EXHIBIT 10.4
ESCROW AGREEMENT dated as of the day
of , 2000 (the "Agreement") by and
among UNITY EMERGING TECHNOLOGY VENTURE
ONE LTD., a Delaware corporation (the
"Company"), XXXXXXXX XXXXXXXX, XXXXXX
XXXXX, XXXXXXXX SERVICES LTD., XXXX
XXXXXXX, XXXXX XXXXXXX and UNITY VENTURE
CAPITAL ASSOCIATES LTD. (collectively, the
"Company Principals") and AMERICAN STOCK
TRANSFER & TRUST COMPANY, a New York limited
purpose trust company (the "Escrow Agent").
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The Company has entered into an Underwriting Agreement dated , 2000
(the "Underwriting Agreement") with Xxxxxx, Xxxxxxx Inc. and EarlyBirdCapital,
Inc. (the "Underwriters"), pursuant to which, among other matters, the
Underwriters have agreed to purchase from the Company up to an aggregate of
1,955,000 units, including 255,000 units subject to the Underwriters'
over-allotment option (the "Units"), each Unit to consist of (i) one (1) share
of the Company's Common Stock, par value $.0001 per share ("Common Stock"), and
(ii) one (1) Class A Redeemable Common Stock Purchase Warrant (the "Warrant"),
all as more fully described in the Company's definitive Prospectus dated , 2000
comprising part of the Company's Registration Statement on Form S-1 under the
Securities Act of 1933, as amended (File No. 333- ), declared effective on ,
2000 (the "Prospectus").
The Company Principals have agreed as a condition of the consummation
of the sale of the Units to deposit their shares of Common Stock and Warrants of
the Company, as set forth opposite their respective names in Exhibit A attached
hereto (collectively the "Escrow Shares"), in escrow as hereinafter provided.
The Company and the Company Principals desire that the Escrow Agent
accept the Escrow Securities, in escrow, to be held and disbursed as hereinafter
provided.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the parties hereto agree as follows:
1. APPOINTMENT OF ESCROW AGENT. The Company and the Company Principals
hereby appoint the Escrow Agent to act in accordance with and subject to the
terms of this Agreement, and the Escrow Agent hereby accepts such appointment
and agrees to act in accordance with and subject to such terms.
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2. DEPOSIT OF ESCROW SECURITIES. On or before the Closing Date of the
sale of the Units (as defined in the Underwriting Agreement), each of the
Company Principals shall deliver to the Escrow Agent certificates, either
endorsed in blank or accompanied by stock powers endorsed in blank, in either
instance with signatures guaranteed by a commercial bank or a member of the New
York Stock Exchange, Inc. representing his respective Escrow Securities, to be
held and disbursed subject to the terms and conditions of this Agreement. In
addition, all dividends or other distributions payable in equity securities of
the Company or other non-cash property ("Non-Cash Dividends") will be delivered
to the Escrow Agent to hold in accordance with the terms hereof. In the event,
subsequent to a business combination as described in the Prospectus (the
"Business Combination"), there is a stock exchange or other transaction pursuant
to which all the Company's stockholders are given the right to exchange their
Escrowed Securities for property other than cash ("Exchange Securities"), the
Company Principals may instruct the Escrow Agent to make the exchange on their
behalf, in which event, the Exchanged Securities will be delivered to the Escrow
Agent to be held hereunder. As used herein, the term Escrow Securities will be
deemed to include the Non-Cash Dividends and Exchanged Securities, if any.
3. DISBURSEMENT OF THE ESCROW ACCOUNT. Upon the earlier of (i) six
months following the consummation of a Business Combination or (ii) the
liquidation of the Company, the Escrow Agent shall disburse the Common Stock
held by the Escrow Agent to the Company Principals in accordance with their
respective interests therein as set forth upon the aforementioned Exhibit A,
whereupon the Escrow Agent shall be released form further liability hereunder.
Upon the consummation of a Business Combination the Escrow Agent shall disburse
the Warrants held by the Escrow Agent to the Company Principals.
