Attached files
Exhibit 10.1
TRUST AGREEMENT
THIS AGREEMENT made and entered into this 1st day of July, 2013, by and
between Tenaya Acquisitions Company ("registrant") whose, address is 1930
Village Center Circle #3-201, Las Vegas, Nevada 89134 (the
"Client/Beneficiary");, and Underhill Securities Corp., as Trustee ("Trustee").
WITNESSETH:
WHEREAS, the Client/ Beneficaiary have established an account in which up
to $30,000 (the "Funds") may be deposited, Underhill Securities Corp agrees to
serve as Trustee, in accordance with the terms and conditions set forth herein.
WHEREAS, the Client/Beneficiary and the Trustee desire to enter into an
agreement with respect to the above-described trust.
NOW, THEREFORE, in consideration of the foregoing and mutual promises and
covenants contained herein, it has been and IT IS HEREBY AGREED as follows:
1. Establishment of Trust. The parties have established a trust with Trustee
serving as trustee.
2. Appointment of Trust; Deposits of Cash.
(a) The Client/Beneficiary herby appoints the Trustee as its agent and
custodian to hold and disburse the Consideration deposited with the
Trust pursuant to the terms of this Trust Agreement in accordance with
the terms hereof.
(b) Following the execution of this Trust Agreement, the
Client/Beneficiary will cause to be delivered to the Trustee from time
to time any and all Consideration received from the Investors upon the
execution and delivery of the Subscription Agreement (the "Trust
Funds").
3. Deposit into the Trust.
DEPOSIT OF OFFERING PROCEEDS AND SECURITIES
Rule 419 of the Securities Exchange Act of 1933 requires that the net
offering proceeds, and all securities to be issued (and those sold by a
selling shareholder upon their sale) be promptly deposited by the Company
into a trust account (the "Deposited Funds" and "Deposited Securities,"
respectively) governed by an agreement which contains certain terms and
provisions specified by the rule. Under Rule 419, the Deposited Funds and
Deposited Securities will be released by the Trustee to the Company and to
investors, respectively, only after the Company has met the following three
conditions: First, the Company must execute an agreement for an
acquisition(s) valued at at least 80% of the offering amount (which
acquisition may be consummated using the proceeds from the offering, loans
or equity); second, the Company must successfully complete a reconfirmation
offering which is reconfirmed by sufficient investors so that the remaining
funds are adequate to allow the acquisition to be consummated; and third,
the acquisition(s) meeting the above criteria must be consummated.
Deposit and investment of offering proceeds.
i. All offering proceeds shall be deposited promptly into the trust.
ii. Deposited proceeds shall be in the form of checks, drafts, or money
orders payable to the order of the Client/Beneficiary.
iii. Deposited proceeds and interest or dividends thereon, if any, shall be
held for the sole benefit of the purchasers of the securities.
iv. Deposited proceeds shall be invested at the discretion of the Trustee
in one of the following:
A. An obligation that constitutes a "deposit," as that term is
defined in section 3(1) of the Federal Deposit Insurance Act;
B. Securities of any open-end investment company registered under
the Investment Company Act of 1940 that holds itself out as a
money market fund meeting the conditions of paragraphs (c)(2),
(c)(3), and (c)(4) of Rule 2a-7 under the Investment Company Act;
or
C. Securities that are direct obligations of, or obligations
guaranteed as to principal or interest by, the United States.
v. Interest or dividends earned on the funds, if any, shall be held in
the trust until the funds are released in accordance with the
provisions of this section. If funds held in the trust are released to
a purchaser of the securities, the purchasers shall receive interest
or dividends earned, if any, on such funds up to the date of release.
If funds held in the trust are released to the registrant, interest or
dividends earned on such funds up to the date of release may be
released to the registrants.
vi. The registrant may receive up to 10 percent of the proceeds remaining
after payment of allowances permitted by Rule 419(b)(2)(vi) of the
Securities Act of 1933 exclusive of interest or dividends, only after
such time as the offering has been fully completed and Trustee then
receives a written request of the registrant.
vii. This Trust will termination upon the happening of one of the
following: 1) the failure to reach the minimum (1,000,000 shares)
offering amount within 180 days of the effectiveness of the offering,
2) confirmation by Tenaya Acquisitions Company's legal counsel that a
reconfirmation offering has been completed and an acquisition
consummated or 3) failure to complete the reconfirmation offering
within 18 months of the date of effectiveness. In the event of
termination, funds and securities shall be delivered as described
herein.
