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EXHIBIT 2.1
ESCROW AGREEMENT
AGREEMENT made this 15th day of November, 2000, by and between ICV,
INC., a Nevada corporation (the "Company"), and Southwest Escrow Company, (the
"Escrow Agent").
W I T N E S S E T H :
WHEREAS, the Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement (the "Registration
Statement") covering a proposed public offering by Selling Shareholders of
shares of its common stock (collectively, the "Securities", and individually, a
"Share") as described on the Information Sheet (as defined herein); and
WHEREAS, the Company proposes to establish an escrow account with the
Escrow Agent pursuant to Rule 419 under the Securities Act of 1933 in connection
with such public offering and the Escrow Agent is willing to establish such
escrow account on the terms and subject to the conditions hereinafter set forth;
NOW THEREFORE, in consideration of the premises and mutual covenants
herein contained, the parties hereto hereby agree as follows:
1. INFORMATION SHEET. Each capitalized term not otherwise defined in
this Agreement shall have the meaning set forth for such term on the Information
Sheet which is attached to this Agreement and is incorporated by reference
herein and made a part hereof (the "Information Sheet").
2. ESTABLISHMENT OF ESCROW ACCOUNT.
2.1 The parties hereto shall establish an interest-bearing escrow
account at the office of the Escrow Agent, and bearing the designation, set
forth on the Information Sheet (the "Escrow Account").
2.2 On or before the date of the initial deposit in the Escrow Account
pursuant to this Agreement, the Company shall notify the Escrow Agent in writing
of the effective date of the Registration Statement (the "Effective Date") and
the Escrow Agent shall not be required to accept any amount for deposit in the
Escrow Account prior to its receipt of such notification.
2.3 The Offering Period, which shall be deemed to commence on the
Effective Date, shall consist of the number of calendar days or business days
set forth on the Information Sheet. The last day of the Offering Period is
referred to herein as the "Termination Date." After the Termination Date, the
Company shall not deposit, and the Escrow Agent shall not accept, any additional
amounts representing payments by prospective purchasers.
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3. DEPOSITS IN THE ESCROW ACCOUNT.
3.1 Upon receipt, the Company shall promptly deposit all monies
received from investors to the Escrow Agent. All of these deposited proceeds
(the "Deposited Proceeds") shall be in the form of checks or money orders. All
checks or money orders deposited into the Escrow Account shall be made payable
to " Southwest Escrow Company, Escrow Agent". Any check or money order payable
other than to the Escrow Agent as required hereby shall be returned to the
prospective purchaser, or if the Escrow Agent has insufficient information to do
so, then to the Company (together with any Subscription Information, as defined
below, or other documents delivered therewith) by noon of the next business day
following receipt of such check by the Escrow Agent, and such check shall be
deemed not to have been delivered to the Escrow Agent pursuant to the terms of
this Agreement. The Deposited Proceeds and interest or dividends thereon, if
any, shall be held for the sole benefit of the purchasers of the Securities.
3.2 The Deposited Proceeds shall be invested in an obligation that
constitutes a "deposit" as that term is defined in Section (3)(1) of the Federal
Deposit Insurance Act.
3.3 Simultaneously with each deposit into the Escrow Account, the
Company shall inform the Escrow Agent by confirmation slip or other writing of
the name and address of the prospective purchaser, the number of Securities
subscribed for by such purchaser, and the aggregate dollar amount of such
subscription (collectively, the "Subscription Information").
3.4 The Escrow Agent shall not be required to accept for deposit into
the Escrow Account checks which are not accompanied by the appropriate
Subscription Information. Checks and money orders representing payments by
prospective purchasers shall not be deemed deposited in the Escrow Account until
the Escrow Agent has received in writing the Subscription Information required
with respect to such payments.
3.5 The Escrow Agent shall not be required to accept any amounts
representing payments by prospective purchasers, whether by check or money
order, except during the Escrow Agent's regular banking hours. Any check, money
order or cash not received prior to 1:00 P.M. shall be deposited the following
business day.
