Exhibit 10.3
INVESTMENT MANAGEMENT TRUST
AGREEMENT
This Agreement (this “ Agreement
”) is made as of April 5, 2006 by and between General Finance
Corporation (the “ Company ”) and Continental
Stock Transfer & Trust Company (the “ Trustee
”).
WHEREAS, the Company has entered into an
Underwriting Agreement (“ Underwriting Agreement
”) with Morgan Joseph & Co. Inc. (“ Morgan
Joseph ”) acting as the representative (the “
Representative ”) of the underwriters (collectively,
the “ Underwriters ”), pursuant to which, among
other matters, the Underwriters have agreed to purchase from the
Company, and effect a public offering (the “ IPO
”) of, 7,500,000 Units (“ Units ”), each
Unit consisting of one share of the Company’s common stock,
par value $.0001 per share (“ Common Stock ”),
and one Warrant, to purchase one share of Common Stock, all as more
fully described in the Company’s final Prospectus comprising
part of the Company’s Registration Statement on Form S-1
(File No. 333-129830) under the Securities Act of 1933, as amended
(“ Registration Statement ”);
WHEREAS, prior to the closing of the IPO, the
Company will sell 583,333 Warrants to two officers of the Company
(the “ Private Placement ”);
WHEREAS, the Registration Statement has been
declared effective as of the date hereof by the Securities and
Exchange Commission (“ Effective Date
”);
WHEREAS, as described in the Registration
Statement, funds (the “ Property ”) constituting
a portion of the proceeds of the Private Placement and the IPO 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
Common Stock (the “ Public Stockholders ,” and
collectively with the Company, the “ Beneficiaries
”) issued in the IPO as part of the Units (such shares,
excluding shares of Common Stock issued upon exercise of Warrants
issued in the IPO, the “ IPO Shares ”);
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 (“ Trust
Account ”) established by the Trustee at a branch of JP
Morgan Chase NY Bank in conjunction with an account established at
a broker dealer 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, 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 money
market funds selected by the Company meeting the conditions
specified in 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”;
(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 Morgan
Joseph;
(h) Render to the Company and to the Representative,
and to such other persons as the Company may from time to time
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 instructions from the Company, the
Trustee shall disburse funds by bank wire transfer out of the
Property in the Trust Account to the Company’s bank account
in an amount specified by the Company, as required to pay its
income tax liability, if any, relating to interest earned on the
Property;
(j) Upon receipt of a letter (a “
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 or Chairman of
the Board and affirmed by a majority of its Board of Directors,
comply with the instructions set forth in the letter regarding the
liquidation of the Trust Account, including distribution of the
Property in the Trust Account only as directed in the Termination
Letter and the other documents referred to therein; and
(k) If the Trustee shall not have received a
Termination Letter on or prior to the Distribution Date, promptly
following the Distribution Date the Trustee shall liquidate the
Trust Account in accordance with the procedures set forth in the
Termination Letter attached as Exhibit B to the Public Stockholders
of record as of a record date fixed by the Trustee, which record
date shall be within ten days of the liquidation date, or as soon
thereafter as is practicable. For purposes of this Agreement, the
“Distribution Date” shall mean October 5, 2007
[18 months from the Effective Date] or, if on or
prior to such date the Trustee has received a certification from
the Company substantially in the form of Exhibit C, the date that
is two years from the Effective Date.
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 an Authorized Individual. The “
Authorized Individuals ” shall be those individuals
from time to time designated in writing to the Trustee by the
Company as “Authorized Officers,” provided that each
such individual must be an executive officer or Chairman of the
Board of the Company. The initial Authorized Individuals are
identified in Exhibit D to this Agreement. In addition, except with
respect to its duties under Section 1(j) 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 , however , 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 (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 on the Effective Date 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 Section 2(b) of this Agreement (it being
expressly understood that the Property shall not be used to make
any payments to the Trustee under such paragraph);
(d) In connection with any vote of the
Company’s stockholders regarding a Business Combination (as
defined in the Certificate of Incorporation of the Company),
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 number of votes of the Company’s stockholders
for and against 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 Section 1 of this Agreement 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 Section 1(c) of this Agreement;
(d) Refund any depreciation in principal of any
Property;
(e) Assume that the authority of any Authorized
Officer 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
