EXHIBIT 10.1
TRUST AGREEMENT (the "Agreement") dated
May, 2001 by and between FROST CAPITAL
GROUP, INC. (the "Company") and
FIDUCIARY TRUST INTERNATIONAL OF THE
SOUTH (the "Trustee").
The Company is filing a Registration Statement on Form S-1 (the
"Registration Statement") for its initial public offering of securities (the
"IPO") with the Securities and Exchange Commission;
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 who purchased shares in the
IPO or in the open market following the IPO other than the existing stockholders
of the Company with respect to shares of common stock of the Company (the
"Common Stock") owned by them immediately prior to the IPO, 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, except as provided
in paragraph 1(i) above. 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, arising out of or in connection with any claim or demand, arising out of
or in connection with this Agreement, the services of the Trustee hereunder, or
the Property or any income earned from investment of the Property; provided,
however, the Company shall have no obligation to indemnify the Trustee to the
extent it is determined with respect to any matter that the Trustee has acted
grossly negligent or in an intentionally wrongful manner. 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; and
(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, or as
mutually agreed to by the Company and the Trustee. The Trustee intends to
invoice the Company for its fees quarterly; provided, however, in the event the
Company does not pay such fees within the time period provided in
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such invoice, the Trustee may pay itself from the interest income earned on the
total market value of the Trust Account. The Trustee shall 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 Florida. The Company shall not be responsible for
any other fees or charges of the Trustee except as may be provided in paragraph
2(b) and in the first sentence of the last paragraph of Section 3 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
intentional 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
intentional 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;
(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
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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);
(j) Have any duties or responsibilities other than as expressly
provided in this Agreement, and implied covenants or obligations 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) Expend or risk any of its own funds or otherwise incur any
financial liability in the performance of any of its duties hereunder; and
(l) 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 intentional
misconduct) of its nominees, correspondents, designees, subagents or
subcustodians, or (iv) for an amount in excess of the value of the Property.
The Trustee may consult with legal counsel at the expense of the
Company as to any matter relating to this Agreement, and the Trustee shall not
incur any liability in acting in good faith in accordance with any advice from
such counsel. 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). 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 thirty calendar days prior written notice
to the Company that it desires to terminate this Agreement. In the event the
Company receives such notice, the Company shall use its reasonable efforts to
locate a successor trustee; provided, however, that in the event that the
Company does not locate a successor trustee within forty-five days of receipt of
the resignation notice from the Trustee, the Trustee may submit an application
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to have the Property deposited with the United States District Court for the
Southern District of Florida. 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.
(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 ______________________ ____ , 2004 when the
Trustee deposits the Property with the United States District Court for the
Southern District of Florida 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 Florida, 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):
If to the Trustee, to:
Fiduciary Trust International of the South
▇▇▇ ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇, Chief Financial Officer
If to the Company, to:
Frost Capital Group, Inc.
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▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
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Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax No. (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
in either case with a copy to:
GBI Capital Partners Inc.
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▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Tel. No. (▇▇▇) ▇▇▇-▇▇▇▇
Fax. No.(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
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.
(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 County of Miami-Dade, Florida 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 County of Miami-Dade in the State of Florida. The
Company hereby waives the right to trial by jury and to assert counterclaims
(other than any counterclaim of gross negligence or intentional misconduct on
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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 the 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 "Fiduciary Trust International of the South"
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.
[SIGNATURES FOLLOW ON NEXT PAGE]
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IN WITNESS WHEREOF, the parties have duly executed this Trust
Agreement as of the date first written above.
FIDUCIARY TRUST INTERNATIONAL OF THE SOUTH, as
Trustee
By:__________________________________________________
FROST CAPITAL GROUP, INC.
By: ______________________________________
▇▇▇▇▇▇▇ ▇▇▇▇▇, President and Chairman
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EXHIBIT A
[Letterhead of Company]
[Insert date]
Fiduciary Trust International of the South
Re: TRUST ACCOUNT NO. TERMINATION LETTER
Gentlemen:
Pursuant to paragraph 1(i) of the Trust Agreement between Frost Capital Group,
Inc. (the "Company") and Fiduciary Trust International of the South, as trustee
(the "Trustee"), dated __________, 2001 (the "Trust Agreement"), this is to
advise you that the Company has entered into an agreement (the "Business
Agreement") with [insert company] ("Target Business") to consummate a business
combination with the 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,
FROST CAPITAL GROUP, INC.
By:____________________________________________
By:____________________________________________
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EXHIBIT B
[Letterhead of Company]
[Insert date]
Fiduciary Trust International of the South
Re: TRUST ACCOUNT NO. TERMINATION LETTER
Gentlemen:
Pursuant to paragraph 1(i) of the Trust Agreement between Frost Capital Group,
Inc., (the "Company") and Fiduciary Trust International of the South as trustee
(the "Trustee"), dated ________, 2001 (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,
FROST CAPITAL GROUP, INC.
By:_________________________________________
By:_________________________________________
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