Exhibit 10.18
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of February 15, 2002
("Escrow Agreement") is by and between J.P. Carey Asset
Management a Georgia corporation ("Depositor"), BICO, Inc., a
Pennsylvania corporation ("BICO"), and Houston Harbaugh, P.C., a
Pennsylvania Professional Corporation as Escrow Agent hereunder
("Escrow Agent").
WHEREAS, Depositor and BICO have entered into an Agreement
(as amended, the "Underlying Agreement"), dated as of February
15, 2002, pursuant to which Depositor is purchasing BICO Series J
Series K convertible preferred stock (the "Shares"); and
WHEREAS, Escrow Agent has agreed to accept, hold, and
disburse the purchase price for the Shares from Depositor, and
the Shares from BICO deposited with it in accordance with the
terms of this Escrow Agreement; and
WHEREAS, in order to establish the escrow account and to
effect the provisions of the Underlying Agreement, the parties
hereto have entered into this Escrow Agreement.
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto, for themselves, their successors and assigns,
hereby agree as follows:
1. Definitions: The following terms shall have the
following meanings used herein:
"Written Direction" shall mean a written direction executed
by the Depositor or BICO and directing Escrow Agent to disburse
all or a portion of the funds or the Shares or take or refrain
from taking any action pursuant to this Escrow Agreement. Copies
of all written directions shall be immediately forwarded via
telefax to all parties to this Escrow Agreement.
2. Appointment of and Acceptance by Escrow Agent.
Depositor and BICO hereby appoint Escrow Agent to serve as escrow
agent hereunder. Escrow Agent hereby accepts such appointment
and upon receipt by transfer of the funds from Depositor and the
Shares from BICO, agrees to hold and disburse the funds and the
Shares in accordance with this Escrow Agreement.
3. Creation of Escrow and Deposit of Funds and Shares.
(i) Depositor will cause to be transferred to the
following account the funds for payment of the
BICO Shares:
PNC Bank, Steel Plaza, Pittsburgh, Pennsylvania
Account Holder: Houston Harbaugh, P.C.
ABA # 8888888
ACCT. # 88888888888
for Escrow Account
Notify: Thomas J. Miller
(412) 288-1847
(ii) Depositor shall notify the Escrow Agent when
Depositor has authorized the wire of the funds to
the Escrow Agent's escrow account as set forth in
paragraph (i) above.
(iii) BICO will cause to be transferred to the
possession of the Escrow Agent the Shares to be
purchased by Depositor.
(iv) The Escrow Agent shall hold both the funds from
Depositor and the Shares from BICO until the date
on which the Escrow Agent receives Written
Direction to disburse the funds and the Shares, as
described in paragraph 4 hereof. Such Written
Direction will be provided to the Escrow Agent by
BICO and the Depositor at any time beginning on
the date that BICO's Registration Statement on
Form S-1 (to be filed in February 2002) is
declared effective by the U.S. Securities and
Exchange Commission. Such Registration Statement
shall include shares of common stock into which
the Shares may be converted. The Escrow Agent
shall notify BICO immediately via fax when it has
received Written Direction from both parties.
4. Disbursement of Funds and Shares.
(i) Written Direction. Escrow Agent shall disburse or transfer
the funds, at any time and from time to time, in accordance with
a Written Direction from the Depositor. Escrow Agent shall
distribute the Shares, at any time and from time to time, in
accordance with a Written Direction from BICO. In the event
that separate Written Directions to disburse funds and
distribute Shares are not received by the Escrow Agent within
a period of two (2) consecutive business days, the Escrow Agent
may request additional Written Directions from both Depositor
and BICO, in order to facilitate simultaneous distributions of
funds and Shares.
(ii) Depositor's Option to Convert Immediately. At Depositor's
Option, its Written Direction may include a Notice of Conversion
as set forth in the Certificate of Designation of Series K
Preferred Stock. In that event, the Escrow Agent shall
distribute the Shares directly to BICO for conversion; BICO
shall honor such Notice of Conversion and shall notify its
transfer agent to distribute the applicable number of shares of
common stock to Depositor's brokerage account via DTC within one
business day.
(iii) Expiration of Escrow Period. Upon the
expiration of the Escrow Period, Escrow Agent
shall distribute, as promptly as practicable, the
funds to Depositor, and the Shares to BICO, except
to the extent the funds and Shares are directed to
be distributed otherwise pursuant to a Written
Direction, without any further instruction or
direction from the Depositor or BICO.
5. Resignation and Removal of Escrow Agent. Escrow Agent
may resign from the performance of its duties hereunder at any
time giving ten (10) days, prior written notice to the Depositor
and BICO or may be removed, with or without cause, by BICO acting
by furnishing a Written Direction to Escrow Agent, at any time by
the giving of ten (10) days' prior written notice to Escrow
Agent, with a copy of such notice to Depositor. Such resignation
or removal shall take effect upon the appointment of a successor
Escrow Agent as provided herein below.
Upon any such notice of resignation or removal, the
Depositor and BICO jointly shall appoint a successor Escrow Agent
hereunder. Upon acceptance in writing of any appointment as
Escrow Agent hereunder by a successor Escrow Agent, such
successor Escrow Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the
retiring Escrow Agent, and the retiring Escrow Agent shall be
discharged from its duties and obligations under this Escrow
Agreement, but shall not be discharged from any liability for
actions taken as Escrow Agent hereunder prior to such succession.
After any retiring Escrow Agent's resignation or
removal, the provisions of this Escrow Agreement shall inure to
its benefit as to any actions taken or omitted to be taken by it
while it was Escrow Agent under this Escrow Agreement.
6. Liability of Escrow Agent. Escrow Agent shall have no
liability or obligation with respect to the escrowed funds or
Shares except for Escrow Agent's willful misconduct or gross
negligence. Escrow Agent's sole responsibility shall be for the
safekeeping and disbursement of the funds and the Shares in
accordance with the terms of this Escrow Agreement. Escrow Agent
shall have no implied duties or obligations and shall not be
charged with knowledge or notice of any fact or circumstance not
specifically set forth herein.
Escrow Agent may rely upon any instrument, not only as
to its due execution, validity and effectiveness, but also as to
the truth and accuracy of any in formation contained therein,
which Escrow Agent shall in good faith believe to be genuine, to
have been signed or presented by the person or parties purporting
to sign the same and to conform to the provisions of this Escrow
Agreement. In no event shall Escrow Agent be liable for
incidental, indirect, special, consequential or punitive damages.
Escrow Agent shall not be obligated to take any legal action or
commence any proceeding in connection with this Escrow Agreement,
the Underlying Agreement, the funds or Shares or to appear in,
prosecute or defend any such legal action or proceeding. Escrow
Agent may consult legal counsel selected by it in the event of
any other agreement or of its duties hereunder, and shall incur
no liability and shall be fully protected from any liability
whatsoever in acting in accordance with the opinion or
instruction of such counsel. Depositor and BICO shall promptly
pay, upon demand, the reasonable fees and expenses of any such
counsel.
7. Fees and Expenses of Escrow Agent. BICO shall
compensate Escrow Agent for its services hereunder in accordance
the Escrow Agent's standard fees and, in addition, shall
reimburse Escrow Agent for all of its reasonable out-of-pocket
expenses, including telephone and facsimile transmission costs,
telex, postage (including express mail and overnight delivery
charges), copying charges and the like. The obligations of BICO
under this Section shall survive any termination of this Escrow
Agreement and the resignation or removal of Escrow Agent.
8. Consent to Jurisdiction and Venue. In the event that
any party hereto commences a lawsuit or other relating to or
arising from this Agreement, the parties hereto agree that the
United States District Court for the Western District of
Pennsylvania shall have the sole and exclusive jurisdiction over
any such proceeding. If all such courts lack federal subject
matter jurisdiction, the parties agree that the Allegheny County,
Pennsylvania Court of Common Pleas shall have sole and exclusive
jurisdiction. Any of these courts shall be the proper venue for
any such lawsuit or judicial proceeding and the parties hereto
waive any objection to such venue. The parties hereto consent to
and agree to submit to the jurisdiction of any courts specified
herein and agree to accept services or process to vest personal
jurisdiction over them in any of these courts.
9. Notice. All notices and other communications hereunder
shall be in writing and shall be deemed to have been validly
served, given or delivered five (5) days after deposit in the
United States mails, by certified mail with return receipt
requested and postage prepaid, when delivered personally, one (1)
day after delivery to any overnight courier, or when transmitted
by facsimile transmission facilities, and addressed to the party
to be notified as follows:
If to Depositor: James Canouse
J.P. Carey Asset Management
Atlanta Financial Center, East Tower
3343 Peachtree Road, Suite 500
Atlanta, GA 30326
FAX: (404) 816-6268
If to BICO: Michael P. Thompson, CFO
BICO, Inc.
2275 Swallow Hill Road
Bldg. 2500, 2nd Floor
Pittsburgh, PA 15220
FAX: (412) 279-9694
If to the Escrow Agent: Houston Harbaugh, P.C.
12th Floor
Pittsburgh, PA 15219
FAX: (412) 281-4499
Attention: Thomas J. Miller, Esq.
or to such other address as each party may designate for itself
by like notice.
10. Amendment or Waiver. This Escrow Agreement may be
changed, waived, discharged or terminated only by writing signed
by the Depositor, BICO and Escrow Agent. No delay or omission by
any party in exercising any right with respect hereto shall
operate as a waiver. A waiver on any one occasion shall not be
construed as a bar to, or waiver of, any right or remedy on any
future occasion.
11. Severability. To the extent any provision of this
Escrow Agreement is prohibited by or invalid under applicable
law, such provision shall be ineffective to the extent of such
prohibition or invalidity, without invalidating the remainder of
such provisions or the remaining provisions of this Escrow
Agreement.
12. Governing Law. This Escrow Agreement shall be
construed and interpreted in accordance with the laws of the
Commonwealth of Pennsylvania without giving effect to the
conflict of laws principles thereof.
13. Entire Agreement. This Escrow Agreement constitutes
the entire agreement between the parties relating to the holding
investment and disbursement of the Escrowed funds and Shares and
sets forth in their entirety the obligations and duties of Escrow
Agent.
14. Binding Effect. All of the terms of this Escrow
Agreement, as amended from to time, shall be binding upon, inure
to the benefit of and be enforceable by the respective heirs and
representatives of the parties hereto.
15. Execution of Counterparts. This Escrow Agreement and
any Written Direction may be executed in two or more
counterparts, which when executed shall constitute one and the
same agreement or direction.
16. Termination. This Escrow Agreement shall terminate upon
the later of the following events: upon the disbursement of all
funds and Shares pursuant to Written Directions; or one hundred
eighty (180) days from the date this Escrow Agreement is executed
(the "Escrow Period"). Upon termination, Escrow Agent shall have
no further obligation or liability whatsoever with respect to
this Escrow Agreement, the funds or the Shares.
IN WITNESS WHEREOF, the parties hereto, intending to be
legally bound, have executed this Escrow Agreement.
BICO, INC.
February 15, 2002 /s/ Fred E. Cooper
Date Fred E. Cooper, CEO
J.P. CAREY ASSET MANAGEMENT
February 15, 2002 /s/ Joseph C. Canouse
Date
HOUSTON HARBAUGH, P.C.
February 15, 2002 /s/ Thomas J. Miller
Date Thomas J. Miller, Esq.