Deposit of securities.
i. All securities issued in connection with the offering when sold,
whether or not for cash consideration, and any other securities issued
with respect to such securities, including securities issued with
respect to stock splits, stock dividends, or similar rights, shall be
deposited by the Company directly into the trust promptly upon
issuance. The identity of the purchaser of the securities shall be
included on the stock certificates or other documents evidencing such
securities. See also Rule 15g-8 of the Exchange Act regarding
restrictions on sales of, or offers to sell, securities deposited in
the trust account.
2
ii. Securities held in the trust are to remain as issued and deposited and
shall be held for the sole benefit of the purchasers, who shall have
voting rights, if any, with respect to securities held in their names,
as provided by applicable state law. NO TRANSFER OR OTHER DISPOSITION
of securities held in the trust or any interest related to such
securities shall be permitted other than by will or the laws of
descent and distribution, or pursuant to a qualified domestic
relations order as defined by the Internal Revenue Code of 1986 as
amended (26 U.S.C. 1 ET SEQ.), or Title 1 of the Employee Retirement
Income Security Act (29 U.S.C. 1001 ET SEQ.), or the rules thereunder.
iii. Warrants, convertible securities or other derivative securities
relating to securities held in the trust may be exercised or converted
by the Trustee at the direction of the Company in accordance with
their terms; PROVIDED, HOWEVER, that securities received upon exercise
or conversion, together with any cash or other consideration paid in
connection with the exercise or conversion, are promptly deposited
into the escrow or trust account.
POST-EFFECTIVE AMENDMENT
Once the agreement(s) governing the acquisition(s) of a business(es)
between the parties to this Agreement, if applicable, meeting the
above criteria has (have) been executed, Rule 419 requires the Company
to update the registration statement of which the prospectus relative
to the acquisition registration is a part with a post-effective
amendment. The post-effective amendment must contain information
about: the proposed acquisition candidate(s) and its business(es),
including audited financial statements; the results of this offering;
and the use of the funds disbursed from the escrow account. The
post-effective amendment must also include the terms of the
reconfirmation offer mandated by Rule 419. The Company must execute an
agreement for an acquisition(s) valued at at least 80% of the offering
amount(which acquisition may be consummated using the proceeds from
the offering, loans or equity); second, the Company must successfully
complete a reconfirmation offering which is reconfirmed by sufficient
investors so that the remaining funds are adequate to allow the
acquisition to be consummated; and third, the acquisition(s) meeting
the above criteria must be consummated
RECONFIRMATION OFFERING
The reconfirmation offer by the Company must commence within five
business days after the effective date of the post-effective
amendment. Pursuant to Rule 419, the terms of the reconfirmation offer
must include the following conditions:
(1) The prospectus contained in the post-effective amendment will be
sent by the Company to each investor whose securities are held in
the escrow account within five business days after the effective
date of the post-effective amendment;
(2) Each investor will have no fewer than 20, and no more than 45,
business days from the effective date of the post-effective
amendment to notify the Company in writing that the investor
elects to remain an investor;
(3) If the Company does not receive written notification from any
investor within 45 business days following the effective date,
the pro rata portion of the Deposited Funds (and any related
interest or dividends) held in the escrow account on such
investor's behalf will be returned to the investor within five
business days by first class mail or other equally prompt means;
(4) The acquisition(s) will be consummated only if sufficient
investors elect to reconfirm their investments so that the
remaining funds are adequate to allow the acquisition to be
consummated; and
3
(5) If a consummated acquisition(s) has not occurred within 18 months
from the date that the Securities and Exchange Commission deems
the offering effective as indicated on the prospectus, Deposited
Funds held in the escrow account shall be returned to all
investors on a pro rata basis within five business days by first
class mail or other equally prompt means.
