EXHIBIT 10.10
INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of __________, 2005 by and between
Industrial Services Acquisition Corp. (the
“Company”) and Continental Stock Transfer &
Trust Company (“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1,
No. _________ (“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,
Wedbush Morgan Securities Inc. (“Wedbush”) 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, as amended or restated and in effect on the
date hereof, $______ of the gross proceeds of the IPO
($______ 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 $.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 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 JPMorgan Chase NY
Bank 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 written instruction of the Company,
invest and reinvest the Property in any Government Security 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. 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;
(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 Wedbush, and to such other person as the
Company may instruct in writing, monthly written statements of
the activities of and amounts in the Trust Account reflecting
all receipts and disbursements of the Trust
Account;
(i)
If
there is any income tax obligation relating to the income of
the Property in the Trust Account, then, at the written
instruction of the Company, the Trustee shall issue a check
directly to the taxing authorities designated by the Company,
out of the Property in the Trust Account, in the amount
indicated by the Company as owing to each such taxing
authority; and
(j)
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 or Chairman of the Board,
Secretary and
a non-management member 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. The Trustee understands and agrees that disbursements
from the Trust Account shall be made only pursuant to a duly
executed Termination Letter, together with the other documents
referenced herein. In all cases, the Trustee shall provide
Wedbush 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 Chief Executive Officer, 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 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;
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 Account. 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 its gross negligence or willful
misconduct. The Trustee may rely conclusi
