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Exhibit
10.11
INVESTMENT MANAGEMENT
TRUST AGREEMENT
This Agreement is made as of
, 2005 by and between Oakmont 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 by the
Securities and Exchange Commission (“ Effective
Date ”); and
WHEREAS, Morgan Joseph &
Co. Inc. (“ Morgan Joseph ”) 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, $43,140,000 of the
gross proceeds of the IPO ($49,836,000 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 at
a branch of Comerica 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
and/ or Morgan Joseph to do so;
(h) Render to the Company and
to Morgan Joseph, 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 Chief Executive Officer 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.
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 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 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
ef
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