This AMENDMENT NO. 1 (THIS "AMENDMENT") TO THE ESCROW
AGREEMENT is entered into this 23rd day of February, 2000, by and among BGI
Acquisition LLC, a Wyoming limited liability company ("Parent"), Besicorp Ltd.,
a New York corporation ("BL"), Besicorp Group Inc., a New York corporation
("Besicorp"), WOM, Inc.("WOM"), a New York corporation, and Robinson Brog
Leinwand Greene Genovese & Gluck P.C. (the "Escrow Agent").
RECITALS:
A. Parent, BL, Besicorp, Escrow Agent and BGI Acquisition Corporation
("Acquisition"), a New York corporation, are parties to an Escrow Agreement
dated as of March 22, 1999 (the "Initial Escrow Agreement" and, as amended by
this Amendment, the "Escrow Agreement").
B. Parent, Acquisition and Besicorp are parties to an Agreement and
Plan of Merger (as amended, the "Plan of Merger") whereby Acquisition merged
into Besicorp.
C. BL has entered into an Amended and Restated Agreement and Plan of
Merger which contemplates, among other things, that BL will contribute to WOM
the interests in the Bansbach Litigation (as defined below) that BL received
pursuant to the Contribution Agreement by and between BL and Besicorp dated
March 22, 1999 and will distribute all of the shares of WOM's common stock to
BL's shareholders (the "BL Spin-Off").
D. It is a condition to the BL Spin-Off that the parties hereto amend
the Initial Escrow Agreement to permit the Escrow Agent to provide money from
the Escrow Fund to WOM and BL in certain situations.
E. Capitalized terms used in this Amendment without definition herein
have the meanings ascribed to them by the Initial Escrow Agreement.
A G R E E M E N T S
Therefore, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree as follows:
1. The first sentence of Section 1(b) of the Initial Escrow Agreement
is hereby amended to read in its entirety as follows:
"Buyer Monitoring Costs" shall mean the out-of-pocket expenses of Buyer
(including the fees and expenses of attorneys and other professionals) incurred
by Buyer in connection with its right to be represented by counsel with respect
to BL Assumed Matters and the Bansbach
Litigation (where BL is contesting, defending, litigating, settling or otherwise
controlling such matter pursuant to Section 7 of the Indemnification Agreement
or WOM is contesting, defending, litigating, settling or otherwise controlling
such matter as a result of the BL Spin-Off).
2. Section 1 of the Initial Escrow Agreement Plan is hereby amended by
inserting Sections 1(f), 1(g), 1(h), 1(i) and 1(j) as follows:
(f) "WOM Permitted Expenses" shall mean the reasonable
expenses
(A) incurred by BL or WOM in connection with (i) the formation of WOM,
(ii) the BL Spin-Off (including the cost of distributing the shares of
WOM's Common Stock (including the fees and expenses of Continental
Stock Transfer & Trust Co. ("Continental")), and (iii) the preparation
and filing of a registration statement on Form 10-SB, and all
amendments thereto, with respect to WOM's Common Stock, and
(B) incurred by WOM in connection with (i) maintaining WOM's existence
(including the fees and expenses of Continental or any other registrar
and transfer agent for WOM's common stock), (ii) compliance by WOM with
the Securities Exchange Act of 1934 and the rules and regulations
promulgated thereunder, and (iii) such other matters as may be
reasonably necessary to permit the Bansbach Litigation to continue;
provided, however that WOM shall not be permitted to receive payments
in excess of $35,000 per annum with respect to WOM Permitted Expenses
described in this clause (B) which are incurred in any 12 month period
commencing after the consummation of the BL Spin-Off;
provided that neither BL nor WOM shall be entitled to reimbursement for the cost
or value of the services and facilities provided by BL to WOM pursuant to the
WOM Contribution Agreement. BL or WOM, as applicable, shall provide Buyer and
the Escrow Agent documentation reasonably acceptable to Buyer (including billing
rate information and amounts of hours) in connection with requests by BL or WOM
as applicable, for reimbursement of such WOM Permitted Expenses.
