INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.5
This
Agreement is made as of [ ] 2007, by and between TransTech Services Partners
Inc. (the “Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, No. 333-138080 (the
“Registration
Statement”),
for
its initial public offering of securities (“IPO”)
has
been declared effective as of the date hereof by the Securities and Exchange
Commission (the “Effective
Date”);
WHEREAS,
Xxxxx and Company, LLC (“Cowen”)
and
Maxim Group LLC (“Maxim,”
together with Cowen, the “Representatives”)
is
acting as the representatives of the underwriters in the IPO (the “Underwriters”);
WHEREAS,
the Company has agreed to sell an aggregate of 1,191,667 warrants to purchase
1,191,667 shares of the Company’s common stock, par value $.0001 per share, for
a purchase price of $1.20 per share in a private placement that will occur
no
less than two days prior to the effective date of the IPO (the “Placement”);
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
Certificate of Incorporation, an aggregate of $35,530,000 ($40,754,500, if
the
Underwriters’ over-allotment option is exercised in full), which is comprised of
(i) the net proceeds of the IPO (except as provided in the Registration
Statement); (ii) the $1,430,000 received by the Company in exchange for its
securities pursuant to the Placement; and (iv) an additional $1,170,000
($1,372,500, if the Underwriters’ over-allotment option is exercised in full) of
the proceeds of the IPO, representing a portion of the Underwriters’ discount
(the “Contingent
Discount”)
which
the Representatives have agreed to deposit in the Trust Account (as defined
below), will be delivered to the Trustee to be deposited and held in the Trust
Account for the benefit of the Company, and the holders of the Company’s common
stock, par value $.0001 per share (the “Common
Stock”),
included in the units (the “IPO
Shares”)
of the
Company’s securities issued in the IPO (the “Units”)
and
the Representatives and, in the event the securities offered in the IPO are
registered in Colorado, pursuant to Section 11-51-302(6) of the Colorado Revised
Statutes (the “CRS”),
a
copy of which is attached hereto and made a part hereof. The amount to be
delivered to the Trustee and all interest or dividend income received with
respect thereto 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, the Representatives 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;
and
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties hereto agree as follows:
1. Agreements
and Covenants of Trustee.
The
Trustee hereby agrees and covenants to:
1
(a) hold
the
Property in trust for the Beneficiaries in accordance with the terms of this
Agreement, including, without limitation, with respect to the Public
Stockholders, the terms of Section 11-51-302(6) of the CRS, in a segregated
trust account established by the Trustee at a branch of X.X. Xxxxxx Chase N.A.
and in a segregated account at a brokerage institution selected by the Trustee
(collectively, the “Trust
Account”);
(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 “government securities,” within the meaning of Section 2(a)(16) of
the Investment Company Act of 1940, as amended (the “1940
Act”),
having a maturity of 180 days or less or in any open ended investment company
registered under the 1940 Act selected by the Company that holds itself out
as a
money market fund meeting the conditions of paragraphs (c)(2), (c)(3) and (c)(4)
under Rule 2a-7 promulgated under the 1940 Act 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
within two business days 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 for the Trust
Account or the Company;
(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
the
Representatives to do so;
(h) render
to
the Company and to the Representatives, and to such other persons 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 upon receipt of the Officers’ Certificate
signed by the Chief Executive Officer and Chief Financial Officer in accordance
with the terms of a letter (the “Termination
Letter”),
in a
form substantially similar to that attached hereto as Exhibit
A
or
Exhibit
B,
signed
on behalf of the Company by its Chief Executive Officer and Chief Financial
Officer, 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 as part of the Company’s plan of dissolution
and liquidation approved by the Company’s stockholders. The Trustee understands
and agrees that, except as provided in Section 1(j) and Section 2 hereof,
disbursements from the Trust Account shall be made only pursuant to a duly
executed Termination Letter, together with the other documents referenced
herein, including, without limitation, an independently certified oath and
report of inspector of election in respect of the stock vote in favor of the
Business Combination (as hereinafter defined). In all cases, the Company shall
provide the Representatives with a copy of any Termination Letter, Officers’
Certificates and/or any other correspondence that it issues with respect to
any
proposed withdrawal from the Trust Account promptly after it issues same. As
used in this Agreement, the term “Business
Combination”
means
the acquisition by the Company, through merger, capital stock exchange, asset
acquisition, stock purchase or other similar business combination with, one
or
