INVESTMENT MANAGEMENT TRUST
AGREEMENT
This
Investment Management Trust Agreement (this
“Agreement”) is made as of
by and between Acquicor Technology Inc., a Delaware corporation
(the “Company”), and Continental Stock Transfer &
Trust Company (“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, File
No. 333-128058 (as amended, “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”);
WHEREAS,
ThinkEquity Partners LLC (the “Representative”) is
acting as the representative of the underwriters in the
IPO;
WHEREAS,
the Company has completed a private placement of 333,334 units
for an aggregate purchase price of $2,000,004 (the “Private
Placement”);
WHEREAS,
as described in the Company’s Registration Statement, and in
accordance with the Company’s Amended and Restated
Certificate of Incorporation, $
of the gross proceeds of the IPO and Private Placement ($
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 public holders
of the Company’s common stock, par value $0.0001 per share,
issued in the IPO as hereinafter provided and in the event the
Units are registered in Colorado, pursuant to Section 11-51-302(6)
of the Colorado Revised Statutes. A copy of the Colorado Statute is
attached hereto and made a part hereof (the amount to be delivered
to the Trustee will be referred to herein as the
“Property;” the stockholders for whose benefit the
Trustee shall hold the Property will be referred to as the
“Public Stockholders,” and the Public Stockholders and
the Company will be referred to together as the
“Beneficiaries”); and
WHEREAS,
the Company and the Trustee desire to enter into this Agreement to
set forth the terms and conditions pursuant to which the Trustee
shall hold the Property.
1.
Agreements and Covenants of Trustee . The Trustee hereby
agrees and covenants to:
(a) Hold
the Property in trust for the Beneficiaries in accordance with the
terms of this Agreement, including the terms of
Section 11-51-302(6) of the Colorado Statute, in a segregated
trust account (“Trust Account”) established by the
Trustee at Lehman Brothers;
(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,
invest and reinvest the Property in (i) money market funds
meeting certain conditions under Rule 2a-7 (or any successor
rule) promulgated under the Investment Company Act of 1940 as
determined by the Company or (ii) securities issued or
guaranteed by the United States, selected 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;
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(e) Notify
the Company of all communications received by it 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 such other person as the Company may instruct
in writing, monthly 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, then, at the written instruction of
the Company, the Trustee shall disburse to the Company by wire
transfer, out of the Property in the Trust Account, the amount
indicated by the Company as required to pay income taxes;
and
(j) Upon
written request from the Company, the Trustee shall distribute to
the Company such amount as may be requested by the Company;
provided, however , that the amount distributed by the
Trustee to the Company pursuant to this Section 1(j) in any
fiscal quarter may not exceed $375,000 and the aggregate amount
distributed by the Trustee to the Company pursuant to this
Section 1(j) may not exceed the lesser of (i) the
aggregate amount of income actually received or paid on the amounts
in the Trust Account and (ii) $750,000; and
(k) Commence
liquidation of the Trust Account 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, signed on behalf
of the Company by its Chief Executive Officer and Secretary and
affirmed by 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
, 2007 (or the date that is the six month anniversary of such date,
in the event that 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), 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 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), or as soon thereafter as is practicable. In all cases, the
Trustee shall provide the Representatives with a copy of any
Termination Letter and/or any other correspondence that it receives
with respect to any proposed withdrawal from the Trust Account
promptly after it receives the same.
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 Chief Executive Officer, President or Chief
Financial Officer. In addition, except with respect to its duties
under paragraph 1(k) above, the Trustee shall be entitled to rely
on, and
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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 $
and an annual fee of $
(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 Account. 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);
(d) 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 resolution of the Board of Directors of the
Company affirming that such letter of intent, agreement in
principle or definitive agreement is in effect; 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 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
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