(g) "WOM Litigation Costs" shall mean all costs and expenses,
except for costs and expenses which would not be permitted to be paid by a
corporation to its directors or officers under BCL Sections relating to the
defense, prosecution, participation in administrative proceedings, responding to
civil investigative demands or inquiries, settlement, or payment of (i) the
Bansbach Litigation; and (ii) litigation arising out of or relating to the
Bansbach Litigation, the Spin-Off and WOM's existence (including, for each of
items (i) through (iv) above, counsel and witness fees and expenses).
Notwithstanding the foregoing sentence, to the extent a set of facts could give
rise to WOM Litigation Costs and Buyer Indemnity Claims (as defined herein) the
provisions of the Indemnification Agreement (including Section 7 thereof) shall
apply (with the substitution of WOM for BL, as appropriate).
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(h) "Bansbach Litigation" shall mean the shareholder
derivative action in the New York Supreme Court, Ulster County, entitled John
Bansbach v. Michael F. Zinn, Michael J. Daley, Gerald A. Habib, Harold Harris,
Richard E. Rosen, and Besicorp Group Inc., Index No. 97-2573.
(i) "BL Spin-Off" shall mean BL's contribution to WOM of the
interests in the Bansbach Litigation that BL received pursuant to the
Contribution Agreement by and between BL and Besicorp dated March 22, 1999 and
BL's distributing all of the shares of WOM's common stock to BL's shareholders.
(j) "WOM Contribution Agreement" shall mean the Contribution
Agreement by and between WOM and BL to effectuate the BL Spin-Off.
3. The fourth sentence of Section 2 (b) of the Initial Escrow Agreement
is hereby amended to read in its entirety as follows:
The Escrow Funds shall be deposited by the Escrow Agent in a separate
interest bearing money market bank account at HSBC Bank USA or in such other
accounts or investments as Buyer, BL and WOM jointly agree in writing.
4. Section 3 of the Initial Escrow Agreement is hereby amended to
read in its entirety as follows:
3. Disposition of the Escrow Fund
(a) Use of Escrow Fund. The Escrow Fund shall serve as a
source of funding claims for:
(i) (A) indemnity made by the Buyer pursuant to the
Indemnification Agreement, including any claims for Buyer Monitoring Costs to
the extent permitted under Section 1(b) hereof, any claims of Buyer with respect
to BL Assumed Matters arising from the failure of BL to diligently prosecute or
defend such BL Assumed Matters, any claims of Buyer with respect to the Bansbach
Litigation arising from the failure of WOM to diligently prosecute or defend the
Bansbach Litigation and any payment of fees and expenses of the Paying Agent
pursuant to Section 2.3.8 of the Merger Agreement (all such claims described in
this Section 3(a)(i), "Buyer Indemnity Claims") and (B) amounts in connection
with any Tax refund set forth on a Return filed by Besicorp prior to the Merger
to the extent such amounts have not been received by Besicorp or the Surviving
Corporation prior to March 31, 1999 (a "Tax Refund Claim"), it being understood
however, that Buyer shall repay to the Escrow Fund amounts received from an
applicable taxing authority with respect to any Tax Refund Claim promptly
following its receipt by the Surviving Corporation; and
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(ii) payment of Litigation Costs, WOM Permitted Expenses and
WOM Litigation Costs.
(b) Disbursements with respect to Buyer Indemnity Claims. If
Buyer shall request a disbursement from the Escrow Fund associated with any
Buyer Indemnity Claim or Tax Refund Claim, it shall give notice of such request
(which may include Buyer Monitoring Costs to the extent permitted under Section
1 above) executed by Buyer, to the Escrow Agent, BL and WOM, which notice shall
set forth the amount requested, the basis for such request, and reasonable
documentation to support such request (such notice being substantially in the
form of Exhibit A hereto), and shall include the Notice of Claim if the
provision of a Notice of Claim is so required under the Indemnification
Agreement. With respect to any Tax Refund Claim, the Escrow Agent shall disburse
the amount requested within 5 days of its receipt of the notice. With respect to
Buyer Indemnity Claims, in the event the Escrow Agent shall not have received a
notice of objection from BL or WOM within 30 days after delivery of such notice,
the Escrow Agent shall disburse the amount requested. In the event the Escrow
Agent shall receive a timely notice of objection from BL or WOM, it shall not
disburse the amount requested until it shall have received (i) the joint written
notice of BL, WOM and the Buyer setting forth the joint direction of such
parties (such notice being substantially in the form of Exhibit B hereto), (ii)
a written instrument representing a final and non-appealable order or similar
direction with respect to the disposition of such amount issued by the
arbitrator or arbitration forum and using the procedures referred to in Section
6(b) of the Indemnification Agreement, or (iii) a certified copy of a final and
non-appealable judgment of a court of competent jurisdiction directing the
disbursement of such funds. Notwithstanding the foregoing, BL and WOM shall not
unreasonably withhold its consent to a request by Buyer for payment of Buyer
Indemnity Claims.
