INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit 10.2
This Investment Management Trust Agreement (this
“Agreement”) is made as of
,
2008 by and between Liberty Lane Acquisition Corp. (the
“Company”) and American Stock
Transfer & Trust Company (the
“Trustee”).
WHEREAS, the Company’s Registration Statement on
Form S-1,
as amended,
No. 333-149886
(together with any registration statement filed pursuant to
Rule 462(b), the “Registration
Statement”), for its initial public offering (the
“IPO”) of its units (the
“Units”), each comprised of one share of common
stock, par value $0.001 per share, and one half of one warrant
to purchase one share of common stock, has been declared
effective as of the date hereof by the Securities and Exchange
Commission (the “Effective Date”);
WHEREAS, Xxxxxxx, Xxxxx & Co. is
acting as the underwriter in the IPO (the
“Underwriter”) pursuant to an underwriting
agreement dated on or about the date hereof between the Company
and the Underwriter (the “Underwriting
Agreement”);
WHEREAS, the Company has agreed to issue warrants in a private
placement that will occur prior to the IPO (the “Private
Placement”);
WHEREAS, as described in the Registration Statement, and in
accordance with the Company’s Amended and Restated
Certificate of Incorporation (the “Amended and Restated
Certificate”), $340,950,000 of the net proceeds of the
IPO and the Private Placement (or $392,400,000 if the
Underwriter’s option to purchase additional Units in the
IPO is exercised in full) will be delivered to the Trustee to be
deposited and held in the Trust Account (as defined below)
for the benefit of the Company and the holders of the
Company’s common stock, par value $0.001 per share (the
“Common Stock”), included in the Units issued
in the IPO. The amount to be delivered to the Trustee, together
with income earned thereon, 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 collectively referred to as
the “Beneficiaries”);
WHEREAS, pursuant to the Underwriting Agreement, a portion of
the Property consists of $10,500,000 (or $12,075,000 if the
Underwriter’s option to purchase additional Units in the
IPO is exercised in full) attributable to deferred underwriting
discounts and commissions that will become payable, subject to
reduction as provided in the Underwriting Agreement, by the
Company to the Underwriter only upon the consummation of a
Business Combination (as such term is defined in the Amended and
Restated Certificate) (the “Deferred
Discount”); 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.
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:
(a) hold the Property in trust for the Beneficiaries in
accordance with the terms of this Agreement, in a segregated
trust account (the “Trust Account”)
established by the Trustee at XX Xxxxxx/Chase Manhattan
Bank, N.A.;
(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 United States
“government securities,” within the meaning of
Section 2(a)(16) of the Investment Company Act of 1940, as
amended (the “1940 Act”), with 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;
provided, that upon the request of the Company, the
Trustee shall be required to (1) invest such requested
amount directly in United States treasury bonds, bills or notes
(“Treasuries”) identified by the Company and
(2) sell, transfer or otherwise dispose of Treasuries
identified by the Company; provided, further, that the
amount of Treasuries held at any time may not exceed $10,000,000;
(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) promptly notify the Company of all communications
received by it with respect to any Property requiring action by
the Company;
(f) promptly supply any 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 to do so;
(h) render to the Company, 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;
(i) release to the Company each month the interest earned
on the Property, until a maximum of $5,000,000 of such interest
has been released to the Company from the Trust Account,
unless the Trustee has received notice from the Company that any
interest income should be set aside to pay taxes in accordance
with Section 1(j);
(j) upon written instructions from the Company, deliver to
the Company or to such governmental entity or taxing authority
as the Company shall direct, on a quarterly basis, from the
Property in the Trust Account, an amount equal to the taxes
payable by the Company, if any, relating to interest earned on
the Property and any franchise taxes payable by the Company;
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(k) upon written instructions from the Company, deliver to
the Company up to $100,000 of the interest earned on the
Property in the Trust Account for the purpose of paying the
Company’s costs and expenses of implementing a plan of
distribution in connection with the dissolution and liquidation
of the Company in the event that the Company fails to consummate
a Business Combination; provided that such amounts will
be delivered to the Company only to the extent that there
remains in the Trust Account interest earned on the
Property in excess of taxes payable by the Company relating to
the interest earned on the Property; and
(l) 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 Exhibit A
or Exhibit B, signed on behalf of the Company by the
Chairman of its Board of Directors, its Chief Executive Officer
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.
