ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of February 28, 1997, among Everest &
Xxxxxxxx Canadian Limited, a corporation organized under the laws of Ontario
("Purchaser"), Motion 2000 Inc., a corporation organized under the laws of
Ontario ("Motion 2000"), and Xxxxxx X. Xxxxxx, as escrow agent (the "Escrow
Agent").
WHEREAS, concurrently with the execution and delivery of this
Agreement and pursuant to an Asset Purchase Agreement dated as of February 10,
1997 (the "Asset Purchase Agreement"; capitalized terms not defined herein shall
have the meanings ascribed to them in the Asset Purchase Agreement) among
Purchaser, Xxxxxx-Field Health Products, Inc. ("Parent"), Motion 2000 and Motion
2000 Quebec Inc. ("Motion 0000 Xxxxxx" and, together with Motion 2000,
"Sellers"), Sellers are selling to Purchaser the Assets; and
WHEREAS, a letter agreement, dated February 10, 1997, among Parent
and Motion 2000 (the "Letter Agreement") provides that Purchaser, Motion 2000
and the Escrow Agent enter into this Agreement and that Motion 2000 deposit with
the Escrow Agent a portion of the shares of common stock, par value $.025 per
share, of Parent ("Parent Common Stock") received by Motion 2000 on the date
hereof pursuant to the Letter Agreement, in order to provide a fund for (i)
payment of a Purchase Price adjustment, if any, as provided in Section
1.03(b)(iv) of the Asset Purchase Agreement, (ii) payment with respect to
Accounts Receivable, as provided in Section 1.05(c) of the Asset Purchase
Agreement and (iii) indemnity payments that Motion 2000 becomes obligated to
make to Purchaser or its officers, directors, employees, agents or Affiliates
(together, the "Indemnified Parties") as and to the extent provided in Section
9.02 of the Asset Purchase Agreement.
NOW, THEREFORE, Purchaser, Motion 2000 and the Escrow Agent hereby
agree as follows:
1. Appointment of the Escrow Agent; Deposit of Escrow Shares. Motion
2000 and Purchaser 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 Letter Agreement, the Asset Purchase Agreement and of
certificates, with duly endorsed stock powers attached, representing 28,160
shares of Parent Common Stock (such shares being referred to herein as the
"Escrow Shares").
2. Holding of the Escrow Shares. The Escrow Agent shall hold the
Escrow Shares in escrow for the benefit of the parties hereto. 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 either Motion 2000 or
Purchaser 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
the Escrow Shares in a separate account of the Escrow Agent maintained for such
purpose (which account will, in the case of cash dividends or other cash
distributions, be an interest-bearing account).
4. Voting. Prior to the Termination Date, the Escrow Agent will vote
the Escrow Shares as directed by Motion 2000 in writing and will execute any
written consents to stockholder action or proxies as directed in writing by
Motion 2000. 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 to Motion
2000, Purchaser 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 Purchaser after the close of
business on the business day immediately preceding the Termination Date. The
Escrow Agent shall give written notice to Motion 2000 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 Motion 2000 a certificate in substantially the form
of Annex II attached hereto (an "Objection Certificate") disputing its
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 (x) a certificate
from Purchaser and Motion 2000 substantially in the form of Annex III attached
hereto (a "Resolution Certificate") stating that Purchaser and Motion 2000 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 (y) a copy of a final, nonappealable order of a Board of Arbitration
(accompanied by a certificate of Purchaser substantially in the form of Annex IV
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attached hereto (an "Arbitration 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 Motion 2000, then the
Escrow Agent shall, on the second business day next following (x) the expiration
of the Objection Period or (y) the Escrow Agent's receipt of a Resolution
Certificate or an Arbitration Certificate, as the case may be, deliver to
Purchaser a certificate evidencing that number of whole Escrow Shares (ignoring
fractions), equal to the quotient obtained by dividing the Owed Amount (or, if
such Resolution Certificate or Arbitration Certificate specifies that a lesser
amount than such Owed Amount is payable, such lesser amount) by the Per Share
Price (as hereinafter defined), calculated as of the date of the Arbitration
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" shall mean, as of any day, the closing sales
price of a share of Parent Common Stock reported on the New York Stock Exchange,
Inc. ("NYSE") Composite Tape on the Trading Day immediately preceding such day
and (B) "Trading Day" shall mean any day on which securities are traded on the
NYSE.
