INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit 10.7
This Agreement is made as of , 2007 by
and between Enterprise Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company
(“Trustee”).
WHEREAS, the Company’s
registration statement on Form S-1, No. 333-145154 (“Registration Statement”), for its initial public offering of securities
(“IPO”) has been declared effective as of the date hereof (“Effective Date”) by the Securities and Exchange Commission (capitalized
terms used herein and not otherwise defined shall have the meanings set forth in the Registration Statement); and
WHEREAS, Ladenburg Xxxxxxxx & Co.
Inc. (“Ladenburg”) is acting as the representative of the underwriters in the IPO; and
WHEREAS, as described in the
Registration Statement, and in accordance with the Company’s Amended and Restated Certificate of Incorporation, $245,200,000 of the gross proceeds
of the IPO and sale of the Insider Warrants (or $281,200,000 if the underwriters’ 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 as hereinafter provided (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, 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;
(b) Manage, supervise and
administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon
the instruction of the Company, to invest and reinvest the Property in United States “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940 having a maturity of 180 days or less, and/or in any open ended investment company registered under the
Investment Company Act of 1940 that holds itself out as a money market fund selected by the Company meeting the conditions of paragraphs (c)(2), (c)(3)
and (c)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as determined by the Company;
(d) Collect and receive,
when due, all principal and income arising from the Property, which shall become part of the “Property,” as such term is used
herein;
(e) Notify the Company and
Ladenburg 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 and/or Ladenburg to
do so;
(h) Render to the Company
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; and
(i) Commence liquidation of
the Trust Account only after and promptly 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 hereto, signed on behalf of the Company by its President or
Chairman of the Board and Corporate Secretary or other authorized officer of the Company, 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; provided, however,
that in the event that a Termination Letter has not been received by the Trustee by the close of business on the “business day” that is the
24-month anniversary of the effective date of the Registration Statement (“Last Date”), the Trust Account shall be liquidated in accordance
with the procedures set forth in the Termination Letter attached as Exhibit B hereto and distributed to the stockholders of record on the Last Date. A
business day shall be any day that is not a Saturday, Sunday or other day on which banks are required or authorized by law to be closed in the City of
New York. The provisions of this Section 1(i) may not be modified, amended or deleted under any circumstances.
2. |
Limited Distributions of Income from Trust Account. |
(a) Upon written request
from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C, the Trustee shall
distribute to the Company the amount requested by the Company to cover any tax obligation owed by the Company;
(b) Upon written request
from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D, the Trustee shall
distribute to the Company the amount requested by the Company to cover expenses related to investigating and selecting a target business and other
working capital requirements; provided, however, that the aggregate amount of all such distributions shall not exceed $2,450,000 and the Company will
not be allowed to withdraw interest income earned on the trust account unless there is sufficient funds available to pay the Company’s tax
obligations on such interest income or otherwise then due at that time; and
(c) The limited
distributions referred to in Sections 2(a) and 2(b) above shall be made only from income collected on the Property. Except as provided in Section 2(a)
and 2(b) above, no other distributions from the Trust Account shall be permitted except in accordance with Section 1(i) 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 Chairman of the Board or President or other authorized officer. In addition, except with
respect to its duties under paragraphs 1(i), 2(a) and 2(b) 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) In all cases, the
Company shall provide Ladenburg with a copy of any Termination Letters and/or any other correspondence that it sends to the Trustee with respect to any
proposed withdrawal from the Trust Account promptly after it issues same.
(c) 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 Trustee may not agree
to settle any Indemnified Claim without the prior written consent of the Company, which consent shall not be unreasonably withheld. The Company may
participate in such action with its own counsel;
(d) Pay the Trustee an
initial acceptance fee, an annual fee and a transaction processing fee for each disbursement made pursuant to Section 2 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 unless and until it is distributed to the Company pursuant to Section 2. 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, except to the extent it is distributed to the Company pursuant to Section 2);
(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/or tabulating stockholder votes 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 paragraphs 1 and 2 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 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 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 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, 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; and
(h) File information returns
with the United States Internal Revenue Service and payee statements with the Company, documenting the taxes payable by the Company, if any, relating
to interest earned on the Property. Prepare, execute and file 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 2(a), 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), 2(a) or 2(b) 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 any court in the State of New York or 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; or
(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 except with respect to Paragraph 3(b).
6. Miscellaneous.
(a) The Company and the
Trustee each acknowledge that 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 conflicts of law
principles that would result in the application of the substantive laws of another jurisdiction. It may be executed in several original or facsimile 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. Except for Section 1(i) (which may not be
amended under any circumstances), this Agreement or any provision hereof may only be changed, amended or modified by a writing signed by each of the
parties hereto; provided, however, that no such change, amendment or modification may be made without the prior written consent of Ladenburg. 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, Borough of Manhattan, 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 00 Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxx X. Xxxxxx and Xxxxx Di Paolo Fax No.: (000) 000-0000 |
|||||
if to the Company,
to: |
Enterprise
Acquisition Corp. 0000 Xxxxxx Xxxxx Xxxxxxx Xxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxxx X. Xxxxxx, Chief Executive Officer Fax No.: (000) 000-0000 |
|||||
in either case with a copy
to: |
Ladenburg
Xxxxxxxx & Co. Inc. 0000 Xxxxxxxx Xxxx. 00xx Xxxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxx Xxxxxx Fax No.: (000) 000-0000 |
|||||
(f) This Agreement may not
be assigned by the Trustee without the prior consent of the Company and Ladenburg.
