Exhibit 10.1
INVESTMENT MANAGEMENT TRUST
AGREEMENT
This Agreement is made as of
, 2006 by and between Millennium India Acquisition Company Inc.
(the “Company”) and American Stock Transfer &
Trust Company (“Trustee”).
WHEREAS, the Company’s
registration statement on Form S-1, No. 333-
(“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, Ladenburg
Thalmann & Co. Inc. (“Ladenburg”) is acting as
the representative of the underwriters in the IPO; and
WHEREAS, as described in the
Registration Statement, and in accordance with the Company’s
Certificate of Incorporation, $77,600,000 of the gross proceeds of
the IPO ($89,000,000 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, 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
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, or in any open ended
investment company registered under the Investment Company Act of
1940 that holds itself out as a money market fund meeting the
conditions of paragraphs (c)(2), (c)(3) and (c)(4) of Rule 2a-7
promulgated under the Investment Company Act of 1940;
(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 Ladenburg
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 Ladenburg to do so;
(h) Render to the Company and to
Ladenburg, 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 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 Secretary
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 18-month anniversary of the
closing (“Closing”) of the IPO (“First
Date”), or the 24-month anniversary of the Closing
(“Last Date”) in the event that a letter of intent,
agreement in principle or definitive agreement for a Business
Combination has been executed on or prior to the First Date but the
Business Combination has not been consummated by the First Date,
the Trust Account shall be liquidated in accordance with the
procedures set forth in the Termination Letter attached as Exhibit
B hereto to the stockholders of record on the record date
established by the Company for such purpose. The Company shall set
the record date to be within ten days of the Last Date, or as soon
thereafter as reasonably practicable and legally permissible. In
all cases, the Trustee shall provide Ladenburg 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; and
(j) Upon one or more written
requests from the Company, which may be given not more than once in
any calendar month period, the Trustee shall distribute to the
Company interest earned on the Trust Account, net of taxes payable,
up to a maximum of $2,300,000. The distributions requested by the
Company may be for any amount, provided that (i) in the
aggregate, all distributions under this Section 1(j) may not
exceed $2,300,000 and (ii) such distributions may only be made
if and to the extent that interest has been earned on the amount
initially deposited into the Trust Account. No other distributions
from the Trust Account shall be permitted except in accordance with
Section 1(i) and this Section 1(j) hereof.
2
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
Chairman of the Board or President. 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) 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
Trustee may not agree to settle any Indemnified Claim without the
prior written consent of the Company unless such settlement
includes a full release with respect to such Indemnified Claim. 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 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
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
