EXHIBIT 10.8
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of July 30, 2004 by and between Sand Hill IT
Security Acquisition Corp. (the "Company") and American Stock Transfer & Trust
Company ("Trustee").
WHEREAS, the Company's Registration Statement on Form S-1, No. 333-114861
("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 ("Effective Date"); and
WHEREAS, Newbridge Securities Corporation and I-Bankers Securities
Incorporated (collectively, the "Representatives") are acting as the
representatives of the underwriters in the IPO; and
WHEREAS, as described in the Company's Registration Statement, and in
accordance with the Company's Certificate of Incorporation, $18,360,000 of the
gross proceeds of the IPO ($19,548,000 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 $.01 per share, issued in the IPO and in
the event the Units are registered in Colorado, pursuant to Section 11-51-302(6)
of the Colorado Revised Statutes (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, including the terms of Section 11-51-302(6) of the
Colorado Statute 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 instruction of the Company, to invest and
reinvest the Property in any "Government Security." As used herein, Government
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Security means any Treasury Xxxx issued by the United States, having a maturity
of one hundred and eighty days or less;
(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 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 to do so;
(h) Render to the Company and to the Representatives, 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 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,
signed on behalf of the Company by its President or Chairman of the Board and
Secretary, 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.
2. 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 paragraph 1(i) 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
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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 of $1,000 and an annual fee
of $3,000 (it being expressly understood that the Property shall not be used to
pay such fee). 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
fee (on a pro rata basis) with respect to any period after the liquidation of
the Trust Fund. The Trustee shall also be entitled to reimbursement from the
Company for all expenses paid or incurred by it in the administration of its
duties hereunder including, but not limited to, all counsel, advisors' and
agents' fees and disbursements and all taxes or other governmental charges. The
Company shall not be responsible for any other fees or charges of the Trustee
except as set forth in this Section 2(c) and as may be provided in paragraph
2(b) hereof (it being expressly understood that the Property shall not be used
to make any payments to the Trustee under such paragraph).
3. 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
paragraph 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
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
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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) Pay any taxes on behalf of the Trust Account (it being expressly
understood that the Property shall not be used to pay any such taxes and that
such taxes, if any, shall be paid by the Company from funds not held in the
Trust Account).
4. 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;
(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 2(b); or
(c) On such date after July 30, 2006 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 paragraph 1(i).
5. 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
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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. 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 the
Representative. 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:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xx. Xxxxx Xxxxxx
Fax No.: (000) 000-0000
if to the Company, to:
Sand Hill IT Security Acquisition Corp.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Polanen, Chief Executive Officer
Fax No.: (000) 000-0000
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in either case with a copy to:
Newbridge Securities Corporation
0000 X. Xxxxxxx Xxxxx Xxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000-0000
Attn: Xxxxx Xxxxx
Fax: (000) 000-0000
and
I-Bankers Securities Incorporated
0000 Xxxxxx Xxxxx Xx.
Xx. Xxxxx, Xxxxx 00000
Attn: Xxxxxxx XxXxxxx
Fax: (000) 000-0000
(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
funds in the Trust Account under any circumstance.
[Signature page to follow]
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IN WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust Agreement as of the date first written above.
AMERICAN STOCK TRANSFER
& TRUST COMPANY, as Trustee
By: /s/ Xxxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
SAND HILL IT SECURITY
ACQUISITION CORP.
By: /s/ Xxxxxxxx X. Polanen
-------------------------------
Xxxxxxxx X. Polanen
Chief Executive Officer
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EXHIBIT A
[LETTERHEAD OF COMPANY]
[INSERT DATE]
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: __________________________
Re: Trust Account No. [___________]
Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement
between Sand Hill IT Security Acquisition Corp. ("Company") and American Stock
Transfer & Trust Company ("Trustee"), dated as of _____________, 2004 ("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 24 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 (a) the Business Combination has been consummated and
(b) the provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado
Statute have been met and (ii) the Company shall deliver to you 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.
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
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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,
SAND HILL IT SECURITY
ACQUISITION CORP.
By:__________________________________
Xxxxxxxx X. Polanen, Chief
Executive Officer
By:__________________________________
Xxxx X. Xxxxxxxx, Secretary
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EXHIBIT B
[LETTERHEAD OF COMPANY]
[INSERT DATE]
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: _____________________
Re: Trust Account No. [_________] Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement
between Sand Hill IT Security Acquisition Corp. ("Company") and American Stock
Transfer & Trust Company ("Trustee"), dated as of _____________, 2004 ("Trust
Agreement"), this is to advise you that the Board of Directors of the Company
has voted to dissolve and liquidate the Company. 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 Statute have been met and (b) authorize you, to commence liquidation of
the Trust Account. 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 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 be
terminated.
Very truly yours,
SAND HILL IT SECURITY
ACQUISITION CORP.
By:__________________________________
Xxxxxxxx X. Polanen, Chief
Executive Officer
By:__________________________________
Xxxx X. Xxxxxxxx, Secretary
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EXHIBIT C
AUTHORIZED INDIVIDUAL(S)
AUTHORIZED FOR TELEPHONE CALL BACK
COMPANY: Sand Hill IT Security Acquisition Corp.
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxxx X. Polanen, Chairman
Telephone: (____)_______________
Attn: Xxxx X. Xxxxxxxx, Chief Financial Officer
Telephone: (____)________________
TRUSTEE: American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: ______________________________
Telephone: (____) __________________
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