FORM OF INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.2
This
Agreement is made as of October __, 2006 by and between Pinpoint Advance Corp.
(the “Company”) and American Stock
Transfer & Trust Company (“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, File No. 333-______
(“Registration Statement”), for its initial public offering of securities
(“IPO”) has been declared effective on [_____], 2006 by the Securities and
Exchange Commission (“Effective Date”); and
WHEREAS,
the Company has issued securities in a private placement (the “Placement”);
and
WHEREAS,
Maxim Group LLC (“Maxim”) is acting as the representative of the underwriters
(the “Underwriters”); and
WHEREAS,
as described in the Company’s Registration Statement, (i) in accordance with the
Company’s Certificate of Incorporation, $22,516,000 of the net proceeds of the
IPO ($26,003,500 if the Underwriters’ over-allotment option is exercised in
full), (ii) in accordance with the Placement Unit Agreement, dated as of
[______], 2006, among the Company, Maxim and certain purchasers, $1,500,000
of
the gross proceeds of the Placement (together with the IPO proceeds, the “Base
Deposit”), (iii) in accordance with the Underwriting Agreement, dated [____],
2006, between the Company and Maxim, as representative of the Underwriters,
an
additional $750,000 ($862,500 if the Underwriters’ over-allotment option is
exercised in full), representing a portion of the Underwriters’ discount (the
“Deferred Discount”), and (iv) in accordance with the terms of a promissory note
in the principal amount of $234,000 ($384,000 if the over-allotment is exercised
in full) dated [___], 2006 between Xxxxx Xxxxx and the Company (the “Term
Note”), $25,000,000 will be delivered to the Trustee as of [_____], 2006 to be
deposited and held in a trust account for the benefit of the Company, the public
holders of the Common Stock, par value $.0001 per share, of the Company (“Common
Stock”) included in the units of the Company’s securities issued in the IPO (the
“Units”) and Maxim and the Underwriters. 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, the Company and Maxim and the
Underwriters 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;
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 segregated trust accounts (“Trust Account”)
established by the Trustee with Xxxxxxx Xxxxx;
(b)
Manage, supervise and administer the Trust Account subject to the
terms and conditions set forth herein;
(c)
In
a
timely manner, upon the written instruction of the Company, to invest and
reinvest the Property in any “Government Security” or in money market funds
selected by the Company meeting the conditions specified in Rule 2a-7
promulgated under the Investment Company Act of 1940, as amended, as determined
by the Company. As used herein, “Government 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)
Promptly notify the Company and Maxim 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 Maxim to do so;
(h)
Render to the Company and to Maxim, and to such other person as the
Company may instruct, monthly written statements of the activities of and
amounts in the Trust Account reflecting all receipts and disbursements of the
Trust Account;
(i)
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 (“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 3(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 stockholder vote in favor
of
the Business Combination (as hereinafter defined). In all cases, the Trustee
shall provide Maxim with a copy of any Termination Letters, Officers
Certificates and/or any other correspondence that it receives with respect
to
any proposed withdrawal from the Trust Account promptly after it receives same.
As used in this Agreement, the term “Business Combination” means the acquisition
by the Company, through merger, capital stock exchange, asset or stock
acquisition of, or similar business combination with, one or more entities
located in Israel or Europe as more fully described in the prospectus forming
a
part of the Registration Statement; and
(j)
Commence liquidation of the Trust Account only upon receipt of and only in
accordance with the terms of a letter (the “Termination Letter”), in a form
substantially similar to that attached hereto as either Exhibit A or Exhibit
B,
signed on behalf of the Company by its President or Chairman of the Board and
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.
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 or the Internal Revenue
Service by wire transfer or check (as directed by the Company in its instruction
letter), out of the Property in the Trust Account, the amount indicated by
the
Company as required to pay income taxes.
(b)
Upon written request from the Company containing certification that
such distribution pursuant to this Section 2(b) shall only be used to fund
the
working capital requirements of the Company and the costs related to
identifying, researching and acquiring a prospective target businesses, in
each
case as described in the prospectus that forms a part of the Registration
Statement, the Trustee shall distribute to the Company an amount equal to up
to
$1,250,000 ($1,380,000 if the Underwriters’ over-allotment option is exercised
in full) of the income earned on the Base Deposit, net of taxes payable, through
the last day of the month immediately preceding the date of receipt of the
Company’s written request.
