Exhibit 10.10
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of _______ __, 2006 by and between Geneva
Acquisition Corporation (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 ("EFFECTIVE DATE") by
the Securities and Exchange Commission (capitalized terms used herein and not
otherwise defined shall have the meanings set forth in the Registration
Statement); and
WHEREAS, Ladenburg Xxxxxxxx & Co. Inc. ("LTC") is acting as the
representative 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, $___________of the
gross proceeds of the IPO ($__________ 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 $0.0001 per share, issued in the IPO as
hereinafter provided (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, a portion of the Property consists of $1,350,000 attributable to
underwriting discounts and commissions which LTC has agreed to deposit in the
Trust Account; and
WHEREAS, a portion of the Property consists of $1,900,000 attributable to
the placement of warrants issued by the Company to certain of its initial
stockholders and LTC; 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, in a segregated trust account ("TRUST
ACCOUNT") established by the Trustee at a branch of JPMorgan Chase Bank, N.A.
and utilizing a broker 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 United States "government securities" within the
meaning of Section 2(a)(16) of the Investment Company Act of 1940 having a
maturity of one hundred and eighty days or less, and/or in any open ended
investment company registered under the Investment Company Act of 1940 that
holds itself out as a money market fund selected by the Company meeting the
conditions of paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7 promulgated
under the Investment Company Act of 1940, as determined by the Company;
(d) Collect and receive, when due, all principal and income arising
from the Property, which shall become part of the "Property," as such term is
used herein;
(e) Notify 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 and/ or LTC to do so;
(h) Render to the Company and to LTC, 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 only after and promptly
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 hereto, signed on behalf of the Company by its
President or Chairman of the Board and Secretary or Assistant Secretary and
affirmed by a majority of its Board of Directors, 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;
PROVIDED, HOWEVER, that in the event that a Termination Letter has not been
received by the Trustee by the 24-month anniversary of the effective date of the
Registration Statement ("Last Date"), the Trust Account shall be liquidated in
accordance with the procedures set forth in the Termination Letter attached as
Exhibit B hereto and distributed to the stockholders of record on the record
date established by the Company for such purpose. The Company shall set the
record date to be within ten days of the Last Date, or as soon thereafter as
reasonably practicable and legally permissible. 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. The provisions of this Section
1(i) may not be modified, amended or deleted under any circumstances.
2. LIMITED DISTRIBUTIONS OF INCOME FROM TRUST ACCOUNT.
(a) Upon written request from the Company, which may be given from
time to time in a form substantially similar to that attached hereto as Exhibit
C, the Trustee shall distribute to the Company the amount requested by the
Company to cover any income or franchise tax obligation owed by the Company; and
(b) Upon written request from the Company, which may be given from
time to time in a form substantially similar to that attached hereto as Exhibit
D, the Trustee shall distribute to the Company the amount requested by the
Company to cover expenses related to investigating and selecting a target
business and other working capital requirements; provided, however, that the
aggregate amount of all such distributions shall not exceed $1,600,000.
(c) The limited distributions referred to in Sections 2(a) and 2(b)
above shall be made only from income collected on the Property. Except as
provided in Section 2(a) and 2(b) above, no other distributions from the Trust
Account shall be permitted except in accordance with Section 1(i) hereof.
3. 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 Chief Executive Officer, President, Chief Operating Officer 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 counsel, which consent shall not be unreasonably withheld.
The Company may participate in such action with its own counsel;
(c) Pay the Trustee an initial acceptance fee of $1,000 and an annual
fee of $3,000 plus an income distribution processing fee of $250 (it being
expressly understood that the Property shall not be used to pay such fee),
except that the monthly income distribution processing fee may be deducted from
the monthly distributions allowed under Sections 2(a) and 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 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); 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/or tabulating stockholder votes (which firm may be the Trustee) verifying
the vote of the Company's stockholders regarding such Business Combination.
4. LIMITATIONS OF LIABILITY. The Trustee shall have no responsibility or
liability to:
(a) Take any action with respect to the Property, other than as
directed in 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
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;
(h) File income tax or information returns with the U.S. Internal
Revenue Service and payee statements with the Company, documenting the taxes
payable by the Company, if any, relating to interest earned on the Property;
(i) Pay any taxes on behalf of the Trust Account (it being expressly
understood that, as set forth in Section 2(a), if there is any income tax
obligation relating to the income of the Property in the Trust Account, then, at
the written instruction of the Company, the Trustee shall disburse funds out of
the Property in the Trust Account in an amount specified by the Company as
necessary to pay its income tax liability); and
(j) Compute, confirm or otherwise verify amounts requested by the
Company pursuant to Section 1(i), 2(a) and 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 ay 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.
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. 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; or
(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 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 E. 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 LTC.
