EXHIBIT 2.1
ESCROW AGREEMENT AND
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IRREVOCABLE PROXY
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THIS ESCROW AGREEMENT AND IRREVOCABLE PROXY ("Agreement") is made effective on
June 24, 2002 ("Effective Date")
BY AND BETWEEN
ESYNCH CORPORATION a Delaware corporation whose principal place of business is
at 0000 X. Xxxxxxxxx, Xxxxx Xxx, XX 00000 ("Esynch"), and
THE SHAREHOLDERS OF NACIO SYSTEMS, INC. LISTED ON EXHIBIT A ATTACHED,
individuals, limited partnerships and trusts whose addresses are listed on
Exhibit A ("Shareholders"), and
XYZ, a [describe entity] acting as escrow agent ("Escrow Agent").
(Esynch and the Shareholders are sometimes referred to in this Agreement
individually as a "Party" and collectively as the "Parties".)
WHEREAS:
A. Esynch is a business incubator that invests in, develops and manages emerging
growth companies, pursuing acquisition opportunities in the software development
and media content delivery solutions industry.
B. NACIO SYSTEMS INC. ("Nacio") provides high-reliability hosting, connectivity
and outsourcing solutions, with superior support services, for businesses that
rely on the Internet for daily operation. On March 12, 2002 Nacio filed a
voluntary Chapter 11 bankruptcy petition in the United State Bankruptcy Court,
Northern District of California, Santa Xxxx Division (the "Court"), Chapter 11
Case No. 02-10596.
C. Esynch desires to acquire a one hundred percent ownership interest in Nacio
in exchange for 30,000,000 newly issued shares of Esynch common stock, and the
Shareholders desire to exchange their shares of Nacio stock for shares of Esynch
common stock (the "Stock Exchange"), subject to all of the terms and conditions
set forth in this Agreement. The Stock Exchange will be done as part of a plan
of reorganization of Nacio ("Plan of Reorganization") to be approved by the
Court.
D. To facilitate and insure the successful implementation of the Plan of
Reorganization, Esynch and the Shareholders desire to enter into this Agreement.
E. XYZ has agreed to act as the Escrow Agent in accordance with the provisions
set out in this Agreement.
NOW, THEREFORE, THE PARTIES AND ESCROW AGENT AGREE AS FOLLOWS:
1. ESTABLISHMENT OF ESCROW
1.1 The escrow established by this Agreement shall be an arrangement for the
holding and delivery of share certificates representing shares of Nacio common
stock, Series A Preferred Stock and Series B Preferred Stock ("Nacio
Certificates"), and other documents related thereto, pursuant to the terms of
this Agreement.
1.2 Esynch and the Shareholders hereby designate and appoint XYZ as the Escrow
Agent to serve in accordance with the provisions of this Agreement, and XYZ
hereby accepts such appointment and agrees to act as Escrow Agent in accordance
with the provisions of this Agreement.
1.3 The Escrow Agent shall hold the Nacio Certificates until the conditions for
delivery of the Nacio Certificates set forth in Section 4 below have been met,
at which time the Escrow Agent shall deliver the Nacio Certificates in
accordance with the instructions in that Section. The Nacio Certificates shall
be held in a fireproof safe or similarly secure storage location until the
Escrow Agent delivers the Nacio Certificates in accordance with this Agreement
2. DEPOSITS INTO ESCROW BY SHAREHOLDERS
Concurrent with the execution of this Agreement the Shareholders shall deliver
to the Escrow Agent Nacio Certificates representing all of the Nacio shares
listed on Exhibit B, together with duly executed blank stock assignments for all
such shares.
3. DELIVERABLES AT OR BEFORE EXECUTION
3.1 Before or concurrent with the execution of this Agreement, Esynch shall
deliver to the Shareholders the opinion of Xxxx Xxxxxxxx substantially in the
form of Exhibit C attached.
