FORM OF INVESTMENT MANAGEMENT TRUST AGREEMENTInvestment Management Trust Agreement |
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EXHIBIT 10.11
FORM OF INVESTMENT
MANAGEMENT TRUST AGREEMENT
This INVESTMENT MANAGEMENT TRUST
AGREEMENT (this "Agreement") is made as
of May __, 2006 by and between Navitas International Corporation (the
"Company"), a Delaware corporation, and Continental Stock Transfer
& Trust
Company ("Trustee").
WHEREAS, the Company's Registration
Statement on Form S-1, File No.
333-130697, as amended (the "Registration Statement" and the final
prospectus
contained therein, the "Prospectus"), 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; and
WHEREAS, FTN Midwest Securities
Corp. is acting as the representative (the
"Representative") of the underwriters in the IPO; and
WHEREAS, as described in the
Registration Statement, and in accordance
with the Company's Amended and Restated Certificate of Incorporation and the
Underwriting Agreement, dated May __, 2006 between the Company and the
Representative, $114,000,000 of the net proceeds of the IPO ($131,460,000 if
the
underwriters' over-allotment option is exercised in full) including a portion
of
the deferred underwriting discounts and commissions in the amount of $4,800,000
(or $5,520,000 if the over-allotment option is exercised in full) (the
"Contingent Discount"), which the Representative, on behalf of the
underwriters,
has agreed to deposit into the Trust Account (as defined below), will be
delivered to the Trustee to be deposited and held in a trust account for the
benefit of the Company, the Representative and the public holders (the
"Public
Stockholders") of the Company's common stock, par value $.0001 per share
(the
"Common Stock"), 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 Statute. The amount to be delivered to the Trustee will be
referred to herein as the "Property." The Public Stockholders, the
Representative 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.
NOW, THEREFORE, in consideration of
the mutual 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,
including the terms of Section
11-51-302(6) of the Colorado
Revised Statutes, in a segregated trust
account (the "Trust
Account") established by the Trustee at a branch of
JPMorgan Chase NY Bank selected by
the Company and utilizing the services
of a security broker selected by
the Company;
(b) Manage, supervise and
administer the Trust Account subject to
the terms and conditions set forth
herein;
(c) In a timely manner, upon
the instruction of the Company, to
invest and reinvest the Property in
United States "government securities,"
defined as any Treasury
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Bill issued by the United States
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, as amended, as
determined by the Company;
(d) Collect and receive, when
due, all principal and income arising
from the Property, which shall
become part of the "Property," as such term
is used herein;
(e) Notify the Company and
the Representative of all communications
received by it with respect to any
Property requiring action by the
Company;
(f) Supply any necessary
information or documents as may be
requested by the Company in
connection with the Company's preparation of
the tax returns for the Trust
Account;
(g) Participate in any plan
or proceeding for protecting or
enforcing any right or interest
arising from the Property if, as and when
instructed by the Company and/or
the Representative to do so;
(h) Render to the Company and
to the Representative, 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) Upon written request from
the Company substantially in the form
attached hereto as Exhibit A, the
Trustee shall distribute to the Company
income earned on the Trust Account;
provided, however, that the amount
distributed by the Trustee to the
Company pursuant to this Section 1(i)
may not exceed (x) $1,425,000 in
the first twelve months subsequent to the
Effective Date; (y) $1,140,000 in
the second twelve months subsequent to
the Effective Date and (z)
$2,565,000 in the aggregate; provided, further,
that no amount distributed by the
Trustee to the Company pursuant to this
Section 1(i) may exceed the income
actually received or paid on the
amounts initially deposited in the
Trust Account (less any taxes due and
payable thereon);
(j) If there is any income
tax obligation relating to the income on
the Property in the Trust Account,
then, at the written instruction of the
Company accompanied by an Officer's
Certificate signed by either the
Chairman of the Board or President
and Chief Executive Officer of the
Company certifying as true,
accurate and complete a copy of any tax return
required to be filed on behalf of
the Trust Account in respect of income
earned on the Property held
therein, the Trustee shall disburse funds by
