The Company’s Registration Statement on
Form S-1, No. 333-115319 (“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
HCFP/Brenner Securities LLC
(“Brenner”) is acting as the representative of the
underwriters in the IPO; and
As described in the Company’s Registration
Statement, and in accordance with the Company’s Certificate
of Incorporation, $6,565,000 of the gross proceeds of the IPO
($7,549,750 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 Class B common stock, par value $.0001 per
share, issued in the IPO (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
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;
NOW, THEREFORE , in consideration of the mutual covenants and
agreements set forth herein, and for other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, 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 (“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
Brenner, 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.
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), plus
reasonable out-of-pocket expenses (including pursuant to Section
4(c) 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 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,