3.2 Before or concurrent with the execution of this Agreement, the Shareholders
shall deliver to Esynch the opinion of [NAME OF COUNSEL] substantially in the
form of Exhibit D attached [WILL ADDRESS DUE AND VALID ISSUANCE OF NACIO SHARES
TO BE DELIVERED TO ESYNCH PURSUANT TO THIS AGREEMENT].
4. INSTRUCTIONS TO ESCROW AGENT
4.1 When the Escrow Agent has received the Order of Confirmation of the Plan of
Reorganization issued by the Court that includes an explicit order that the
shares represented by the Nacio Certificates are to be exchanged for 30,000,000
shares of Esynch common stock ("Confirmation Order"), the Escrow Agent shall
immediately upon the appearance of Xxxxxx Xxxxxxxxxx at the offices of the
Escrow Agent, release to Xxxxxx Xxxxxxxxxx as representative of Esynch the Nacio
Certificates together with duly executed blank stock assignments for all such
shares.
4.2 If the Escrow Agent has not received the Confirmation Order by 5:00 p.m. on
[INSERT DROP DEAD DATE], the Escrow Agent shall immediately upon the appearance
of any Shareholder at the offices of the Escrow Agent release to that
Shareholder the Nacio Certificate(s) issued to that Shareholder, together with
duly executed blank stock assignment(s) for all shares represented by such
certificates;
5. ISSUANCE OF ESYNCH SHARES
Immediately following delivery of the Nacio Certificates to Esynch pursuant to
Section 4.1 above, Esynch shall issue and deliver to each Shareholder the number
of shares of Esynch common stock listed on Exhibit B attached ("Esynch Exchange
Shares").
6. REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES OF ESYNCH
a. The execution and delivery of this Agreement, and the performance and
compliance with all the terms and conditions hereof to be performed and complied
with, and the consummation of the transaction contemplated hereby, by Esynch has
been duly authorized by all requisite corporate action on the part of Esynch.
This agreement has been duly and validly executed and delivered by Esynch and
constitutes a legal, valid and binding obligation of Esynch, enforceable against
esynch in accordance with its terms.
b. Esynch is a corporation duly organized, validly existing and in good standing
under the laws of the State of Deleware, and has full corporate power and
authority to conduct its business as and to the extent now conducted. Esynch is
duly qualified, licensed or admitted to do business and is in good standing in
the State of California, which is the only jurisdiction in which the conduct or
nature of its business, makes such qualification, licensing or admission
necessary.
c. The authorized capital stock of Esynch consists solely of 250,000,000 shares
of common stock, of which 67,291,316 shares of common stock have been issued
(the "issued shares"). The issued shares are duly authorized, validly issued,
outstanding, fully paid and nonassessable. Schedule 4.1.c. sets forth a true and
accurate list of each shareholder of Esynch who is an insider (as that term is
define in [insert code section]) or owns 5% or more of the issued shares. The
Esynch Exchange Shares when issued will be duly authorized, validly issued,
outstanding, fully paid and nonassessable.
d. The execution and delivery by Esynch of this Agreement, the performance by
Esynch of its obligations under this Agreement and the consummation of the
transaction contemplated hereby will not (i) conflict with or result in a
violation or breach of any of the terms, conditions or provisions of the
articles of incorporation or by-laws of Esynch; (ii) conflict with or result in
a violation or breach of any term or provision of any law or order applicable to
Esynch; or (iii) conflict with or result in a violation or breach of, constitute
(with or without notice or lapse of time or both) a default under, require
Esynch to obtain any consent, approval or action of, make any filing with or
give any notice to any Person as a result or under the terms of, result in or
give to any Person any right of termination, cancellation, acceleration or
modification in or with respect to, result in or give to any Person any
additional rights or entitlement to increased, additional, accelerated or
guaranteed payments under, or result in the creation or imposition of any
material lien upon Esynch under, any contract or license to which is a party or
by which any of its assets bound.
