shareholders shares
of common stock, par value $.01 per share, of Parent ("PARENT COMMON STOCK") and
Resumix is becoming a wholly-owned subsidiary of Parent;
WHEREAS, the Merger Agreement provides that Parent, the Shareholders
and the Escrow Agent enter into this Agreement and that the Shareholders deposit
with the Escrow Agent a portion of the shares of Parent Common Stock received by
them on the date hereof pursuant to the Merger Agreement in order to provide a
fund for indemnity payments that the Shareholders become obligated to make to
the Indemnified Parties as and to the extent provided in Article X of the Merger
Agreement; and
WHEREAS, the Shareholders have appointed General Atlantic Partners
60, L.P. as their representative to give and receive all notices to be given to
and received by the Shareholders under SECTION 5 of this Agreement (the
"REPRESENTATIVE");
NOW, THEREFORE, Parent, the Shareholders and the Escrow Agent hereby
agree as follows:
1. APPOINTMENT OF THE ESCROW AGENT; DEPOSIT OF ESCROW SHARES. The
Shareholders and Parent hereby constitute and appoint the Escrow Agent as, and
the Escrow Agent hereby agrees to assume and perform the duties of, the escrow
agent under and pursuant to this Agreement. The Escrow Agent acknowledges
receipt of an executed copy of the Merger Agreement and this Agreement and of a
certificate from each Shareholder with duly endorsed stock powers attached,
representing the number of shares of Parent Common Stock set forth opposite such
Shareholder's name on SCHEDULE 1 hereto (such shares being referred to herein
collectively as the "ESCROW SHARES").
2. HOLDING OF THE ESCROW SHARES. The Escrow Agent shall hold each
Shareholder's Escrow Shares in escrow in the separate account maintained for the
benefit of such
Shareholder and Parent. The Escrow Shares shall not be subject to lien or
attachment by any creditor of any party hereto and shall be used solely for the
purpose set forth in this Agreement. The Escrow Shares or any proceeds thereof
shall not be available to, and shall not be used by, the Escrow Agent to set off
any obligations of any of the Shareholders or of Parent owing to the Escrow
Agent in any capacity.
3. DIVIDENDS AND OTHER DISTRIBUTIONS. The Escrow Agent shall, upon
receipt thereof, deposit any dividends or other distributions made in respect of
any Shareholder's Escrow Shares in a separate account of the Escrow Agent
maintained for such Shareholder for such purpose (which account will, in the
case of cash dividends or other cash distributions, be an interest-bearing
account). In the event that the Escrow Shares are exchanged for any other
securities and/or cash or other property by reason of a merger, consolidation,
recapitalization, reorganization or similar corporate transaction, such
securities and/or cash or other property shall be substituted for the Escrow
Shares for purposes of this Agreement, and the parties shall agree to such
equitable adjustments in the provisions of this Agreement as may be necessary to
give effect to this sentence.
4. VOTING. Prior to the Termination Date, the Escrow Agent will vote
the Escrow Shares as directed by the respective Shareholders in writing and will
execute any written consents to stockholder action or proxies as directed in
writing by the respective Shareholders. In the absence of such written
direction, the Escrow Agent shall not vote the Escrow Shares for any purpose and
will not execute any consents to stockholder action or proxies.
5. CLAIMS FOR INDEMNITY.
(a) Concurrently with the delivery of an Indemnity Notice under the
Merger Agreement, Parent will deliver to the Escrow Agent a certificate in
substantially the form of ANNEX I attached hereto (a "CERTIFICATE OF
INSTRUCTION"). No Certificate of Instruction may be delivered by Parent after
the close of business on the business day immediately preceding the Termination
Date. The Escrow Agent shall give written notice to the Shareholders of its
receipt of a Certificate of Instruction not later than the second business day
next following receipt thereof, together with a copy of such Certificate of
Instruction.