3.6 Interest earned on the Deposited Proceeds, if any, shall be held in
the Escrow Account until the Deposited Proceeds are released in accordance with
the provisions of Section 4 of the Escrow Agreement. If the Deposited Proceeds
are released to a purchaser of the Securities, the purchaser shall receive
interest earned, if any, on such Deposited Proceeds up to the date of release.
If the Deposited Proceeds held in the Escrow Account are released to a Selling
Shareholder, any interest or dividends earned on such funds up to the date of
release may be released to the Company as agent for the Selling Shareholder.
3.7 The Selling Shareholders shall deposit the Securities directly into
the Escrow Account upon effectiveness of the Registration Statement (the
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"Deposited Securities"). The identity of the purchaser of the Securities shall
be included on the Common Stock certificates upon deposit of the Deposited
Proceeds with the Escrow Agent.
3.8 The Deposited Securities shall be held for the sole benefit of the
purchasers. No transfer or other disposition of Securities held in the Escrow
Account or any interest related to such Securities shall be permitted other than
by will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code of 1986, as
amended, or Title I of the Employee Retirement Income Security Act, or the rules
thereunder.
3.9 The Escrow Agent shall refund any portion of the Deposited Proceeds
prior to disbursement of the Deposited Proceeds in accordance with Section 4
hereof upon instructions in writing signed by the Company.
4. DISBURSEMENT FROM THE ESCROW ACCOUNT.
4.1 The Deposited Proceeds may be released to the Company as agent for
the Selling Shareholders and the Securities delivered to the purchaser or other
registered holder only at the same time as or after:
(a) the Escrow Agent has received a signed representation from
the Company, together with an opinion of counsel that the following events have
already occurred and the following requirements have already been met:
(1) Upon execution of an agreement(s) for the
acquisition(s) of a business(es) or assets that will constitute the business (or
a line of business) of the Company and for which the fair value of the
business(es) or net assets to be acquired represents at least 80 percent of the
maximum offering proceeds but excluding amounts payable to non-affiliates for
underwriting commissions, underwriting expenses, and dealer allowances, if any,
provided that the Company filed a post-effective amendment that:
(i) discloses the information specified by the Form SB-2
registration statement and Industry Guides, including financial statements of
the Company and the company or business with which it plans to merge or acquire
(the "Target Company"), and pro forma financial information required by Form
SB-2 and applicable rules and regulations;
(ii) discloses the results of the offering, including but not
limited to:
(A) the gross offering proceeds received to date,
specifying the amounts paid for underwriter commissions, underwriting expenses
and dealer allowances, if any, amounts disbursed to the Company, and amounts
remaining in the Escrow Account; and
(B) the specific amount, use and application of funds
disbursed to the Company to date, including, but not limited to, the amounts
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paid to officers, directors, promoters, controlling shareholders or affiliates,
either directly or indirectly specifying the amounts and purposes of such
payments; and
(iii) discloses the terms of the offering as described
pursuant to Section 4 of this Escrow Agreement.
(2) The terms of the offering provided, and the
Company satisfied, the following conditions:
(i) Within five business days after the effective date of the
post-effective amendment(s), the Company shall send by first class mail or other
equally prompt means, to each purchaser of Securities held in escrow, a copy of
the prospectus contained in the post-effective amendment and any amendment or
supplement thereto;
(ii) Each purchaser shall have no fewer than 20 business days
and no more than 45 business days from the effective date of the post-effective
amendment to notify the Company in writing that the purchaser elects to remain
an investor. If the Company has not received such written notification by the
45th business day following the effective date of the post-effective amendment,
funds and interest, if any, held in the Escrow Account shall be sent by first
class mail or other equally prompt means to the purchaser within five business
days;
(iii) The acquisition(s) meeting the criteria set forth in
paragraph (a) (1) of this Section 4 will be consummated if a sufficient number
of purchasers confirm their investments; and
(iv) If a consummated acquisition(s) meeting the requirements
of this section has not occurred by a date 18 months after the Effective Date,
the Deposited Funds shall be returned by first class mail or equally prompt
means to the purchasers within five business days following that date.