(c) The Escrow Agent shall give written notice to Purchaser 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 Motion 2000 of its receipt of an
Arbitration Certificate not later than the second business day next following
receipt thereof, together with a copy of such Arbitration 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 an Arbitration 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 Purchaser'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), Purchaser will promptly deliver
to the Escrow Agent a certificate substantially in the form of Annex V attached
hereto (a "Purchaser 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 Motion 2000 of its
receipt of a Purchaser Cancellation Certificate not later than the second
business day next following receipt thereof, together with a copy of such
Purchaser Cancellation Certificate.
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(f) Upon receipt of a final nonappealable order of a Board of
Arbitration stating that none of the Owed Amount referred to in a Certificate of
Instruction as to which Motion 2000 delivered an Objection Certificate within
the Objection Period is payable to any Indemnified Party by Motion 2000, Motion
2000 may deliver a copy of such order (accompanied by a certificate of Motion
2000 substantially in the form of Annex VI attached hereto (a "Seller
Cancellation Certificate")) canceling such Certificate of Instruction, and such
Certificate of Instruction shall thereupon be deemed canceled. The Escrow Agent
shall give written notice to Purchaser of its receipt of a Seller Cancellation
Certificate not later than the second business day next following receipt
thereof, together with a copy of such Seller Cancellation Certificate.
6. Claims for Purchase Price Adjustments. On the second business day
after the receipt by the Escrow Agent of a certificate of Purchaser in
substantially the form of Annex VII attached hereto (a "Purchase Price
Certificate"), the Escrow Agent shall deliver to Purchaser a certificate
evidencing that number of whole Escrow Shares (ignoring fractions) equal to the
quotient obtained by dividing the amount set forth on the Purchase Price
Certificate by the Per Share Price, calculated as of the date of the Purchase
Price Certificate.
7. Accounts Receivable Payment. On the second business day after the
receipt by the Escrow Agent of a certificate of Purchaser in substantially the
form of Annex VIII attached hereto (an "Accounts Receivable Certificate"), the
Escrow Agent shall deliver to Purchaser, a certificate evidencing that number of
whole Escrow Shares (ignoring fractions) equal to the quotient obtained by
dividing the amount set forth on the Accounts Receivable Certificate by the Per
Share Price, calculated as of the date of the Accounts Receivable Certificate.
8. Release of Escrow Shares. (a) On the earlier to occur of (i) the
business day immediately following the date on which the Escrow Agent delivers
Escrow Shares to Purchaser pursuant to Section 6 and (ii) the 120th day
following the Closing Date (such earlier date, the "First Termination Date"),
the Escrow Agent shall deliver to Motion 2000 a certificate or certificates
evidencing the remaining number of Escrow Shares, if any, less 18,773 Escrow
Shares and less that number of Escrow Shares as shall represent (valued at the
Per Share Price) any amounts designated in Certificates of Instruction received
by the Escrow Agent prior to the First Termination Date that have not been
canceled in accordance with paragraphs (d), (e) or (f) of Section 5. At such
time on or following the First Termination Date as all Certificates of
Instruction received by the Escrow Agent prior to the First Termination Date
have been canceled in accordance with paragraph (d), (e) or (f) of Section 5,
the Escrow Agent shall promptly deliver to Motion 2000 a certificate or
certificates evidencing the remaining Escrow Shares less 18,773 Escrow Shares.
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(b) The Escrow Agent shall on December 31, 1997 (the "Termination
Date") deliver to Motion 2000 any dividends or other distributions received
pursuant to Section 3 and a certificate or certificates evidencing the remaining
number of Escrow Shares, if any, less that number of Escrow Shares as shall
represent (at the Per Share Price) 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 Motion 2000 the certificate or certificates
evidencing the remaining Escrow Shares, if any, and this Agreement (other than
Sections 9, 10 and 11) shall automatically terminate.
9. 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 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 it, or for any mistake in fact or law, or
for anything that it 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;
(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 it 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,
it 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
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to keep safely all property held in escrow until it shall be directed
otherwise in writing by each of the parties 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, it shall have the right to interplead Purchaser
and Motion 2000 in any court of competent jurisdiction and request that
such court determine its 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.
10. Cooperation. Purchaser and Motion 2000 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.
11. Fees and Expenses; Indemnity. Purchaser and Motion 2000 shall
each pay one-half (1/2) of 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 it harmless against, one-half (1/2) of
any loss, damages, cost or expense, including but not limited to reasonable
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, neither Purchaser nor Motion 2000 shall 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.