more operating business service providers, as more fully described in the
prospectus forming a part of the Registration Statement; and
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(j) as
of the
date 18 months from the date of this Agreement (the “LOI
Termination Date”)
(or 24
months from the date hereof, in the event the Company has executed a Letter
of
Intent (defined below) prior to the LOI Termination Date but failed to
consummate a Business Combination (“Second
Termination Date”)),
commence liquidation of the Trust Account. The Trustee, upon consultation with
the Company and the Representatives, shall deliver a notice to Public
Stockholders of record as of the LOI Termination Date or Second Termination
Date, whichever the case may be, by U.S. mail or via the Depository Trust
Company (“DTC”),
within five days of the LOI Termination Date or Second Termination Date, to
notify the Public Stockholders of such event and take such other actions as
it
may deem necessary to inform the Beneficiaries. Following the requisite approval
of the Company’s stockholders, the Trustee shall deliver to each Public
Stockholder its ratable share of the Property against satisfactory evidence
of
delivery of the stock certificates by the Public Stockholders to the Company
through DTC, its Deposit Withdraw Agent Commission (DWAC) system or as otherwise
presented to the Trustee. Notwithstanding the foregoing, if the Trustee receives
a bona fide, executed letter of intent, agreement in principle or engagement
letter (a “Letter
of Intent”)
for a
Business Combination prior to the LOI Termination Date accompanied by an
Officers’ Certificate as described in Section 3(e) hereof, then the Trustee
shall forego or suspend any liquidation of the Trust Account until the earlier
of a Business Combination or the Second Termination Date.
2. Limited
Distributions of Income on Property.
(a) If
there
is any income tax obligation relating to the income from the Property in the
Trust Account, then, at the written instruction of the Company, the Trustee
shall disburse to the Company by wire transfer, out of the Property in the
Trust
Account, the amount indicated by the Company as required to pay income
taxes.
(b) Upon
one
or more written requests from the Company, which may be given not more than
once
in any calendar month period, the Trustee shall distribute to the Company
interest or dividends earned on the Property in the Trust Account, net of taxes
payable, up to a maximum of $600,000 ($800,000, if the Underwriters’
over-allotment option is exercised in full). The distributions requested by
the
Company may be for any amount, provided that (i) in the aggregate, all
distributions under this Section 2(b) may not exceed $600,000 ($800,000, if
the
Underwriters’ over-allotment option is exercised in full), and (ii) such
distributions may only be made if and to the extent that income has been earned
and collected on the amount initially deposited into the Trust Account.
(c) Upon
receipt by the Trustee of a written instruction from the Company for
distributions from the Trust Account in connection with a plan of dissolution
and distribution, accompanied by an Officers’ Certificate signed by the Chief
Executive Officer and Chief Financial Officer of the Company certifying as
true,
accurate and complete (i) a statement of the amount of actual expenses incurred
or, where known with reasonable certainty, imminently to be incurred by the
Company in connection with its dissolution and distribution, including any
fees
and expenses incurred or imminently to be incurred by the Company in connection
with seeking stockholder approval of the Company’s plan of dissolution and
distribution, (ii) any amounts due to pay creditors or required to reserve
for
payment to creditors, and (iii) the sum of (i) and (ii), the Trustee shall
distribute to the Company an amount, as directed by the Company in the
instruction letter, up to the sum of (i) and (ii) as indicated in the
instruction letter.
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(d) Except
as
provided in Sections 1(i), 1(j), 2(a), 2(b), and 2(c) above, no other
distributions from the Trust Account shall be permitted.
(e) It
is
acknowledged and agreed by the parties hereto that with respect to all requests
for distributions to or on behalf of the Company pursuant to this Section 2,
paragraphs (a), (b) and (c), the Trustee’s only responsibility is to follow the
instructions of the Company.
3. Agreements
and Covenants of the Company.
The
Company hereby agrees and covenants:
(a) to
provide all instructions to the Trustee hereunder in writing, signed by the
Company’s Chief Executive Officer and Chief Financial Officer, with a copy to
the Representatives. In addition, except with respect to its duties under
paragraph 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 and/or
the Representatives shall promptly confirm such instructions in writing;
(b) to
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. The Trustee may not agree to settle any Indemnified Claim
without the prior written consent of the Company. The Company may participate
in
such action with its own counsel;
(c) to
pay
the Trustee an initial acceptance fee and an annual fee as set forth on
Schedule
A
at the
consummation of the IPO and thereafter on the anniversary of the Effective
Date.