(b) Funds held in the Escrow Account may be released
to the Company and Securities may be delivered to the purchaser or other
registered holder identified on the deposited Securities only at the same time
as or after consummation of an acquisition(s) meeting the requirements set forth
in Section 4.1(a)(1)(iii) of this Escrow Agreement.
4.2 Upon disbursement of the Deposited Proceeds pursuant to the terms
of this Section 4, the Escrow Agent shall be relieved of all further obligations
and released from all liability under this Agreement. It is expressly agreed and
understood that in no event shall the aggregate amount of payments made by the
Escrow Agent exceed the amount of the Deposited Proceeds.
5. RIGHTS, DUTIES AND RESPONSIBILITIES OF ESCROW AGENT. It is
understood and agreed that the duties of the Escrow Agent are purely ministerial
in nature, and that:
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5.1 The Escrow Agent shall not be responsible for the performance by
the Company or the Selling Shareholders of their obligations under this
Agreement.
5.2 The Escrow Agent shall not be required to accept from the Company
any Subscription Information pertaining to prospective purchasers unless such
Subscription Information is accompanied by checks or money orders representing
the payment of money, nor shall the Escrow Agent be required to keep records of
any information with respect to payments deposited by the Company except as to
the amount of such payments; however, the Escrow Agent shall notify the Company
within a reasonable time of any discrepancy between the amount delivered to the
Escrow Agent therewith. Such amount need not be accepted for deposit in the
Escrow Account until such discrepancy has been resolved.
5.3 The Escrow Agent shall be under no duty or responsibility to
enforce collection of any check delivered to it hereunder. The Escrow Agent,
within a reasonable time, shall return to the Company any check received which
is dishonored, together with the Subscription Information, if any, which
accompanied such check.
5.4 The Escrow Agent shall be entitled to rely upon the accuracy, act
in reliance upon the contents, and assume the genuineness of any notice,
instruction, certificate, signature, instrument or other document which is given
to the Escrow Agent pursuant to this Agreement without the necessity of the
Escrow Agent verifying the truth or accuracy thereof. The Escrow Agent shall not
be obligated to make any inquiry as to the authority, capacity, existence or
identity of any person purporting to give any such notice or instructions or to
execute any such certificate, instrument or other document. The Escrow Agent
must, however, determine for itself whether the conditions permitting the
release of the funds in the Escrow Account have been met.
5.5 In the event that the Escrow Agent shall be uncertain as to its
duties or rights hereunder or shall receive instructions with respect to the
Escrow Account or the Deposited Proceeds which, in its sole determination, are
in conflict either with other instructions received by it or with any provision
of this Agreement, the Escrow Agent, at its sole option, may deposit the
Deposited Proceeds (and any other amounts that thereafter become part of the
Deposited Proceeds) with the registry of a court of competent jurisdiction in a
proceeding to which all parties in interest are joined. Upon the deposit by the
Escrow Agent of the Deposited Proceeds with the registry of any court, the
Escrow Agent shall be relieved of all further obligations and released from all
liability hereunder.
5.6 The Escrow Agent shall not be liable for any action taken or
omitted hereunder, or for the misconduct of any employee, agent or attorney
appointed by it, except in the case of willful misconduct. The Escrow Agent hall
be entitled to consult with counsel of its own choosing and shall not be liable
for any action taken, suffered or omitted by it in accordance with the advice of
such counsel.
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5.7 The Escrow Agent shall have no responsibility at any time to
ascertain whether or not any security interest exists in the Deposited Proceeds
or any part thereof or to file any financing statement under the Uniform
Commercial Code with respect to the Deposited Proceeds or any part thereof.