(b) If the Escrow Agent (i) shall not, within thirty (30) calendar
days following its receipt of a Certificate of Instruction (the "OBJECTION
PERIOD"), have received from the Shareholders a certificate in substantially the
form of ANNEX II attached hereto (an "OBJECTION CERTIFICATE") disputing their
obligation to pay the Owed Amount referred to in such Certificate of
Instruction, or (ii) shall have received such an Objection Certificate within
the Objection Period and shall thereafter have received either (A) a certificate
from Parent and the Shareholders substantially in the form of ANNEX III attached
hereto (a "RESOLUTION CERTIFICATE") stating that Parent and the Shareholders
have agreed that the Owed Amount referred to in such Certificate of Instruction
(or a specified portion thereof) is payable to one or more of the Indemnified
Parties or (B) a copy of a final, nonappealable order of a court of competent
jurisdiction (accompanied by a certificate of Parent substantially in the form
of ANNEX IV attached hereto (a "LITIGATION CERTIFICATE")) stating that the Owed
Amount referred to in such Certificate of Instruction (or a specified portion
thereof) is payable to one or more of the Indemnified Parties by the
Shareholders, then the Escrow Agent shall, on the second business day next
following (A) the expiration of the Objection Period or (B) the Escrow Agent's
receipt
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of a Resolution Certificate or a Litigation Certificate, as the case may be,
deliver to Parent from each Shareholder's portion of the Escrow Shares (pro rata
in accordance with paragraph (g) of this SECTION 5 hereto) a certificate or
certificates evidencing in the aggregate that number of whole Escrow Shares
(ignoring fractions), equal to the quotient obtained by dividing (x) the Owed
Amount (or, if such Resolution Certificate or Litigation Certificate specifies
that a lesser amount than such Owed Amount is payable, such lesser amount) by
(y) the Per Share Price (as hereinafter defined), calculated as of the date of
the Litigation Certificate or the Resolution Certificate, as applicable, or if
no Objection Certificate is received, the Certificate of Instruction. For
purposes of this Agreement:
(A) "PER SHARE PRICE" as of any date, shall mean the
arithmetic average of the closing sales price of a share of Parent Common Stock,
as reported in the NASDAQ National Market System ("NMS") or any other exchange
or quotation system on which the shares of Parent Common Stock are then listed
or quoted, on each of the ten (10) Trading Days ending on and including the
second Trading Day prior to such date; and
(B) "TRADING DAY" shall mean any day for which quotations are
available in respect of shares of Parent Common Stock on the NMS.
(c) The Escrow Agent shall give written notice to Parent of its
receipt of an Objection Certificate not later than the second business day next
following receipt thereof, together with a copy of such Objection Certificate.
The Escrow Agent shall give written notice to the Shareholders of its receipt of
a Litigation Certificate not later than the second business day next following
receipt thereof, together with a copy of such Litigation Certificate.
(d) Upon the payment by the Escrow Agent of the Owed Amount referred
to in a Certificate of Instruction, such Certificate of Instruction shall be
deemed canceled. Upon the receipt by the Escrow Agent of a Resolution
Certificate or a Litigation Certificate and the payment by the Escrow Agent of
the Owed Amount referred to therein, the related Certificate of Instruction
shall be deemed canceled.
(e) Upon Parent's determination that it has no claim or has released
its claim with respect to an Owed Amount referred to in a Certificate of
Instruction (or a specified portion thereof), Parent will promptly deliver to
the Escrow Agent a certificate substantially in the form of ANNEX V attached
hereto (a "PARENT CANCELLATION CERTIFICATE") canceling such Certificate of
Instruction (or such specified portion thereof, as the case may be), and such
Certificate of Instruction (or portion thereof) shall thereupon be deemed
canceled. The Escrow Agent shall give written notice to the Shareholders of its
receipt of a Parent Cancellation Certificate not later than the second business
day next following receipt thereof, together with a copy of such Parent
Cancellation Certificate.
(f) Upon receipt of a final nonappealable order of a court of
competent jurisdiction stating that none of the Owed Amount referred to in a
Certificate of Instruction as to which the Shareholders delivered an Objection
Certificate within the Objection Period is payable to any Indemnified Party by
the Shareholders, the Shareholders may deliver a copy of such order (accompanied
by a certificate of the Shareholders substantially in the form of ANNEX VI
attached hereto (a "SHAREHOLDER CANCELLATION CERTIFICATE")) canceling such
Certificate of Instruction, and such Certificate of Instruction shall thereupon
be deemed canceled. The Escrow Agent shall
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give written notice to Parent of its receipt of a Shareholder Cancellation
Certificate not later than the second business day next following receipt
thereof, together with a copy of such Shareholder Cancellation Certificate.
