FORM 8-K
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934.
Date of Report (Date of earliest event reported) November 26, 1996.
DCI Telecommunications, Inc.
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(Exact name of registrant as specified in its charter)
Colorado 2-96976-D 84-1155041
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(State or other (Commission File (IRS Employer
jurisdiction of Number) Identification
incorporation) Number)
611 Access Road, Stratford, CT 06497
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(Address of principal executive offices)
Registrant's telephone number, including area code: (203) 380-0910
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(Former name or former address, if changed since last report.)
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Item 7. Financial Statements and Exhibits
Attached is a copy of the Escrow Agreement among the selling
shareholders of Muller Media, Inc. and DCI Telecommunications, Inc.,
dated November 26, 1996.
<PAGE>
ESCROW AGREEMENT
ESCROW AGREEMENT, dated as of this 26th day of November, 1996 by and
among DCI Telecommunications Inc. ("DCI"); Muller Media, Inc.
("MMI"); Robert Muller ("Muller"); Daniel Mulholland ("Mulholland";
together with MMI and Muller, the "Sellers"); and Whitman Breed
Abbott & Morgan and Pavia & Harcourt (individually an "Escrow Agent"
or together the "Escrow Agents").
W I T N E S S E T H
WHEREAS, DCI and the Sellers are parties to a Stock Purchase
Agreement dated November 26, 1996 (the "Purchase Agreement"); and
WHEREAS, DCI and the Sellers wish to place certain documents in
escrow as provided in the Purchase Agreement upon the terms and
conditions set forth in this Agreement; and
WHEREAS, the Escrow Agents, who are counsel for the respective
parties, are willing to act as escrow agents in accordance with the
terms of this Agreement; and
WHEREAS, capitalized terms not defined herein shall have the
meanings ascribed thereto in the Purchase Agreement.
NOW, THEREFORE, in consideration of the foregoing, the parties
agree as follows:
1. Appointment. DCI and the Sellers hereby appoint Whitman
Breed Abbott & Morgan and Pavia & Harcourt to serve jointly as escrow
agents, and the Escrow Agents accept such appointment, in accordance
with the terms of this Agreement.
2. Escrowed Documents. DCI and the Sellers have deposited
with the Escrow Agent, the documents listed on Exhibit 1 attached
hereto (together, the "Escrowed Documents").
3. Conditions of Escrow. The Escrow Agents shall act jointly
by mutual agreement with respect to any distribution of the Escrowed
Documents to any party. The Escrow Agents shall release the Escrowed
Documents only in accordance with the provisions set forth in this
Section 3 and DCI and the Sellers each hereby authorizes the Escrow
Agents to release the Escrowed Documents in such manner.
The Escrow Agents shall distribute the Escrowed Documents or any
portion thereof promptly upon written direction to do so by all of
DCI and the Sellers.
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4. Provisions Concerning Escrow Agents.
(a) No amendment to or modification of this Agreement
shall affect the rights and duties of the Escrow Agents unless and
until the Escrow Agents has consented thereto in writing.
(b) In performing their duties hereunder, the Escrow
Agents shall not incur any liability to anyone for any damages,
losses or expenses unless, with respect to any Escrow Agent, such
damages, losses or expenses were incurred as a direct result of an
act or omission of such Escrow Agent constituting a willful default,
gross negligence or fraud. Further, and without limiting the
foregoing the Escrow Agents shall not incur liability with respect
to:
(i) Any action taken or omitted in good
faith upon advice of counsel (including members of Escrow
Agent) given with respect to any questions relating to its
duties and responsibilities as described herein; or
(ii) Any action taken or omitted in reliance upon any
written notice, release or other document provided to it,
as to the genuineness of the signatures thereon, its due
execution, the validity and effectiveness of its
provisions, and the truth and accuracy of the information
contained therein.
(c) The Escrow Agents shall not be responsible for
initiating any action or proceeding hereunder. DCI shall indemnify
and hold harmless Whitman Breed Abbott & Morgan, or any escrow agent
which is a successor hereunder to Whitman Breed Abbott & Morgan, and
the Sellers shall indemnify and hold harmless Pavia & Harcourt or any
escrow agent which is a successor hereunder to Pavia & Harcourt, from
and against, any and all claims, actions, demands, losses, damages,
expenses (including but not limited to court costs and attorneys'
fees) and liabilities that may be brought against, or imposed upon
the Escrow Agents or incurred by the Escrow Agents in connection with
the performance of their duties hereunder, including any claims of
third parties to any portion of the Escrowed Documents.
