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Exhibit 10.8
INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of _______ __, 2006 by and between Geneva
Acquisition Corporation (the "COMPANY") and Continental 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. ("LTC") is acting as
the
representative of the underwriters in the IPO; and
WHEREAS, as described in the Company's Registration Statement, and
in
accordance with the Company's Certificate of Incorporation,
$___________of the
gross proceeds of the IPO ($__________ 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 $0.0001 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 $1,350,000
attributable to
underwriting discounts and commissions which LTC has agreed to
deposit in the
Trust Account; and
WHEREAS, a portion of the Property consists of $1,400,750
attributable to
the placement of warrants issued by the Company to certain of its
initial
stockholders and LTC; 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, N.A.
and utilizing a broker 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, 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 one hundred and eighty 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 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;
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(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 LTC to do so;
(h) Render to the Company and to LTC, 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 a majority of 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 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 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. 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; and
(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
$1,600,000.
(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 hereunder in writing,
signed
by the Company's Chief Executive Officer, President, Chief
Operating Officer or
Chairman of the Board. 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
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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 $1,000 and an
annual
fee of $3,000 plus an income distribution processing fee of $250
(it being
expressly understood that the Property shall not be used to pay
such fee),
except that the monthly income distribution processing fee may be
deducted from
the monthly distributions allowed under Sections 2(a) and 2(b)).
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); 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/or tabulating stockholder votes (which firm may be the Trustee)
verifying
the vote of the Company's stockholders regarding such Business
Combination.
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 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
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 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