(g) To the extent that the Escrow Agent is required to deliver
Escrow Shares to Parent hereunder, it shall obtain such shares from the escrow
accounts maintained for the Shareholders on a PRO RATA basis based on the
respective ownership of Escrow Shares set forth on SCHEDULE I hereto. Parent
shall cause the transfer agent for the Parent Common Stock to cooperate with the
Escrow Agent in providing replacement stock certificates for shares of Parent
Common Stock in substitution for those held by the Escrow Agent in order to
enable the Escrow Agent to make the distributions of Escrow Shares required
under this Agreement.
(h) No certificate shall be delivered pursuant to this SECTION 5
unless it shall have been prepared in good faith by the party delivering such
certificate and represent a bona fide notice for purposes of this Agreement.
6. RELEASE OF ESCROW SHARES. The Escrow Agent shall on May , 2001
(the "TERMINATION DATE") deliver to each Shareholder any dividends or other
distributions received pursuant to SECTION 3 and a certificate or certificates
evidencing the remaining number of such Shareholder's Escrow Shares, if any,
less that number of Escrow Shares as shall represent (at the Per Share Price,
calculated as of the date of receipt by the Escrow Agent of the Certificate of
Instruction) any amounts designated in Certificates of Instruction received by
the Escrow Agent prior to the Termination Date that have not been canceled in
accordance with paragraph (d), (e) or (f) of SECTION 5. At such time on or
following the Termination Date as all Certificates of Instruction received by
the Escrow Agent prior to the Termination Date have been canceled in accordance
with paragraph (d), (e) or (f) of SECTION 5, the Escrow Agent shall promptly
deliver to each Shareholder the certificate or certificates evidencing such
Shareholder's remaining Escrow Shares, if any, and this Agreement (other than
SECTIONS 7, 8 and 9) shall automatically terminate.
7. DUTIES AND OBLIGATIONS OF THE ESCROW AGENT. The duties and
obligations of the Escrow Agent shall be limited to and determined solely by the
provisions of this Agreement and the certificates delivered in accordance
herewith, and the Escrow Agent is not charged with knowledge of or any duties or
responsibilities in respect of any other agreement or document. In furtherance
and not in limitation of the foregoing:
(i) the Escrow Agent shall be fully protected in relying in good
faith upon any written certification, notice, direction, request, waiver,
consent, receipt or other document (including any such certification,
notice, direction, request, waiver, consent, receipt or other document
delivered by the Representative pursuant to SECTION 5 of this Agreement
purportedly on behalf of the Shareholders) that the Escrow Agent
reasonably believes to be genuine and duly authorized, executed and
delivered;
(ii) the Escrow Agent shall not be liable for any error of judgment,
or for any act done or omitted by him, or for any mistake in fact or law,
or for anything that he may do or refrain from doing in connection
herewith; PROVIDED, HOWEVER, that notwithstanding any other provision in
this Agreement, the Escrow Agent shall be liable for its willful
misconduct or gross negligence or breach of this Agreement;
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(iii) the Escrow Agent may seek the advice of legal counsel selected
with reasonable care in the event of any dispute or question as to the
construction of any of the provisions of this Agreement or its duties
hereunder, and the Escrow Agent shall incur no liability and shall be
fully protected in respect of any action taken, omitted or suffered by it
in good faith in accordance with the opinion of such counsel;
(iv) in the event that the Escrow Agent shall in any instance, after
seeking the advice of legal counsel pursuant to the immediately preceding
clause, in good faith be uncertain as to its duties or rights hereunder,
the Escrow Agent shall be entitled to refrain from taking any action in
that instance and its sole obligation, in addition to those of its duties
hereunder as to which there is no such uncertainty, shall be to keep
safely all property held in escrow until the Escrow Agent shall be
directed otherwise in writing by each party hereto or by a final,
nonappealable order of a court of competent jurisdiction; PROVIDED,
HOWEVER, in the event that the Escrow Agent has not received such written
direction or court order within one hundred eighty (180) calendar days
after requesting the same, the Escrow Agent shall have the right to
interplead Parent and the Shareholders in any court of competent
jurisdiction and request that such court determine his rights and duties
hereunder; and
(v) the Escrow Agent may execute any of its powers or
responsibilities hereunder and exercise any rights hereunder either
directly or by or through agents or attorneys selected with reasonable
care, nothing in this Agreement shall be deemed to impose upon the Escrow
Agent any duty to qualify to do business or to act as fiduciary or
otherwise in any jurisdiction other than the State of New York, and the
Escrow Agent shall not be responsible for and shall not be under a duty to
examine into or pass upon the validity, binding effect, execution or
sufficiency of this Agreement or of any agreement amendatory or
supplemental hereto.