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:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
Fax No.: (000) 000-0000
if to the Company, to:
Geneva Acquisition Corporation
Xxx Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer
Fax No.: (000) 000-0000
in either case with a copy to:
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax. No. (000) 000-0000
(f) This Agreement may not be assigned by the Trustee without the
prior consent of the Company and LTC. This Agreement may be assigned by the
Company upon written notice to the Trustee. The parties acknowledge that the
Company intends to assign its rights hereunder to a wholly-owned subsidiary
qualifying as a "security corporation" under Massachusetts tax law.
(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.
(h) 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.
(i) The parties hereto acknowledge that the trust established hereby
shall be a "grantor" trust within the meaning of Sections 671-679 of the
Internal Revenue Code of 1986, as amended, and that as result, the Company shall
be taxable on the income of the Trust Account during all or a portion of the
term hereof. The parties agree that all Federal, state and local income taxes
upon the income of the Trust Account shall be allocated entirely to the Trust
Account.
IN WITNESS WHEREOF, the parties have duly executed this Investment
Management Trust Agreement as of the date first written above.
CONTINENTAL STOCK TRANSFER & TRUST
COMPANY, as Trustee
By:
------------------------------------
Name:
Title:
GENEVA ACQUISITION CORPORATION
By:
------------------------------------
Xxxx X. Xxxxxxxx, Xx.
Chief Operating Officer
EXHIBIT A
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: ________________
Re: Trust Account No. [__________] - Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement
between Geneva Acquisition Corporation ("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 [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") and provide you
with an Officer's Certificate in accordance with Paragraphs 1(i) and 3(e) of the
Trust Agreement.
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 (i) the Company shall deliver to you written
notification that the Business Combination has been consummated and (ii) the
Company shall deliver to you (a) [an affidavit] [a certificate] of
__________________, which verifies the vote of the Company's stockholders in
connection with the Business Combination and (b) 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
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,
GENEVA ACQUISITION CORPORATION
By:
------------------------------------
cc: Ladenburg Xxxxxxxx & Co. Inc.
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. [____________] - Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement
between Geneva Acquisition Corporation. ("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 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. All terms not defined herein shall have the meanings ascribed to them in
the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize
you, to commence liquidation of the Trust Account. The Company will establish a
record date for the purposes of determining the stockholders entitled to receive
their share of liquidation proceeds. The record date shall be within ten (10)
days of the date of this letter or as soon thereafter as is reasonably
practicable and legally permissible. 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 the 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 the funds. Upon the distribution of all the funds in the Trust
Account, your obligations under the Trust Agreement shall be terminated.
Very truly yours,
GENEVA ACQUISITION CORPORATION
By:
------------------------------------
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT C
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Re: Trust Account No._________ Termination Letter
Gentlemen:
Pursuant to paragraph 2(a) of the Investment Management Trust
Agreement between Geneva Acquisition Corporation ("Company") and Continental
Stock Transfer & Trust Company ("Trustee"), dated as of ___________, 2006
("Trust Agreement"), this is to advise you that the Company hereby requests that
you deliver to the Company $_______ of the income earned on the Property as of
the date hereof. The Company needs such funds to pay for the tax obligations as
set forth on the attached tax return or tax statement. In accordance with the
terms of the Trust Agreement, you are hereby directed and authorized to transfer
(via wire transfer) such funds promptly upon your receipt of this letter to the
Company's operating account at:
[WIRE INSTRUCTION INFORMATION]
Very truly yours,
GENEVA ACQUISITION CORPORATION
By:
------------------------------------
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT D
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Re: Trust Account No.___________ Termination Letter
Gentlemen:
Pursuant to paragraph 2(b) of the Investment Management Trust
Agreement between Geneval Acquisition Corporation ("Company") and Continental
Stock Transfer & Trust Company ("Trustee"), dated as of ___________, 2006
("Trust Agreement"), this is to advise you that the Company hereby requests that
you deliver to the Company $_______ of the income earned on the Property as of
the date hereof. The Company needs such funds to cover its expenses relating to
investigating and selecting a target business and other working capital
requirements. In accordance with the terms of the Trust Agreement, you are
hereby directed and authorized to transfer (via wire transfer) such funds
promptly upon your receipt of this letter to the Company's operating account at:
[WIRE INSTRUCTION INFORMATION]
Very truly yours,
GENEVA ACQUISITION CORPORATION
By:
------------------------------------
cc: Ladenburg Xxxxxxxx & Co. Inc.
EXHIBIT E
AUTHORIZED INDIVIDUAL(S)
AUTHORIZED FOR TELEPHONE CALL BACK TELEPHONE NUMBER(S)
COMPANY:
Geneva Acquisition Corporation
Xxx Xxxxxx Xxxxx - Xxxxx 0000
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Chief Executive Officer
(000) 000-0000
LTC:
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Fax. No. (000) 000-0000
TRUSTEE:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxxxxxx
(000) 000-0000