(c)
Upon
the written instruction of the Company on every March 31, June 30, September
30,
and December 31 prior to the LOI Termination Date (each such date a “Note
Interest Payment Date”), the Trustee shall make a payment to the Note Payee of:
(a) one-sixth of the Principal Amount, and (b) interest on the then remaining
Principal Amount, of the Term Note accrued during the quarterly period ended
on
such date at a per annum rate of 4% during such quarterly period (all as
calculated and specified in the instruction letter from the Company to the
Trustee); provided, however, that the Company will not provide such instructions
to the Trustee (i) if the first scheduled principal and interest payment
represents a period less than one full quarterly period, (and such payment
shall
be deferred until the date of the next occurring Note Interest Payment Date),
and (ii) until the expiration of the first full quarter after the date on which
the Company has drawn interest from the Trust Account aggregating to $[______]
(all of such accrued interest being payable in the first quarter after such
threshold has been reached).
(d)
(
i
) Subject to the limitations and conditions set forth in
paragraphs ( ii
) and
( iii
) of this Section 2(d), upon the written instruction of the Company upon
either the consummation of a Business Combination or the LOI Termination Date
(or, in the event the Company has executed a letter of intent prior to the
LOI
Termination Date but failed to consummate a Business Combination, the Second
Termination Date), the Trustee shall deliver payment to the Note Payee in the
amount of the then remaining Principal Amount of the Term Note, plus interest
accrued thereon, since the date of the most recent prior Note Interest Payment
Date, at a per annum rate of 4% since such Note Interest Payment Date (all
as
calculated and specified in the instruction letter from the Company to the
Trustee).
(
ii
) The Company shall not give the Trustee the instruction
letter described in paragraph ( i
) of
this Section 2(d) unless it has first delivered to the Trustee a Termination
Letter in substantially the form attached hereto as Exhibit A or Exhibit B,
notifying the Trustee that the Company has either consummated a Business
Combination or adopted a stockholder-approved plan of dissolution and
liquidation.
(
iii
) The Company’s instruction letter to the Trustee shall
provide that the Trustee may not make any payment of interest described in
paragraph ( i
) of
this Section 2(d) until after the Trustee has done the following (all in
accordance with the written instructions provided to the Trustee by the
Company): (A) in case a Business Combination has been consummated, distributed
to each Public Stockholder that has exercised its right to redeem its IPO Shares
as described in greater detail in the Registration Statement $8.00 for
each IPO share redeemed by such stockholder; and (B) in case of a
dissolution and liquidation of the Company, distributed to each Public
Stockholder at least $8.00 for each IPO Share held by such Public
Stockholder.
(e)
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.
(f)
Intentionally left blank.
(g) Except
as provided in this Section 2, no other distributions from the Trust Account
shall be permitted except in accordance with Sections 1(i) and 3(j)
hereof.
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. In
addition, except with respect to its duties under paragraph 1(i) and 3(j),
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 Maxim 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 Company shall have the right to conduct and manage the defense
against such Indemnified Claim, provided that the Company shall obtain the
consent of the Trustee with respect to the selection of counsel, which
consent shall not be unreasonably withheld. The Company may not agree to
settle any Indemnified Claim without the prior written consent of the Trustee.
The Trustee may participate in such action with its own counsel at its own
expense;
(c)
Pay the Trustee an initial acceptance fee, an annual fee and a
transaction processing fee for each disbursement made pursuant to Sections
2(a)
and 2(b) as set forth on Schedule A hereto, which fees shall be subject to
modification by the parties from time to time. It is expressly understood that
the Property shall not be used to pay such fees and further agreed that said
transaction processing fees shall be deducted by the Trustee from the
disbursements made to the Company pursuant to Section 2(b). The Company shall
pay the Trustee the initial acceptance fee and first year’s fee at the
consummation of the IPO and thereafter on the anniversary of the Effective
Date.