8. COOPERATION. Parent and the Shareholders shall provide to the
Escrow Agent all instruments and documents within their respective powers to
provide that are necessary for the Escrow Agent to perform its duties and
responsibilities hereunder.
9. FEES AND EXPENSES; INDEMNITY. Parent shall pay the fees of the
Escrow Agent for its services hereunder as and when billed by the Escrow Agent,
and each shall reimburse and indemnify the Escrow Agent for, and hold the Escrow
Agent harmless against any loss, damages, cost or expense, including but not
limited to attorneys' fees, reasonably incurred by the Escrow Agent in
connection with the Escrow Agent's performance of its duties and obligations
under this Agreement, as well as the reasonable costs and expenses of defending
against any claim or liability relating to this Agreement; PROVIDED that
notwithstanding the foregoing, Parent shall not be required to indemnify the
Escrow Agent for any such loss, liability, cost or expense arising as a result
of the Escrow Agent's willful misconduct or gross negligence or breach of this
Agreement.
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10. RESIGNATION AND REMOVAL OF THE ESCROW AGENT.
(a) The Escrow Agent may resign as such not less than thirty (30)
calendar days following the giving of prior written notice thereof to the
Shareholders and Parent. In addition, the Escrow Agent may be removed and
replaced on a date designated in a written instrument signed by the Shareholders
and Parent and delivered to the Escrow Agent. Notwithstanding the foregoing, no
such resignation or removal shall be effective until a successor escrow agent
has acknowledged its appointment as such as provided in paragraph (c) below. In
either event, upon the effective date of such resignation or removal, the Escrow
Agent shall deliver the Escrow Shares and any dividends and other distributions
received in respect thereof and not previously distributed to Parent or the
Shareholders, together with earnings thereon, if any, to such successor escrow
agent, together with such records maintained by the Escrow Agent in connection
with its duties hereunder and other information with respect to the Escrow
Shares as such successor may reasonably request.
(b) If a successor escrow agent shall not have acknowledged its
appointment as such as provided in paragraph (c) below, in the case of a
resignation, prior to the expiration of thirty (30) calendar days following the
date of a notice of resignation or, in the case of a removal, on the date
designated for the Escrow Agent's removal, as the case may be, because the
Shareholders and Parent are unable to agree on a successor escrow agent, or for
any other reason, the Escrow Agent may select a successor escrow agent (which
shall be a depositary institution or trust company with offices in New York, New
York having combined capital and surplus of at least $100 million) and any such
resulting appointment shall be binding upon all of the parties to this
Agreement.
(c) Upon written acknowledgment by a successor escrow agent
appointed in accordance with the foregoing provisions of this Section of its
agreement to serve as escrow agent hereunder and the receipt of the Escrow
Shares and dividends and other distributions received in respect thereof and not
previously distributed to Parent or the Shareholders, together with earnings
thereon, if any, the Escrow Agent shall be fully released and relieved of all
duties, responsibilities and obligations under this Agreement, subject to the
proviso contained in clause (ii) of SECTION 7, and such successor escrow agent
shall for all purposes hereof be the Escrow Agent.
11. NOTICES. All notices, requests and other communications
hereunder must be in writing and will be deemed to have been duly given if
delivered personally or by facsimile transmission or mailed by certified or
registered mail, return receipt requested, to the parties at the following
addresses or facsimile numbers:
If to Parent, to:
XxxXxxx.xxx, Ltd.
00 Xxxx 00xx Xxxxxx
00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxx Xxxxxxxxxx, Esq.
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with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx LLP
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to any Shareholder, to the Representative, to:
General Atlantic Partners 60, L.P.
c/o General Atlantic Service Corp.
