Exhibit 10.9
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of January ___, 2006 by and between North
American Insurance Leaders, Inc., a Delaware corporation (the "Company") and
JPMorgan Chase Bank, NA ("Trustee").
WHEREAS, the Company's Registration Statement on Form S-1, No. 333-127871
("Registration Statement"), for its initial public offering of securities
("IPO") has been declared effective as of the date hereof by the Securities and
Exchange Commission ("Effective Date"); and
WHEREAS, CRT Capital Group LLC, as the underwriter (the "Underwriter") is
acting as the underwriter in the IPO; and
WHEREAS, as described in the Company's Registration Statement, and in
accordance with the Company's Restated Certificate of Incorporation, 115.3
million of the gross proceeds of the IPO (assuming the Underwriter has not
exercised its over-allotment option) will be delivered to the Trustee to be
deposited and held in a trust account for the benefit of the Company and the
holders of the Company's common stock, par value $.0001 per share, issued in the
IPO as hereinafter provided [and in the event the Units are registered in
Colorado, pursuant to Section 11-51-302(6) of the Colorado Revised Statutes,]
(the amount to be delivered to the Trustee will be referred to herein as the
"Property," the stockholders for whose benefit the Trustee shall hold the
Property will be referred to as the "Public Stockholders," and the Public
Stockholders and the Company will be referred to together as the
"Beneficiaries"); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to
set forth the terms and 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, NA 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, invest
and reinvest the Property in money market funds meeting the conditions of the
Investment Company Act of 1940 or in any "Government Security." As used herein,
Government Security means any security issued or guaranteed by the United
States; [NOTE: to be discussed]
(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 to do so;
(h) Render to the Company and to the Underwriter, and to such other
person as the Company may instruct in writing, monthly written statements of the
activities of and amounts in the Trust Account reflecting all receipts and
disbursements of the Trust Account;
(i) If there is any income tax obligation relating to the income of
the Property in the Trust Account, at the written instruction of the Company,
issue a check directly to the taxing authorities designated by the Company, out
of the Property in the Trust Account, in the amount indicated by the Company as
owing to each such taxing authority;
(j) Commence liquidation of the Trust Account only after receipt of
and only in accordance with the terms of a letter ("Termination Letter"), in a
form substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its President or Chairman of the
Board and Secretary, and complete the liquidation of the Trust Account and
distribute the Property in the Trust Account only as directed in the Termination
Letter and the other documents referred to therein. The Trustee understands and
agrees that disbursements from the Trust Account shall be made only pursuant to
a duly executed Termination Letter, together with the other documents referenced
herein; provided, however, that in the event that a Termination Letter has not
been received by ________________, 2007 (or the date that is the six-month
anniversary of such date, in the event that (i) a letter of intent, agreement in
principle or definitive agreement has been executed prior to such date in
connection with a Business Combination (as defined in the Termination Letter
attached hereto as Exhibit A) that has not been consummated by
_________________, 2007 and (ii) the Company has complied with Section 2(d)
hereof prior to such date), the Trust Account shall be liquidated in accordance
with the procedures set forth in the Termination Letter attached as Exhibit B to
the stockholders of record on the record date; provided, further, that the
record date shall be within ten (10) days of ________________, 2007 (or the date
that is the six-month anniversary of such date, in the event that (i) a letter
of intent, agreement in principle or definitive agreement has been executed
prior to such date in connection with a Business Combination that has not been
consummated by _________________, 2007 and (ii) the Company has complied with
Section 2(d) hereof prior to such date), or as soon thereafter as is
practicable. In all cases, the Underwriter shall be copied of any Termination
Letters and/or any other correspondence that the Trustee receives with respect
to any proposed withdrawal from the Trust Account; and
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(k) Waive any right, title, interest or claim of any kind in or to the
Property to be deposited and held in the Trust Account by the Trustee, for the
benefit of the public stockholders of the Company's common stock issued in the
initial public offering.
2. 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 President, Chairman of the Board or Secretary. 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) Pay the Trustee an initial acceptance fee of [$1,000] and an
annual fee of [$3,500] (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 the fee for the first twelve months at the consummation of
the IPO and thereafter on the anniversary of the Effective Date. Annual fees
shall not be pro-rated for partial years. 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);
(c) Provide to the Trustee any letter of intent, agreement in
principle or definitive agreement that is executed prior to __________________,
2007 in connection with a Business Combination, together with a certified copy
of a unanimous resolution of the Board of Directors of the Company affirming
that such letter of intent, agreement in principle or definitive agreement is in
effects; 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 tabulating stockholder votes (which firm may be the Trustee) verifying the
vote of the Company's stockholders regarding such Business Combination.
3. Limitations of Liability. The Trustee shall have no responsibility or
liability to:
(a) Take any action with respect to the Property, other than as
directed in paragraph 1 hereof and the Trustee shall have no liability to any
party except for liability arising out of its own gross negligence or willful
misconduct;
(b) Institute any proceeding for the collection of any principal and
income arising from, or institute, appear in or defend any proceeding of any
kind with respect to, any of the 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
reasonable expenses incident thereto;
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(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 business combination
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, as set forth in Section 1(i), 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 issue a check directly
to the taxing authorities designated by the Company, out of the Property in the
Trust Account, in the amount indicated by the Company as owing to each such
taxing authority).