(c) Disbursements with respect to BL. If BL shall request a
disbursement from the Escrow Fund with respect to Litigation Costs, it shall
give notice of such request, executed by BL, to the Escrow Agent, WOM and Buyer
through a notice in substantially the form of Exhibit C hereto) which notice
shall set forth the amount requested, the basis for such request and reasonable
documentation to support such request. BL shall give a separate notice with
respect to each item of Litigation Costs, and shall provide a notice no less
frequently than monthly with respect to each matter for which BL is then
incurring Litigation Costs. In the event the Escrow Agent shall not have
received a notice of objection from Buyer or WOM within 30 days after delivery
of such notice, the Escrow Agent shall disburse the amount requested. In the
event the Escrow Agent shall receive a timely notice of objection from Buyer or
WOM, it shall not disburse the amount requested until it shall have received (i)
the joint written instructions of BL, WOM and the Buyer setting forth the joint
direction of such parties (such notice being substantially in the form of
Exhibit B hereto), (ii) a written instrument representing a final and
non-appealable order or similar direction with respect to the disposition of
such amount issued by the arbitrator or arbitration forum and using the
procedures referred to in Section 6(b) of the Indemnification Agreement, or
(iii) a certified copy of a final and non-appealable judgment of a court of
competent jurisdiction directing the disbursement of such funds. Notwithstanding
the foregoing, but subject to the following sentence, Buyer and WOM shall not
unreasonably withhold its consent to a request by BL for payment of Litigation
Costs, it being understood that the term "not unreasonably" as used in this
sentence shall be determined in light of all relevant factors, including (x) the
estimates of the amounts needed to complete each of the Existing Litigation
Matters
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previously provided to Buyer and WOM and (y) amounts then remaining in the
Escrow Fund.
(d) Disbursements with respect to WOM Permitted Expenses and
WOM Litigation Costs. If BL or WOM shall request a disbursement from the Escrow
Fund with respect to WOM Permitted Expenses or WOM Litigation Costs it shall
give notice of such request executed by BL or WOM, as the case may be (the
"Requesting Party"), to WOM (if BL is the Requesting Party or BL (if WOM is the
Requesting Party) (such receipient, the "Non-Requesting Party"), the Escrow
Agent and Buyer, through a notice substantially in the form of Exhibit D hereto,
which shall set forth the amount requested, the basis for such request, and
reasonable documentation to support such request. The Requesting Party shall
give a separate notice with respect to each item of WOM Permitted Expenses and
WOM Litigation Costs, and shall provide a notice no less frequently than
quarterly. In the event the Escrow Agent shall not have received a notice of
objection from Buyer or the Non-Requesting Party within 30 days after delivery
of such notice, the Escrow Agent shall disburse the amount requested. In the
event the Escrow Agent shall receive a timely notice of objection from Buyer or
the Non-Requesting Party, it shall not disburse the amount requested until it
shall have received (i) the joint written instructions of BL, WOM, and the Buyer
setting forth the joint direction of such parties (such notice being
substantially in the form of Exhibit E hereto), (ii) a written instrument
representing a final and non-appealable order or similar direction with respect
to the disposition of such amount issued by the arbitrator or arbitration forum
and using the procedures referred to in Section 6(b) of the Indemnification
Agreement, or (iii) a certified copy of a final and non-appealable judgment of a
court of competent jurisdiction directing the disbursement of such funds.