4. RIGHTS OF COMPANY PRINCIPALS IN ESCROW SHARES. The Company
Principals shall retain all of their rights as stockholders of the Company
during such period as the Escrow Shares shall be retained by the Escrow Agent
pursuant to this Agreement including, without limitation, the right to vote such
shares and to receive cash dividends payable thereon, if any. No sale, transfer
or other disposition may be made of any or all of such shares, except by gift to
a member of Company Principal's immediate family; by transfer to a trust, XXX or
401(k) plan, as defined under ERISA, whereby the beneficiary is the Company
Principal or a member of Company Principal's immediate family; by virtue of the
laws of descent and distribution upon death of any Company Principal; or
pursuant to a qualified domestic relations order; PROVIDED, HOWEVER, that such
permissive transfers may be implemented only upon the respective transferees'
written agreement to be likewise bound by the terms and conditions of this
Agreement.
5. CONCERNING THE ESCROW AGENT.
5.1 The Escrow Agent shall not be liable 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
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judgment, and 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 Escrow Agent), 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 Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced by a
writing delivered to the Escrow Agent signed by the proper party or parties and,
if the duties or rights of the Escrow Agent are affected, unless it shall have
given its prior written consent thereto.
5.2 The Escrow Agent shall not be responsible for the sufficiency or
accuracy, 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 Escrow Agent be responsible or liable in
any respect on account of the identity, authority or rights of the persons
executing or delivering or purporting to execute or deliver any document or
property paid or delivered by the Escrow Agent pursuant to the provisions
hereof. The Escrow Agent shall not be liable for any loss which may be incurred
by reason of any investment of any monies or properties which it holds
hereunder.
5.3 The Escrow Agent shall have the right to assume in the absence of
written notice to the contrary from the proper person or persons that a fact or
an event by reason of which an action would or might be taken by the Escrow
Agent does not exist or has not occurred, without incurring liability for any
action taken or omitted, in good faith and in the exercise of its own best
judgment, in reliance upon such assumption.
5.4 The Escrow Agent shall be indemnified and held harmless by the
Company and the Company Principals, jointly and severally, from and against any
expenses, including counsel fees and disbursements, or loss suffered by the
Escrow Agent in connection with any action, suit or other proceeding involving
any claim, or in connection with any claim or demand, which in any way directly
or indirectly, arises out of or relates to this Agreement, the services of the
Escrow Agent hereunder, the monies or other property held by it hereunder or any
such expense or loss. Promptly after the receipt by the Escrow Agent of notice
of any demand or claim or the commencement of any action, suit or proceeding,
the Escrow Agent shall, if a claim in respect thereof shall be made against the
other parties hereto, notify such parties thereof in writing; but the failure by
the Escrow Agent to give such notice shall not relieve any party from any
liability which such party may have to the Escrow Agent hereunder. In the event
of the receipt of such notice, the Escrow Agent, in its sole discre- tion, may
commence an action in the nature of interpleader in an appropriate court to
determine ownership or disposition of the Escrow Shares or it may deposit the
Escrow Shares with the clerk of any appropriate court or it may retain the
Escrow Shares pending receipt of a final, non-appealable order of a court having
jurisdiction over all of the parties hereto directing to whom and under what
circumstances the Escrow Shares are to be disbursed and delivered.
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5.5 Notwithstanding any obligation to make payments and deliveries
hereunder, the Escrow Agent may retain and hold for such time as it deems
necessary such amount of monies or property as it shall from time to time in its
sole discretion deem sufficient to indemnify itself for any loss or expense or
for any amounts due it. For the purposes hereof, the term "expense or loss"
shall include all amounts paid or payable to satisfy any claim, demand or
liability, or in settlement of any claim, demand, action, suit or proceeding
settled with the express written consent of the Escrow Agent, and all costs and
expenses, including but not limited to, counsel fees and disbursements paid or
incurred in investigating or defending any such claim, demand, action, suit or
proceeding.
5.6 The Escrow Agent shall be entitled to reasonable compensation from
the Company for all services rendered by it hereunder. The Escrow Agent shall
also be entitled to reimburse- ment from the Company for all expenses paid or
incurred by it in the administration of its duties hereunder including, but not
limited to, all counsel, advisors' and agents' fees and disbursements and all
taxes or other governmental charges.
