Exhibit
10.3
INVESTMENT MANAGEMENT TRUST
AGREEMENT
This Agreement is made as of December 15, 2006
by and between Restaurant Acquisition Partners, Inc., a Delaware
corporation (the “ Company ”), and
Continental Stock Transfer & Trust Company , a
New York corporation (the “ Trustee
”).
WHEREAS, the Company's Registration Statement,
No. 333-129316 on Form S-1 (“ Registration Statement
”), for its initial public offering of securities (“
IPO ”) has been declared effective as of December 14,
2006 by the Securities and Exchange Commission (“
Effective Date ”);
WHEREAS, concurrently with the IPO the initial
stockholders are purchasing an aggregate of 1,500,000 warrants of
the Company for aggregate consideration of $960,000 (the “
Insider Warrants ”); and
WHEREAS, as described in the Company's
Registration Statement, and in accordance with the Company's Fourth
Amended and Restated Certificate of Incorporation, $19,535,000 of
the gross proceeds of the IPO and the Insider Warrants ($22,392,500
if the underwriter’s 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:
(a) That the recitals above are made a part of this
Agreement;
(b) To 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 segregated trust accounts (collectively, the
“ Trust Account
” ) established by the Trustee at JPMorgan
Chase and Morgan Stanley;
(c) To manage, supervise and administer the Trust
Account subject to the terms and conditions set forth
herein;
(d) 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;
(e) To 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;
(f) To release to the Company from time to time,
upon the instruction of the Company, interest and other earnings on
the Trust Account, up to maximum aggregate amount of $1,025,000,
after giving effect to applicable taxes.
(g) To notify the Company of all communications
received by it with respect to any Property requiring action by the
Company;
(h) To 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;
(i) To 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;
(j) To render to the Company, at the addresses
specified in Section 5(e) of this Agreement, 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
(k) To 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 Chief Executive Officer, President, Secretary
or Chairman of the Board, 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.
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, Secretary or Chairman of the Board. In addition, except
with respect to its duties under paragraph 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 breach
of any provision of this Agreement or 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 $1,200 (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).
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 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 it, or any action suffered by it to
be taken or omitted, in good faith and in the exercise of its own
best judgment, except for the Trustee's breach of any provision of
this Agreement or its gross n