In addition, the Company shall pay the Trustee a transaction processing fee
for
each disbursement made pursuant to Sections (a), (b) or (c) as set forth on
Schedule
A
hereto
and that said transaction processing fee may be added to the amounts requested
by the Company and deducted from the disbursement made to or on behalf of the
Company pursuant to Sections 2(b), (b) and (c). The Trustee shall refund to
the
Company the 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 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 section);
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(d) that,
in
the event that the Company completes a Business Combination and the Trust
Account is liquidated in accordance with Section 1(i) hereof, the Trustee or
another independent party designated by the Representatives shall act as the
inspector of election to certify the results of the stockholder
vote;
(e) that
the
Officers' Certificate referenced in Sections 1(i) and (j) hereof shall require
the Chief Executive Officer and Chief Financial Officer of the Company to each
certify the following (wherever applicable): (1) prior to the LOI Termination
Date, the Company has entered into a bona fide Letter of Intent with a target
business; and/or (2) prior to the LOI Termination Date, the Company has entered
into a Business Combination with a target business, the terms of which are
consistent with the requirements set forth in the Registration Statement; and/or
(3) prior to the Second Termination Date, the Company has entered into a
Business Combination with a target business, the terms of which are consistent
with the requirements set forth in the Registration Statement; and (4) the
Board
of Directors (the “Board”),
has
approved (where applicable): (i) the Business Combination; and/or (ii) the
Letter of Intent;
(f) in
connection with any vote of the Company's stockholders regarding a Business
Combination, to 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;
(g) in
connection with any vote of the Company's stockholders regarding a dissolution
and liquidation, to provide to the Trustee an affidavit or certificate of a
firm
regularly engaged in the business of tabulating stockholder votes (which firm
may be the Trustee) verifying the vote of the Company's stockholders regarding
such dissolution and liquidation; and
(h) within
five business days after the Representatives over-allotment option (or any
unexercised portion thereof) expires or is exercised in full, to provide the
Trustee notice in writing (with a copy to the Representatives) of the total
amount of the Contingent Discount, which shall in no event be less than
$1,170,000 less any amounts of Contingent Discount returned to stockholders
of
the Company who have elected to convert their shares into their pro rata share
of the amount in the trust account, in a minimum amount of approximately $7.90
per share from the Trust Account in connection with a 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;
5
(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 and/or the
Representatives to give written instructions hereunder shall not be continuing
unless provided otherwise in such designation, or unless the Company and/or
the
Representatives 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 on, 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, unless an officer
of the Trustee has actual knowledge thereof, written notice of such event is
sent to the Trustee or as otherwise required under Section 1(i) hereof;
and
(h) pay
any
taxes on behalf of the Trust Account (it being expressly understood that the
Trustee’s sole obligation with respect to taxes shall be to disburse funds to
the Company with respect thereto as provided for by Section 2(a)
hereof).
5. Certain
Rights Of Trustee.
(a) Before
the Trustee acts or refrains from acting, it may require an Officers’
Certificate or opinion of counsel or both. The Trustee shall not be liable
for
any action it takes or omits to take in good faith in reliance on such Officers’
Certificate or opinion of counsel. The Trustee may consult with counsel and
the
advice of such counsel or any opinion of counsel shall be full and complete
authorization and protection from liability in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon.
6
(b) The
Trustee may act through its attorneys and agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due
care.
(c) The
Trustee shall not be liable for any action it takes or omits to take in good
faith that it believes to be authorized or within the rights or powers conferred
upon it by this Agreement.
(d) The
Trustee shall not be responsible for and makes no representation as to the
validity or adequacy of this Agreement, and it shall not be accountable for
the
Company’s use of the proceeds from the Trust Account. Notwithstanding the
effective date of this Agreement or anything to the contrary contained in this
Agreement, the Trustee shall have no liability or responsibility for any act
or
event relating to this Agreement or the transactions related thereto which
occurs prior to the date of this Agreement, and shall have no contractual
obligations to the Beneficiaries until the date of this Agreement.
6. No
Right of Set-Off.
The
Trustee waives any right of set-off or any right, title, interest or claim
of
any kind that the Trustee may have against the Property held in the Trust
Account. In the event that the Trustee has a claim against the Company under
this Agreement, including, without limitation, under Section 3(b), the Trustee
will pursue such claim solely against the Company and not against the Property
held in the Trust Account.
7. 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 during which time the Trustee shall continue to act in accordance with
the terms of this Agreement. 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, 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 the Company does not locate a successor trustee within 90
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(i) 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) hereof;
or
(c) on
such
date after __________, 200_ when the Trustee deposits the Property with the
United States District Court for the Southern District of New York in the event
that, prior to such date, the Trustee has not received a Termination Letter
from
the Company pursuant to Section 1(i) or (j) hereof.