bank wire transfer out of the
Property in the Trust Account to the
Company's designated bank account
in the amount (as specified by the
Company in its written
instructions) required to pay such taxes to the
appropriate taxing authority;
provided, however, that in no event shall
the aggregate amount of all monies
disbursed pursuant to this Section 1(j)
exceed the income in respect of
which such taxes are due and owing; and in
all such cases the Trustee shall
promptly provide the Representative with
a copy of the Officer's Certificate
it receives with respect to any
proposed withdrawal from the Trust Account,
it being understood that,
except as provided in this Section
1(j), no other distributions from the
Trust Account shall be permitted
except in accordance with Section 1(i)
above and Section 1(k) below;
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(k) Commence and effect a
partial or complete liquidation of the
Trust Account only in accordance
with the following procedures:
(i) The Trustee shall
liquidate the Property (other than cash)
and distribute the proceeds
of such liquidation and any cash held in
the Trust Account immediately
after receipt of, and only in
accordance with the terms of
a letter (the "Termination Letter"), in
a form substantially similar
to that attached hereto as either
Exhibit B or Exhibit C, as
the case may be;
(ii) Any Termination
Letter delivered pursuant to this
Agreement shall be executed on
behalf of the Company by its Chief
Executive Officer, President,
Chairman of the Board or
Vice-President, Finance;
(iii) Notwithstanding
the provisions of Section 1(j) hereof,
the Trust Account shall be
immediately liquidated and distributed to
the Public Stockholders of
record on the Record Date or the Extended
Record Date (each as defined
below), as the case may be, in the
manner described in the
Termination Letter attached as Exhibit C, in
the event that a Termination
Letter has not been received by the
Trustee by either: (A) [ ],
2007 (the "Record Date"), or a more
practicable date, determined
by the Trustee in its sole and absolute
discretion, which is no more
than ten (10) days before or after the
Record Date or (B) the date
that is the six (6) month anniversary of
the Record Date or such
other, more practicable date, as determined
by the Trustee in accordance with
subsection (A) above (such date,
the "Extended Record
Date"), in the event that a letter of intent,
agreement in principle or
definitive agreement has been executed
prior to the Record Date in
connection with a Business Combination
(as defined in the
Prospectus) that has not been consummated by the
Extended Record Date.
(iv) All distributions
of Property made to the Public
Stockholders upon the
liquidation of the Trust Account as provided
for herein shall be made from
the Trust Account through the Trustee
(and not through the Company)
as follows: (A) through the Trustee,
as transfer agent for the
Company, to the Public Stockholders who
hold shares of Common Stock
"of record" as of the Record Date or the
Extended Record Date, as the
case may be, or (B) through the
Depository Trust Company, to
the Public Stockholders who hold shares
of Common Stock in
"street name" as of the Record Date or the
Extended Record Date, as the
case may be.
(v) In all cases, the
Trustee shall provide the Representative
with a copy of any
termination letters, Officer's Certificates
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, Chairman of
the Board or Vice-President,
Finance. The Company shall promptly provide a
copy of any such instructions to
the Representative. In addition, except
with respect to its duties under
Section 1(k) above, the Trustee shall be
entitled to rely on, and shall be
protected in relying on, any verbal or
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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, with a
copy of such confirmation sent to the
Representative;
(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 Section,
it shall notify the Company in writing
of such claim (hereinafter referred
to as the "Indemnified Claim"). The
Trustee shall have the right to
conduct and manage the defense against
such Indemnified Claim, provided,
that the Trustee shall obtain the
consent of the Company with respect
to the selection of counsel, which
consent shall not be unreasonably
withheld. The Company may participate in
such action with its own counsel;
(c) Pay the Trustee an initial
acceptance fee of $1,000, an annual
fee of $3,000 and a fee of $250 for
each disbursement made pursuant to
Section 1(i) (it being expressly
understood that the Property shall not be
used to pay such fees). The Company
shall pay the Trustee the initial
acceptance fee and first year's fee
at the consummation of the IPO and
thereafter pay the annual fee on
the anniversary of th