e. Except as disclosed in Section 6.1.e. of the Disclosure Schedule, no consent,
approval or action of, filing with or notice to any governmental or regulatory
authority on the part of Esynch is required in connection with the execution,
delivery and performance of this Agreement or the consummation of the
transaction contemplated hereby.
f. Except as disclosed in Section 6.1.f. of the Disclosure Schedule, Esynch is
not, nor has it at any time within the last five (5) years been, nor has it
received any written notice that it is or has at any time within the last five
(5) years been, in violation of or in default under, in any material respect,
any law or order applicable to Esynch or any of its assets.
6.2 REPRESENTATIONS AND WARRANTIES OF CONDIOTTI DLC TRUST
a. The Condiotti DLC Trust ("Condiotti Trust") is duly created and validly in
existence under the laws of the State of California. The Condiotti Trust has
full power and capacity to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transaction contemplated hereby,
including, without limitation, to own, hold, and exchange (pursuant to this
Agreement) the Nacio shares owned by the Condiotti Trust;
b. The execution and delivery of this Agreement, and the performance and
compliance with all the terms and conditions hereof to be performed and complied
with, and the consummation of the transaction contemplated hereby, by the
Condiotti Trust is duly authorized by the trust instrument governing the
Condiotti Trust;
c. The execution and delivery by the Condiotti Trust of this Agreement, the
performance by the Condiotti Trust of its obligations under this Agreement and
the consummation of the transaction contemplated hereby will not conflict with
or result in a violation or breach of any of the terms, conditions or provisions
of the trust instrument governing the Condiotti Trust.
6.3 REPRESENTATIONS AND WARRANTIES OF XXXX XXXXXX
a. The Xxxx Xxxxxx Trust ("Xxxxxx Trust") is duly created and validly in
existence under the laws of the State of California. The Xxxxxx Trust has full
power and capacity to execute and deliver this Agreement and to perform its
obligations hereunder and to consummate the transaction contemplated hereby,
including, without limitation, to own, hold, and exchange (pursuant to this
Agreement) the Nacio shares owned by the Xxxxxx Trust;
b. The execution and delivery of this Agreement, and the performance and
compliance with all the terms and conditions hereof to be performed and complied
with, and the consummation of the transaction contemplated hereby, by the Xxxxxx
Trust is duly authorized by the trust instrument governing the Xxxxxx Trust;
c. The execution and delivery by the Xxxxxx Trust of this Agreement, the
performance by the Xxxxxx Trust of its obligations under this Agreement and the
consummation of the transaction contemplated hereby will not conflict with or
result in a violation or breach of any of the terms, conditions or provisions of
the trust instrument governing the Xxxxxx Trust.
6.4 REPRESENTATIONS AND WARRANTIES OF IGNITE
a. Ignite Ventures II, L.P. ("Ignite Ventures") and Ignite Entrepreneurs, L.P.
("Ignite Entrepreneurs") are duly formed limited partnerships, validly in
existence and in good standing under the laws of the State of California. Ignite
Ventures and Ignite Entrepreneurs each has full power and capacity to execute
and deliver this Agreement and to perform its obligations hereunder and to
consummate the transaction contemplated hereby, including, without limitation,
to own, hold, and exchange (pursuant to this Agreement) the Nacio shares owned
by Ignite Ventures and Ignite Entrepreneurs.
b. The execution and delivery of this Agreement, and the performance and
compliance with all the terms and conditions hereof to be performed and complied
with, and the consummation of the transaction contemplated hereby, by Ignite
Ventures and Ignite Entrepreneurs has been duly authorized by all requisite
partnership action on the part of Ignite Ventures and Ignite Entrepreneurs.
6.5 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDERS
a. Each Shareholder, other than the Xxxxxx Trust, Condiotti Trust, Ignite
Ventures and Ignite Entrepreneurs, is a citizen of the United States of America,
resident in the state specified in the address for the Shareholder on Exhibit A.