6. AMENDMENT; RESIGNATION. This Agreement may be altered or amended
only with the written consent of the Company and the Escrow Agent. The Escrow
Agent may resign for any reason upon seven (7) business days written notice to
the Company. Should the Escrow Agent resign as herein provided, it shall not be
required to accept any deposit, make any disbursement or otherwise dispose of
the Deposited Proceeds, but its only duty shall be to hold the Deposited
Proceeds for a period of not more than ten (10) business days following the
effective date of such resignation, at which time (a) if a successor escrow
agent shall have been appointed and written notice thereof (including the name
and address of such successor escrow agent) shall have been given to the
resigning Escrow Agent by the Company and such successor escrow agent, the
resigning Escrow Agent shall pay over to the successor escrow agent the
Deposited Proceeds, less any portion thereof previously paid out in accordance
with this Agreement, or (b) if the resigning Escrow Agent shall not have
received written notice signed by the Company and a successor escrow agent, then
the resigning Escrow Agent shall promptly refund the amount in the Deposited
Proceeds to each prospective purchaser without interest thereon or deduction
therefrom, and the resigning Escrow Agent shall notify the Company in writing of
its liquidation and distribution of the Deposited Proceeds; whereupon, in either
case, the Escrow Agent shall be relieved of all further obligations and released
from all liability under this Agreement. Without limiting the provisions of
Section 8 hereof, the resigning Escrow Agent shall be entitled to be reimbursed
by the Company for any expenses incurred in connection with its resignation,
transfer of the Deposited Proceeds to a successor Escrow Agent or distribution
of the Deposited Proceeds pursuant to this Section 6.
7. REPRESENTATIONS AND WARRANTIES. The Company hereby represents and
warrants to the Escrow Agent that:
7.1 No party other than the parties hereto and the prospective
purchasers have, or shall have any lien, claim or security interest in the
Deposited Proceeds or any part thereof.
7.2 No financing statement under the Uniform Commercial Code is on file
in any jurisdiction claiming a security interest in or describing (whether
specifically or generally) the Deposited Proceeds or any part thereof.
7.3 The Subscription Information submitted with each deposit shall, at
the time of submission and at the time of the disbursement of the Deposited
Proceeds, be deemed a representation and warranty that such deposit represents a
bona fide sale to the purchaser described therein of the amount of Securities
set forth in such Subscription Information.
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7.4 All of the information contained in the Information Sheet is, as of
the date hereof and will be, at the time of any disbursement of the Deposited
Proceeds, true and correct.
8. FEES AND EXPENSES. The Escrow Agent shall be entitled to the Escrow
Agent Fee set forth in the Information Sheet, payable upon execution of this
Agreement. In addition, the Company agrees to reimburse the Escrow Agent for any
reasonable expenses incurred in connection with this Agreement, including, but
not limited to, reasonable counsel fees, but not including the review of this
Agreement.
9. INDEMNIFICATION AND CONTRIBUTION.
9.1 The Company (referred to as the "Indemnitor") agrees to indemnify
the Escrow Agent and its officers, directors, employees, agents and shareholders
jointly and severally the "Indemnitees") against, and hold them harmless of and
from, any and all loss, liability, cost, damage and expense, including, without
limitation, reasonable counsel fees, which the Indemnitees may suffer or incur
by reason of any action, claim or proceeding brought against the Indemnitees
arising out of or relating in any way to this Agreement or any transaction to
which this Agreement relates, unless such action, claim or proceeding is the
result of the willful misconduct of the Indemnitees.
9.2 If the indemnification provided for in this Section 9 is
applicable, but for any reasons held to be unavailable, the Indemnitor shall
contribute such amounts as are just and equitable to pay, or to reimburse the
Indemnitees for, the aggregate of any and all losses, liabilities, costs,
damages and expenses, including counsel fees, actually incurred by the
Indemnitees as a result of or in connection with, and any amount paid in
settlement of any action, claim or proceeding arising out of or relating in any
way to any actions or omissions of the Indemnitor.
