FORM OF INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.1
This
Investment Management Trust Agreement is made as of _____, 2008 by and between
Lank Acquisition Corp. (“Company”) and American Stock Transfer & Trust
Company (“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, File No. 333-148001
(“Registration Statement”), for its initial public offering of securities
(“IPO”) has been declared effective on [_____], 2008 by the Securities and
Exchange Commission (“Effective Date”); and
WHEREAS,
the Company has issued securities in a private placement (the “Placement”);
and
WHEREAS,
Citigroup Global Markets Inc. (“Citi”) is acting as the representative of the
underwriters (“Underwriters”) in the IPO pursuant to an underwriting agreement
dated on or about the date hereof between the Company and Citi (“Underwriting
Agreement”); and
WHEREAS,
as described in the Registration Statement, and in accordance with the Company’s
amended and restated certificate of incorporation, upon execution of this
Agreement or as promptly thereafter as practicable, the Company shall deliver
to
the Trustee an amount equal to the sum of (i) $115,437,500 of the net proceeds
of the IPO ($132,875,000 if the underwriters’ over-allotment option is exercised
in full) (the “IPO Proceeds”) and (ii) $2,750,000 the gross proceeds of the
Placement in accordance with the Subscription Agreement, dated as of November
15, 2007, among the Company and certain purchasers (together with the IPO
Proceeds, the “Base Deposit”), 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, included as part of the units of the Company’s
securities issued in the IPO (“Common Stock”). The amount to be delivered to the
Trustee is referred to herein as the “Property”, and the parties for whose
benefit the Trustee shall hold the Property are referred to together with the
Company as the “Beneficiaries”; and
WHEREAS,
pursuant to the Underwriting Agreement, a portion of the Property equal to
$4,062,500 (or $4,671,875 if the underwriters’ over-allotment option is
exercised in full, subject to proportional adjustment pursuant to the
Underwriting Agreement if the underwriters’ over-allotment is exercised in part,
but not in full, prior to its expiration as specified in a notice pursuant
to
Section 3(h)) is attributable to deferred underwriting commissions that will
become payable by the Company to the underwriters upon the consummation of
an
initial business combination (“Deferred Fee”); 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 JPMorgan Chase, 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 any “Government Security” 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 money market funds meeting certain
conditions under Rule 2a-7 promulgated under the Investment Company Act of
1940,
that only invest in government securities having a maturity of 180 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 Citi 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 Citi to do so;
(h)
Render to the Company and to Citi, 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 upon receipt of the
Officers Certificate signed by any President and any Chief Financial Officer
of
the Company 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 either of its Presidents and either of its Chief
Financial Officers, 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;
provided,
however,
that the
Trustee shall (1) from time to time as may be necessary, timely pay any taxes
incurred as a result of interest or other income earned on the Property held
in
the Trust Account (or to reimburse the Company for previous payments thereof),
upon receipt and in accordance with the terms of a letter in form substantially
similar to that attached hereto as Exhibit C (a “Tax Disbursement Letter”),
signed on behalf of the Company by a duly authorized executive officer of the
Company and copied to Authorized Counsel, requesting Trustee distribute such
funds to the person or persons indicated on the Schedule of Tax Payments
attached to the Tax Disbursement Letter, and (2) from time to time, only upon
receipt and in accordance with the terms of a letter in form substantially
similar to that attached hereto as Exhibit D (a “Disbursement Letter”), signed
on behalf of the Company by a duly authorized executive officer of the Company
and copied to Authorized Counsel, distribute to the Company such amount as
may
be requested by the Company for working capital requirements as directed in
the
Disbursement Letter and the other documents referred to therein, provided,
however, that the aggregate amount distributed by the Trustee to the Company
pursuant to this Section 1(i)(2) may not exceed the lesser of (y) the aggregate
amount of interest and any other income actually received or paid on amounts
in
the Trust Account less an amount equal to estimated taxes that are or will
be
due on such income at an assumed rate of 40% and (z) $1,750,000, subject to
proportional adjustment in the event that the underwriters’ over allotment
option is exercised in full or in part, up to a maximum of $2,000,000. In
addition, if as of the date of a Termination Letter in form substantially
similar to that attached hereto as Exhibit B, should the Company have received
the full amount of its disbursements pursuant to the preceding sentence, and
should such funds be insufficient to cover the Company’s costs and expenses
incurred in connection with the adoption and implementation of its plan of
dissolution and its liquidation, to the extent there is any interest accrued
in
the Trust Account not required to be used to pay income taxes on interest income
earned on the Trust Account balance, the Company may request in the Termination
Letter that the Trustee release to it an additional amount of up to $50,000
of
such accrued interest to pay costs and expenses incurred in connection with
its
dissolution and liquidation. For purposes of this Agreement, “Authorized
Counsel” shall mean, at any date, the attorney retained and authorized by the
Company to perform such functions. The Trustee understands and agrees that,
except as provided in Section 3(i) 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 Citi 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 a
merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or similar business combination, of one or more businesses or
assets in the general industrial sectors; and
(j) Not
seek
reimbursement or otherwise make any claim against the Trust Account. The Trustee
acknowledges and agrees it has no right, title, interest, or claim of any kind
in or to any monies in the Trust Account, and hereby waives any claim in or
to
any monies in the Trust Account it may have in the future and hereby agrees
not
to seek recourse, reimbursement, payment or satisfaction for any claim against
the Trust Account for any reason whatsoever.
