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