12. Resignation and Removal of the Escrow Agent.
(a) The Escrow Agent may resign as such thirty (30) calendar days
following the giving of prior written notice thereof to Motion 2000 and
Purchaser. In addition, the Escrow Agent may be removed and replaced on a date
designated in a written instrument signed by Motion 2000 and Purchaser and
delivered to the Escrow Agent. Notwithstanding the foregoing, no
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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, any dividends and other distributions
received in respect of the Escrow Shares and not previously distributed to
Motion 2000, 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 Motion
2000 and Purchaser are unable to agree on a successor escrow agent, or for any
other reason, the Escrow Agent may select a successor escrow agent 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 12 of its
agreement to serve as escrow agent hereunder and the receipt of the Escrow
Shares, dividends and other distributions received in respect of the Escrow
Shares and not previously distributed to Motion 2000, 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 (iii) of Section 9, and such successor escrow agent
shall for all purposes hereof be the Escrow Agent.
13. 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 Purchaser, to:
Everest & Xxxxxxxx Canadian Limited
c/x Xxxxxx-Field Health Products, Inc.
000 Xxxxx Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxxx
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with a copy to:
Milbank, Tweed, Xxxxxx & XxXxxx
0 Xxxxx Xxxxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxx, Esq.
If to Motion 2000, to:
Motion 2000 Inc.
00 Xxxx Xxxxxx Xxxxxx, Xxxx 00
Xxxxxxxx Xxxx, Xxxxxxx X0X 0X0
Facsimile No.: (000) 000-0000
Attn: Xx. Xxxxx Xxxxxxx
with a copy to:
Devry, Xxxxx & Xxxxx
00 Xxxxxx Xxxxx Xxxx, Xxx 000
Xxx Xxxxx, Xxxxxxx X0X0X0
Facsimile No.: (000) 000-0000
Attn: Xxxxxxx X. Xxxxx, Esq.
If to the Escrow Agent, to:
The Law Offices of Xxxxxx X. Xxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Facsimile No.: (000) 000-0000
Attn: Xxxxxx X. Xxxxxx, Esq.
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.
14. 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 Purchaser and Motion 2000 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
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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.
15. 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.
16. 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 or the Province of Ontario are authorized
or obligated to close.
17. 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.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:_______________________________
Name: Xxxxxxx X. Xxxxxxx
Title:
MOTION 2000 INC.
By:_______________________________
Name: Xxxxx Xxxxxxx
Title:
__________________________________
Xxxxxx X. Xxxxxx, as Escrow Agent
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ANNEX I
CERTIFICATE OF INSTRUCTION
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Everest & Xxxxxxxx Canadian Limited, a corporation
organized under the laws of Ontario ("Purchaser"), pursuant to Section 5(a) of
the Escrow Agreement dated as of February 28, 1997 among Purchaser, Motion 2000
Inc. ("Motion 2000") and you (terms defined in said Escrow Agreement have the
same meanings when used herein), hereby:
(a) certifies that (i) Purchaser or another Indemnified Party has
sent to Motion 2000 an Indemnity Notice (as such term is defined in the
Asset Purchase Agreement), a copy of which is attached hereto, and (ii)
the amount of $___________ (the "Owed Amount") is payable to the
Indemnified Parties by Motion 2000 pursuant to Section 9.02 of the Asset
Purchase Agreement by reason of the matter described in such Indemnity
Notice; and
(b) instructs you to deliver to Purchaser a certificate evidencing
that number of whole Escrow Shares (ignoring fractions), valued at the Per
Share Price, equal to the Owed Amount (i) unless you receive an Objection
Certificate from Motion 2000 prior to the expiration of the Objection
Period, within two business days following 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.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:________________________________
Name:
Title:
Dated:____________, ____
ANNEX II
OBJECTION CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Motion 200 Inc., a corporation organized under the
laws of Ontario ("Motion 2000"), pursuant to Section 5(b) of the Escrow
Agreement dated as of February 28, 1997 among Everest & Xxxxxxxx Canadian
Limited ("Purchaser"), Motion 2000 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 undersigned pursuant to Section 9.02 of the Asset Purchase Agreement;
(b) certifies that the undersigned has sent to Purchaser a written
statement dated ___________, ____ of the undersigned, a copy of which is
attached hereto, disputing its liability to the Indemnified Parties for
the Owed Amount; and
(c) objects to your making payment to Purchaser as provided in such
Certificate of Instruction.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:________________________________
Name:
Title:
Dated: _____________, ____
ANNEX III
RESOLUTION CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Everest & Xxxxxxxx Canadian Limited, a corporation
organized under the laws of Ontario ("Purchaser"), and Motion 2000 Inc., a
corporation organized under the laws of Ontario ("Motion 2000"), pursuant to
Section 5(b) of the Escrow Agreement dated as of February 28, 1997 among
Purchaser, Motion 2000 and you (terms defined in said Escrow Agreement have the
same meanings when used herein), hereby:
(a) certify that (i) Purchaser and Motion 2000 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 Purchaser a certificate evidencing
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 of your receipt of this
Certificate; and
(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 to the
Indemnified Parties and such Certificate of Instruction is hereby
canceled.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:______________________________
Name:
Title:
MOTION 2000 INC.