Each such Shareholder has full power and capacity to execute and deliver this
Agreement and to perform his or her obligations hereunder and to consummate the
transaction contemplated hereby, including, without limitation, to own, hold,
and exchange (pursuant to this Agreement) the Nacio shares owned by each such
Shareholder.
b. This Agreement has been duly and validly executed and delivered by each
Shareholder and constitutes a legal, valid and binding obligation of each
Shareholder, enforceable against each Shareholder in accordance with its terms.
c. The total number of shares that Nacio is authorized to issue is 65,000,000
shares, of which Nacio is authorized to issue 50,000,000 shares of common stock
and 15,000,000 shares of preferred stock. The shares represented by the Nacio
Certificates are all of the issued and outstanding shares of Nacio, consisting
of 17,070,700 shares of common stock, 8,002,640 shares of Series A preferred
stock and 2,612, 298 shares of Series B preferred stock (the "Issued Shares").
The issued shares are duly authorized, validly issued, outstanding, fully paid
and nonassessable. At the time of delivery to the escrow agent by the
shareholders hereunder, the shares represented by the Nacio certificates are
free and clear of all liens or encumbrances. No additional shares of Nacio will
be issued during the term of this agreement.
d. The execution and delivery by the Shareholders of this Agreement, the
performance by the Shareholders of their obligations under this Agreement and
the consummation of the transaction contemplated hereby will not conflict with
or result in a violation or breach of any term or provision of any law or order
applicable to any Shareholder.
e. Except as disclosed in Section 6.5.e. of the Disclosure Schedule, no consent,
approval or action of, filing with or notice to any governmental or regulatory
authority on the part of the Shareholders is required in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transaction contemplated hereby.
7. CONCERNING XYZ
7.1 XYZ shall not be deemed to be a trustee and shall have no obligations save
for those set out in this Agreement.
7.2 Each of the Parties shall indemnify and hold harmless XYZ against all
actions, proceedings, claims, demands, liabilities, costs and expenses
(collectively "Liabilities") which XYZ may suffer or reasonably incur in
connection with performance of its obligations under or in connection with this
Agreement, except liabilities arising out of the negligence, fraud or willful
default of XYZ or any of its officers or employees.
7.3 XYZ shall not be liable for any loss or damage occurring as a result of any
act or omission made by it in good faith or by reason of any other matter or
thing, except Liabilities arising out of the negligence, fraud or willful
default of XYZ or any of its officers or employees.
7.4 XYZ shall not be responsible for the genuineness of any signature or
document presented to it pursuant to this Agreement and may rely conclusively
upon and shall be protected in acting upon any notice, request, consent,
statement, or instruction believed by it in good faith to be genuine or to be
signed or presented by the proper Person hereunder or duly authorized by such
Person or properly made.
7.5 Should XYZ through negligence, fraud or willful misconduct, misdeliver any
documents delivered to it hereunder, XYZ shall be wholly responsible to the
Parties for any such misdelivery.
7.6 As payment for the services to be rendered by XYZ hereunder, XYZ shall be
paid the sum of [insert number of dollars] Dollars ($_________) concurrent with
the execution of this Agreement.
8. IRREVOCABLE PROXY
8.1 The undersigned Shareholders, holders of the number of shares of common and
preferred stock of Nacio indicated opposite their signatures, hereby irrevocably
appoint and constitute Xxxxxx Xxxxxxxxxx ("Proxy Holder") as their proxy to
attend meetings, vote, give consents, and in all other ways to act in their
place and stead as to all shares subject to this Irrevocable Proxy as long as it
is in effect. Death or incapacity of the Shareholders, or any of them, shall not
cause a revocation of this Irrevocable Proxy. Proxy Holder shall have full power
of substitution and revocation and any proxies heretofore given are hereby
revoked.