Notwithstanding the foregoing, Buyer and the Non-Requesting Party, shall not
unreasonably withhold their consent to a request by a Requesting Party for
payment of WOM Permitted Expenses and WOM Litigation Costs, it being understood
that the term "not unreasonably" as used in this sentence shall be determined in
light of all relevant factors, including (x) a current estimate of the amounts
needed to complete the Bansbach Litigation and (y) amounts then remaining in the
Escrow Fund.
5. Section 4 of the Initial Escrow Agreement is hereby amended to read
in its entirety as follows:
4. Release of the Escrow Fund
(a) Release of Escrow Fund Proceeds. At any time following the fifth
anniversary of the date hereof that each of the following conditions are
fulfilled (collectively, the "Release Conditions"):
5
(i) all Buyer Indemnity Claims that have been set
forth in notices provided under Section 3(b) of this Agreement have
been settled and paid in accordance with the provisions of Section
3(b), no such claims remain outstanding, and that, in the reasonable
judgement of Buyer, no future Buyer Indemnity Claims are foreseeable;
(ii) all claims of BL that have been set forth in
notices provided under Section 3(c) of this Agreement have been settled
and paid in accordance with the provisions of Section 3(c), and no
such claims remain outstanding and all claims of BL and WOM that have
been set forth in notices provided under Section 3(d) of this Agreement
have been settled and paid in accordance with the provisions of Section
3(d) and no such claims remain outstanding; and
(iii) each BL Assumed Matter and the Bansbach
Litigation have been settled through either (A) a final, non-appealable
judgement against the Surviving Corporation and all Purchaser
Indemnitees or, in the case of the Bansbach Litigation, WOM; (B) a
settlement or other conclusion to the BL Assumed Matter that (x)
contains a release from all liability in favor of the Surviving
Corporation and Purchaser Indemnitees without any further obligation by
the Surviving Corporation or Purchaser Indemnitees to make any payment
or incur any other Liability or Obligation with respect to such matter,
(y) does not attribute by its terms liability to the Surviving
Corporation or any Purchaser Indemnitee and (z) if the Scheduled Matter
is litigation or a proceeding, includes as a term thereof a full
dismissal of the litigation or proceeding with prejudice or (C) a
settlement or other conclusion to the Bansbach Litigation that (x)
contains a release from all liability in favor of WOM without any
further obligation by WOM to make any payment or incur any other
Liability or Obligation with respect to such matter, (y) does not
attribute by its terms liability to WOM and (z) includes as a term
thereof a full dismissal of the litigation or proceeding with
prejudice.
BL may, at its option, notify the Escrow Agent, WOM and the Buyer that all of
the Release Conditions have been fulfilled. In the event the Escrow Agent shall
not have received a notice of objection from the Buyer or WOM at least ninety
(90) days after delivery of such notice, it shall be entitled to disburse all
amounts then remaining in the Escrow Fund and this Agreement shall terminate. In
the event that the Escrow Agent shall receive a timely notice of objection from
the Buyer or WOM, it shall not disburse any portion of the Escrow Fund and shall
disburse the Escrow Fund only in accordance with the provisions of the fourth
sentence of Section 3(c) or 3(d) hereof, as applicable.
(b) Consultations. BL , WOM and Buyer agree they will meet no
less than annually for the purpose of examining the amounts set forth in the
Escrow Fund and the amounts of Buyer Indemnity Claims, WOM Permitted Expense,
WOM Litigation Costs and Litigation Costs expended from the Escrow Fund, for the
purpose of determining whether the amount of the Escrow Fund is more than
sufficient to secure Buyer pursuant to the Indemnification Agreement and WOM in
connection with the Bansbach Litigation and hereunder.
6
6. Section 5 of the Initial Escrow Agreement is hereby amended to
read in its entirety as follows:
5. Escrow Agent
(a) The Escrow Agent shall not be liable in any way to any
party hereto for its refusal to comply with adverse claims or demands being made
upon it and shall not be responsible for any act or failure to act on its part,
nor shall it have any liability under this Escrow Agreement, except in the case
of bad faith, willful default or gross negligence. The Escrow Agent's duties and
responsibilities, in its capacity as such, shall be limited to those expressly
set forth in this Escrow Agreement, and the Escrow Agent shall not be subject
to, or recognize, any other agreement between any or all of the parties hereto
even though reference thereto may be made herein, except to the extent that
definitions contained in the Merger Agreement or the Indemnification Agreement
and the alternative dispute resolution procedures of the Indemnification
Agreement are incorporated into this Escrow Agreement. This Escrow Agreement may
not be amended at any time in such a way as to affect the rights,
responsibilities, obligations, liabilities or fees of the Escrow Agent except
with the Escrow Agent's prior written consent, as evidenced by an instrument in
writing signed by all the parties hereto.
