Exhibit 6.5
ESCROW AGREEMENT AND INSTRUCTIONS
This Escrow Agreement and Instructions (the "Agreement") is made and
entered into as of this 27th day of February, 1997, by and among InnovaCom,
Inc., a Nevada corporation ("InnovaCom"), Sierra Vista Entertainment, Inc.,
a Nevada corporation ("Sierra Vista")(collectively, "the parties"), and
Xxxxxx Eng Xxxx & Xxxxxxxx (the "Escrow Agent").
WHEREAS, pursuant to the Plan and Agreement of Reorganization of even
date hereof (the "Plan"), a copy of which is attached hereto as EXHIBIT A,
InnovaCom and Sierra Vista intend to complete a "tax free" exchange, as
contemplated by the provisions of Section 368(a)(1)(B) of the Internal
Revenue Code of 1986, as amended; and
WHEREAS, InnovaCom and Sierra Vista desire to facilitate the exchange
of shares of Sierra Vista common stock (the "Sierra Vista Shares") for
shares of InnovaCom common stock (the "InnovaCom Shares") through the use
of an escrow account; and
WHEREAS, InnovaCom and Sierra Vista desire to appoint Xxxxxx Eng Linn
& Xxxxxxxx to act as Escrow Agent to receive the Sierra Vista Shares and
the InnovaCom Shares from each of the parties and to distribute the same
pursuant to the terms set forth herein and those contained in the Plan; and
WHEREAS, the Escrow Agent agrees to maintain an escrow account
pursuant to the terms of this Agreement and the Plan.
NOW, THEREFORE, in consideration of the foregoing, it is hereby agreed
as follows:
1. ESTABLISHMENT OF ESCROW ACCOUNT; DELIVERIES TO AND BY THE ESCROW
AGENT. By no later than the First Closing Date, as defined in the Plan,
Sierra Vista shall deliver to the Escrow Agent certificates representing an
aggregate of 6,500,000 shares of its previously issued and outstanding
common stock, as held by the shareholders of record and indicated on
"Exhibit A" to the Plan (the "Sierra Vista Shareholders"), and InnovaCom
shall deliver to the Escrow Agent certificates representing an equal number
of shares of its common stock with each certificate individually issued in
the name of the Sierra Vista Shareholders and a certificate (the
"Additional Certificate") representing 2,000,000 shares of its common stock
issued in the name of "Xxxxxx Eng Linn & Xxxxxxxx as Escrow Agent"; and
By no later than the Final Closing Date, as defined in the Plan,
Sierra Vista shall deliver to the Escrow Agent additional certificates
representing an aggregate of 2,000,000 shares of its outstanding common
stock which shall have been issued by Sierra Vista to various purchasers,
for cash, after the First Closing Date (the "New Shareholders"). The
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Escrow Agent shall have the authority to release the Additional
Certificate, representing the 2,000,000 shares of InnovaCom common stock,
to a transfer agent for purposes of receiving individual certificates for
each of the New Shareholders.
Once the Escrow Agent has received all of the deliveries from the
parties and all conditions of the Plan have been satisfied or waived, as
determined by the Escrow Agent in its sole discretion, the Escrow Agent
shall then deliver to Sierra Vista the 8,500,000 shares of InnovaCom common
stock and shall deliver to InnovaCom the 8,500,000 shares of Sierra Vista
common.
If, pursuant to the Plan, the conditions of the First Closing or the
Final Closing have not been achieved, as determined by the Escrow Agent in
its sole discretion, the Escrow Agent shall then return all certificates
held in escrow to the respective parties and the escrow account shall be
terminated.
2. ESCROW PERIOD. The escrow shall begin with the execution of this
Agreement and shall terminate when all deliveries required to be made by
the Escrow Agent, pursuant to Section 1, have in fact been made.
3. DUTIES OF ESCROW AGENT. The Escrow Agent acts hereunder as
depository only and is not responsible or liable for the sufficiency,
correctness, authenticity or validity of any instrument deposited with it
thereunder, or the identity, authority or right of any person executing or
depositing the same. The Escrow Agent is hereby authorized and directed to
deliver the Additional Certificate representing 2,000,000 shares of
InnovaCom common stock, received after the First Closing, to a transfer
agent for purposes of having individual certificates issued in the name of
each of the New Shareholders and to have the certificates returned to the
Escrow Agent. The Escrow Agent will transmit all shares to be delivered
hereunder by certified mail or courier to Sierra Vista or InnovaCom, as the
case may be, at the addresses indicated in Section 7 hereof.