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 aggregate amount
that
may not exceed the lesser of (y) the aggregate amount of interest and any other
income actually received or paid on amounts in the Trust Account less an amount
equal to estimated taxes that are or will be due on such income at an assumed
rate of 40% and (z) $1,750,000, subject to proportional adjustment in the event
that the underwriters’ over allotment option is exercised in full or in part, up
to a maximum of $2,000,000.
(c)
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 or any President and any 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.
(d) 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(i)
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 or any President and any Chief
Financial Officer. In addition, except with respect to its duties under
paragraph 1(i) and 3(i), 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 Citi 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 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 Citi shall act as the
inspector of election to certify the results of the stockholder
vote;
(e)
That the Officers Certificate referenced in Section 1(i) hereof
shall require the Company’s Chief Executive Officer or any President, together
with any Chief Financial Officer of the Company to each certify the following:
(1) prior to the 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 (2) the Board of
Directors (the “Board”), pursuant to the written consent of the Board, has
approved the Business Combination. A copy of such consent and the definitive
agreement relating to the Business Combination so approved shall be attached
as
exhibits 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, which shall in no event be less than
$4,062,500;
(i)
( i
) Subject to the limitation and condition set forth in
paragraph ( ii
) of
this section 3(i), as soon as practicable after the date which is 24 months
from
the date of this Agreement (the “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 Citi, shall deliver
a
notice to Public Stockholders of record as of the Termination Date 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(i) shall be subject to the following condition and
limitation:
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 $9.78 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(i) of this Agreement, and Second,
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).
5.
Certain
Rights Of Trustee.
(a)
Before the Trustee acts or refrains from acting, it may require an
Officers Certificate or opinion of Company 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.
(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 responsible for and makes no
representation as to the validity or adequacy of this Agreement. The Trustee
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 as 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, in the event the Company does not locate a
successor trustee within ninety (90) 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(i) 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
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 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
Citi,
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(i) 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:
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:
00
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxx
Fax
No.:
[ ]
in
either
case with a copy to:
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
General Counsel
Fax
No.:
(000) 000-0000
and
Ellenoff,
Xxxxxxxx & Schole LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Fax
No.:
(000) 000-0000
and
Xxxxxxx
XxXxxxxxx LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
XX 00000
Attn:
Xxx
Xxxxxxxxxxx
Fax
No.:
(000) 000-0000
(f)
This Agreement may not be assigned by the Trustee without the prior
written consent of the Company and Citi.
(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:
Xxxx X. Xxxxx
Title:
co-President, c-Chairman and co-Chief Financial 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
Ladies
and Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Lank
Acquisition Corp. (“Company”) and American Stock Transfer & Trust Company
(“Trustee”), dated as of __________, 2008 (“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 B of Article 6 of the Amended and Restated 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 cast at the meeting relating to the Business
Combination, and Public Stockholders holding less than 30% of the IPO Shares
have voted against the Business Combination and given notice of exercise of
their redemption rights described in paragraph C of Article 6 of the Amended
and
Restated Certificate of Incorporation of the Company. Pursuant to Section 2(c)
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, (ii) the Company shall deliver to you written
instructions with respect to the transfer of the funds held in the Trust Account
(“Instruction Letter”) and (iii) Citi shall deliver to you written instructions
for delivery of the deferred discount. 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, (a) to holders of IPO Shares
who voted against the Business Combination and exercised their conversion rights
in connection therewith, in an amount equal to their pro rata share of the
amounts in the Trust Account as of two business days prior to the Consummation
Date (including the deferred discount and any income actually received on the
Trust Account balance and held in the Trust Account, but less an amount equal
to
the estimated taxes that are or will be due on such income at an assumed rate
of
40%); (b) to Citi in an amount equal to the deferred discount as so directed
by
them, and (c) the remainder in accordance with the terms of the Instruction
Letter. In the event 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 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.
