|
INVESTMENT MANAGEMENT TRUST
AGREEMENT
This Agreement is made as of _____________, 2006
by and between Rand Acquisition Corp. II (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, EarlyBirdCapital, Inc. ("EBC") is acting
as the representative of the underwriters in the IPO;
and
WHEREAS, as described in the Registration
Statement, and in accordance with the Company’s Certificate
of Incorporation, $46,140,000 of the gross proceeds of the IPO and
sale of the Insider Units (as defined in the Registration
Statement) ($53,052,000 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;
(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 180 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;
(f) Supply any
necessary information or documents as may be requested by the
Company in connection with the Company’s preparation of its
returns;
(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 EBC, 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 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 counsel
for the Company, 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 Last Date. In all cases, the
Trustee shall provide EBC 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.
(j) Upon written
request from the Company, which may be given from time to time at
any time after _____________, 2007 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
expenses related to investigating and selecting a target business,
income and other taxes and other working capital requirements;
provided, however, that (i) such distribution shall be only from
income collected on the Property and (ii) the aggregate amount of
all such distributions shall not exceed $300,000.
2
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 Chairman of the Board or President. In addition,
except with respect to its duties under paragraphs 1(i) and 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, 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 Trustee may not agree to
settle any Indemnified Claim without the prior written consent of
the Company unless such settlement includes a full release of the
Company with respect to such Indemnified Claim. 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 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) Not, nor
authorize the Trustee to, use the Property, or income earned on the
Property, to pay any taxes except in the event that the Property,
or a portion thereof, is released to the Company: (i) in accordance
with Section 1(j) above or (ii) in accordance with Section 1(i)
hereof if and only if the Trustee receives a Termination Letter in
the form of Exhibit A attached hereto; and
(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
3. Limitations of
Liability . The Trustee shall have no responsibility or
liability to:
(a) Take any action
with respect to the Property, other tha
| 