RELEASE OF DEPOSITED SECURITIES AND DEPOSITED FUNDS
Methods of Disposition of Trust Funds. The Trustee will hold the Trust
Funds and Securities as specified in this Trust Agreement until
authorized hereunder to deliver such Trust Funds or Securities as
follows:
The Deposited Funds and Deposited Securities may be released to the
Company, and the investors, respectively, after:
(1) The Trustee has received written certification from the Company
and any other evidence acceptable by the Trustee that the Company
has executed an agreement for the acquisition(s) of a
business(es) the value of which represents at least 80% of the
maximum offering proceeds (both company and selling shareholder
sales) (which acquisition may be consummated using the proceeds
from the offering, loans or equity) and has filed the required
post-effective amendment, the post-effective amendment has been
declared effective, the mandated reconfirmation offer having the
conditions prescribed by Rule 419 has been completed, and the
Company has satisfied all of the prescribed conditions of the
reconfirmation offer((sufficient investors must have reconfirmed
so that the remaining funds are adequate to allow the acquisition
to be consummated; and
(2) The acquisition(s) of the business(es) the value of which
represents at least 80% of the maximum offering proceeds is (are)
consummated(which acquisition may be consummated using the
proceeds from the offering, loans or equity); or
(3) The deposited funds shall be returned to investors in the event
that the minimum offering amount is not raised within 180 days
(in which case the securities are returned to the company).
4. Discretion of Trustee. The Trustee, in its actions pursuant to this
Agreement, shall be fully protected in every reasonable exercise of its
discretion and shall have no obligations hereunder either to the Company or to
any other party, except as expressly set forth herein and as stated in Rule 419
of the Securities Act of 1933.
It is understood and agreed that the duties of the Trustee are entirely
ministerial, being limited to receiving and holding and disbursing such Funds in
accordance with this Agreement.
5. Trustee Fees. The fee of the Trustee is a fee of $2,500, $1,000 of which
shall be paid by the registrant at the opening of Trust and the remainder of
which fee shall be paid after the close of the offering. In addition, all hard
costs (wire fees, etc.) shall be deducted from disbursements except in the case
of failure to meet the minimum offering requirements within 180 days in which
case all costs shall be borne by Registrant.
6. Expenses of Trustee. Trustee does not anticipate any expenses other than
hard costs as described above. In the event Trustee does incur any expenses,
Client/Beneficiary agrees to promptly reimburse Trustee for its actual costs
incurred.
7. Limitation of Liability of Trustee. In performing any of its duties
hereunder, the Trustee shall not incur any liability to anyone for any damages,
losses or expenses, except for willful default or knowing violation of law, and
it shall, accordingly, not incur any such liability with respect to: (i) any
action taken or omitted in good faith upon advice of its counsel or counsel for
the Client/Beneficaiary given with respect to any questions relating to the
duties and responsibilities of the Trustee under this Agreement; or (ii) any
action taken or omitted in reliance upon any instrument, including the written
advice provided for herein, not only as to its due execution and the validity
4
and effectiveness of its provisions, but also as the truth and accuracy of any
information contained therein, which the Trustee shall in good faith believe to
be genuine, to have been signed or presented by a proper person or persons, and
to conform with the provisions of this Agreement.
8. Indemnity of Trustee. The Client/Beneficary hereby agrees to indemnify
and hold harmless the Trustee against any and all losses, claims, damages,
liabilities, attorneys' fees (even if Trustee represents himself), and expenses,
including any litigation arising from this Agreement or involving the subject
matter hereof.
9. Disputes. In the event that a dispute arises as to the terms of this
Agreement, the Trustee shall be entitled to deposit, in the nature of any
interpleader action, any documents or proceeds then held by such Trustee with
any court of competent jurisdiction within the State of Nevada and shall be
reimbursed for all its attorney's fees and costs connected therewith, even if
Trustee, as attorney, represents himself.
10. Entire Agreement. This is the entire Agreement of the parties. Any
other agreements of any nature whether oral or written not contained herein are
expressly made null and void.
11. Governing Law. This Agreement shall be governed by the laws of the
State of Nevada.
IN WITNESS WHEREOF, the Company, and the Escrow Agent have executed this
Escrow Agreement on the day and year first above-written.
THE CLIENT
/s/ Brian Blaszczak Date: July 1, 2013
-----------------------------------
Brian Blaszczak, President
Tenaya Acquisitions Company
THE ESCROW AGENT
UNDERHILL SECURITIES CORP.
By: /s/ Frank Underhill Date: July 1, 2013
--------------------------------
Name: Frank Underhill
Underhill Securities Corp.
