EXHIBIT 10.8
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of [______] [__], 2006 by and between ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Acquisition Corporation (the "Company") and Continental Stock Transfer &
Trust Company (the "Trustee").
WHEREAS, the Company's Registration Statement on Form S-1, as amended, No.
333-136048 (together with any registration statement filed pursuant to Rule
462(b), the "Registration Statement"), for its initial public offering of
securities (the "IPO") has been declared effective as of the date hereof by the
Securities and Exchange Commission (the "Effective Date"); and
WHEREAS, Deutsche Bank Securities Inc. is acting as the underwriter (the
"Underwriter") in the IPO; and
WHEREAS, the Company has agreed to sell certain of its securities to ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇ in a placement to be effected concurrently with the IPO; and
WHEREAS, as described in the Registration Statement, and in accordance with
the Company's Certificate of Incorporation, $118,750,000 of the proceeds of the
IPO and the sale of securities in a private placement simultaneously with the
IPO ($136,562,500 if the Underwriter's over-allotment option is exercised in
full) will be delivered to the Trustee to be deposited and held in a trust
account for the benefit of the Company and the holders of the Company's common
stock, par value $.0001 per share, issued in the IPO (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 together as the "Beneficiaries"); and
WHEREAS, a portion of the Property consists of $2,500,000 (or $2,875,000 if
the Underwriter's over-allotment option is exercised in full) attributable to
the Underwriter's discount ("Deferred Discount") which the Underwriter has
agreed to deposit in the Trust Account (defined below); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to
set forth the terms and conditions pursuant to which the Trustee shall hold the
Property;
IT IS AGREED:
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, in a segregated trust account ("Trust Account")
established by the Trustee at a branch of JPMorgan Chase NY Bank selected by the
Trustee;
(b) Manage, supervise and administer the Trust Account subject to the terms
and conditions set forth herein;
(c) In a timely manner, upon the written instruction of the Company, to
invest and reinvest the Property in any "Government Security" within the meaning
of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a
maturity of 180 days or less, or in money market funds selected by the Company
meeting the conditions specified in Rule 2a-7 promulgated under the Investment
Company Act of 1940, as amended, as determined by the Company;
(d) Collect and receive, when due, all principal and income arising from
the Property, which income, net of taxes, shall become part of the "Property,"
as such 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
relating to income from the Property in the Trust Account or otherwise;
(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 in writing to do so;
(h) Render to the Company and to the Underwriter, and to such other person
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;
(i) If there is any income or other tax obligation relating to the income
from the Property in the Trust Account as determined by the Company, then, from
time to time, at the written instruction of the Company, the Trustee shall
promptly to the extent there is not sufficient cash in the Trust Account to pay
such tax obligation, liquidate such assets held in the Trust Account as shall be
designated by the Company in writing, and disburse to the Company by wire
transfer, out of the Property in the Trust Account, the amount indicated by the
Company as owing in respect of such income tax obligation; and
(j) Commence liquidation of the Trust Account only upon receipt of and only
in accordance with the terms of a letter (the "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
complete the liquidation of the Trust Account and distribute the Property in the
Trust Account only as directed in the Termination Letter and the other documents
referred to therein. The Trustee shall provide the Underwriter with a copy of
any Termination Letter and/or any other correspondence that it receives with
respect to any proposed withdrawal from the Trust Account promptly after it
receives the same.
2. Limited Distributions Of Income From Trust Account.
No distributions from the Trust Account shall be permitted except in accordance
with Sections 1(i) and 1(j) hereof.
3. 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 Sections 1(i) and 1(j) 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, provided
that the Company shall promptly confirm such instructions in writing;
(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 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, except for expenses and losses resulting
from the Trustee's gross negligence or willful misconduct. 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. The Company may participate in such action with its own counsel; and
(c) Pay the Trustee an initial acceptance fee, an annual fee and a
transaction processing fee for each disbursement made pursuant to Section 1(i)
as set forth on Schedule A hereto, which fees shall be subject to modification
by the parties from time to time. It is expressly understood that the Property
shall not be used to pay such fees and further agreed that said transaction
processing fees shall be deducted by the Trustee from the disbursements made to
the Company pursuant to Section 1(i). The Company shall pay the Trustee the
initial acceptance fee and first year's fee at the consummation of the IPO and
thereafter on the anniversary of the Effective Date. The Trustee shall refund to
the Company the annual fee (on a pro rata basis) with respect to any period
after the liquidation of the Trust Fund. The Company shall not be responsible
for any other fees or charges of the Trustee except as set forth in this Section
3(c) and as may be provided in Section 3(b) hereof (it being expressly
understood that the Property shall not be used to make any payments to the
Trustee under such Sections).
