INVESTMENT MANAGEMENT TRUST AGREEMENTInvestment Management Trust Agreement |
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Exhibit 10.6
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of , 2005 by and between Services Acquisition Corp. International (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 by the Securities and Exchange Commission (“Effective Date”); and
WHEREAS, Broadband Capital Management LLC (“Broadband”) 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, $36,400,000 of the gross proceeds of the IPO ($41,860,000 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 $.001 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 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;
(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 Broadband, 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 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 President or Chairman of
the Board and Secretary, 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 Broadband 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 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 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;
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(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 conclusively and shall be protected in acting upon any
order, notice, demand, certificate, opinion or advice of counsel (including
counsel chosen by the Trustee), statement, instrument, report or other paper or
document (not only as to its due execution and the validity and effectiveness
of its provisions, but also as to the truth and acceptability of any
information therein contained) which is believed by the Trustee, in good faith,
to be genuine and to be signed or presented by the proper person or
persons. The Trustee shall not be bound by any notice or demand, or any
waiver, modification, termination or rescission of this agreement or any of the
terms hereof, unless evidenced by a written instrument delivered to the Trustee
signed by the proper party or parties and, if the duties or rights of the
Trustee are affected, unless it shall give its prior written consent thereto;
(g)
Verify the correctness
of the information set forth in the Registration Statement or to confirm or
assure that any acquisition made by the Company or any other action taken by it
is as contemplated by the Registration Statement; and
(h)
Pay any taxes on
behalf of the Trust Account (it being expressly understood that the Property
shall not be used to pay any such taxes and that such taxes, if any, shall be
paid by the Company from funds not held in the Trust Account).
4.
Termination. This Agreement shall
terminate as follows:
(a)
If the Trustee gives
written notice to the Company that it desires to resign under this Agreement,
the Company shall use its reasonable efforts to locate a successor
trustee. At such time that the Company notifies the Trustee that a
successor trustee has been appointed by the Company and has agreed to become
subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to the
Trust Account, whereupon this Agreement shall terminate; provided, however,
that, in the event that the Company does not locate a successor trustee within
ninety days of receipt of the resignation notice from the Trustee, the Trustee
may submit an application to have the Property deposited with the United States
District Court for the Southern District of New York and upon such deposit, the
Trustee shall be immune from any liability whatsoever;
(b)
At such time that the
Trustee has completed the liquidation of the Trust Account in accordance with
the provisions of paragraph 1(i) hereof, and distributed the Property in
accordance with the provisions of the Termination Letter, this Agreement shall
terminate except with respect to Paragraph 2(b); or
(c)
On such date
after ,
2006 when the Trustee deposits the Property with the United States District
Court for the Southern District of New York in the event that, prior to such
date, the Trustee has not received a Termination Letter from the Company
pursuant to paragraph 1(i).
5.
Miscellaneous.
(a)
The Company and the
Trustee each acknowledge that the Trustee will follow the security procedures
set forth below with respect to funds transferred from the Trust Account.
Upon receipt of written instructions, the Trustee will confirm such
instructions with an Authorized Individual at an Authorized Telephone Number
listed on the attached Exhibit C. The Company and the Trustee will
each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other party
immediately if it has reason to believe unauthorized persons may have obtained
access to such information, or of any change in its authorized personnel.
In executing funds transfers, the Trustee will rely upon account numbers or
other identifying numbers of a beneficiary, beneficiary’s bank or
intermediary bank, rather than names. The Trustee
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shall not be liable for any loss, liability or expense
resulting from any error in an account number or other identifying number,
provided it has accurately transmitted the numbers provided.
(b)
This Agreement shall
be governed by and construed and enforced in accordance with the laws of the
State of New York, without giving effect to conflict of laws. It may be
executed in several counterparts, each one of which shall constitute an
original, and together shall constitute but one instrument.
(c)
This Agreement
contains the entire agreement and understanding of the parties hereto with
respect to the subject matter hereof. This Agreement or any provision
hereof may only be changed, amended or modified by a writing signed by each of
the parties hereto; provided, however, that no such change, amendment or
modification may be made without the prior written consent of Broadband.
As to any claim, cross-claim or counterclaim in any way relating to this
Agreement, each party waives the right to trial by jury.
(d) &nb