(i) Hold the Trustee harmless and indemnify the Trustee and its
directors, officers, agents and employees (the "indemnities") from and against,
reasonable 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 caused by (i) the Trustee's execution and
performance of this Investment Management Trust Agreement, except in the case of
any indemnitee to the extent that such loss, liability or expense is due to the
negligence or misconduct of such indemnitee, or (ii) its following any
instructions or other directions from the parties, except to the extent that its
following any such instruction or direction is expressly forbidden by the terms
hereof. 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
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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. Anything in this Agreement to the contrary notwithstanding, in no event
shall the Trustee be liable for special, indirect or consequential damage of any
kind whatsoever (including but not limited to lost profits), even if the Trustee
has been advised of the likelihood for such loss or damage and regardless of the
form of action. The parties hereto acknowledge that the foregoing indemnities
shall survive the resignation or removal of the Trustee or the termination of
this Investment Management Trust Agreement.
(j) The duties and responsibilities of the Trustee hereunder
shall be determined solely by the express provisions of this Investment
Management Trust Agreement and no other or further duties or responsibilities
shall be implied. The Trustee shall not have any liability under, nor duty to
inquire into the terms and provisions of any agreement or instructions, other
than outlined in this Investment Management Trust Agreement.
4. Termination. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires
to resign under this Agreement, the Company shall use its reasonable efforts to
locate a successor trustee. At such time that the Company notifies the Trustee
that a successor trustee has been appointed by the Company and has agreed to
become subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to the
Trust Account, whereupon this Agreement shall terminate; provided, however,
that, in the event that the Company does not locate a successor trustee within
ninety days of receipt of the resignation notice from the Trustee, the Trustee
may submit an application to have the Property deposited with the United States
District Court for the Southern District of New York and upon such deposit, the
Trustee shall be immune from any liability whatsoever;
(b) At such time that the Trustee has completed the liquidation of the
Trust Account in accordance with the provisions of paragraph 1(j) hereof, and
distributed the Property in accordance with the provisions of the Termination
Letter, this Agreement shall terminate except with respect to Paragraph 2(b); or
(c) On such date after _____, 2007 when the Trustee deposits the
Property with the United States District Court for the Southern District of New
York in the event that, prior to such date, the Trustee has not received a
Termination Letter from the Company pursuant to paragraph 1(j).
5. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will
follow the security procedures set forth below with respect to funds transferred
from the Trust Account. Upon receipt of written instructions, the Trustee will
confirm such instructions with an Authorized Individual at an Authorized
Telephone Number listed on the attached Exhibit C. Each funds transfer
instruction shall be executed by an authorized signatory, a list of such
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authorized signatories is set forth on Exhibit C. The undersigned is authorized
to certify that the signatories on Exhibit C are authorized signatories. The
persons and telephone numbers for call-backs may be changed only in a writing
actually received and acknowledged by the Trustee. 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
reasonable 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 that such action shall not
materially adversely affect the interests of the Public Stockholders, subject to
approval by a majority. Any other change, waiver, amendment or modification to
this Agreement shall be made without the prior written consent of the
Underwriter. 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:
JPMorgan Chase Bank, NA
0 Xxx Xxxx Xxxxx - 00xx Xxxxx
XX, XX 00000
Attn: Xxxxxx Xxxxx
Fax No.: 000.000.0000
If to the Company, to:
North American Insurance Leaders, Inc.
000 Xxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. de Jonge
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in either case with a copy to:
Shearman & Sterling LLP
000 Xxxxxxxxxxxx Xxx., XX
Xxxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxxxx
and
Xxxxxxx XxXxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxx X. Xxxxxxxxxxx
(f) This Agreement may not be assigned by the Trustee without the
prior written 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 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.
(i) The Trustee hereby consents to the inclusion of JPMorgan Chase
Bank, NA in the Registration Statement and other materials relating to the IPO.
(j) Upon execution of this agreement, the Company shall provide the
Trustee with a fully executed W-8 or W-9 Internal Revenue Service form, which
shall include their Tax Identification Number (TIN) as assigned by the Internal
Revenue Service. All interest or other income earned under the Escrow Agreement
shall be allocated and paid as provided herein and reported by the recipient to
the Internal Revenue Service as having been so allocated and paid.
(k) Any corporation into which the Trustee in its individual capacity
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee in its individual capacity shall be a party, or any corporation to which
substantially all the corporate trust business of the Trustee in its individual
capacity may be transferred, shall be the Trustee under this Investment
Management Trust Agreement without further act.
(l) In the event that any party or the Trustee is unable to perform
its obligations under the terms of this Investment Management Trust Agreement
because of acts of God, strikes, equipment or transmission failure or damage
reasonably beyond its control, or other
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cause reasonably beyond its control, the Trustee shall not be liable for damages
to the other parties for any damages resulting from such failure to perform
otherwise from such causes. Performance under this Investment Management Trust
Agreement shall resume when the Trustee is able to perform substantially.
(m) Receipt, investment and reinvestment of the Property shall be
confirmed by Trustee as soon as practicable by account statement, and any
discrepancies in any such account statement shall be noted by Parties to Trustee
within 30 calendar days after receipt thereof. Failure to inform Trustee in
writing of any discrepancies in any such account statement within said 30-day
period shall conclusively be deemed confirmation of such account statement in
its entirety.
(n) Account Opening Information. IMPORTANT INFORMATION ABOUT PROCEDURES
FOR OPENING A NEW ACCOUNT: To help the government fight the funding of terrorism
and money laundering activities, Federal law requires all financial institutions
to obtain, verify, and record information that identifies each person who opens
an account. When an account is opened, the Trustee will ask for information that
will allow it to identify relevant parties.
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties have duly executed this Investment
Management Trust Agreement as of the date first written above.
JPMORGAN CHASE BANK, NA, as Trustee
By:_________________________________
Name:
Title:
NORTH AMERICAN INSURANCE LEADERS, INC.
By:_________________________________
Name:
Title:
