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Exhibit 2.2
LIQUIDATING TRUST AGREEMENT
relating to
ELEKTRYON
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LIQUIDATING TRUST AGREEMENT
________________ __, 2001
The parties to this agreement (this "Agreement") are Elektryon, a
Nevada corporation, and Wendell H. Adair, Jr., Curtis Olsen and John Cavalier
(collectively, the "Trustees").
Elektryon has transferred substantially all of its assets to Solo
Energy Corporation ("Solo") pursuant to the Asset Acquisition Agreement, dated
as of April 16, 2001 (the "Asset Acquisition Agreement"), by and between
Elektryon and Solo. The transactions contemplated by the Asset Acquisition
Agreement are referred to herein as the "Asset Acquisition." The Asset
Acquisition is structured as a tax free reorganization to avoid taxation at the
Elektryon corporate level, and this requires that Elektryon be dissolved and its
assets, net of its liabilities, be distributed to its shareholders. Accordingly,
this Agreement provides for the establishment of a liquidating trust (the
"Liquidating Trust") to hold Elektryon's remaining assets.
It is therefore agreed as follows:
1. Establishment of Trust.
1.1 Upon execution of this agreement, Elektryon is assigning
and transferring to the Trustees all of Elektryon's non-cash assets and rights
of every kind, and the Trustees shall hold those assets and rights, together
with any income earned thereon and all other property of Elektryon that may come
into their possession (collectively, the "Trust Property") in trust for the
benefit of the shareholders of Elektryon (the "Beneficiaries"). The sole purpose
of this Trust is to hold the Trust Property, pay all claims against the Trust
Property ("Claims") that the Trustees determine appropriate, defend against,
litigate, settle or otherwise dispose of any other Claims, and pay over and
distribute to the Beneficiaries any portion of the Trust Property remaining
after the payment of all Claims, subject to the limitations set forth in the
Asset Acquisition Agreement on the distribution of common stock, par value
$0.0001 per share ("Solo Common Stock"), of Solo received by Elektryon. The
Trust shall not have any power to engage in any trade or business or any other
activity except as specifically provided in this agreement.
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1.2 As soon as practicable after execution of this Agreement,
Elektryon shall arrange to transfer to the Trustees all non-cash property held
by Elektryon, and the Trustees shall hold and dispose of that property as part
of the Trust Property in accordance with the terms of this agreement.
2. Powers and Duties of Trustees.
2.1 The Trustees shall hold, manage, invest and reinvest the
Trust Property, receive the income therefrom, and make such payments of the
principal and income as they may, in their absolute discretion, determine proper
to carry out the purpose of the Trust.
2.2 The Trustees shall have all such powers and authority as
they may determine appropriate to carry out their obligations under this
Agreement, including, but not limited to, the power and authority:
(a) to pay, or defend, litigate, arbitrate, compromise, or
settle, any Claim, and, in their absolute discretion, to make all determinations
necessary in connection with any Claim;
(b) to engage professionals, including attorneys, accountants,
investment advisors and others (for the purpose of any litigation or otherwise),
and to pay to those professionals, out of the Trust Property, reasonable
compensation and reimbursement of expenses;
(c) to hold all or part of the Trust Property uninvested;
(d) to deposit moneys in FDIC or FSLIC insured demand deposit
accounts at any bank or trust company and to invest the Trust Property (other
than shares of Solo Common Stock) in (i) debt securities issued by the United
States of America or by any agency or instrumentality of the United States of
America with a maturity of twelve months or less, (ii) certificates of deposit
issued with a maturity of twelve months or less by banks that are members of the
Federal Reserve System having a capital stock and surplus aggregating at least
$100,000,000, (iii) commercial paper rated no less than A-1 or P-1, or (iv)
money market funds investing in securities described in the preceding clauses;
(e) to exercise any right incident to any securities or other
property held by the Trust at any time, including, but not limited to voting
rights with
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respect to the shares of Solo Common Stock received from Elektryon and Solo
pursuant to the terms of the Asset Acquisition Agreement;
(f) to authorize any one or more of the Trustees or any other
person or entity to act with respect to any specified transaction or
transactions, to sign a particular check or checks, and to execute any other
instrument or instruments in their name or on behalf of the Trust; and
(g) to take all such other action, and execute and deliver all
such documents and agreements, as they may determine necessary or appropriate to
carry out their responsibilities under this agreement.
2.3 The Trustees shall maintain or cause to be maintained
records and books of account relating to the Trust Property in accordance with
generally accepted accounting principles consistently applied and shall at all
reasonable times permit any authorized representative designated by any
Beneficiary to have access to the financial records relating to the Trust
Property. The Trustees shall provide the Beneficiaries with all necessary tax
information and with such periodic reports as the Trustees shall determine in
their sole discretion with the advice of counsel.
2.4 The Trustees may rely upon, and shall be protected in
acting or refraining from acting in reliance upon, any certificate, opinion,
statement, instrument or report believed by them to be genuine and to have been
signed or presented by the proper person or persons.
2.5 The Trustees shall perform their obligations under this
agreement with the same degree of care and skill as a prudent person would
exercise under the circumstances in the conduct of his own affairs. The Trustees
shall not commingle any of the Trust Property with their own property or the
property of any other person.
