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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"),
LAWRENCE BURSTEIN, NORMAN LEBEN, CRICKET
SERVICES LTD., JOHN CATTIER, BARRY RIDINGS
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 GBI Capital Partners Inc. acting as
representative of the underwriters (the "Underwriters"), pursuant to which,
among other matters, the Underwriters have agreed to purchase from the Company
up to an aggregate of 1,437,500 units, including 187,500 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 (the
"Common Stock"), and (ii) one (1) Class A Redeemable 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. 333-36754), 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 Class A
warrants of the Company, as set forth opposite their respective names in Exhibit
A attached hereto (collectively the "Escrow Securities"), 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.
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 or its respective Escrow
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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 (the "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 Company securities for property other than cash (the
"Exchanged Securities"), the Company Principals may instruct the Escrow Agent to
make the exchange on their behalf, in which event, the Exchanged Securities
issued on behalf of the Company Principals 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 Escrow
Securities 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.
4. RIGHTS OF COMPANY PRINCIPALS IN ESCROW SECURITIES. The Company
Principals shall retain all of their rights as stockholders of the Company
during such period as the Escrow Securities shall be retained by the Escrow
Agent pursuant to this Agreement including, without limitation, the right to
vote the shares of Common Stock held in escrow (subject, however, to certain
voting restrictions and obligations contained in other agreements executed by
the Company Principals) and to receive cash dividends payable thereon, if any.
No sale, transfer or other disposition may be made of any or all of the Escrow
Securities, except by gift to a member of Company Principal's immediate family;
by transfer to a trust, IRA 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 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.
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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 discretion, may
commence an action in the nature of interpleader in an appropriate court to
determine ownership or disposition of the Escrow Securities or it may deposit
the Escrow Securities with the clerk of any appropriate court or it may retain
the Escrow Securities 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 Securities are to be disbursed and
delivered.
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 reimbursement from the Company for all
expenses paid or incurred by it in the administration of
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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 instruments 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 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 5.6) 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 following the giving of such notice of resignation,
the Escrow Agent may deposit the Escrow Securities 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.
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:
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If to the Company, to:
Unity Emerging Technology Venture One Ltd.
245 Fifth Avenue, Suite 1500
New York, New York 10016
Attn: Lawrence Burstein, President
with a copy to:
Sonnenschein Nath & Rosenthal
1221 Avenue of the Americas
New York, New York 10020
Attn: Ira I. Roxland, Esq.
If to the Company Principals, to each as follows:
(i) Lawrence Burstein
245 Fifth Avenue, Suite 1600
New York, New York 10016
(ii) Norman Leben
245 Fifth Avenue, Suite 1600
New York, New York 10016
(iii) Cricket Services Ltd.
c/o John Cattier
Forestal El Taruman
Km 51 Ruta #15
Rocha, Uruguay
(iv) John Cattier
Forestal El Taruman
Km 51 Ruta #15
Rocha, Uruguay
(v) Barry Ridings
16 Erwin Park
Montclair, New Jersey 07402
(vi) Unity Venture Capital Associates Ltd.
245 Fifth Avenue, Suite 1600
New York, New York 10016
and if to the Escrow Agent, to:
American Stock Transfer & Trust Company
40 Wall Street
New York, New York 10005
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.
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WITNESS the execution of this Agreement as of the date first above
written.
UNITY EMERGING TECHNOLOGY
VENTURE ONE LTD.
BY:
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Lawrence Burstein, President
-------------------------------
Lawrence Burstein
-------------------------------
Norman Leben
CRICKET SERVICES, LTD.
BY:
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John Cattier
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Barry Ridings
UNITY VENTURE CAPITAL ASSOCIATES LTD.
BY:
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Lawrence Burstein, President
AMERICAN STOCK TRANSFER & TRUST
COMPANY, as Escrow Agent
BY:
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EXHIBIT A
<TABLE>
<CAPTION>
NUMBER OF
SHARES OF
NAME COMMON STOCK WARRANTS
---- ------------ --------
<S> <C> <C>
Lawrence Burstein 126,563 44,375
Norman Leben 12,409 44,375
Cricket Services, Ltd. 32,262 --
John Cattier -- 44,375
Barry Ridings 4,964 16,875
Unity Venture Capital
Associates Ltd. 55,148 --
</TABLE>
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