5.7 From time to time on and after the date hereof, the Company and the
Company Principals shall deliver or cause to be delivered to the Escrow Agent
such further documents and instru- ments and shall do or cause to be done such
further acts as the Escrow Agent shall reasonably request (it being understood
that the Escrow Agent shall have no obligation to make such request) to carry
out more effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting
hereunder.
5.8 The Escrow Agent may resign at any time and be discharged from its
duties as escrow agent hereunder by its giving the other parties hereto at least
thirty (30) days prior written notice thereof. As soon as practicable after its
resignation, the Escrow Agent shall turn over to a successor escrow agent
appointed by the other parties hereto, jointly, all monies and property held
hereunder (less such amount as the Escrow Agent is entitled to retain pursuant
to Paragraph 5.5) upon presentation of the document appointing the new escrow
agent and its acceptance thereof. If no new agent is so appointed within the
sixty (60) day period follow-ing the giving of such notice of resignation, the
Escrow Agent may deposit the Escrow Shares with any court it deems appropriate.
5.9 The Escrow Agent shall resign and be discharged from its duties as
escrow agent hereunder if so requested in writing at anytime by the other
parties hereto, jointly, provided, however, that such resignation shall become
effective only upon acceptance of appointment by a successor escrow agent as
provided in paragraph 5.8.
5.10 Notwithstanding anything herein to the contrary, the Escrow Agent
shall not be relieved from liability hereunder for its own gross negligence or
its own willful misconduct.
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6. MISCELLANEOUS.
6.1 This Agreement shall for all purposes be deemed to be made
under and shall be construed in accordance with the laws of the State of New
York.
6.2 This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof and, except as expressly
provided herein, may not be changed or modified except by an instrument in
writing signed by the party to the charged.
6.3 The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
thereof.
6.4 This Agreement shall be binding upon and inure to the benefit
of the respective parties hereto and their legal representatives, successors and
assigns.
6.5 Any notice or other communication required or which may be
given hereunder shall be in writing and either be delivered personally or be
mailed, certified or registered mail, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if mailed, two (2)
days after the date of mailing, as follows:
If to the Company, to:
Unity Emerging Technology Venture One Ltd.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx Xxxxxxxx, President
with a copy to:
Xxxxxxxxx Xxxxxx Xxxxxxxx Xxxxxx & Xxxxxx, P.C.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxx, Esq.
If to the Company Principals, to each as follows:
(i) Xxxxxxxx Xxxxxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
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(ii) Xxxxxx Xxxxx
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
(iii) Xxxx Xxxxxxx
Xxxxxxxx Xx Xxxxxxx
Xx 00 Xxxx #00
Xxxxx, Xxxxxxx
(xx) Xxxxx Xxxxxxx
00 Xxxxx Xxxx
Xxxxxxxxx, Xxx Xxxxxx 00000
(v) Unity Venture Capital Associates Ltd.
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxx, Xxx Xxxx 00000
and if to the Escrow Agent, to:
American Stock Transfer & Trust Company
00 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: President
The parties may change the persons and addresses to which the notices or other
communications are to be sent by giving written notice to any such change in the
manner provided herein for giving notice.
WITNESS the execution of this Agreement as of the date first above
written.
UNITY EMERGING TECHNOLOGY
VENTURE ONE LTD.
By:
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Xxxxxxxx Xxxxxxxx, President
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Xxxxxxxx Xxxxxxxx
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Xxxxxx Xxxxx
CRICKETT SERVICES, LTD.
By:
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Xxxx Xxxxxxx
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Xxxxx Xxxxxxx
UNITY VENTURE CAPITAL ASSOCIATES LTD.
By:
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Xxxxxxxx Xxxxxxxx, President
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Escrow Agent
By:
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EXHIBIT A
NUMBER OF
SHARES OF
NAME COMMON STOCK WARRANTS
---- ------------ --------
Xxxxxxxx Xxxxxxxx 172,125 59,166
Xxxxxx Xxxxx 16,875 59,167
Crickett Services, Ltd. 43,875 --
Xxxx Xxxxxxx -- 59,167
Xxxxx Xxxxxxx 6,750 22,500
Unity Venture Capital
Associates Ltd. 75,000 --
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