The Trustee understands and agrees that, except as provided in
Section 1(i), 1(j) and 1(k) hereof, disbursements from the
Trust Account shall be made only pursuant to a duly
executed Termination Letter.
2. 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 Chairman of its Board of
Directors, Chief Executive Officer or other authorized officer
of the Company;
(b) to hold the Trustee harmless and indemnify the Trustee
from and against, any and all out-of-pocket 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, willful misconduct or bad
faith. 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;
(c) to pay the Trustee a fee of $3,000, which shall be the
full amount owing to the Trustee hereunder. It is expressly
understood that the Property shall not be used to pay such fee,
except as disbursed to the Company as provided herein. The
Company shall pay the Trustee such fee upon the consummation of
the IPO. 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 Section 2(b)
hereof (it being expressly understood that the Property shall
not be used to make any payments to the Trustee under such
Sections); and
(d) 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.
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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 Section 1 hereof;
(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
invested in accordance with Section 1(c);
(e) assume that the authority of any person designated by
the Company to give written 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 Company or to anyone else for any action taken or
omitted by it in compliance with this Agreement, or any action
suffered by it to be taken or omitted in compliance with this
Agreement, in good faith and in the exercise of its own best
judgment, except for its gross negligence, willful misconduct or
bad faith. The Trustee may rely conclusively on, 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; or
(h) verify calculations, qualify or otherwise approve
Company requests for distributions pursuant to
Sections 1(i), 1(j) and 1(k) above.
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4. 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 2(b), the Trustee will
pursue such claim solely against the Company and not against the
Property held in the Trust Account.
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 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 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
90 days of receipt of the resignation notice from the
Trustee, the Trustee may, upon written notice to the Company,
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; or
(b) At such time that the Trustee has completed the
liquidation of the Trust Account in accordance with the
provisions of Section 1(l) hereof, and distributed the
Property in accordance with the provisions of the Termination
Letter, this Agreement shall terminate except with respect to
Section 2(b) hereof.
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 and of any change in
its authorized personnel.
(b) This Agreement may be executed in any number of
original or facsimile counterparts, and each of such
counterparts shall for all purposes be deemed to be an original,
and all such counterparts shall together constitute but one and
the same instrument.
(c) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of New York applicable to
contracts executed in and to be performed in that State,
including, without limitation,
Sections 5-1401
and 5-1402 of the New York General Obligations Law and the New
York Civil Practice Laws and Rules 327(b). The parties
hereto agree that any action, proceeding or claim against it
arising out of or relating in any way to this Agreement shall be
brought and enforced in the courts of the State of New York or
the United States District Court for the Southern District of
New York, and the parties hereto irrevocably submit to such
jurisdiction, which jurisdiction shall be exclusive. The parties
hereto hereby waive any objection to such exclusive jurisdiction
and that such courts represent an inconvenient forum.
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(d) 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 that such action shall not
materially adversely affect the interests of the Public
Stockholders; provided, further, that such action shall
not materially adversely affect the right of the Underwriter to
receive the Deferred Discount as contemplated herein without the
written consent of the Underwriter. 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.