7
8. 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 one instrument. Facsimile signatures
shall constitute original signatures for all purposes of this
Agreement.
(c) This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. 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 (other than to correct a typographical error or similar technical
error) may be made to Sections 1(i), 1(j), 2(a), 2(b) or 2(c) hereof without
the
consent the Public Stockholders holding 95% of the Company’s issued and
outstanding Common Stock, it being the specific intention of the parties hereto
that each Public Stockholder is and shall be a third-party beneficiary of this
Section 8(c) with the same right and power to enforce this Section 8(c), the
“consent of the Public Stockholders holding 95% of the Company’s issued and
outstanding Common Stock” shall mean receipt by the Trustee of a certificate
from an entity certifying that (i) such entity regularly engages in the business
of serving as inspector of elections for companies whose securities are publicly
traded, and (ii) either (a) Public Stockholders of record holding 95% of the
Company’s issued and outstanding Common Stock as of a record date established in
accordance with Section 213(a) of the Delaware General Corporation Law, as
amended (the “DGCL”),
have
voted in favor of such amendment or modification, or (b) Public Stockholders
of
record holding 95% of the Company’s issued and outstanding Common Stock as of a
record date established in accordance with Section 213(b) of the DGCL has
delivered to such entity a signed writing approving such amendment or
modification. The Representatives, who, along with the other Underwriters,
the
parties specifically agree, are and shall be third party beneficiaries for
purposes of this Agreement; and provided further, any amendment to Section
1(j)
shall require the consent of all 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 State and County of New York for purposes of resolving
any
disputes hereunder. The parties hereto irrevocably submit to such jurisdiction,
which jurisdiction shall be exclusive, and hereby waive any objection to such
exclusive jurisdiction and that such courts represent an inconvenient
forum.
8
(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
Fax
No.:
(000) 000-0000
if
to the
Company, to:
000
Xxxxx
Xxxxxx, Xxxxx 00X
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chief Executive Officer
Fax
No.:
(000) 000-0000
in
either
case with a copy to:
Xxxxx
and
Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxx
Xxxxx
and
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx, Director of Investment Banking
Fax
No.:
(000) 000-0000
and
Xxxxxx
Xxxxxx Xxxxxxxx LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx, Esq.
Fax
No.:
(000) 000-0000
9
and
Sidley
Austin LLP
000
Xxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxxxxx, Esq.
Fax
No.:
(000) 000-0000
and
Ellenoff
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx, Esq.
Fax
No.:
(000) 000-0000
(f) This
Agreement may not be assigned by the Trustee without the prior written consent
of the Company and the Representatives.
(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.
(Remainder
of document intentionally left blank. Signature page to
follow.)
10
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:
______________________________________
Name: Xxxxx
X. Xxxxxx
Title:
President and Chairman of the Board
By:
____________________________________
Name: Xxxxxx
Xxxxxx
Title: Chief
Executive Officer
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SCHEDULE
A
Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement
between
TransTech Services Partners Inc. and
Continental
Stock Transfer & Trust Company
|
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 Sections 2(a),
2(b) and
2(c)
|
At
the time of disbursement requests; by addition to amounts requested
and
deduction by Trustee from amounts disbursed.
|
$250
|
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EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [______________]
|
|
Re:
|
Trust
Account No. [ ]/ Brokerage Account No. [ ]Termination
Letter
|
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between TransTech
Services Partners Inc. (the “Company”)
and
Continental Stock Transfer & Trust Company (the “Trustee”),
dated
as of [__________], 2007 (the “Trust
Agreement”),
this
is to advise you that the Company has entered into an agreement (the
“Business
Agreement”)
with
[___________] (“Target
Business”)
to
complete a business combination with Target Business (the “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”)
and
shall provide you with an Officers’ Certificate in accordance with Sections 1(i)
and 2(c) of the Trust Agreement. Capitalized terms used herein and not otherwise
define shall have the meaning ascribed to them in the Trust
Agreement.
In
accordance with paragraph [___] of [___] of the Amended and Restated Certificate
of Incorporation of the Company, the Business Combination has been approved
by
the stockholders of the Company and by the Public Stockholders holding a
majority of the IPO Shares, and Public Stockholders holding less than 20% of
the
IPO Shares have voted against the Business Combination and given notice of
exercise of their conversion rights described in paragraph [___] of Article
[___] of the Amended and Restated Certificate of Incorporation of the Company.