By:_______________________________
Name:
Title:
Dated:______________, ____
ANNEX IV
ARBITRATION CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Everest & Xxxxxxxx Canadian Limited, a corporation
organized under the laws of Ontario ("Purchaser"), pursuant to Section 5(b) of
the Escrow Agreement dated as of February 28, 1997 among Purchaser, Motion 2000
Inc. ("Motion 2000") 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 Board of Arbitration resolving the dispute between Purchaser
and Motion 2000 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 Purchaser a certificate evidencing
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 of your receipt of this
Certificate; and
(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 to the
Indemnified Parties and such Certificate of Instruction is hereby
canceled.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:______________________________
Name:
Title:
Dated:______________, ____
ANNEX V
PURCHASER CANCELLATION CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Everest & Xxxxxxxx Canadian Limited, a corporation
organized under the laws of Ontario ("Purchaser"), pursuant to Section 5(e) of
the Escrow Agreement dated as of February 28, 1997 among Purchaser, Motion 2000
Inc. ("Motion 2000") 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 Motion
2000 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
$__________; and
(b) agrees that such Certificate of Instruction is, to the extent
released as provided in clause (i) of paragraph (a) above, canceled.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:______________________________
Name:
Title:
Dated:______________, ____
ANNEX VI
SELLER CANCELLATION CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Motion 200 Inc., a corporation organized under the
laws of Ontario ("Motion 2000"), pursuant to Section 5(f) of the Escrow
Agreement dated as of February 28, 1997 among Everest & Xxxxxxxx Canadian
Limited ("Purchaser"), Motion 2000 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 Board of Arbitration
resolving the dispute between Purchaser and Motion 2000 as to the matter
described in the Certificate of Instruction dated ____________, ____ and the
related Objection Certificate dated ____________, ____ and (ii) as provided in
such order, there is no Owed Amount with respect to the matter described in such
Certificates.
MOTION 2000 INC.
By:_______________________________
Name:
Title:
Dated:______________, ____
ANNEX VII
PURCHASE PRICE CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Everest & Xxxxxxxx Canadian Limited, a corporation
organized under the laws of Ontario ("Purchaser"), pursuant to Section 6 of the
Escrow Agreement dated as of February 28, 1997 among Purchaser, Motion 2000 Inc.
("Motion 2000") and you (terms defined in said Escrow Agreement have the same
meanings when used herein), hereby instruct you to deliver to Purchaser a
certificate or certificates evidencing in the aggregate that number of whole
Escrow Shares (ignoring fractions), valued at the Per Share Price, equal to
$_______, within two business days of your receipt of this Certificate.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:______________________________
Name:
Title:
Dated:______________, ____
ANNEX VIII
ACCOUNTS RECEIVABLE CERTIFICATE
to
XXXXXX X. XXXXXX,
as Escrow Agent
The undersigned, Everest & Xxxxxxxx Canadian Limited, a corporation
organized under the laws of Ontario ("Purchaser"), pursuant to Section 7 of the
Escrow Agreement dated as of February 28, 1997 among Purchaser, Motion 2000 Inc.
("Motion 2000") and you (terms defined in said Escrow Agreement have the same
meanings when used herein), hereby instructs you to deliver to Purchaser a
certificate evidencing that number of whole Escrow Shares (ignoring fractions),
valued at the Per Share Price, equal to $_______, within two business days of
your receipt of this Certificate.
EVEREST & XXXXXXXX CANADIAN LIMITED
By:______________________________
Name:
Title:
Dated:______________, ____