4. RIGHTS AND LIABILITIES OF THE PARTIES. The Escrow Agent shall
have the right to act upon any notice, request, waiver, consent or other
paper, document, or facsimile of the same believed by the Escrow Agent to
be genuine and to be signed by the proper party or parties. The Escrow
Agent shall not be liable for, and both Sierra Vista and InnovaCom agree to
indemnify and hold the Escrow Agent harmless from and against liability for
any error of judgment or for any act done or step taken or omitted by it in
good faith, or for any mistake of fact or law, or for anything which it may
do or refrain from doing in connection herewith, except its own wilful
misconduct or recklessness. The Escrow Agent shall have no duties to
anyone other than those signing this Agreement.
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5. CONTROVERSIES. If any controversy arises between the parties, or
with any other party, concerning the subject matter of this Agreement or
its terms or conditions, the Escrow Agent will not be required to determine
the controversy or to take any action regarding it. The Escrow Agent may
hold all documents and instruments and may wait for settlement of any such
controversy by final appropriate legal proceedings or other means as, in
the Escrow Agent's sole discretion, it deems to be required. In such
event, the Escrow Agent will not be liable for interest or damages arising
from any non-delivery thereunder. Furthermore, the Escrow Agent may, at
its option, file an action of interpleader requiring the parties to answer
and litigate any clams and rights between themselves. The Escrow Agent is
authorized to deposit with the clerk of the court all documents and
instruments held, and the parties agree to pay all costs, expenses,
charges, and attorneys' fees incurred by the Escrow Agent due to any such
interpleader action. Upon initiating such action, the Escrow Agent shall
be fully released and discharged of and from all obligations and liability
imposed by the terms of this Agreement.
6. ACTIONS BY THE ESCROW AGENT. The Escrow Agent shall be entitled
to act and rely upon any statement, request, notice or instructions
respecting this Agreement given to the Escrow Agent by the parties.
However, any statement or notice to the Escrow Agent under this Agreement,
or with respect to the termination of this Agreement, must be confirmed in
writing to the Escrow Agent. At any time during the Escrow Period, the
Escrow Agent has the authority to release all shares from escrow solely to
the transfer agent for the purpose of breaking down the certificates held
under this Agreement so long as the Escrow Agent first obtains the written
consent of the parties.
7. NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be deemed effectively given upon personal
delivery or three business days after deposit with a recognized
international courier service, delivery charges prepaid, with instructions
to deliver the notice by the most expeditious means offered by courier
service, addressed to the following addresses, or the next business day
after delivery by facsimile transmission to the numbers listed hereinbelow,
so long as an original notice is also either personally delivered or sent
by means of a recognized international courier service as provided herein:
SIERRA VISTA: Mr. F. Xxxxx Xxxxxxxx
00000 Xxxxxxxx Xxxxx
Xxxxx Xxxxxx, XX 00000
Facsimile: (000) 000-0000
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INNOVACOM: Xx. Xxxx Xxx
Chief Executive Officer
InnovaCom, Inc.
0000 Xxxxx Xxxx, Xxxxx 000
Xxxxx Xxxxx, XX 00000
Facsimile: (000) 000-0000
ESCROW AGENT: Xxxxxx Eng Xxxx & Xxxxxxxx
000 Xxxxxxx Xxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
8. SIGNATURES AND COUNTERPARTS. This Agreement may be executed in
any number of counterparts, each of which shall be an original, but all of
which taken together shall constitute one instrument. This Agreement may
be executed by facsimile signature of the signature page.
IN WITNESS WHEREOF, the parties have each caused this Agreement to be
duly executed, individually or by an authorized representative, as of the
date first above written.
SIERRA VISTA ENTERTAINMENT, INC.
a Nevada corporation
_______________________________
F. Xxxxx Xxxxxxxx, President
INNOVACOM, INC.
a Nevada corporation
_______________________________
Xxxx Xxx, President
XXXXXX ENG XXXX & XXXXXXXX
___________________________
Xxxxx X. Xxxxxx