(d) Either Escrow Agent may resign at any time by
delivering written notice to the other parties hereto. In the event
of the resignation of Whitman Breed Abbott & Morgan, DCI shall
promptly appoint a substitute escrow agent. In the event of the
resignation of Pavia & Harcourt, MMI shall then promptly appoint a
substitute escrow agent. A resigning Escrow Agent shall be discharged
from all duties and liabilities under this Agreement upon delivery of
the Escrowed Documents in its possession to the substitute escrow
agent. Any such substitute Escrow Agent shall assume all the
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obligations of an Escrow Agent set forth in this Agreement. If no
substitute escrow agent is appointed promptly, the resigning Escrow
Agent shall have the right to deposit the Escrowed Documents held by
it with a court of competent jurisdiction. Upon depositing such
Escrowed Documents with the court, such Escrow Agent's duties
hereunder shall be terminated.
(e) Neither Escrow Agent shall be prohibited, by reason of
being appointed escrow agent or acting hereunder, from continuing to
act as attorney for a party to this Agreement.
(f) The Escrow Agent shall have no duties or
responsibilities except as expressly provided in this Agreement and
no implied duties or obligations shall be imposed on the Escrow
Agents. The Escrow Agents shall have no liability or responsibility
with respect to or arising out of any agreement to which the Escrow
Agents are not a party, notwithstanding the fact that reference
thereto may be made herein.
(g) The Escrow Agents may act in reliance upon any
instrument or signature believed by them to be genuine and may assume
that any person purporting to give any writing, notice, advice or
instrument in connection with the provisions hereof has been duly
authorized to do so.
(h) In the performance of their duties hereunder, the
Escrow Agents shall not be liable for any error of judgment or
execution, or for any act done or step taken, or omitted by them in
good faith, or for any mistake of law or fact; provided that an
Escrow Agent shall be liable for damages, losses or expenses incurred
as a direct result of any act or omission constituting willful
default, gross negligence or fraud of such Escrow Agent. The Escrow
Agents may consult with, and obtain advice from legal counsel
(including members of Escrow Agents) in the event of any dispute or
question as to the performance or construction of any of the
provisions hereof or its duties hereunder and shall incur no
liability for their acts in good faith in accordance with the opinion
and instructions of such counsel.
(i) In case any property held by the Escrow Agents
hereunder shall be attached, garnished or levied upon under any order
of court, or the delivery thereof shall be stayed or enjoined by any
order of court, or any other order, judgment or decree shall be made
or entered by any court affecting such property, or any part thereof,
or any act of the the Escrow Agents, They are hereby expressly
authorized in their sole discretion to obey and comply with all
writs, orders, judgments or decrees so entered or issued, whether
with or without jurisdiction, and in case the Escrow Agents obey and
comply with any such writ, order, judgment or decree, they shall not
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be liable to any of the parties hereto, their heirs, personal
representatives, successors or assigns or to any other person, firm
or corporation, by reason of such compliance notwithstanding such
writ, order, judgment or decree be subsequently reversed, modified,
annulled, set aside or vacated.
(j) The Escrow Agents may employ agents and attorneys for
the reasonable protection of the property held hereunder and of
themselves and shall have a lien on any such property for any and all
costs, expenses and attorneys' fees reasonably incurred by them and
shall be entitled to reimburse themselves therefor out of any such
property.
(k) In the event of any dispute as to the disposition of
the Escrowed Documents held hereunder in escrow, Escrow Agents shall
have the right, at their option, to either hold the same or deposit
the same with a court of competent jurisdiction pending decision of
such court, and the Escrow Agent shall be entitled to rely upon the
decision of such court. Upon depositing the Escrowed Documents with
the court, the Escrow Agent's duties hereunder shall be terminated.
(l) Any notice, demand or other communication in
connection with this Escrow Agreement shall be in writing and
delivered in person or sent by overnight courier or certified mail,
return receipt requested, addressed to the relevant party at the
address set forth for such party in the Purchase Agreement, and to
the Escrow Agents as follows:
Whitman Breed Abbott & Morgan
100 Field Point Road
Greenwich, Connecticut 06830
ATTENTION: Anthony M. Macleod, Esq.