0 Xxxxxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile No.: 000-000-0000
Attn: Xxxxxx Xxxxxx
with a copy to:
Xxxx, Weiss, Rifkind, Xxxxxxx & Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxx, Esq.
If to the Escrow Agent, to:
United States Trust Company of New York
Corporate Trust Administration
000 Xxxx 00xx Xxxxxx - 00xx Xxxxx
Xxx Xxxx, XX 00000
Facsimile No.: (000) 000-0000/7
Attn: Xxxxxxx X. Xxxx
All such notices, requests and other communications will (i) if delivered
personally to the address as provided in this Section, be deemed given upon
delivery, (ii) if delivered by facsimile transmission to the facsimile number as
provided in this Section, be deemed given upon receipt if received on a business
day during normal business hours, and if not then received, on the next business
day, and (iii) if delivered by mail in the manner described above to the address
as provided in this Section, be deemed given upon receipt (in each case
regardless of whether such notice, request or other communication is received by
any other Person to whom a copy of such notice is to be delivered pursuant to
this Section). Any party from time to time may change its address, facsimile
number or other information for the purpose of notices to that party by giving
notice specifying such change to the other parties hereto.
12. AMENDMENTS, ETC. This Agreement may be amended or modified, and
any of the terms hereof may be waived, only by a written instrument duly
executed by or on behalf of
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Parent and the Shareholders and, with respect to any amendment that would
adversely affect the Escrow Agent, the Escrow Agent. No waiver by any party of
any term or condition contained of this Agreement, in any one or more instances,
shall be deemed to be or construed as a waiver of the same or any other term or
condition of this Agreement on any future occasion.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the laws of the State of New York applicable to a contract
executed and performed in such State, without giving effect to the conflicts of
laws principles thereof.
14. BUSINESS DAY. For all purposes of this Agreement, the term
"business day" shall mean a day other than Saturday, Sunday or any day on which
banks located in the State of New York are authorized or obligated to close.
15. MISCELLANEOUS. This Agreement is binding upon and will inure to
the benefit of the parties hereto and their respective successors and permitted
assigns. The headings used in this Agreement have been inserted for convenience
of reference only and do not define or limit the provisions hereof. This
Agreement may be executed in any number of counterparts, each of which will be
deemed an original, but all of which together will constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed as of the date first above written.
XXXXXXX.XXX, LTD.
By: /s/ Xxxxxxx Xxxxxxx
----------------------------
Name: Xxxxxxx Xxxxxxx
Title: President & CEO
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RESUMIX INC.
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President and CEO
DOUBLE DIAMOND ASSOCIATES, LLC
By: /s/ Xxxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Trustee
/s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
XXXXXXX X. XXXXXXXXX
CERIDIAN CORPORATION
By: /s/ A. Xxxx Xxxx
--------------------------------
Name: A. Xxxx Xxxx
Title: VP and Asst. Sec.
GENERAL ATLANTIC PARTNERS 48, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
--------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
GAP COINVESTMENT PARTNERS, L.P.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: A General Partner
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GENERAL ATLANTIC PARTNERS 60, L.P.
By: General Atlantic Partners, LLC,
its general partner
By: /s/ Xxxxx X. Xxxxxxx
---------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
GAP COINVESTMENT PARTNERS II, L.P.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxx
Title: A General Partner
00
XXXXXX XXXXXX XXXXX XXXXXXX
XX XXX XXXX
By: /s/ Xxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
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SCHEDULE I
SHAREHOLDER NUMBER OF ESCROW SHARES
Ceridian Corporation 159,459
0000 00xx Xxxxxx Xxxxx
Xxxxxxxxxxx, XX 00000
Attention: A. Xxxx Xxxx
General Atlantic Partners 48, L.P. 116,954
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
GAP Coinvestment Partners, L.P. 22,318
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
General Atlantic Partners 60, L.P. 16,662
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
GAP Coinvestment Partners II, L.P. 3,521
c/o General Atlantic Service Corporation
0 Xxxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxxx
Double Diamond LLC 34,432
000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxxx
Xxxxxxxxx, Xxxxxxx X. 5,936
c/o Resumix, Inc.
