INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of _____________, 2005 by and between QuadraPoint
Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust
Company (“Trustee”).
WHEREAS,
the Company’s registration statement on Form S-1, No. 333-_______
(“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,
Ladenburg Xxxxxxxx & Co. Inc. (“Ladenburg”) is acting as the representative
of the underwriters in the IPO; and
WHEREAS,
as described in the Registra-tion Statement, and in accordance with the
Company’s Certificate of Incorporation, $67,250,000 of the gross proceeds of the
IPO ($77,712,500 if the underwriters over-allotment option is exercised in full)
will be delivered to the Trustee to be deposited and held in a trust account for
the benefit of the Company and the holders of the Company’s common stock, par
value $.0001 per share, issued in the IPO as hereinafter provided and in the
event the Units are registered in Colorado, pursuant to Section 11-51-302(6) of
the Colorado Revised Statutes. A copy of the Colorado Statute is attached hereto
and made a part hereof (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 con-di-tions 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;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In a
timely manner, upon the instruction of the Company, to invest and reinvest the
Property in United States “government securities” within the meaning of Section
2(a)(16) of the Investment Company Act of 1940 having a maturity of 180 days or
less, or in any open ended investment company registered under the Investment
Company Act of 1940 that holds itself out as a money market fund meeting the
conditions of paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7 promulgated
under the Investment Company Act of 1940;
(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;
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(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 docu-ments as may be requested by the Company in
connection with the Com-pany’s preparation of the tax returns for the Trust
Account;
(g) Participate
in any plan or proceeding for protect-ing 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 Ladenburg, 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 Secre-tary
or Assistant 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. The
Trustee understands and agrees that disbursements from the Trust Account shall
be made only pursuant to a duly executed Termination Letter, together with the
other documents referenced herein. In all cases, the Trustee shall provide
Ladenburg with a copy of any Termination Letters and/or any other correspondence
that it receives with respect to any proposed withdrawal from the Trust Account
promptly after it receives same.
2. Agreements
and Covenants of the Company. The
Company hereby agrees and covenants to:
(a) Give all
instructions to the Trustee here under 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 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 coun-sel, 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 unless such settlement includes a full release
with respect to such Indemnified Claim. The Company may participate in such
action with its own counsel; and
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(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
Company shall not be responsible for any other fees or charges of the Trustee
except 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 Prop-erty unless and until it shall have received instructions from the
Company given as provided here-in 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
here-under shall not be continuing unless provided otherwise in such
designa-tion, 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 suffer-ed 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 con-clusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Trustee), statement, instru-ment, 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 con-tained) 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 rescis-sion 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 par-ties and, if the duties or rights of the Trustee are affected,
unless it shall give its prior written consent thereto;
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(g) Verify
the correctness of the information set forth in the Registra-tion 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 provi-sions of paragraph 1(i) hereof, and dis-tributed 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 _____________, 2007 when the Trustee deposits the Property with the
United States Dis-trict 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 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.
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(b) This
Agreement shall be governed by and construed and enforced in accordance with the
laws of the State of New York, without giving effect to conflicts of law
principles that would result in the application of the substantive laws of
another jurisdiction. It may be executed in several original or facsimile
counterparts, each one of which shall constitute an original, and together shall
constitute but one instrument.
(c) This
Agreement contains the entire agreement and understanding of the parties hereto
with respect to the subject matter hereof. This Agreement or any provision
here-of may only be changed, amended or modified by a writing signed by each of
the parties hereto; provided, however, that no such change, amendment or
modification may be made without the prior written consent of Ladenburg. As to
any claim, cross-claim or counterclaim in any way relating to this Agreement,
each party waives the right to trial by jury.
(d) The
parties hereto consent to the jurisdiction and venue of any state or federal
court located in the City of New York, Borough of Manhattan, for purposes of
resolving any disputes hereunder.
(e) Any
notice, consent or request to be given in con-nection with any of the terms or
provisions of this Agree-ment 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 Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx
X. Xxxxxxx, Chairman
Fax No.: (___)
___-____ |
in either
case with a copy to:
|
Ladenburg
Xxxxxxxx & Co. Inc.
000
Xxxxxxx Xxxxxx, 00xx
Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Fax
No.: (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.
(h) Each of
the Company and the Trustee hereby acknowledge that Ladenburg is a third party
beneficiary of this Agreement.
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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 | ||
| |
|
|
| Date: | By: | |
|
| ||
| Title | ||
| QUADRAPOINT ACQUISITION CORP. | ||
| |
|
|
| Date: | By: | |
|
Xxxx X. Xxxxxxx | ||
| Chairman | ||
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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:
Xxxxxx Xxxxxx
Re: Trust
Account No. 530- Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between
QuadraPoint Acquisition Corp. (“Company”) and Continental Stock Transfer &
Trust Company (“Trustee”), dated as of __________, 2005 (“Trust Agreement”),
this is to advise you that the Company has entered into an agreement (“Business
Agreement”) with __________________ (“Target Business”) to consummate a business
combination with Target Business (“Business Combination”) on or about
[insert
date]. The
Company shall notify you at least 48 hours in advance of the actual date of the
consummation of the Business Combination (“Consummation Date”).
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of the Trust Account to the effect that, on the
Consummation Date, all of funds held in the Trust Account will be immediately
available for transfer to the account or accounts that the Company shall direct
on the Consummation Date.
On the
Consummation Date (i) counsel for the Company shall deliver to you written
notification that (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 trans-fer 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 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, | ||
| QUADRAPOINT ACQUISITION CORP. | ||
| |
|
|
| Date: | By: | |
|
Xxxx X. Xxxxxxx | ||
| Chairman | ||
| |
|
|
| Date: | By: | |
|
Xxxxx X. Xxxxxxxxx | ||
| Secretary | ||
cc:
Ladenburg Xxxxxxxx & Co. Inc.
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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. 530- Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between
QuadraPoint Acquisition Corp. (“Company”) and Continental Stock Transfer &
Trust Company (“Trustee”), dated as of ___________, 2005 (“Trust Agreement”),
this is
to advise you that the Company has been unable to effect a Business Combination
with a Target Company within the time frame specified in the Company’s
prospectus relating to its IPO.
In
accordance with the terms of the Trust Agree-ment, 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 the paying agent holding the
Trust Account (“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 there-after notify you as to the account or
accounts of the Desig-nated Paying Agent that the funds in the Trust Account
should be transferred to on the Transfer Date so that the Desig-nated 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, | ||
| QUADRAPOINT ACQUISITION CORP. | ||
| |
|
|
| Date: | By: | |
|
Xxxx X. Xxxxxxx | ||
| Chairman | ||
| |
|
|
| Date: | By: | |
|
Xxxxx X. Xxxxxxxxx | ||
| Secretary | ||
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EXHIBIT
C
AUTHORIZED
INDIVIDUAL(S) AUTHORIZED
FOR
TELEPHONE CALL BACK TELEPHONE
NUMBER(S)
Company:
000 Xxxxx
Xxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx,
Xxxxxxxx 00000
Attn:
Xxxx X. Xxxxxxx, Chairman (000)
000-0000
Trustee:
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxxx, Chairman (000)
000-0000
