INVESTMENT MANAGEMENT TRUST AGREEMENT
Exhibit
10.10
This
Agreement is made as of _____________, 2007 by and between Polaris Acquisition
Corp. (the “Company”) and Continental Stock Transfer & Trust Company
(“Trustee”).
WHEREAS,
the Company’s registration statement on Form S-1, No. 333-145759
(“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,
Lazard Capital Markets LLC (“Lazard”) 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, $178,200,000.00 of the gross proceeds of
the IPO and sale of the Insider Warrants (as defined in the Registration
Statement) ($204,255,000.00 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 (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 $6,300,000 (or $7,245,000 if the
Underwriter’s over-allotment option is exercised in full) attributable to the
Underwriters’ discount (“Deferred Discount”) which the Underwriters have agreed
to deposit in the Trust Account (defined below); 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;
(b) Manage,
supervise and administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In
a
timely manner, upon the written instruction of the Company, to invest and
reinvest the Property in United States “government securities” within the
meaning of Section 2(a)(16) of the Investment Company Act of 1940 having a
maturity of 180 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
income, net of taxes, 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 Com-pany’s preparation of its returns;
(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 Lazard, 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 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 Secre-tary or Assistant Secretary and affirmed by
counsel for the Company, and complete the liquidation of the Trust Account
and
distribute the Property in the Trust Account only as directed in the Termination
Letter and the other documents referred to therein; 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 Last Date. In all cases, the Trustee shall
provide Lazard 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.
(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 $1,800,000.
(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 here-under in writing, signed by the Company’s
Chairman of the Board or President. In addi-tion, except with respect to its
duties under paragraphs 1(i), 2(a) and 2(b) 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, includ-ing reason-able counsel fees and disbursements, or loss
suf-fered by the Trustee in connection with any action, suit or other
pro-ceeding 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
indemnifica-tion 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, 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 (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 3(b) hereof (it being expressly
understood that the Property shall not be used to make any payments to the
Trustee under such paragraph);
(d) Provide
to the Trustee any letter of intent, agreement in principle or definitive
agreement for a Business Combination that is executed on or prior to the First
Date; and
(e) 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.
(f) In
connection with any liquidation of the Trust Account, not to direct the Trustee,
as paying agent, to make any payment not specifically permitted under this
Agreement.
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 paragraphs 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 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;
(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) File
information returns with the United States 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.
5. Termination.
This
Agreement shall terminate as follows:
(a) If
the
Trustee gives written notice to the Company that it desires to resign under
this
Agreement, the Company shall use its reasonable efforts to locate a successor
trustee. 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 any court in the State of New
York or 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).
6. Waiver.
Notwithstanding
anything herein to the contrary, the Trustee hereby waives any and all right,
title, interest or claim of any kind (“Claim”) in or to any distribution of the
Trust Account, and hereby agrees not to seek recourse, reimbursement, payment
or
satisfaction for any Claim against the Trust Account for any reason whatsoever.
In the event that the Trustee has a claim against the Company under this
Agreement, including, without limitation, under Section 4(b), the Trustee will
pursue such claim solely against the Company and not against the Property held
in the Trust Account.
7. Miscellaneous.
(a) The
Company and the Trustee each acknowledge that the Trustee will follow the
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. 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 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. Except for Section 1(i) (which may
not be amended under any circumstances), 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 Lazard. 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 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: Chairman
Fax
No.:
________________
if
to the
Company, to:
0000
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxx
Xxx,
Xxx Xxxxxx 00000
Attn: Xxxx
X.
Xxxxx
Fax
No.:
in
either
case with a copy to:
Lazard
Capital Markets LLC
00
Xxxxxxxxxxx Xxxxx
Xxx
Xxxx,
XX 00000
Attn:
Fax
No.:
(____) _______
(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) The
Trustee hereby consents to the inclusion of Continental Stock Transfer &
Trust Company in the Registration Statement and other materials relating to
the
IPO.
(i) Each
of
the Company and the Trustee hereby acknowledge that Lazard is a third party
beneficiary of this Agreement.
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:
By:
____________________________
Name:
Title:
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental Stock
Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chairman
Re: Trust
Account
No.
Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between Polaris
Acquisition Corp. (“Company”) and ____________ Stock Transfer & Trust
Company (“Trustee”), dated as of __________, 2007 (“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”). Capitalized
terms used but not otherwise defined herein shall have the meaning ascribed
to
such terms in 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 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 the Business Combination has been consummated, (ii) the
Company shall deliver to you [an affidavit] [a certificate] of
__________________, which verifies the vote of the Company’s stockholders in
connection with the Business Combination, and (iii) the Company and Lazard
shall
deliver to you written instructions with respect to the transfer of the funds
held in the Trust Account including the Deferred 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 and the
Representative of the same and the Company and the Representative shall jointly
direct you as to whether such funds should remain in the Trust Account and
distributed after the Consummation Date to the Company or, with respect to
the
Deferred Discount, to the Underwriters. 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, upon the written
notice of the Company, 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:________________________________
Xxxx
X.
Xxxxx, Chairman of the Board
By:________________________________
Xxxxxx
X.
Xxxxx, Secretary
cc:
Lazard Capital Markets LLC
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental Stock
Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chairman
Re: Trust
Account
No.
Termination Letter
Gentlemen:
Pursuant
to paragraph 1(i) of the Investment Management Trust Agreement between Polaris
Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company
(“Trustee”), dated as of ___________, 2007 (“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
Certificate of Incorporation, as described in the Company’s prospectus relating
to its IPO.
In
accordance with the terms of the Trust Agreement, we hereby authorize you,
to
commence liquidation of the Trust Account as promptly as practicable to
stockholders of record as of the Last Date (as defined in the Trust Agreement).
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,
By:________________________________
Xxxx
X.
Xxxxx, Chairman of the Board
By:________________________________
Xxxxxx
X.
Xxxxx, Secretary
cc:
Lazard Capital Markets LLC
EXHIBIT
C
[Letterhead
of Company]
[Insert
date]
Continental Stock
Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chairman
Re: Trust
Account No.
Gentlemen:
Pursuant
to paragraph 2(a) of the Investment Management Trust Agreement between Polaris
Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust
Company (“Trustee”), dated as of ___________, 2007 (“Trust Agreement”),
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,
By:________________________________
Xxxx
X.
Xxxxx, Chairman of the Board
By:________________________________
Xxxxxx
X.
Xxxxx, Secretary
cc:
Lazard Capital Markets LLC
EXHIBIT
D
[Letterhead
of Company]
[Insert
date]
Continental Stock
Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chairman
Re: Trust
Account No. Termination Letter
Gentlemen:
Pursuant
to paragraph 2(b) of the Investment Management Trust Agreement between Polaris
Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust
Company (“Trustee”), dated as of ___________, 2007 (“Trust Agreement”),
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,
POLARIS
ACQUISITION CORP.
By:________________________________
Xxxx
X.
Xxxxx, Chairman of the Board
By:________________________________
Xxxxxx
X.
Xxxxx, Secretary
cc:
Lazard Capital Markets LLC
EXHIBIT
E
AUTHORIZED
INDIVIDUAL(S) AUTHORIZED
FOR
TELEPHONE CALL BACK TELEPHONE
NUMBER(S)
Company:
Polaris
Acquisition Corp. (000)
000-0000
0000
Xxxxxxxx Xxxxxx, 0xx
Xxxxx
Xxxx
Xxx,
Xxx Xxxxxx 00000
Attn:
Xxxx
X.
Xxxxx
Trustee:
Continental Stock
Transfer & Trust Company (000)
000-0000
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Chairman