(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 certified or registered
mail, by private national courier service (return receipt
requested, postage prepaid), by personal delivery or by
facsimile transmission. Such notice or communication shall be
deemed given (i) if mailed, two days after the date of
mailing, (ii) if sent by national courier service, one
business day after being sent, (iii) if delivered
personally, when so delivered, or (iv) if sent by facsimile
transmission, on the second business day after such facsimile is
transmitted, in each case as follows:
If to the Trustee, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Fax:
(000) 000-0000
If to the Company, to:
Xxx Xxxxxxx Xxxx
Xxxxxxx, Xxx Xxxxxxxxx 00000
(603) 929-260
Attn: Xxxxx X. Xxxxx
Fax:
(000) 000-0000
In either case with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
Xxxx Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxxx X. Xxxxxx, Esq.
Fax: (212) 735 -2000
If to the Underwriter, to:
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xx.
Xxx Xxxx, Xxx Xxxx 00000
Attn: Registration Department
Fax:
(000) 000-0000
With a copy to:
Xxxxxx Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Check, Esq.
Fax:
(000) 000-0000
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(f) This Agreement may not be assigned by the Trustee
without the prior written consent of the Company and the
Underwriter. This Agreement may be assigned by the Company to a
wholly-owned subsidiary of the Company upon written notice to
the Trustee.
(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) The Trustee hereby consents to the inclusion of
American Stock Transfer & Trust Company in the
Registration Statement and other materials relating to the IPO.
(i) The Underwriter shall be a third party beneficiary of
this Agreement.
[Remainder of document intentionally left blank. 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
COMPANY, as Trustee
| By: |
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Name:
Title:
| By: |
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Name:
Title:
8
EXHIBIT A
[LETTERHEAD
OF COMPANY]
[DATE]
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Trust Account No.
[ ]
Termination Letter
Gentlemen:
Pursuant to Section 1(l) of the Investment Management
Trust Agreement between Liberty Lane Acquisition Corp. (the
“Company”) and American Stock
Transfer & Trust Company (the
“Trustee”), dated as of
[ ],
2008 (the “Trust Agreement”), this is to
advise you that the Company has entered into an agreement with
[ ]
(the “Target Business”) to consummate a
Business Combination with Target Business 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”).
Capitalized terms used herein and not otherwise defined shall
have the meaning ascribed to them in the Trust Agreement.
Pursuant to Section 2(d) 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, the Company shall deliver to you
(i) written notification (the “Notification of
Consummation”) that the Business Combination has been
consummated and (ii) written instructions (the
“Instruction Letter”) with respect to the
transfer of the funds held in the Trust Account. You are
hereby directed and authorized to transfer the funds held in the
Trust Account immediately upon your receipt of the
Notification of Consummation 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. 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: |
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Name:
Title:
A-1
EXHIBIT B
[LETTERHEAD
OF COMPANY]
[DATE]
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
00 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxxxxx
Re: Trust Account No.
[ ]
Termination Letter
Gentlemen:
Pursuant to Section 1(l) of the Investment Management
Trust Agreement between Liberty Lane Acquisition Corp. (the
“Company”) and American Stock
Transfer & Trust Company (the
“Trustee”), dated as of
[ ],
2008 (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 Registration Statement.
Capitalized terms used herein and not otherwise defined shall
have the meaning ascribed to them in the Trust Agreement.
Attached hereto is a certified copy of the Certificate of
Dissolution as filed with the Secretary of State of Delaware. In
accordance with the terms of the Trust Agreement, we hereby
authorize you to commence liquidation of the Trust Account
as promptly as practicable. You will notify the Company and
[ ]
(the “Designated Paying Agent”) in writing at
[insert address] 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. On the
Transfer Date, you shall transfer such funds directly to the
Designated Paying Agent. 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: |
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Name:
Title:
B-1
EXHIBIT C
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AUTHORIZED INDIVIDUAL(S) |
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| FOR TELEPHONE CALL BACK | AUTHORIZED TELEPHONE NUMBER(S) | |
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Company:
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| (000) 000-0000 | ||
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Trustee:
|
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American Stock Transfer & Trust Company
00 Xxxxxx Xxxx Xxx Xxxx, Xxx Xxxx 00000 Attn: Xxxxxx Xxxxxxxxx |
(000) 000-0000 |
C-1