The Trustee shall refund to the Company the annual fee (on a pro rata basis)
with respect to any period after the liquidation of the Trust Fund. The Company
shall not be responsible for any other fees or charges of the Trustee except
as
set forth in this Section 3(c) and as may be provided in Section 3(b) hereof
(it
being expressly understood that the Property shall not be used to make any
payments to the Trustee under such Sections);
(d)
That, in the event that the Company consummates a Business
Combination and the Trust Account is liquidated in accordance with Section
1(i)
hereof, the Trustee or another independent party designated by Maxim 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 3(j)
hereof shall require the Company’s Chief Executive Officer and Chief Financial
Officer 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”) pursuant to
the unanimous written consent of the Board has approved (where applicable):
(i)
the Letter of Intent; and/or (ii) the Business Combination. A copy of such
consent and the Letter of Intent and/or the definitive agreement relating to
the
Business Combination so approved shall be attached as an exhibit to the Officers
Certificate;
(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;
(h)
Within five business days after the Underwriters’ 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 Underwriters) of the total amount
of the Deferred Fee and Deferred Discount, which shall in no event be less
than
$750,000; and
(i)
Intentionally left blank.
(j)
( i
) Subject to the limitations and conditions set forth in
paragraph ( ii
) of
this section 3(j), as soon as practicable after 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”)), instruct the Trustee to commence
liquidation of the Trust Account as part of the Company ’ s plan of dissolution
and liquidation approved by the Company’s stockholders. The Trustee, upon
receiving written instruction from the Company and Maxim, 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 receiving instructions from the
Company to do so, notifying the Public Stockholders of such event. 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.
(
ii
) Paragraph ( i
) of
this Section 3(j) shall be subject to the following conditions and
limitations:
(x)
If the Company has entered into 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, then the Company shall
not be required to send an instruction to the Trustee relating to the
liquidation of the Trust Account until the earlier of a Business Combination
or
the Second Termination Date.
(y) On
the date on which the Trustee is to begin delivery to each Public Stockholder
of
its ratable share of the Property, the Company shall provide written
instructions to the Trustee to deliver the Property according to the following
schedule: First,
to each
Public Stockholder an amount equal to $8.00 for each share represented by
certificates delivered by such Public Stockholder to the Company or the Trustee
as prescribed in Paragraph ( i
) of
Section 3(j) of this Agreement. Second,
to
deliver payment to the Note Payee the remaining outstanding Principal
Amount, plus accrued interest thereon. Third,
to
deliver to each Public Stockholder the remainder, if any, of its ratable share
of the Property.
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 Sections 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 written instructions from the Company given as provided herein to
do so
and the Company shall have advanced or guaranteed to it funds sufficient to
pay
any expenses incident thereto;
(c)
Change the investment of any Property, other than in compliance
with Section 1(c);
(d)
Refund any depreciation in principal of any Property;
(e)
Assume that the authority of any person designated by the Company
to give instructions hereunder shall not be continuing unless provided otherwise
in such designation, or unless the Company shall have delivered a written
revocation of such authority to the Trustee;
(f)
The other parties hereto or to anyone else for any action taken or
omitted by it, or any action suffered by it to be taken or omitted, in good
faith and in the exercise of its own best judgment, except for its gross
negligence or willful misconduct. The Trustee may rely conclusively and shall
be
protected in acting upon any order, 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)
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
issue the checks with respect thereto provided for by Section 2(a)
hereof).
(i) Verify
calculations, qualify or otherwise approve Company requests for distributions
pursuant to Section 1(i), 2(a) or 2(b) above.
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.
(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; 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.
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 ninety days of receipt of the resignation
notice from the Trustee, the Trustee may, but shall not be obligated to, 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);
or
(c)
At such time that the Trustee has completed the liquidation of the
Trust Account and distributed the Property in accordance with Sections 1(i)
and
3(j) hereof, this Agreement shall terminate except with respect to Section
3(b).
7.
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 Delaware, 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.
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 may be made without the prior written consent of
Maxim, who, along with each other Underwriter, the parties specifically
agree, is and shall be a third party beneficiary for purposes of this
Agreement; and provided further, any amendment to Section 3(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 accept such venue, and waive any
objection that such courts represent an inconvenient forum.
(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:
x000-000-0000.
if
to the
Trustee, to:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx, Xxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice President
Fax
No.:
(000) 000-0000
if
to the
Company, to:
0
Xxxxxx
Xxxxxx
Xxxxxxxxx,
Xxxxxx 00000
Attn:
Adiv Baruch
Fax
No.:
in
either
case with a copy to:
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
Fax
No.:
(000) 000-0000
and
Ellenoff,
Xxxxxxxx & Schote LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Fax
No.:
(000) 000-0000
and
Xxxxxxxxxx
& Xxxxx LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx X. Xxxxxxx
Fax
No.:
(000) 000-0000
(f)
This Agreement may not be assigned by the Trustee without the prior
written consent of the Company and Maxim.