(b) The Escrow Agent (so long as it is Robinson Brog Leinwand
Greene Genovese & Gluck P.C.) or any member of its firm, shall be permitted to
act as counsel for BL and WOM in any dispute or question as to any matter
arising out of the Merger Agreement, the Distribution, the Transactions, the BL
Spin-Off or the merger pursuant to the Amended and Restated Agreement and Plan
of Merger dated as of November 24, 1999 by and among BL and certain other
parties.
(c) The Escrow Agent may resign at any time upon ninety (90)
days written notice to Buyer, WOM and BL and in such event, shall deliver the
Escrow Funds and any interest thereon pursuant to the joint written instructions
of BL, WOM and Buyer. The parties agree to make any necessary amendments to this
Agreement to permit the successor escrow agent to assume the obligations of
Escrow Agent under this Agreement. Should the successor escrow agent not assume
this Agreement, the Escrow Agent may deposit the Escrow Fund and any such
interest with the clerk of an appropriate court in New York, New York.
(d) Each of BL, WOM and Buyer agree, jointly and separately,
to indemnify and hold harmless the Escrow Agent from and against any demands,
claims, causes of action, liabilities, costs and expenses (including outside
counsel fees and disbursements), arising out of this Escrow Agreement except for
claims which are asserted against the Escrow Agent based upon the Escrow Agent's
failure to comply with the terms and conditions of this Escrow Agreement or the
bad faith, gross negligence or willful misconduct of the Escrow Agent; provided
however, that (A) promptly after the receipt by the Escrow Agent of notice of
any demand or claim or the commencement of any such action, suit or proceeding,
the Escrow Agent shall notify all parties hereto in writing of the existence of
such demand, claim, action, suit or proceeding; and (B) the indemnitor(s) shall
be entitled, at its own expense, to participate in and assume the defense of any
such action, suit or proceeding.
(e) The Escrow Agent shall be entitled to be compensated by BL
for its reasonable time expended and disbursements incurred in connection with
carrying out its duties hereunder.
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(f) The Escrow Agent shall be entitled to rely or act upon any
notice, instrument or document believed by it to genuine and to be executed and
delivered by the proper person and shall have no obligation to verify any
statements contained in any notice, instrument or document or the accuracy or
due authorization of the execution of any notice, instrument or document. The
Escrow Agent shall be entitled to refrain from taking any action other than to
keep all cash and other payments and all other property held by it in Escrow and
to make the investments as herein provided until it shall be directed otherwise
in writing by the Buyer, BL and WOM, or as otherwise provided herein or by a
final order. The Escrow Agent shall not have any interest in the Escrow Fund,
other than possession thereof in its capacity as escrow agent hereunder.
7. Section 6 (a) of the Initial Escrow Agreement is hereby amended to
read in its entirety as follows:
(a) Any notice to be delivered hereunder shall be delivered as provided
and to the addresses as specified in Section 8.4 of the Merger Agreement. Any
notice to the Escrow Agent shall be addressed as follows: Robinson Brog Leinwand
Greene Genovese & Gluck P.C., 1345 Avenue of the Americas, New York, NY 10105,
Attention: A. Mitchell Greene, telecopier No. (212) 956-2164. Any notice to WOM
shall be addressed as follows: WOM, Inc, 1151 Flatbush Road, Kingston, New York
12401, Attention: Frederic Zinn, telecopier No. (914) 336-7172. Notices shall be
deemed conclusively to have given or delivered hereunder if the same is in
writing, signed by any authorized officer, partner or member and (a) mailed, by
registered or certified mail, return receipt requested, postage prepaid; or (b)
sent via expedited courier service that regularly requires signed receipts
evidencing delivery at the addresses set forth in Section 8.4 of the Merger
Agreement;
8. Exhibit B to the Initial Escrow Agreement is hereby amended to read
in its entirety as set forth in Exhibit 1 hereto.