2.6 None of the Trustees shall be liable for any error of
business judgment or with respect to any action taken or omitted to be taken by
him in his capacity as a Trustee, unless he shall have been grossly negligent or
shall have acted with willful misconduct in ascertaining the pertinent facts or
in performing any of his rights, powers or duties.
2.7 The Trustees shall be indemnified from the Trust Property
against any loss, liability, cost, damage or expense that they may incur or
sustain in the performance of any of their powers and duties under this
agreement unless and to the
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extent the loss, liability, cost, damage or expense shall have been incurred or
sustained as a direct result of the Trustees' gross negligence or willful
misconduct.
3. Concerning the Trustees.
3.1 The Trustees shall not be required to give a bond or
security in respect of their execution or performance of this agreement.
3.2 Any of the Trustees may resign as such at any time by
giving written notice to the other Trustees at least ninety days prior to the
effective date of the resignation. The other Trustees may appoint a successor
Trustee or may elect not to do so. If at any time all or the last remaining
Trustee shall resign, any Beneficiary may apply to the [court] to appoint a
successor to act until a successor shall have been appointed by the
Beneficiaries; any successor appointed by the court shall immediately and
without further act be superseded by any successor Trustee or Trustees appointed
by the Beneficiaries.
3.3 Any successor Trustee shall execute and deliver to the
Trustees an instrument accepting the appointment, the terms and conditions of
which shall be the same as those contained in this agreement, and the successor,
without further act, shall be have rights, powers, duties and obligations of the
Trustees under this agreement.
4. Trustees' Compensation.
The Trustees shall serve under this agreement without compensation
and each of them waives any commissions or fees that may be fixed by applicable
law for Trustees or fiduciaries. The Trustees shall be entitled to reimbursement
from the Trust Property of all of their out-of-pocket expenses incurred in
acting as Trustees under this agreement.
5. Distribution to Beneficiaries; No Certificated Interest.
5.1 The Trust Property, net of any amounts used to pay Claims
or reserved with respect to payment of Claims then pending, shall be paid by the
Trustees to the Beneficiaries from time to time based on the Trustees'
determination, in their sole discretion, that the amount held by the Trustees
exceeds the amount required to discharge all pending and future Claims;
provided, however, that any distribution of shares of Solo Common Stock shall be
subject to the limitations set forth in the Asset Acquisition
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Agreement. All distributions to the Beneficiaries shall be made proportionately
based upon their respective percentage interests specified in Schedule A hereto.
5.2 Interests of the Beneficiaries in the Trust shall not be
certificated or represented by any other investment.
6. Assignment of Right to Distributions.
No Beneficiary may assign or otherwise transfer any right to
distributions under this agreement or any other rights under this agreement
other than by will, the laws of descent and distribution or operation of law. No
transfer, by operation of law or death, of the right to distributions or other
rights shall operate to terminate the Trust under this agreement or entitle any
successor or transferee of the Beneficiary to an accounting or to the transfer
to it of legal title to any part of the Trust Property.
7. Termination.
This trust agreement and the Trust created hereby shall terminate
upon the final distribution by the Trustees of all property constituting the
Trust Property.
8. Miscellaneous.
8.1 This Agreement is not intended to create and shall not be
interpreted as creating an association, corporation, partnership or joint
venture of any kind; it is intended as a trust, to be governed and construed in
all respects as a trust without transferable shares.
8.2 Elektryon shall not have or incur any obligation or
liability to any other person on account of any act or failure to act by the
Trustees or any other persons.
8.3 The Trustees shall not incur any obligation or liability
to any other person (under the Purchase Agreement or otherwise) in connection
with the transfer by Elektryon to the Trustees of the Trust Property, and no
delegation of duty of performance to the Trustees or assumption of liabilities
of Elektryon by the Trustees is intended by this agreement.
8.4 This agreement contains a complete statement of all of the
arrangements between the parties with respect to its subject matter and no
amendment,
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termination or waiver of any provision of this agreement shall be
effective unless in writing and signed by the parties to this agreement.
8.5 Except as provided in this agreement, the rights and
obligations of the Trustees under this agreement shall not be assignable,
voluntarily, involuntarily or by operation of law, and any purported assignment
shall be void.
8.6 This agreement shall be governed by the law of the State
of New York applicable to agreements made and to be performed in New York.
ELEKTRYON
By:
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Name:
Title
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Wendell H. Adair, Jr.
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Curtis Olsen
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John Cavalier, Trustee
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SCHEDULE A
[List of beneficial interests of shareholders to be supplied]
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ASSIGNMENT
________________ __, 2001
Elektryon hereby assigns and transfers to Wendell H. Adair, Jr., Curtis Olsen
and John Cavalier (the "Trustees"), as trustees under the Liquidating Trust
Agreement among Elektryon and the Trustees dated this date, and the Trustees
hereby accept, all of Elektryon's non-cash assets and rights of every kind to be
held and disposed of by the Trustees in accordance with the terms of the
Liquidating Trust Agreement.
This assignment shall be governed by the law of the State of New York applicable
to agreements made and to be performed in New York and cannot be changed or
terminated orally.
ELEKTRYON
By:
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Name:
Title
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Wendell H. Adair, Jr.
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Curtis Olsen
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John Cavalier, Trustee