(d) Provide to the Trustee any letter of intent, agreement in principle or
definitive agreement that is executed prior to __, 2007 in connection with a
Business Combination; and
(e) In connection with any vote of the Company's stockholders regarding a
Business Combination, provide to the Trustee an affidavit or certificate of a
firm regularly engaged in the business of soliciting proxies and tabulating
stockholder votes (which firm may be the Trustee) verifying the vote of the
Company's stockholders regarding such Business Combination.
4. 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
Section 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 written
instructions from the Company given as provided herein to do so and the Company
shall have advanced or guaranteed to it funds sufficient to pay any expenses
incident thereto;
(c) Change the investment of any Property, other than in compliance with
Section 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 other parties hereto 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, judgment, instruction, 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 written
instrument 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) 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;
(h) As and to the extent requested from time to time by the Company,
prepare, execute and file such tax reports, income or other tax returns and pay
any taxes with respect to income and activities relating to the Trust Account,
regardless of whether such tax is payable by the Trust Account or the Company
(including but not limited to income tax obligations), it being expressly
understood that as set forth in Section 1(i), if there is any income or other
tax obligation relating to the Trust Account or the Property in the Trust
Account, as determined from time to time by the Company and regardless of
whether such tax is payable by the Company or the Trust, at the written
instruction of the Company, the Trustee shall make funds available in cash from
the Property in the Trust Account an amount specified by the Company as owing to
the applicable taxing authority, which amount shall be paid directly to the
Company by electronic funds transfer, account debit or other method of payment,
and the Company shall forward such payment to the taxing authority
(i) Verify calculations, qualify or otherwise approve Company requests for
distributions pursuant to Section 1(i) above.
5. Termination. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to
resign under this Agreement, the Company shall use its reasonable efforts to
locate a successor trustee. 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 and upon such deposit, the
Trustee shall be immune from any liability whatsoever that arises due to any
actions or omissions to act by any party after such deposit;
(b) At such time that the Trustee has completed the liquidation of the
Trust Account in accordance with the provisions of Section 1(j) hereof, and
distributed the Property in accordance with the provisions of the Termination
Letter, this Agreement shall terminate except with respect to Section 3(b).
6. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will
follow the security procedures set forth below with respect to funds transferred
from the Trust Account. Upon receipt of written instructions, the Trustee will
confirm such instructions with an Authorized Individual at an Authorized
Telephone Number listed on the attached Exhibit C. The Company and the Trustee
will each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other party
immediately if it has reason to believe unauthorized persons may have obtained
access to such information, or of any change in its authorized personnel. In
executing funds transfers, the Trustee will rely upon account numbers or other
identifying numbers of a beneficiary, beneficiary's bank or intermediary bank,
rather than names. The Trustee shall not be liable for any loss, liability or
expense resulting from any error in an account number or other identifying
number, provided it has accurately transmitted the numbers provided.
(b) 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 together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof. The parties hereto may
change, waive, amend or modify any provision contained herein that may be
defective or inconsistent with any other provision contained herein only upon
the written consent of each of the parties hereto; provided that such action
shall not materially adversely affect the interests of the Public Stockholders.
Any other change, waiver, amendment or modification to this Agreement shall be
subject to approval by a majority of the Public Stockholders. As to any claim,
cross-claim or counterclaim in any way relating to this Agreement, each party
waives the right to trial by jury.
(d) 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.
(e) 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 service, by certified mail (return
receipt requested), by hand delivery or by facsimile transmission:
if to the Trustee, to:
Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ Di Paolo, CFO
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to the Company, to:
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇, Chief Financial Officer
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
in either case with a copy on behalf of the Underwriter to:
Deutsche Bank Securities Inc.
▇▇ ▇▇▇▇ ▇▇▇▇▇▇ NYC 60-1001
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Syndicate Manager
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
Debevoise & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
(f) This Agreement may not be assigned by the Trustee without the prior
consent of the Company.