000 Xxxx Xxxxx
Xxxxxxxxx, XX 00000
ANNEX I
CERTIFICATE OF INSTRUCTION
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS ESCROW AGENT
The undersigned, XxxXxxx.xxx, Ltd., a Delaware corporation
("PARENT"), pursuant to Section 5(a) of the Escrow Agreement dated as of May 11,
2000 among Parent, the other individuals and entities signatory thereto
(collectively, the "SHAREHOLDERS") and you (terms defined in said Escrow
Agreement have the same meanings when used herein), hereby:
(a) certifies that (i) Parent or another Indemnified Party has sent
to the Shareholders an Indemnity Notice (as such term is defined in the
Merger Agreement), a copy of which is attached hereto, and (ii) the amount
of $___________ (the "OWED AMOUNT") is payable to the Indemnified Parties
by the Shareholders pursuant to Section 12.01 of the Merger Agreement by
reason of the matter described in such Indemnity Notice;
(b) certifies that the Indemnity Notice has been rendered by Parent
in good faith and that the Shareholders and the Escrow Agent may rely on
such good faith determination; and
(c) instructs you to deliver to Parent certificates evidencing in
the aggregate that number of whole Escrow Shares (ignoring fractions),
valued at the Per Share Price, equal to the Owed Amount (i) within two
business days following the expiration of the Objection Period, unless you
receive an Objection Certificate from the Shareholders prior to the
expiration of the Objection Period or (ii) if you receive an Objection
Certificate within the Objection Period, within two business days
following your receipt of a Resolution Certificate or an Arbitration
Certificate.
XXXXXXX.XXX, LTD.
By:
--------------------------------
Name:
Title:
Dated: ,
----------- -----
ANNEX II
OBJECTION CERTIFICATE
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS ESCROW AGENT
The undersigned, [__________________________], acting in its
capacity as the Representative pursuant to Section 5(b) of the Escrow Agreement
dated as of May 11, 2000 among XxxXxxx.xxx, Ltd., a Delaware corporation
("PARENT"), the other individuals and entities signatory thereto (collectively,
the "SHAREHOLDERS") and you (terms defined in said Escrow Agreement have the
same meanings when used herein), hereby:
(a) disputes that the Owed Amount referred to in the Certificate of
Instruction dated _________, ____ is payable to the Indemnified Parties by
the Shareholders pursuant to Section 12.01 of the Merger Agreement;
(b) certifies that the undersigned has sent to Parent a written
statement dated ___________, ____, a copy of which is attached hereto,
disputing the liability of the Shareholders to the Indemnified Parties for
the Owed Amount;
(c) objects to your making payment to Parent as provided in such
Certificate of Instruction; and
(d) certifies that this Objection Certificate is being rendered by
the Shareholders in good faith and that Parent and the Escrow Agent may
rely on such good faith determination.
--------------------------------
[Representative]
Dated: ,
----------- -----
ANNEX III
RESOLUTION CERTIFICATE
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS ESCROW AGENT
The undersigned, XxxXxxx.xxx, Ltd., a Delaware corporation
("PARENT"), and [________________________], acting in its capacity as the
Representative pursuant to Section 5(b) of the Escrow Agreement dated as of May
11, 2000 among Parent, the other individuals and entities signatory thereto
(collectively, the "SHAREHOLDERS") and you (terms defined in said Escrow
Agreement have the same meanings when used herein), hereby:
(a) certify that (i) Parent and the Shareholders have resolved their
dispute as to the matter described in the Certificate of Instruction dated
__________, ____ and the related Objection Certificate dated ___________,
____ and (ii) the final Owed Amount with respect to the matter described
in such Certificates is $______________;
(b) instruct you to deliver to Parent certificates evidencing in the
aggregate that number of whole Escrow Shares (ignoring fractions), valued
at the Per Share Price, equal to the Owed Amount referred to in clause
(ii) of paragraph (a) above within two business days following your
receipt of this Certificate;
(c) agree that the Owed Amount designated in such Certificate of
Instruction, to the extent, if any, it exceeds the Owed Amount referred to
in clause (ii) of paragraph (a) above, shall be deemed not payable by the
Shareholders to the Indemnified Parties and such Certificate of
Instruction is hereby canceled; and
(d) certify that this Resolution Certificate is being rendered by
Parent and the Shareholders in good faith and that the Escrow Agent may
rely on such good faith determination.