8.2 In compliance with California Corporations Code section 705(e), this
Irrevocable Proxy is made irrevocable and executed in consideration of Esynch's
agreement to purchase all of the Nacio shares to which this proxy relates.
8.3 Proxy Holder shall have complete discretion to vote the shares under this
Irrevocable Proxy as to any matter requiring a vote of shareholders.
8.4 This Proxy shall terminate immediately upon the occurrence of the earlier of
the following: (a) the delivery of the Esynch shares to the Shareholders
pursuant to Section 5 above, or (b) the return of the Nacio Certificates to the
Shareholders pursuant to Section 4.2 above.
8.5 In the event of a dispute or controversy arising out of or relating to this
Irrevocable Proxy, or performance hereof, Proxy Holder shall be entitled to vote
the shares pursuant to this Irrevocable Proxy during the pendency of such
dispute. Shareholders acknowledge that the only basis to contest in any way this
Irrevocable Proxy, or the voting of shares under it, is for gross abuse by Proxy
Holder of the voting rights herein transferred.
9. MISCELLANEOUS
9.1 This Agreement, and any amendment thereto, may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of which
shall together constitute one and the same instrument.
9.2 Each Party, upon the request of the other, shall do or cause to be done all
such further acts as may be reasonably necessary to effect complete consummation
of the transaction contemplated in this Agreement.
9.3 The Parties shall pay their own costs incurred in connection with the
negotiation and preparation of this Agreement.
9.4 This Agreement shall be governed by and construed in all respects in
accordance with the applicable laws of the State of California as those laws are
applied by California courts to agreements among California residents entered
into and to be performed entirely within California.
9.5 All notices given under this Agreement shall be in writing and shall be
deemed to have been duly given (1) upon delivery if delivered by hand; (2) two
days after pick up by such courier if sent for overnight delivery by a
nationally or internationally recognized overnight courier service that
regularly maintains records of items picked up and delivered; or (3) when
receipt is acknowledged if sent by e-mail or telecopier with receipt
acknowledged by e-mail or telecopier by the receiving Party; if directed as
follows:
If to Esynch: Esynch Corporation.
0000 X. Xxxxxxxxx, Xxxxx 000
Xxxxx Xxx, XX 00000
Attention: Xxxxxx Xxxxxxxxxx, and
Xxxxxx X. Xxxxxxxxx
Facsimile: (000) 000-0000, and
(000) 000-0000
If to Shareholders: To the names and addresses set forth on Exhibit A
Any party may change its address for purposes of this Section 9.5 by giving the
other party written notice of the new address in the manner set forth above.
9.6 This Agreement and the other Operative Agreements supersede all prior
discussions and agreements between the parties with respect to the subject
matter hereof and thereof, and contain the sole and entire agreement between the
parties hereto with respect to the subject matter hereof and thereof.
9.7 Any term or condition of this Agreement may be waived at any time by the
Party that is entitled to the benefit thereof, but no such waiver shall be
effective unless set forth in a written instrument duly executed by or on behalf
of the Party waiving such term or condition. No waiver by any Party of any term
or condition of this 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. All remedies, either under this Agreement or
by law or otherwise afforded, will be cumulative and not alternative.
9.8 This Agreement may be amended, supplemented or modified only by a written
instrument duly executed by or on behalf of each party hereto.
9.9 The headings used in this Agreement have been inserted for convenience of
reference only and do not define or limit the provisions hereof.
IN WITNESS whereof this Agreement has been executed by or on behalf of the
Parties and XYZ effective the day and year first above written.
