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Exhibit
10.1
INVESTMENT MANAGEMENT
TRUST AGREEMENT
This Agreement is made as of
December 11, 2007 by and between United Refining Energy Corp.
(the “Company”), whose principal office is located at
823 Eleventh Avenue, New York, New York 10019, and Continental
Stock Transfer & Trust Company (“Trustee”),
located at 17 Battery Place, New York, New York 10004.
WHEREAS, the Company’s
Registration Statement on Form S-1, File No. 333-144704, as
amended (“Registration Statement”), for its initial
public offering of securities (“IPO”) has been declared
effective on December 11, 2007 by the Securities and Exchange
Commission (“Effective Date”); and
WHEREAS, the Company has
completed a private placement of 15,600,000 Warrants (the
“Private Warrants”) prior to the completion of the IPO
for a purchase price of $15,600,000; and
WHEREAS, Deutsche Bank
Securities Inc. (“Deutsche Bank”) and Maxim Group LLC
(“Maxim” and, together with Deutsche Bank, hereinafter
referred to as the “Representatives”) are acting as the
representatives of the underwriters in the IPO (the
“Underwriters”); and
WHEREAS, as described in the
Company’s Registration Statement, in accordance with the
Company’s Amended and Restated Certificate of Incorporation,
$448,700,000 of the net proceeds of the IPO and the sale of the
Private Warrants ($516,005,000 if the Underwriters’
over-allotment option is exercised in full; provided, however, to
the extent the over-allotment option is exercised in full and funds
held in trust are less than $9.97 per share, the first $2,167,500
of interest earned on the amounts in the trust account (net of
taxes payable) will be used to bring the amount held in trust up to
an aggregate of $516,005,000), will be delivered to the Trustee to
be deposited and held in a trust account for the benefit of the
Company, the holders of the common stock, par value $0.0001 per
share, of the Company (“Common Stock”), included in the
units the (“Units”) of the Company’s securities
issued in the IPO, and the Representatives. 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, the
Company and the Representatives and the Underwriters will be
referred to together as the “Beneficiaries”;
WHEREAS, a portion of the
Property consists of $15,750,000 (or $18,112,500 if the
Underwriters’ over-allotment is exercised in full), plus
interest earned on such amount in the Trust Account, net of taxes
payable, attributable to the Underwriters’ discount (the
“Deferred Discount”) which the Underwriters have agreed
to deposit in the Trust Account (as defined below); 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.
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NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, the parties hereto agree as
follows:
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 (the “Trust
Account”) established by the Trustee with Banc of America
Investment Services, Inc.;
(b) Manage, supervise and
administer the Trust Account subject to the terms and conditions
set forth herein;
(c) In a timely manner, upon
the written instruction of the Company, to invest and reinvest the
Property in any “Government Security” or in money
market funds. 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; “money
market funds” means any open ended investment company
selected by the Company and registered under the Investment Company
Act of 1940 that holds itself out as a money market fund meeting
the conditions of paragraphs (c)(2), (c)(3) and (c)(4) under 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) Promptly 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 or the Company;
(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;
(h) Render to the Company,
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;
(i) If there is any income or
other tax obligation relating to the income from the Property in
the Trust Account, then, from time to time, at the written
instruction of the Company, the Trustee shall promptly to the
extent there is not sufficient cash in the Trust Account to pay
such tax obligation, liquidate such assets held in the Trust
Account as shall be designated by the Company in writing;
and
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(j) 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 Chief Executive Officer and Chief Financial
Officer 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. In all cases, the Trustee
shall provide the Representatives 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(j)
may not be modified, amended or deleted under any
circumstances.
2. Limited Distributions of
Income on Property.
(a) If there is any income
tax obligation relating to the income from the Property in the
Trust Account, or if there is any franchise or other tax obligation
to which the Company is subject, then, at the written instruction
of the Company, the Trustee shall disburse to the Company or the
Internal Revenue Service by wire transfer or check (as directed by
the Company in its instruction letter), out of the Property in the
Trust Account, the amount indicated by the Company as required to
pay such income, franchise or other taxes.
(b) Upon written request from
the Company containing certification that such distribution
pursuant to this Section 2(b) shall only be used to fund the
working capital requirements of the Company and/or the expenses
incurred in connection with the Company’s dissolution and
liquidation, in each case as described in the prospectus that forms
a part of the Registration Statement, the Trustee shall distribute
to the Company an amount equal to up to $3,700,000 of the interest
earned on the Property in the Trust Account, net of taxes payable,
through the last day of the month immediately preceding the date of
receipt of the Company’s written request; provided, however,
to the extent the over-allotment option is exercised in full and
funds held in trust are less than $9.97 per share, the first
$2,167,500 of interest earned on the amounts in the trust account
(net of taxes payable) will be used to bring the amount held in
trust up to an aggregate of $516,005,000).
(c) Upon receipt by the
Trustee of the Termination Letter, accompanied by a letter executed
by the Chief Executive Officer and Chief Financial Officer of the
Company requesting payment of actual expenses incurred or, where
known with reasonably certainty, imminently to be incurred by the
Company in connection with its plan of dissolution and
distribution, the Trustee, the Trustee is hereby authorized to pay
and shall distribute to the Company said requested
amounts.
(d) Except as provided in
Section 1(j) or in this Section 2, no other distributions
from the Trust Account shall be permitted.
(e) It is acknowledged and
agreed by the parties hereto that with respect to all request for
distributions to or on behalf of the Company pursuant to this
Section 2, the Trustee’s only responsibility is to
follow the instructions of the Company.
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3. Agreements and Covenants
of the Company. The Company hereby agrees and covenants:
(a) To provide all
instructions to the Trustee hereunder in writing, signed by the
Company’s Chief Executive Officer and Chief Financial
Officer. In addition, except with respect to its duties under
paragraphs 1(i) and 1(j), 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 and/or the Representatives
shall promptly confirm such instructions in writing;
(b) Subject to the provisions
of Section 5 hereof, to 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, willful misconduct or bad faith.
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, which consent
shall not be unreasonably withheld. The Company may participate in
such action with its own counsel at its own expense;
(c) Pay the Trustee an
initial acceptance fee, an annual fee and a transaction processing
fee for each disbursement made pursuant to this Agreement 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 and
further agreed that said transaction processing fees shall be
deducted by the Trustee from the disbursements made to the Company
pursuant to Section 2(b) hereof. 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 Account. 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);
(d) That, in the event the
Company consummates a Business Combination and the Trust Account is
liquidated in accordance with Section 1(j) hereof, an
independent party designated by the Representatives shall act as
the inspector of election to certify the results of the stockholder
vote;
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(e) That the Termination
Letter referenced in Sections 1(j) hereof shall require the
Company’s Chief Executive Officer and Chief Financial Officer
to each certify the following (wherever applicable): either that
(A) prior to the 24 month anniversary of the Effective Date or
prior to the 30 month anniversary of the Effective Date in the
event the stockholders of the Company approve the extended period,
as set forth in the Company’s Amended and Restated
Certificate of Incorporation (the later date being the
“Termination Date”), the Company has consummated a
Business Combination with a target business, the terms of which are
consistent with the requirements set forth in the Registration
Statement or (B) the Company failed to consummate a Business
Combination prior to the Termination Date and that the Company
shall be dissolved and liquidated in accordance with its Amended
and Restated Certificate of Incorporation; and
(f) 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
tabulating stockholder votes 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 Sections 1 and 2
hereof and the Trustee shall have no liability to any party except
for liability arising out of its own gross negligence, willful
misconduct or bad faith;
(b) Institut
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