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.
333-36754 (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");
GBI Capital Partners Inc. is acting as representative of the
underwriters in the IPO;
A portion 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;
(e) Notify the Company of all communications received
by it with respect to 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 GBI Capital Partners
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 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.
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(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
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;
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(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 willful 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.
(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,
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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.
(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 GBI Capital Partners Inc.
(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):
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If to the Trustee, to:
The Bank of New York
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Insurance Trust & Escrow, ▇▇ ▇
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Tel No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention:
If to the Company, to:
Unity Emerging Technology Venture One Ltd.
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
in either case with a copy to:
GBI Capital Partners Inc.
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Fax. No.: (516)
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Chairman
and
American Stock Transfer & Trust Company
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Fax No.: (▇▇▇) ▇▇▇-▇▇▇▇
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.
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(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.
(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 does 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
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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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President
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EXHIBIT A
[Letterhead of Company]
[Insert date]
The Bank of New York
Re: TRUST ACCOUNT NO. TERMINATION LETTER
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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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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
By:
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▇▇▇▇▇▇ ▇▇▇▇▇, Secretary
EXHIBIT B
[Letterhead of Company]
[Insert date]
The Bank of New York
Re: TRUST ACCOUNT NO. TERMINATION LETTER
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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 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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▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇, President
By:
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▇▇▇▇▇▇ ▇▇▇▇▇, Secretary