(g) 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
part of the Property under any circumstance.
(h) The Trustee hereby waives any and all right, title, interest or claim
of any kind ("Claim") in or to any distribution of the Trust Account, and hereby
agrees not to seek recourse, reimbursement, payment or satisfaction for any
Claim against the Trust Account for any reason whatsoever.
(i) The Trustee hereby consents to the inclusion of Continental Stock
Transfer & Trust Company in the Registration Statement and other materials
relating to the IPO.
(j) Deutsche Bank shall be a third party beneficiary of this Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the parties have duly executed this Investment
Management Trust Agreement as of the date first written above.
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as Trustee
By:
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Name:
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Title:
---------------------------------
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION CORPORATION
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
EXHIBIT A
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Re: Trust Account No. [___________]
Termination Letter
Gentlemen:
Pursuant to Section 1(j) of the Investment Management Trust Agreement
between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation (the "Company") and Continental
Stock Transfer & Trust Company (the "Trustee"), dated as of _____________, 2006
(the "Trust Agreement"), this is to advise you that the Company has entered into
an agreement ("Business Agreement") with __________________ (the "Target
Business") to consummate a business combination with Target Business (a
"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"). Defined terms used but not
otherwise defined herein shall have the meaning ascribed to such terms in the
Trust Agreement.
Pursuant to Section 3(e) of the Trust Agreement, we are providing you with
[an affidavit] [a certificate] of __________________, which verifies the vote of
the Company's stockholders in connection with the Business Combination. 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 the funds held in the Trust Account will be
immediately available for transfer to the account or accounts that the Company
shall direct in writing 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 (the "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 that 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 be distributed after the Consummation Date to the Company
or, with respect to the Deferred Discount, to the Underwriter. Upon the
distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
In the event that the Business Combination is not consummated on the
Consummation Date described in the notice thereof and we have not notified you
on or before the original Consummation Date of a new Consummation Date, then the
funds held in the Trust Account shall be reinvested as provided in the Trust
Agreement on the business day immediately following the Consummation Date as set
forth in the notice.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION CORPORATION
By:
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
EXHIBIT B
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ Di Paolo, CFO
Re: Trust Account No. [_________] Termination Letter
Gentlemen:
Pursuant to paragraph 1(j) of the Investment Management Trust Agreement
between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation (the "Company") and Continental
Stock Transfer & Trust Company (the "Trustee"), dated as of _____________, 2006
(the "Trust Agreement"), this is to advise you that the Company has been
dissolved due to the Company's inability to effect a Business Combination within
the time frame specified in the Company's prospectus relating to its IPO.
Attached hereto is a certified copy of the Certificate of Dissolution as filed
with the Delaware Secretary of State. Defined terms used but not otherwise
defined herein shall have the meaning ascribed to such terms in the Trust
Agreement.
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 JPMorgan Chase NY Bank (the "Designated Paying Agent") in writing as to when
all of the funds in the Trust Account will be available for immediate transfer
(the "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 terminate in accordance with the terms thereof.
Very truly yours,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ACQUISITION CORPORATION
By:
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President and Chief Executive
Officer
EXHIBIT C
AUTHORIZED INDIVIDUAL(S) AND TELEPHONE NUMBERS
AUTHORIZED FOR TELEPHONE CALL BACK
COMPANY: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇, Chief Financial Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
TRUSTEE: Continental Stock Transfer & Trust Company
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE A
Schedule of fees pursuant to Section 3(c) of Investment Management Trust
Agreement between ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Acquisition Corporation and Continental Stock
Transfer & Trust Company
FEE ITEM TIME AND METHOD OF PAYMENT AMOUNT
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Initial acceptance fee Initial closing of IPO by wire $1,000
transfer
Annual fee First year, initial closing of $3,000
IPO by wire transfer;
thereafter on the anniversary
of the effective date of the IPO
by wire transfer or check
Transaction processing fee for Deduction by Trustee from $ 250
disbursements to Company disbursement made to
under Section 1(i) Company under Section 1(i)
Agreed:
Dated: [__] ___, 2006
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By:
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Authorized Officer
Continental Stock Transfer & Trust Co.
By:
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Authorized Officer