Pursuant to Section 3(f) 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 funds held in the Trust Account will be immediately
available for transfer to the account or accounts that the Company and the
Representatives shall direct in writing on the Consummation Date.
13
On
the
Consummation Date, (i) counsel for the Company shall deliver to you written
notification that (a) all of the conditions to closing of the Business
Combination have been satisfied and the closing date for such Business
Combination has been scheduled pursuant to the terms of the Business Agreement,
and (b) the provisions of Section 11-51-302(6) and Rule 51-3.4 of the CRS have
been met, to the extent applicable; (ii) the Company shall deliver along with
the oath and report of inspector of election certified by an independent
inspector which may be the Trustee or as otherwise appointed by the
Representatives (collectively, the “Report”);
and
(iii) the Company and the Representatives shall deliver to you joint written
instructions with respect to the transfer of the funds, including the Contingent
Discount, held in the Trust Account (“Instructions”).
You
are hereby directed and authorized to transfer the funds held in the Trust
Account immediately upon your receipt of the counsel’s letter, the Report,
evidence of delivery of the Stock Certificates, the Officers’ Certificate and
the Instructions in accordance with the terms of the Instructions.
Notwithstanding the foregoing, upon verification of receipt by you of the
Instructions, we hereby agree and acknowledge that the Property in the Trust
Account shall be distributed as follows: (1) first, to the Representatives
by
wire transfer (or as otherwise directed by the Representatives) in immediately
available funds, the aggregate amount of $1,170,000 ($1,372,500 if the
Underwriters’ over-allotment option has been exercised in full), plus any
interest accrued thereon; and (2) thereafter, to any other Beneficiary in
accordance with the terms of the Instructions. 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 and the Representatives of
the
same and, if the amount set forth in sub-clause (1) shall not have been paid
in
full, the Representatives and the Company shall issue joint written instructions
directing you as to whether such funds should remain in the Trust Account and
be
distributed after the Consummation Date to the Company and/or the
Representatives. 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,
By:
___________________________________
Xxxxxx
Xxxxxx, Chief Executive Officer
By:
___________________________________
XX
Xxxxx,
Chief Financial Officer
14
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn: [______________]
|
|
Re:
|
Trust
Account No. [ ] / Brokerage Account No. [ ]Termination
Letter
|
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between TransTech
Services Partners Inc. (the “Company’)
and
Continental Stock Transfer & Trust Company (the ‘Trustee”),
dated
as of [__________], 2007 (the ‘Trust
Agreement”),
this
is to advise you that the Board of Directors and stockholders of the Company
have voted to dissolve the Company and liquidate the Trust Account (as defined
in the Trust Agreement). Attached hereto is a copy of the minutes of the meeting
of the Board of Directors of the Company relating thereto, certified by the
Secretary of the Company as true and correct and in full force and
effect.
In
accordance with the terms of the Trust Agreement, we hereby (a) certify to
you
that the provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado
Revised Statutes have been met, and (b) authorize you to commence liquidation
of
the Trust Account as a part of the Company’s plan of dissolution and
distribution. In connection with this liquidation, you are hereby authorized
to
establish a record date for the purposes of determining the stockholders of
record entitled to receive their per share portion of the Trust Account. The
record date shall be within ten (10) days of the liquidation date, or as soon
as
thereafter as is practicable. You will notify the Company and _______________
(“Designated
Paying Agent”)
in
writing as to when all of the funds in the Trust Account will be available
for
immediate transfer ("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 terms of the
Trust Agreement and the Company’s Certificate of Incorporation,
15
as
amended. Upon the payment of all the funds in the Trust Account, the Trust
Agreement shall be terminated and the Trust Account closed.
Very
truly yours,
By:
___________________________________
Xxxxxx
Xxxxxx, Chief Executive Officer
By:
_________________________________
XX
Xxxxx,
Chief Financial Officer
16
EXHIBIT
C
|
AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
|
AUTHORIZED
TELEPHONE
NUMBER(S)
|
|
|
|
|
|
|
|
Company:
|
|
|
|
|
|
000
Xxxxx Xxxxxx, Xxxxx 00X
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxx, Chief Executive Officer
|
|
|
|
|
|
Trustee:
|
|
|
|
|
|
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx, Chairman
|
|
|
Underwriters:
|
|
|
Xxxxx
and Company, LLC
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxx Xxxxx
|
|
|
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx, Director of Investment Banking
|
17