XXXXXXX.XXX, LTD.
By:
---------------------------------
Name:
Title:
---------------------------------
[Representative]
Dated: ,
----------- -----
ANNEX IV
LITIGATION CERTIFICATE
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS ESCROW AGENT
The undersigned, XxxXxxx.xxx, Ltd., a Delaware corporation
("PARENT"), pursuant to Section 5(b) of the Escrow Agreement dated as of May 11,
2000 among Parent, the other individuals and entities signatory thereto
(collectively, the "SHAREHOLDERS") and you (terms defined in said Escrow
Agreement have the same meanings when used herein), hereby:
(a) certifies that (i) attached hereto is a final, nonappealable
order of a court of competent jurisdiction resolving the dispute between
Parent and the Shareholders as to the matter described in the Certificate
of Instruction dated ____________, ____ and the related Objection
Certificate dated ____________, ____ and (ii) the final Owed Amount with
respect to the matter described in such Certificates, as provided in such
order, is $______________;
(b) instructs you to deliver to Parent certificates evidencing in
the aggregate that number of whole Escrow Shares (ignoring fractions),
valued at the Per Share Price, equal to the Owed Amount referred to in
clause (ii) of paragraph (a) above, within two business days following
your receipt of this Certificate;
(c) agrees that the Owed Amount designated in such Certificate of
Instruction, to the extent, if any, it exceeds the Owed Amount referred to
in clause (ii) of paragraph (a) above, shall be deemed not payable by the
Shareholders to the Indemnified Parties and such Certificate of
Instruction is hereby canceled; and
(d) certifies that this Litigation Certificate is being rendered by
Parent in good faith and that Parent and the Shareholders and the Escrow
Agent may rely on such good faith determination.
XXXXXXX.XXX, LTD.
By:
---------------------------------
Name:
Title:
Dated: ,
----------- -----
ANNEX V
PARENT CANCELLATION CERTIFICATE
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS ESCROW AGENT
The undersigned, XxxXxxx.xxx, Ltd., a Delaware corporation
("PARENT"), pursuant to Section 5(e) of the Escrow Agreement dated as of May 11,
2000 among Parent, the other individuals and entities signatory thereto
(collectively, the "SHAREHOLDERS") and you (terms defined in said Escrow
Agreement have the same meanings when used herein), hereby:
(a) certifies that (i) it hereby releases its claim against the
Shareholders with respect to [all] [specify portion] of the Owed Amount
designated in the Certificate of Instruction dated _____________, ____ and
(ii) as a result the Owed Amount with respect to such Certificate of
Instruction is $__________;
(b) agrees that such Certificate of Instruction is, to the extent
released as provided in clause (i) of paragraph (a) above, canceled; and
(c) certifies that this Parent Cancellation Certificate is being
rendered by Parent in good faith and that Parent and the Shareholders and
the Escrow Agent may rely on such good faith determination.
XXXXXXX.XXX, LTD.
By:
---------------------------------
Name:
Title:
Dated: ,
----------- -----
ANNEX VI
SHAREHOLDER CANCELLATION CERTIFICATE
TO
UNITED STATES TRUST COMPANY OF NEW YORK,
AS ESCROW AGENT
The undersigned, [___________________], acting in its capacity as
Representative pursuant to Section 5(f) of the Escrow Agreement dated as of May
11, 2000 among XxxXxxx.xxx, Ltd., a Delaware corporation ("PARENT"), the other
individuals and entities signatory thereto (collectively, the "SHAREHOLDERS")
and you (terms defined in said Escrow Agreement have the same meanings when used
herein), hereby certifies that (i) attached hereto is a final, nonappealable
order of a court of competent jurisdiction resolving the dispute between Parent
and the Shareholders as to the matter described in the Certificate of
Instruction dated ____________, ____ and the related Objection Certificate dated
____________, ____, (ii) as provided in such order, there is no Owed Amount with
respect to the matter described in such Certificate, and (iii) certifies that
this Shareholder Cancellation Certificate is being rendered by the Shareholders
in good faith and that Parent and the Escrow Agent may rely on such good faith
determination.
-----------------------------
[Representative]
Dated: ,
----------- -----
