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Exhibit 10.10
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of
, 2007 by and between Victory Acquisition Corp. (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, Citigroup Global Markets Inc. ("Citigroup") 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 Amended and Restated
Certificate of Incorporation, $244,200,000 of the gross proceeds of
the IPO and sale of the Insider Warrants (or $280,200,000 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 (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 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 and Citigroup 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/or Citigroup to do so;
(h) Render to the Company and to Citigroup, 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 or other authorized officer of 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 Citigroup 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.
2. Limited Distributions of Income from Trust Account
.
(a) Upon written request from the Company, which may be given
from time to time 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 any income or
franchise tax obligation owed by the Company as a result of
interest or other income earned on the funds held in the Trust
Account;
(b) Upon written request from the Company, which may be given
from time to time in a form substantially similar to that attached
hereto as Exhibit D, the Trustee shall distribute to the Company
the amount requested by the Company to cover expenses related to
investigating and selecting a target business and other working
capital requirements; provided, however, that the aggregate amount
of all such distributions shall not exceed $3,000,000; and
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(c) The limited distributions referred to in
Sections 2(a) and 2(b) above shall be made only from income
collected on the Property. Except as provided in Section 2(a)
and 2(b) above, no other distributions from the Trust Account shall
be permitted except in accordance with Section 1(i)
hereof.
3. 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 or
other authorized officer. In addition, except with respect to its
duties under paragraphs 1(i), 2(a) and 2(b) 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, an annual fee and
a transaction processing fee for each disbursement made pursuant to
Section 2 as set forth on Schedule A hereto, which fees shall
be subject to modification by the parties from time to time. It is
expressly understood that the Property shall not be used to pay
such fees unless and until it is distributed to the Company
pursuant to Section 2. 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 annual
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 set forth in
this Section 3(c) and as may be provided in Section 3(b)
hereof (it being expressly understood that the Property shall not
be used to make any payments to the Trustee under such
Sections);
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(d) 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.
4. 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 paragraphs 1 and 2 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
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