Exhibit 10.2
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of _________, 2005 by and between
Pharmamatrix Acquisition Corporation (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, Jesup & Lamont Securities Corporation ("Jesup &
Lamont")
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, $27,800,000 of
the net proceeds of the IPO ($34,960,001 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 issued in the
IPO 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 which 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;
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(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 Jesup & Lamont 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 Jesup
& Lamont to do so;
(h) Render
to the Company and to Jesup & Lamont, 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 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
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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 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 b