9. Exhibits D and E (as set forth in Exhibit 2 hereto) are hereby
inserted following Exhibit C to the Initial Escrow Agreement.
10. Addition of WOM as a Party. The parties hereto agree that WOM shall
henceforth be deemed to be a party to the Escrow Agreement and shall be entitled
to the rights and privileges and subject to the duties and obligations set forth
in the Escrow Agreement which are applicable to WOM.
11. Effective Date. This Amendment shall be effective at such time as
the distribution of all of the shares of WOM to BL's shareholders pursuant to
the BL Spin-Off is effectuated. Until such time the Initial Escrow Agreement
shall remain in full force and effect as if the parties hereto had not entered
into this Amendment.
8
12. Effect of Amendment. Except as amended by this Amendment, the
Initial Escrow Agreement shall remain in full force and effect. This Amendment
shall not constitute a waiver or amendment of any provision of the Initial
Escrow Agreement not referred to herein.
13. Entire Agreement. This Amendment, the Initial Escrow Agreement, and
the instruments to be delivered by the parties pursuant to the provisions of
this Amendment and the Initial Escrow Agreement constitute the entire Escrow
Agreement between the parties and shall be binding upon and inure to the benefit
of the parties hereto and their respective legal representatives, successors and
permitted assigns.
14. Applicable Law. This Amendment shall be governed and controlled as
to validity, enforcement, interpretation, construction, effect and in all other
respects by the internal laws of the State of New York applicable to contracts
made in that State.
15. Assignability. This Amendment shall not be assignable by either
party without the prior written consent of the other party.
16. Counterparts. This Amendment may be executed in multiple
counterparts, each of which shall be deemed to be an original, and all such
counterparts shall constitute but one instrument.
9
IN WITNESS WHEREOF, the parties have executed this Amendment on the
date first above written.
BESICORP LTD.
By: /s/Frederic M. Zinn
----------------
Name: Frederic M. Zinn
Office: Senior Vice President
BESICORP GROUP INC.
By: /s/James Haber
-----------
Name: James Haber
Office: President
BGI ACQUISITION LLC
By: /s/James Haber
-----------
Name: James Haber
Office: President
WOM, INC.
By: /s/Frederic M. Zin
Name: Frederic M. Zinn
Office:
Senior Vice President
ROBINSON BROG LEINWAND GREENE
GENOVESE & GLUCK P.C.
By: /s/A. Mitchell Greene
------------------
Name: A. Mitchell Greene
Office: Partner
10
Exhibit 1
Exhibit B
FORM OF JOINT DISBURSEMENT NOTICE
CERTIFICATE
This certificate is being issued pursuant to Section 3[(b/c)]
of that certain Escrow Agreement dated as of March 22, 1999 by and among
Besicorp Group Inc., a New York corporation; Besicorp Ltd., a New York
corporation; BGI Acquisition Corporation, a New York corporation; BGI
Acquisition LLC, a Wyoming limited liability company; and Robinson Brog Leinwand
Greene Genovese & Gluck P.C. (as amended by Amendment No. 1 dated as of February
23, 2000, the "Escrow Agreement"). Terms not defined in this certificate shall
have the meanings set forth in the Escrow Agreement. The undersigned, a duly
authorized officer of [Besicorp Group Inc./ BGI Acquisition LLC], a duly
certified officer of WOM and a duly certified officer of BL each hereby certify
that:
1. On __________, ___ _______ ___________________ filed a certificate
(a copy of which was attached to this certificate with the Escrow Agent) (the
"Disputed Certificate") with the Escrow Agent and the other parties required
under Section 3[(b/c)] of the Escrow Agreement.
2. The other party receiving the Disputed Certificate disputed an
element of the Disputed Certificate in accordance with the above provision of
the Escrow Agreement.
3. The parties hereto are now jointly requesting the Escrow Agent
release the amount of $_______ of the Escrow Fund to _____________ as the
agreed-to payment with respect to the Disputed Certificate.