By:
______________________________________
Name:
Xxxx X. Xxxxx
Title:
co-President and co-Chief Financial Officer
cc:
Citigroup Global Markets Inc.
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
Lank Acquisition Corp. (“Company”) and American Stock Transfer & Trust
Company (“Trustee”), dated as of _____________, 2008 (“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 any co-President or 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:
(i)
to the extent there is any interest accrued in the Trust Account not required
to
be used to pay income taxes on interest income earned on the Trust Account
balance in accordance with the Tax Disbursement Letter included herewith, which
provides a full account of Tax Payments (as defined therein) made by the Company
through the date of this letter but not yet reimbursed by distributions from
the
Trust, release to us an amount of $__________ (which amount shall not exceed
$50,000) to pay costs and expenses incurred in connection with its dissolution
and liquidation and (ii) 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 Amended and Restated Certificate
of
Incorporation of the Company. You shall commence distribution of such funds
in
accordance with the terms of the Trust Agreement and the Amended and Restated
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.
By:
______________________________________
Name:
Xxxx X. Xxxxx
Title:
co-President and co-Chief Financial Officer
cc:
Citigroup Global Markets Inc.
EXHIBIT
C
[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. [ ] Tax Disbursement Letter
Ladies
and Gentlemen:
Pursuant
to the Investment Management Trust Agreement between Lank Acquisition Corp.
(“Company”) and American Stock Transfer & Trust Company dated as of [ ]
(“Trust Agreement”), this is to advise you that the Trust Account, as defined in
the Trust Agreement, has incurred a total of $ ____________ in taxes (“Tax
Payments”) for the period from _______ to ________ (“Tax Period”) as a result of
interest and other income earned on the Property, as defined in the Trust
Agreement, during the Tax Period.
[The
Company has previously paid a total of $ ___________ of such Tax Payments with
respect to such Tax Period (“Previously Paid Tax Payments”).] In accordance with
the terms of the Trust Agreement, we hereby authorize you to distribute from
the
Trust Account proceeds from the Property equal to the aggregate Tax Payments
on
such dates, in such amounts and to such person or persons [, including the
Company for reimbursement of Previously Paid Tax Payments,] as indicated on
the
Schedule of Tax Payments attached hereto as Schedule 1.
By:
______________________________________
Name:
Xxxx X. Xxxxx
Title:
co-President and co-Chief Financial Officer
cc:
Citigroup Global Markets Inc.
EXHIBIT
D
[Letterhead
of Company]
[Insert
date]
American
Stock Transfer
&
Trust Company
00
Xxxxxx
Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
[ ]
Re:
Trust
Account No. [ ] Disbursement Letter
Ladies
and Gentlemen:
Pursuant
to the Investment Management Trust Agreement between Lank Acquisition Corp.
(the
“Company”)
and
American Stock Transfer & Trust Company dated as of [ , 2008] (the
“Trust
Agreement”),
we
hereby authorize you to disburse from the Trust Account proceeds from the
Property, as defined in the Trust Agreement, equal to $[ ], to [ ] via wire
transfer on , 200 .
LANK
ACQUISITION CORP.
By:
______________________________________
Name:
Xxxx X. Xxxxx
Title:
co-President and co-Chief Financial Officer
EXHIBIT
E
|
AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
|
|
AUTHORIZED
TELEPHONE
NUMBER(S)
|
|
|
|
|
|
|
|
|
|
Company:
|
|
|
|
|
|
|
|
Lank
Acquisition Corp.
00
Xxxxxxxxx Xxxxxx
Xxxxxxxxx,
XX 00000
Attn:
Xxxx X. Xxxxx, co-President
|
|
[ ]
|
|
|
|
|
|
Citi:
|
|
|
|
|
|
|
|
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Attn:
[ ]
|
|
[
]
|
|
|
|
|
|
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
Lank Acquisition 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:
[___], 2008
Lank
Acquisition Corp.
By:_______________________________
Xxxx
X.
Xxxxx
co-President
American
Stock Transfer & Trust Co.
By:
_______________________________
Authorized
Officer
