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EXHIBIT 10.3
INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of _________, 2005 by and between Everest
Acquisition Corporation (the “Company”) and North
Fork Bank (the “Trustee” or also the
“Bank”).
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, $85,600,000 of the net proceeds of the IPO
($98,848,000 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
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 the 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 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 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
protec
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