11
IN WITNESS WHEREOF, Buyer, WOM and BL have executed and delivered this
Certificate as of the ________day of ___________ ________.
[BESICORP GROUP INC./ BGI ACQUISITION LLC]
By:
_________________________________
By:
Its:
WOM, INC.
________________________________
By:
By:
Its:
BESICORP LTD.
By:_________________________________
By:
Its:
Exhibit D Exhibit 2
FORM OF BL'S/WOM DISBURSEMENT NOTICE
CERTIFICATE
This certificate is being issued pursuant to Section 3(d) of that
certain Escrow Agreement dated as of March 22, 1999 by and among Besicorp Group
Inc., a New York corporation; Besicorp Ltd., a New York corporation; BGI
Acquisition Corporation, a New York corporation; BGI Acquisition LLC, a Wyoming
limited liability company; and Robinson Brog Leinwand Greene Genovese & Gluck
P.C. (as amended by Amendment No. 1 dated as of February 23, 2000, the "Escrow
Agreement"). Terms not defined in this certificate shall have the meanings set
forth in the Escrow Agreement. The undersigned, a duly authorized officer of
[BESICORP LTD./WOM, Inc.] (the "Requesting Party"), hereby certifies that:
1. The Requesting Party is requesting the Escrow Agent release the
amount of $_______ of the Escrow Fund on account of WOM Litigation Costs and WOM
Permitted Expenses paid by the Requesting Party.
2. The Requesting Party is requesting the amount in Paragraph 1 above
on account of [brief description of the claim] (the "Claim").
3. Attached hereto is documentation which supports the amount of the
Claim.
4. The Requesting Party has previously claimed the amount of $_______
with respect to the matter for which the WOM Litigation Costs or WOM Permitted
Expenses the subject of this Certificate are being paid.
5. The amounts being requested pursuant to this Certificate have been
used in a manner reasonably believed by the Requesting Party to bring the matter
for which the WOM Litigation Costs or WOM Permitted Expenses are being spent on
to conclusion in an economically efficient manner and as quickly as reasonably
possible.
6. A copy of this Certificate, including all attachments, has been sent
to Buyer in the manner set forth in the Indemnification Agreement.
IN WITNESS WHEREOF, the Requesting Party has executed and delivered
this Certificate as of the ________day of ___________ ________.
[BESICORP LTD./WOM, Inc.]
By:_________________________
By:
Its:
Exhibit E
FORM OF JOINT DISBURSEMENT NOTICE
CERTIFICATE
This certificate is being issued pursuant to Section 3(d) of that
certain Escrow Agreement dated as of March 22, 1999 by and among Besicorp Group
Inc., a New York corporation; Besicorp Ltd., a New York corporation; BGI
Acquisition Corporation, a New York corporation; BGI Acquisition LLC, a Wyoming
limited liability company; and Robinson Brog Leinwand Greene Genovese & Gluck
P.C. (as amended by Amendment No. 1 dated as of February 23, 2000, the "Escrow
Agreement"). Terms not defined in this certificate shall have the meanings set
forth in the Escrow Agreement. The undersigned, a duly authorized officer of
[Besicorp Group Inc./ BGI Acquisition LLC], a duly certified officer of Besicorp
Ltd. and a duly certified officer of WOM, Inc. each hereby certify that:
1. On __________, ___ _______ ___________________ filed a certificate
(a copy of which was attached to this certificate with the Escrow Agent) (the
"Disputed Certificate") with the Escrow Agent and the other parties required
under Section 3(d) of the Escrow Agreement.
2. The other party receiving the Disputed Certificate disputed an
element of the Disputed Certificate in accordance with the above provision of
the Escrow Agreement.
3. The parties hereto are now jointly requesting the Escrow Agent
release the amount of $_______ of the Escrow Fund to _____________ as the
agreed-to payment with respect to the Disputed Certificate.
IN WITNESS WHEREOF, Buyer, BL and WOM have executed and delivered this
Certificate as of the ________day of ___________ ________.
[BESICORP GROUP INC./ BGI ACQUISITION LLC]
By:__________________________
By:
Its:
BESICORP LTD.
By:_________________________
By:
Its:
WOM, Inc.
By:________________________
By:
Its: