EXHIBIT 10.2
TRUST AGREEMENT dated , 2000 by and
between UNITY EMERGING TECHNOLOGY
VENTURE ONE LTD. (the "Company") and THE
BANK OF NEW YORK (the "Trustee").
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The Company's Registration Statement on Form S-1, No. 333- (the
"Registration Statement"), for its initial public offering of securities (the
"IPO") was declared effective by the Securities and Exchange Commission on ,
2000 (such date on which the Registration Statement was declared effective being
referred to as the "Effective Date");
Xxxxxx, Xxxxxxx Inc. and EarlyBirdCapital, Inc. are the underwriters in
the IPO;
A percentage of the gross proceeds of the IPO will be delivered to the
Trustee to be deposited and held in a trust account for the benefit of the
Company and all of the stockholders of the Company other than the owners of the
shares of the Company's Common Stock outstanding immediately prior to the
Effective Date, all as set forth herein (the amount to be delivered to the
Trustee will be referred to herein as the "Property"); the stockholders for
whose benefit the Trustee shall hold the Property will be referred to as the
"Public Stockholders" and the Public Stockholders and the Company will be
referred to collectively as the "Beneficiaries");
The Company and the Trustee desire to enter into an agreement setting
forth the terms and conditions pursuant to which the Trustee shall hold the
Property;
NOW, THEREFORE, the parties hereto agree as follows:
1. AGREEMENTS AND COVENANTS OF TRUSTEE. The Trustee hereby agrees and
covenants to:
(a) Hold the Property in trust for the Beneficiaries in
accordance with the terms of this Agreement and in a trust account
("Trust Account");
(b) Manage, supervise and administer the Trust Account subject
to the terms and conditions set forth herein;
(c) Make such investments and reinvestments of the Property in
U.S. Government securities and in money market vehicles invested in
U.S. Government securities in a timely manner at the written direction
of the Company. Interest and other earnings on the Property shall be
added to the principal of the Trust Account and shall be included in
the term "Property" as used herein.
(d) Collect and receive, when due, all principal and income
arising from the Property which shall become part of the Property as
the term is used herein;
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(e) Notify the Company of all communications received by it
with respect any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be
requested by the Company in connection with the Company's preparation
of the tax returns for the Trust Account;
(g) Participate in any plan or proceeding for protecting or
enforcing any right or interest arising from the Property if, as and
when instructed by the Company to do so;
(h) Render to the Company and Xxxxxx, Xxxxxxx Inc., and to
such other persons as the Company may instruct, monthly written
statements of the activities of and amounts in the Trust Account
reflecting all receipts and disbursements of the Trust Account; and
(i) Commence liquidation of the Trust Account only after
receipt of and only in accordance with the terms of a letter
("Termination Letter"), in a form substantially similar to that
attached hereto as either Exhibit A or Exhibit B, signed on behalf of
the Company by its President or Chairman of the Board and Secretary.
The Trustee shall complete the liquidation of the Trust Account and
distribute the Property in the Trust Account only as directed in the
Termination Letter, and in any written instruction contemplated by the
Termination Letter.
2. AGREEMENTS AND COVENANTS OF THE COMPANY. The Company hereby agrees
and covenants to:
(a) Give all instructions to the Trustee hereunder in writing,
signed by the Company's President or Chairman of the Board. In addition, except
with respect to its duties under paragraph 1(i) above, the Trustee shall be
entitled to rely on, and shall be protected in relying on, any verbal or
telephonic advice or instruction which it in good faith believes to be given by
any one of the persons authorized above to give written instructions.
(b) Hold the Trustee harmless and indemnify the Trustee from
and against, any and all expenses, including reasonable counsel fees and
disbursements, or loss suffered by the Trustee in connection with any action,
suit or other proceeding brought against the Trustee involving any claim or
demand, or in connection with any claim or demand, which in any way arises out
of or relates to this Agreement, the services of the Trustee hereunder, or the
Property or any income earned from investment of the Property. Promptly after
the receipt by the Trustee of notice of demand or claim or the commencement of
any action, suit or proceeding, pursuant to which the Trustee intends to seek
indemnification under this paragraph, it shall notify the Company in writing of
such claim (hereinafter referred to as the "Indemnified Claim"). The Trustee
shall have the right to conduct and manage the defense against such Indemnified
Claim, provided, that the Trustee shall obtain the consent of the Company with
respect to the selection of counsel, which consent shall not be unreasonably
withheld. Notwithstanding the foregoing sentence, the Trustee shall not have the
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right to settle any action without the consent of the Company, which consent
shall not be unreasonably withheld. The Company may participate in such action
with its own counsel.
(c) Pay the Trustee an annual fee of 1/2 of 1% of the total
market value of the Trust Account, payable quarterly on a pro rata basis,
PROVIDED, HOWEVER, that each such payment shall represent an entire quarterly
payment. The Company shall pay the Trustee an investment fee of $25.00 for each
purchase or sale of a security made by Trustee hereunder. The Trustee shall also
be compensated for all reasonable expenses that it may incur in the event that
it may submit an application to have the property deposited with the United
States District Court for the Southern District of New York. The Company shall
not be responsible for any other fees or charges of the Trustee except as may be
provided by the foregoing sentences and in paragraphs 2(b) and 3(m) hereof (it
being expressly understood that the Property shall not be used to make any
payments to the Trustee under this Agreement).
3. LIMITATIONS OF LIABILITY. The Trustee shall have no responsibility
or liability to:
(a) Take any action with respect to the Property, other than
as directed in paragraph 1 hereof and the Trustee shall have no liability to any
party except for liability arising out of its own gross negligence or willful
misconduct;
(b) Institute any proceeding for the collection of any
principal and income arising from, or institute, appear in or defend any
proceeding of any kind with respect to, any of the Property unless and until it
shall have received instructions from the Company given as provided herein to do
so and the Company shall have advanced or guaranteed to it funds sufficient to
meet any expenses incident thereto;
(c) Change the investment of any Property, other than in
compliance with paragraph 1(c);
(d) Refund any depreciation in principal of any Property;
(e) Assume that the authority of any person designated by the
Company to give instructions hereunder shall not be continuing unless provided
otherwise in such designation, or unless the Company shall have delivered a
written revocation of such authority to the Trustee;
(f) The Company or to anyone else for any action taken or
omitted by it, or any action suffered by it to be taken or omitted, in good
faith and in the exercise of its own best judgment, except for its gross
negligence or willful misconduct. The Trustee may rely conclusively and shall be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by the Trustee), statement,
instrument, report or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth
and acceptability of any information therein contained) which is believed by the
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Trustee, in good faith, to be genuine and to be signed or presented by the
proper person or persons. The Trustee shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this agreement
or any of the terms hereof, unless evidenced by a writing delivered to the
Trustee signed by the proper party or parties and, if the duties or rights of
the Trustee are affected, unless it shall give its prior written consent
thereto;
(g) Be responsible for the sufficiency or accuracy of the form
of, or the execution, validity, value or genuineness of, any document or
property received, held or delivered by it hereunder, or of any signature or
endorsement thereon, or for any lack of endorsement thereon, or for any
description therein, nor shall the Trustee be responsible or liable to the other
parties hereto or to anyone else in any respect on account of the liability,
authority, or rights of the persons executing or delivering or purporting to
execute or deliver any document or property or this Agreement. The Trustee shall
have no responsibility with respect to the use or application of any funds or
other property paid or delivered by the Trustee pursuant to the provisions
hereof;
(h) Verify the correctness of the information set forth in the
Registration Statement or to confirm or assure that any acquisition made by the
Company or any other action taken by it is as contemplated by the Registration
Statement;
(i) Pay any taxes on behalf of the Trust Account (it being
expressly understood that the Property shall not be used to pay any such taxes
and that such taxes, if any, shall be paid by the Company from funds not held in
the Trust Account); and
(j) The Trustee shall have no duties or responsibilities
except as expressly provided in this Agreement, and no implied covenants or
obligations shall be read into this Agreement against the Trustee. The Trustee
shall neither be obligated to recognize nor have any liability or responsibility
arising out of any other agreement to which the Trustee is not a party even
though reference thereto may be made herein.
(k) The Trustee shall not be required to, and shall not,
expend or risk any of its own funds or otherwise incur any financial liability
in the performance of any of its duties hereunder.
(l) The Trustee shall have no responsibility or liability to
any party hereto or any other person (i) for acting in accordance with or
relying upon any instruction, notice, demand, certificate or document from the
Company or any entity acting on behalf of the Company, (ii) for any
consequential, punitive or special damages, (iii) for the acts or omissions
(other than any constituting gross negligence or wilful misconduct) of its
nominees, correspondents, designees, subagents or subcustodians, or (iv) for an
amount in excess of the value of the Property.
(m) The Trustee may consult with legal counsel at the expense
of the Company as to any matter relating to this Escrow Agreement, and the
Trustee shall not incur any liability in acting in good faith in accordance with
any advice from such counsel.
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(n) The Trustee shall not incur any liability for not
performing any act or fulfilling any duty, obligation or responsibility
hereunder by reason of any occurrence beyond the control of the Trustee
(including but not limited to any act or provision of any present or future law
or regulation or governmental authority, any act of God or war, or the
unavailability of the Federal Reserve Bank wire or telex or other wire or
communication facility).
(o) In the event of any ambiguity or uncertainty hereunder or
in any notice, instruction or other communication received by the Trustee
hereunder, the Trustee may, in its sole discretion, refrain from taking any
action other than retain possession of the Property, unless the Trustee receives
written instructions, signed by the Company, which eliminates such ambiguity or
uncertainty.
4. TERMINATION. This Agreement shall terminate as follows:
(a) If the Trustee gives fifteen calendar days prior written
notice to the Company that it desires to terminate this Agreement, the Company
shall use its reasonable efforts to locate a successor trustee. The Company may
remove the Trustee at any time upon giving the Trustee thirty days prior written
notice thereof. At such time that the Company notifies the Trustee that a
successor trustee has been appointed by the Company and has agreed to become
subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to the
Trust Account, whereupon this Agreement shall terminate; provided, however, that
in the event that the Company does not locate a successor trustee within ninety
days of receipt of the resignation notice from the Trustee, the Trustee may
submit an application to have the Property deposited with the United States
District Court for the Southern District of New York.
(b) At such time that the Trustee has completed the
liquidation of the Trust Account in accordance with the provisions of paragraph
1(i) hereof, and distributed the Property in accordance with the provisions of
the Termination Letter, this Agreement shall terminate; or
(c) On such date after , 2003 when the Trustee deposits the
Property with the United States District Court for the Southern District of New
York in the event that, prior to such date, the Trustee has not received a
Termination Letter from the Company pursuant to paragraph 1(i).
5. MISCELLANEOUS.
(a) This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without giving
effect to conflict of laws. It may be executed in several counterparts, each one
of which shall constitute an original, and all collectively shall constitute but
one instrument.
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(b) This Agreement contains the entire agreement and
understanding of the parties hereto with respect to the subject matter hereof.
This Agreement or any provision hereof may only be changed, amended, modified or
waived by a writing signed by each of the parties hereto; provided, however,
that no change, amendment or modification may be made without the prior written
consent of GKN Securities Corp.
(c) Any notice, consent or request to be given in connection
with any of the terms or provisions of this Agreement shall be in writing and
shall be sent by express mail or similar private courier services, by certified
mail (return receipt requested), by hand delivery or by facsimile transmission
(followed by telephone confirmation by sending party to receiving party):
If to the Trustee, to:
The Bank of New York
000 Xxxxxxx Xxxxxx
Insurance Trust & Escrow, 00 X
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Tel No.: (000) 000-0000
Attention:
If to the Company, to:
Unity Emerging Technology Venture One Ltd.
000 Xxxxx Xxxxxx - Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: President
in either case with a copy to:
Xxxxxx, Xxxxxxx Inc.
Fax. No.: (516)
Attention:
and
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American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Fax No.: (000) 000-0000
Attention: President
Notice will be deemed received the same day (when delivered personally), 5 days
after mailing (when sent by registered or certified mail), or the next business
day (when sent by facsimile transmission or when delivered by overnight
courier). Any party to this Agreement may change its address to which all
communications and notices may be sent hereunder by addressing notices of such
change in the manner provided.
(d) This Agreement may not be assigned by the Trustee without
the consent of the Company.
(e) Each of the Trustee and the Company hereby represents that
it has the full right and power and has been duly authorized to enter into this
Agreement and to perform its respective obligations as contemplated hereunder.
The Trustee acknowledges and agrees that it shall not make any claims or proceed
against the Trust Account, including by way of set-off, and shall not be
entitled to any funds in the Trust Account.
(f) If at any time the Trustee is served with any judicial or
administrative order, judgment, decree, writ or other form of judicial or
administrative process which in any way affects the Property (including but not
limited to orders of attachment or garnishment or other forms of levies or
injunctions or stays relating to the transfer of the Property), the Trustee may
elect, in its sole discretion, to commence an interpleader action or seek other
judicial relief or orders as it may deem, in its sole discretion, necessary.
(g) The parties hereto consent to the jurisdiction and venue
of any state or federal court located in the City of New York for purposes of
resolving any disputes hereunder. The Company hereby submits to the personal
jurisdiction of and agrees that all proceedings relating hereto shall be brought
in courts located within the City and State of New York. The Company hereby
waives the right to trial by jury and to assert counterclaims (other than any
counterclaim of gross negligence or willful misconduct on behalf of the Trustee
arising under this Agreement) in any such proceedings. The Company waives
personal service of process and consents to service of process by certified or
registered mail, return receipt requested, directed to it at the address last
specified for notices hereunder, and such service shall be deemed completed ten
(10) calendar days after the same is so mailed.
(h) The rights and remedies conferred upon the parties hereto
shall be cumulative, and the exercise or waiver of any such right or remedy
shall not preclude or inhibit the exercise of any additional rights or remedies.
The waiver of any right or remedy hereunder shall not preclude the subsequent
exercise of such right or remedy.
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(i) The Company hereby represents and warrants (a) that this
Agreement has been duly authorized, executed and delivered on its behalf and
constitutes its legal, valid and binding obligation and (b) that the execution,
delivery and performance of this Agreement by Company do not and will not
violate any applicable law or regulation.
(j) The invalidity, illegality or unenforceability of any
provision of this Agreement shall in no way affect the validity, legality or
enforceability of any other provision; and if any provision is held to be
enforceable as a matter of law, the other provisions shall not be affected
thereby and shall remain in full force and effect.
(k) Other than as required by law or regulation, no printed or
other material in any language (but excluding prospectus and registration
statements and reports filed by the Company with the Securities and Exchange
Commission or any other governmental or regulatory authority), including
notices, reports, and promotional material which mentions "The Bank of New York"
by name or the rights, powers, or duties of the Trustee under this Agreement
shall be issued by the Company, or on the Company's behalf, without the prior
written consent of the Trustee.
(l) The headings contained in this Agreement are for
convenience of reference only and shall have no effect on the interpretation or
operation hereof.
(m) This Agreement may be executed by each of the parties
hereto in any number of counterparts, each of which counterpart, when so
executed and delivered, shall be deemed to be an original and all such
counterparts shall together constitute one and the same agreement.
IN WITNESS WHEREOF, the parties have duly executed this Trust Agreement
as of the date first written above.
THE BANK OF NEW YORK, as Trustee
By:
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UNITY EMERGING TECHNOLOGY
VENTURE ONE LTD.
By:
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Xxxxxxxx Xxxxxxxx
President
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EXHIBIT A
[Letterhead of Company]
[Insert date]
The Bank of New York
Re: TRUST ACCOUNT NO. TERMINATION LETTER
Gentlemen:
Pursuant to paragraph 1(i) of the Trust Agreement between Unity
Emerging Technology Venture One Ltd. (the "Company") and The Bank of New York,
as trustee (the "Trustee"), dated , 2000 (the "Trust Agreement"), this is to
advise you that the Company has entered into an agreement (the "Business
Agreement") with (the "Target Business") to consummate a business combination
with a Target Business (the "Business Combination") on or about [insert date].
The Company shall notify you at least 48 hours in advance of the actual date of
the consummation of the Business Combination (the "Consummation Date").
In accordance with the terms of the Trust Agreement, we hereby
authorize you to commence liquidation of the Trust Account to the effect that,
on the Consummation Date, all of funds held in the Trust Account will be
immediately available for transfer to the account or accounts that the Company
shall direct on the Consummation Date.
On the Consummation Date (i) counsel for the Company shall deliver to
you written notification that the Business Combination has been consummated, and
(ii) the Company shall deliver to you written instructions with respect to the
transfer of the funds held in the Trust Account ("Instruction Letter"). You are
hereby directed and authorized to transfer the funds held in the Trust Account
immediately upon your receipt of the counsel's letter and the Instruction
Letter, in accordance with the terms of the Instruction Letter. In the event
certain deposits held in the Trust Account may not be liquidated by the
Consummation Date without penalty, you will notify the Company of the same and
the Company shall direct you as to whether such funds should remain in the Trust
Account and distributed after the Consummation Date to the Company. Upon the
distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
Very truly yours,
UNITY EMERGING TECHNOLOGY
VENTURE ONE LTD.
By:
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Xxxxxxxx Xxxxxxxx, President
By:
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Xxxxxx Xxxxx, Secretary
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EXHIBIT B
[Letterhead of Company]
[Insert date]
The Bank of New York
Re: TRUST ACCOUNT NO. TERMINATION LETTER
Gentlemen:
Pursuant to paragraph 1(i) of the Trust Agreement between Unity
Emerging Technology Venture One Ltd. (the "Company") and The Bank of New York as
trustee (the "Trustee"), dated November 18, 1996 (the "Trust Agreement"), this
is to advise you that the Board of Directors of the Company has voted to
dissolve and liquidate the Company. Attached hereto is a copy of the minutes of
the meeting of the Board of Directors of the Company relating thereto, certified
by the secretary of the Company.
In accordance with the terms of the Trust Agreement, we hereby
authorize you to commence liquidation of the Trust Account. You will notify the
Company and American Stock Transfer & Trust Company ("Designated Paying Agent")
in writing as to when all of the funds in the Trust Account will be available
for immediate transfer ("Transfer Date"). The Designated Paying Agent shall
thereafter notify you as to the account or accounts of the Designated Paying
Agent that the funds in the Trust Account should be transferred to on the
Transfer Date so that the Designated Paying Agent may commence distribution of
such funds in accordance with the Company's instructions. You shall have no
obligation to oversee the Designated Paying Agent's distribution of the funds.
Upon the payment to the Designated Paying Agent of all the funds in the Trust
Account, the Trust Agreement shall be terminated.
Very truly yours,
UNITY EMERGING TECHNOLOGY
VENTURE ONE LTD.
By:
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Xxxxxxxx Xxxxxxxx, President
By:
-----------------------------
Xxxxxx Xxxxx, Secretary
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