9.3 Any Indemnitee which proposes to assert the right to be indemnified
under this Section 9, promptly after receipt of notice of commencement of any
action, suit or proceeding against such Indemnitee in respect of which a claim
is to be made against the Indemnitor under this Section 9, will notify the
Indemnitor of the commencement of such action, suit or proceeding, enclosing a
copy of all papers served, but the omission so to notify the Indemnitor of any
such action, suit or proceeding shall not relieve the Indemnitor from any
liability which they may have to any Indemnitee otherwise than under this
Section 9. In case any such action, suit or proceeding shall be brought against
any Indemnitee and it shall notify the Indemnitor of the commencement thereof,
the Indemnitor shall be entitled to participate in and, to the extent that they
shall wish, to assume the defense thereof, with counsel satisfactory to such
Indemnitee. The Indemnitee shall have the right to employ its counsel in any
such action, but the fees and expenses of such counsel shall be at the expense
of such Indemnitee unless (i) the employment of counsel by such Indemnitee has
been authorized by the Indemnitor, (ii) the Indemnitee shall have concluded
reasonably that there may be a conflict of interest among the Indemnitor and the
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Indemnitee in the conduct of the defense of such action (in which case the
Indemnitor shall not have the right to direct the defense of such action on
behalf of the Indemnitee) or (iii) the Indemnitor in fact shall not have
employed counsel to assume the defense of such action, in each of which cases
the fees and expenses of counsel shall be borne by the Indemnitor.
9.4 The Indemnitor agrees to provide the Indemnitees with copies of all
registration statements, pre- and post-effective amendments to such registration
statements including exhibits, whether filed with the SEC prior to or subsequent
to the disbursement of the Deposited Proceeds.
9.5 The provisions of this Section 9 shall survive any termination of
this Agreement, whether by disbursement of the Deposited Proceeds, resignation
of the Escrow Agent or otherwise.
10. GOVERNING LAW AND ASSIGNMENT. This Agreement shall be construed in
accordance with and governed by the laws of the State of Nevada and shall be
binding upon the parties hereto and their respective successors and assigns;
provided, however, that any assignment or transfer by any party of its rights
under this Agreement or with respect to the Deposited Proceeds shall be void as
against the Escrow Agent unless:
(a) written notice thereof shall be given to the Escrow Agent;
and
(b) the Escrow Agent shall have consented in writing to such
assignment or transfer.
11. NOTICES. All notices required to be given in connection with this
Agreement shall be sent by registered or certified mail, return receipt
requested, or by hand delivery with receipt acknowledged, or by the Express Mail
service offered by the United States Post Office, and addressed, if to the
Company, at its address set forth on the Information Sheet, and if to the Escrow
Agent:
12. SEVERABILITY. If any provision of this Agreement or the application
thereof to any person or circumstance shall be determined to be unpaid or
unenforceable, the remaining provisions of this Agreement or the application of
such provision to persons or circumstances other than those to which it is held
invalid or unenforceable shall not be affected thereby and shall be valid and
enforceable to the fullest extent permitted by law.
13. PRONOUNS. All pronouns and any variations thereof shall be deemed
to refer to the masculine, feminine, neuter, singular, or plural as the context
may require.
14. CAPTIONS. All captions are for convenience only and shall not limit
or define the term thereof.
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15. EXECUTION IN SEVERAL COUNTERPARTS. This Agreement may be executed
in counterparts or by separate instruments and both of such counterparts and
instruments shall constitute one agreement, binding on both of the parties
herein.
16. ENTIRE AGREEMENT. This Agreement constitutes the entire agreement
between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings (written or
oral) of the parties in connection herewith.
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the day and year first above written.
ICV, INC.
By: /s/CHRISTOPHER LARKBY, President
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THE ESCROW AGENT:
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SOUTHWEST ESCROW COMPANY
By: /s/ DALE E. PUHL
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Name: Dale E. Puhl
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Title: President
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