(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 funds in the Trust Account under any circumstance.
(h) Each of the Company and
the Trustee hereby acknowledge that Ladenburg is a third party beneficiary of this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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
TRUST COMPANY, as Trustee
By: |
Name: |
Title: |
By: |
Name: Xxxxxx X. Xxxxxx
Title: President and Chief Executive Officer
Title: President and Chief Executive Officer
SCHEDULE A
| Fee Item |
Time and method of payment |
Amount |
||||||||
|---|---|---|---|---|---|---|---|---|---|---|
Initial acceptance
fee |
Initial closing of IPO by wire transfer |
$ | 1,000 | |||||||
Annual fee |
First
year, initial closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer or
check |
$ | 3,000 | |||||||
Transaction processing fee
for disbursements to Company under Section 2 |
Deduction by Trustee from accumulated income following disbursement made to Company under Section 2 |
$ | 250 | |||||||
EXHIBIT A
[Letterhead of Company]
[Insert date]
[Insert date]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Trust Account No. Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the
Investment Management Trust Agreement between Enterprise Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of ____________, 2007 (“Trust Agreement”), this is to advise you that the Company has entered into an
agreement (“Business Agreement”) with ________________ (“Target Business”) to consummate a business combination with Target
Business (“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 (“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 (“Counsel’s Letter”) and
(ii) the Company shall deliver to you (a) [an affidavit] [a certificate] of __________________ which verifies the vote of the Company’s
stockholders in connection with the Business Combination and (b) 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 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 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 and the Trust Account
closed.
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 upon the Trustee’s receipt of a written request from the Company, the funds held in the Trust
Account shall be reinvested as provided in the Trust Agreement on the business day immediately following the original Consummation Date as set forth in
the notice.
Very truly yours,
By: |
Xxxx X. Xxxx, Chairman of the Board |
By: |
Xxxxx Xxxxxxxxx Xxxxxx, Corporate Secretary |
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT B
[Letterhead of Company]
[Insert date]
[Insert date]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Trust Account No. Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the
Investment Management Trust Agreement between Enterprise Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of ______________, 2007 (“Trust Agreement”), this is to advise you that the Company has been unable to effect
a Business Combination with a Target Company within the time frame specified in the Company’s Certificate of Incorporation, as described in the
Company’s prospectus relating to its IPO.
In accordance with the terms of the
Trust Agreement, we hereby authorize you, to commence liquidation of the Trust Account as promptly as practicable. The Company has appointed
[__________________] to serve as its Designated Paying Agent; accordingly, you will notify the Company and 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,
By: |
Xxxx X. Xxxx, Chairman of the Board |
By: |
Xxxxx Xxxxxxxxx Xxxxxx, Corporate Secretary |
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT C
[Letterhead of Company]
[Insert date]
[Insert date]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Trust Account No.
Gentlemen:
Pursuant to paragraph 2(a) of the
Investment Management Trust Agreement between Enterprise Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of ____________, 2007 (“Trust Agreement”), the Company hereby requests that you deliver to the Company
$____________ of the income earned on the Property as of the date hereof. The Company needs such funds to pay for the tax obligations as set forth on
the attached tax return or tax statement. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via
wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
Very truly yours,
By: |
Xxxx X. Xxxx, Chairman of the Board |
By: |
Xxxxx Xxxxxxxxx Xxxxxx, Corporate Secretary |
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT D
[Letterhead of Company]
[Insert date]
[Insert date]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Trust Account No.
Gentlemen:
Pursuant to paragraph 2(b) of the
Investment Management Trust Agreement between Enterprise Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of ______________, 2007 (“Trust Agreement”), the Company hereby requests that you deliver to the Company
$____________ of the income earned on the Property as of the date hereof, which does not exceed, in the aggregate with all such prior disbursements
pursuant to paragraph 2(b), if any, the maximum amount set forth in paragraph 2(b). The Company needs such funds to pay its expenses relating to
investigating and selecting a target business and other working capital requirements. In accordance with the terms of the Trust Agreement, you are
hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating
account at: [WIRE INSTRUCTION INFORMATION]
Very truly yours,
ENTERPRISE ACQUISITION
CORP.
By: |
Xxxx X. Xxxx, Chairman of the Board |
By: |
Xxxxx Xxxxxxxxx Xxxxxx, Corporate Secretary |
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT E
| AUTHORIZED INDIVIDUAL(S) FOR TELEPHONE CALL BACK |
|
AUTHORIZED TELEPHONE NUMBER(S) |
||||
|---|---|---|---|---|---|---|
Company: |
||||||
Enterprise Acquisition Corp. 0000 Xxxxxx Xxxxx Xxxxxxx Xxxx Xxxxx, Xxxxxxx 00000 Attn: Xxxxxx X. Xxxxxx, Chief Executive Officer |
(000) 000-0000 |
|||||
Trustee: |
||||||
Continental Stock Transfer & Trust Company 00 Xxxxxxx Xxxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxx Di Paolo, CFO |
(000) 000-0000 |
|||||