Telecopier: (203) 869-1951
Pavia & Harcourt
600 Madison Avenue
New York, New York 10022
ATTENTION: Jordan E. Ringel
Telecopier: (212) 980-3185
5. Settlement of Disputes. Any dispute which may arise under
this Agreement with respect to the delivery and/or ownership or right
of possession of the Escrowed Documents or any portion thereof, or
the duties of the Escrow Agents hereunder, shall be settled either by
mutual agreement of the parties concerned (evidenced by appropriate
instructions in writing to the Escrow Agents, signed by all parties)
or by a binding arbitration conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association,
or by a final order, decree or judgment of a court of competent
jurisdiction in the United States of America (the time for appeal
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having expired and no appeal having been perfected). Prior to the
settlement of any dispute, the Escrow Agents are authorized and
directed to retain in their possession, without liability to anyone,
that portion of the Escrowed Documents which is the subject of such
dispute.
6. Termination. This Agreement shall terminate and cease to
be of further effect upon the distribution of all of the Escrowed
Documents, except for the right of indemnification provided herein
which shall survive any such termination.
7. Modification. No modification of the terms of this
Agreement shall be effective unless in writing and signed by the
party against whom enforcement is sought.
8. Successors and Assigns. The terms of this Agreement shall
be binding upon, and shall inure to the benefit of, each of the
parties designated above and their respective heirs, successors and
assigns.
9. Governing Law. The interpretation of this Agreement shall
be governed by the laws of the State of New York.
10. Counterparts. This Agreement may be executed in two or
more fully executed counterparts, each of which shall be deemed an
original, but all of such counterparts together shall constitute but
one and the same instrument.
IN WITNESS WHEREOF, the undersigned have executed this Agreement
as of the date first above written.
DCI Telecommunications Inc.
By______________________________
Name: Joseph J. Murphy
Title: President and CEO
Muller Media, Inc.
By______________________________
Name: Robert B. Muller
Title: President
________________________________
Robert Muller
________________________________
Daniel Mulholland
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Whitman Breed Abbott & Morgan
Escrow Agent
By______________________________
Name: Anthony M. Macleod
Title: Partner
Pavia & Harcourt
Escrow Agent
By______________________________
Name: Jordan E. Ringel
Title:
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EXHIBIT 1 TO ESCROW AGREEMENT
ESCROWED DOCUMENT DELIVERED BY UPON CLOSING
TO BE DELIVERED TO
1. Stock Certificate Muller Pavia & Harcourt
No. 2 of Muller
Media, Inc. in the
name of Robert
Muller ("Muller")
Representing 80
Shares of Common
Stock
2. Stock Certificate Mulholland Pavia & Harcourt
No. 3 of Muller
Media, Inc. in the
name of Daniel
Mulholland
("Mulholland")
Representing 3
Shares of Common
Stock
3. Stock Certificate Mulholland Pavia & Harcourt
No. 4 of Muller
Media, Inc. in the
name of Mulholland
Representing 3
Shares of Common
Stock
4. Stock Certificate Mulholland Pavia & Harcourt
No. 5 of Muller
Media, Inc. in the
name of Mulholland
Representing 3
Shares of Common
Stock
5. Stock Certificate Mulholland Pavia & Harcourt
No. 6 of Muller
Media, Inc. in the
name of Mulholland
Representing 3
Shares of Common
Stock
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6. Stock Certificate Mulholland Pavia & Harcourt
No. 7 of Muller
Media, Inc. in the
name of Mulholland
Representing 3
Shares of Common
Stock
7. Stock Certificate Mulholland Pavia & Harcourt
No. 8 of Muller
Media, Inc. in the
name of Mulholland
Representing 5
Shares of Common
Stock
8. Stock Powers with Muller Pavia & Harcourt
respect to the Stock
referred to in 1
above
9. Stock Powers with Mulholland Pavia & Harcourt
respect to the Stock
referred to in 2-7
above
10. Stock Certificate DCI Whitman Breed Abbott
No. 4399 of DCI & Morgan
representing 960,000
Shares of Common
Stock of DCI in the
name of Muller
11. Stock Certificate DCI Whitman Breed Abbott
No. 4400 of DCI & Morgan
representing 240,000
Shares of Common
Stock of DCI in the
name of Mulholland
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SIGNATURES
Pursuant to the requirements of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its
behalf by the undersigned hereunto duly authorized.
DCI Telecommunications, Inc.
Joseph J. Murphy
__________________________
Joseph J. Murphy
President
Date: July 7, 1998