(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.
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:
______________________________________
Name:
Title:
By:
______________________________________
Name:
Adiv Baruch
Title:
Chief Executive Officer
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
American
Stock Transfer
&
Trust Company
00
Xxxxxx
Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice President
| Re: |
Trust
Account No. [ ] Termination
Letter
|
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Pinpoint
Advance Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of __________, 2006 (“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 [_______]. The Company
shall notify you at least 48 hours in advance of the actual date of the
consummation of the Business Combination (“Consummation Date”). Capitalized
words used herein and not otherwise defined shall have the meanings ascribed
to
them in the Trust Agreement.
In
accordance with paragraph 2 of Article 6 of the 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 and shares
issued in the Placement have voted against the Business Combination and given
notice of exercise of their redemption rights described in paragraph 3 of
Article 6 of the Certificate of Incorporation of the Company. Pursuant to
Section 2(e) of the Trust Agreement, we are providing you with [an affidavit]
[a
certificate ] of __________, which verifies the vote of the Company’s
stockholders in connection with the Business Combination. In accordance with
the
terms of the Trust Agreement, we hereby authorize you to commence liquidation
of
the Trust Account to the effect that, on the Consummation Date, all of funds
held in the Trust Account will be immediately available for transfer to the
account or accounts that the Company shall direct in writing on the Consummation
Date.
On
the
Consummation Date (i) counsel for the Company shall deliver to you written
notification that the Business Combination has been consummated or will,
concurrently with your transfer of funds to the accounts as directed by the
Company, be consummated, 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 be distributed after the
Consummation Date to the Company or be distributed immediately and the penalty
incurred. 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: | ||
| Adiv Baruch | ||
|
Chief
Executive Officer
|
||
Cc:
Maxim
Group LLC
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
American
Stock Transfer
&
Trust Company
00
Xxxxxx
Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice President
| Re: |
Trust
Account No. [ ] Termination
Letter
|
Gentlemen:
Pursuant
to paragraphs 1(i) and 2(e) of the Investment Management Trust Agreement between
Pinpoint Advance Corp. (“Company”) and Continental Stock Transfer & Trust
Company (“Trustee”), dated as of _____________, 2006 (“Trust Agreement”), this
is to advise you that the Board of Directors of the Company and the
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 authorize you to
commence liquidation of the Trust Account as part of the Company’s plan of
dissolution and liquidation. 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 thereafter as is practicable. You will notify the Company in
writing as to when all of the funds in the Trust Account will be available
for
immediate transfer (“Transfer Date”) in accordance with the terms of the Trust
Agreement and Certificate of Incorporation of the Company. You shall commence
distribution of such funds in accordance with the terms of the Trust Agreement
and the Certificate of Incorporation of the Company and you shall oversee the
distribution of such funds. Upon the payment of all the funds in the Trust
Account, the Trust Agreement shall be terminated.
|
Very
truly yours,
|
||
| |
|
|
| By: | ||
| Adiv Baruch | ||
|
Chief
Executive Officer
|
||
Cc:
Maxim
Group LLC
EXHIBIT
C
|
AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
|
|
AUTHORIZED
TELEPHONE
NUMBER(S)
|
|
|
|
|
|
|
|
|
|
Company:
|
|
|
|
|
|
|
|
0
Xxxxxx Xxxxxx
Xxxxxxxxx,
Xxxxxx 00000
Attn:
Adiv Baruch, Chief Executive Officer
|
|
972
9-9500245
|
|
|
|
|
|
Maxim
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
|
|
(000)
000-0000
|
|
|
|
|
|
Trustee:
|
|
|
|
|
|
|
|
American
Stock Transfer
&
Trust Company
00
Xxxxxx Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxx Xxxxxx, Vice President
|
|
(000)
000-0000
|
SCHEDULE
A
Schedule
of fees pursuant to Section 3(c) of Investment Management Trust
Agreement
between
Pinpoint Advance Corp. and
American
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) and
2(b)
|
Deduction
by Trustee from disbursement made to Company under Section
2(b)
|
$250
|
|
Agreed:
|
||
| Dated: [___], 2006 | ||
| |
|
|
| By: | ||
| Adiv Baruch | ||
|
Chief
Executive Officer
|
||
| American Stock Transfer & Trust Co. | ||
| |
|
|
| By: | ||
| Authorized Officer | ||