ESYNCH CORPORATION. XYZ, as the Escrow Agent
/s/Xxx Xxxxxxxxxx
By___________________________ By___________________________
[Name] [Name]
[Title] [Title]
COMMON SHAREHOLDERS: NUMBER OF SHARES OF
NACIO COMMON STOCK:
/s/ Xxxx XxXxxxxx
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Xxxx XxXxxxxx 6,139,510
/s/ Xxxx Xxxxxxxx
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Xxxx Xxxxxxxx 6,139,510
/s/ Xxxxx Xxxxxxxxxx
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Xxxxx Xxxxxxxxxx 2,249,000
/s/ Xxxx Xxxxxx
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Xxxx Xxxxxx 677,090
/s/Xxxx Xxxxxx Trust
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Xxxx Xxxxxx Trust 491,160
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Xxxx Xxxxxx 401,780
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Xxxxx Xxxxx 387,590
/s/Xxxxxxx XxXxxxxx
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Xxxxxxx XxXxxxxx 212,660
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Xxxx X'Xxxx 143,560
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Condiotti Enterprises, Inc. 61,630
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Xxxxxxxxx Xxxxxxx 58,000
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Xxxx Xxxxxxxxx 36,340
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Xxxxx Xxxxx 35,890
/s/Xxxxx Xxxxx
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Xxxxx Xxxxx 27,740
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Xxxxxxxxx Xxxxx 9,240
Series A Preffered Shareholder Number of Shares of Nacio
Series A Preferred Stock:
/s/ Xxxxx Xxxxx
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Xxxxx Xxxxx 8,002,640
Number of Shares of Nacio
Series B Preferred Shareholders Series B Preferred Stock:
IGNITE VENTURES II, L.P.
By: Ignite Venture Partners II, L.L.C.
By------------------------------
Nobuo Mii, Managing Director [insert number]
IGNITE ENTREPRENEURS, L.P.
By: Ignite Venture Partners II, L.L.C.
By:
---
Nobuo Mii, Managing Director [insert number]
EXHIBIT A
NACIO SYSTEMS, INC. SHAREHOLDERS
Xxxx XxXxxxxx Xxxx Xxxxxxxx
Xxxxx Xxxxxxxxxx Xxxxx X. Xxxxxx XX
Xxxx Xxxxxx Trust Xxxx Xxxxxx
Xxxxx Xxxxx Xxxxxxx XxXxxxxx
Xxxx X'Xxxx Condiotti DLC Trust
Xxxxxxxxx Xxxxxxx Xxxx Xxxxxxxxx
Xxxxx Xxxxx Xxxxx Xxxxx
Xxxxxxxxx Xxxxx
EXHIBIT B
NACIO SYSTEMS, INC. SHARES OWNED
AND ESYNCH CORPORATION SHARES TO BE ISSUED
NUMBER OF NACIO NUMBER OF ESYNCH
COMMON SHAREHOLDERS SHARES OWNED SHARES TO BE ISSUED
Xxxx Xxxxxxxx 6,139,510 3,596,519
Xxxx XxXxxxxx 6,139,510 3,596,519
Xxxxx Raghiasci 2,249,000 1,317,462
Xxxx Xxxxxx 646,280 378,590
Xxxx Xxxxxx Trust 491,160 287,721
Xxxx Xxxxxx 401,780 235,362
Xxxxx Xxxxx 387,590 227,050
Xxxxxxx XxXxxxxx 212,660 124,576
Xxxx X'Xxxx 143,560 84,097
Xxxxxxxxx 61,630 36,103
Xxxxxxxxx Xxxxxxx 58,000 33,976
Xxxx Xxxxxxxxx 36,340 21,288
Xxxxx Xxxxx 35,890 21,024
Xxxx Xxxxxx 30,810 18,048
Xxxxx Xxxxx 27,740 16,250
Xxxxxxxxx Xxxxx 9,240 5,413
Total Common Shares 17,070,700 10,000,000
SERIES A PREFERRED SHAREHOLDER
Xxxxx 8,002,640 15,078,072
SERIES B PREFERRED SHAREHOLDERS
Ignite Ventures & Ignite Entrepreneurs 2,612,298 4,921,928
20,000,000
TOTAL 27,685,638 30,000,000
