Exhibit 10.11
INVESTMENT MANAGEMENT TRUST
AGREEMENT
This Agreement is made as of March
8, 2006 by and between Good Harbor Partners Acquisition Corp. (the
“Company”) and American Stock Transfer & Trust
Company (the “Trustee”).
WHEREAS, the Company’s
Registration Statement on Form S-1, No. 333-128351
(“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, HCFP/Brenner Securities LLC
(“Brenner”) 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, $46,460,000.00 of the
gross proceeds of the IPO ($53,429,000.00 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 Class B 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. A copy of the Colorado Statute is
attached hereto and made a part hereof (the amount to be delivered
to the Trustee, together with any interest earned on the Trust
Account (defined below), 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,
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 a branch of Lehman
Brothers Inc. 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
any “Government Security.” As used herein, Government
Security means any Treasury Bill issued by the United States,
having a maturity of one hundred and eighty 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
which are treated as “cash items” as that term is used
in Rule 3a-1 under such Act;
(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
Brenner, 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; and
(i) 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 or Assistant 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; 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 Brenner 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.
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 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 breach of any provision of this Agreement, 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”) and the Company shall have no
liability for any Indemnified Claim to the extent prejudiced by the
failure of the Trustee to give notice promptly. The Trustee shall
have the right to conduct and manage the defense against such
Indemnified Claim, provided, that
the Trustee shall obtain the prior written
consent of the Company with respect to both the selection of
counsel and the settlement of any claim, which consent shall not be
unreasonably withheld. The Company may participate in such action
with its own counsel; and
(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
publicly disclosed letter of intent, agreement in principle or
definitive agreement for a Business Combination that is executed on
or prior to the First Date;
(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/or
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
an
