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EXHIBIT 10.1
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of April 17, 2007 by and between TAILWIND
FINANCIAL INC. (the "COMPANY") and AMERICAN STOCK TRANSFER & TRUST COMPANY
("TRUSTEE").
WHEREAS, the Company's Registration Statement on Form S-1, No. 333-135790
("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");
WHEREAS, Deutsche Bank Securities Inc. ("DEUTSCHE BANK") is acting as the
representative of the underwriters in the IPO (collectively with Deutsche Bank,
the "UNDERWRITERS");
WHEREAS, as described in the Registration Statement, and in accordance with
the Company's Amended and Restated Certificate of Incorporation, $100,000,000
($114,400,000 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. 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");
WHEREAS, pursuant to the Underwriting Agreement, dated as of April 11,
2007, between the Company and Deutsche Bank, a portion of the Property equal
to $3,000,000 (or $3,450,000 if the Underwriters' over-allotment option is
exercised in full) is attributable to the Underwriters' fees, which amounts
the Underwriters have agreed to deposit in the Trust Account (defined below)
and which will be paid from the Trust Account to the Underwriters upon the
consummation of a business combination (as such term is defined in the
Registration Statement; hereinafter a "BUSINESS COMBINATION"); 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 in a segregated trust account ("TRUST ACCOUNT")
established by the Trustee at a branch of JPMorgan Chase selected by the
Trustee;
(b) Manage, supervise and administer the Trust Account subject to the
terms and conditions set forth herein;
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(c) In a timely manner, upon the written instruction of the Company,
invest and reinvest the Property in any United States "government security"
within the meaning of Section 2(a)(16) of the Investment Company Act of 1940
(the "1940 ACT"), having a maturity of one hundred and eighty (180) days or less
or in money market funds selected by the Company meeting the conditions of Rule
2a-7 promulgated under the 1940 Act;
(d) Collect and receive, when due, all principal and income arising from
the Property, which income, net of taxes, 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 the Property;
(f) Promptly supply any 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 otherwise;
(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 Deutsche Bank to do so;
(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) Until such time as the Trustee shall have disbursed an aggregate
amount equal to $1,600,000 to the Company (net of any income or other tax
obligations payable by the Company relating to the income from the Property
in the Trust, the amount of such tax obligations to be determined by the
Company), the Trustee shall upon receipt from the Company of a written
request disburse to the Company, on or about the first business day of each
calendar month, the amount specified by the Company as representing interest
income earned and collected in the Trust Account (including any amounts
needed for the payment of taxes). Following such time as the Trustee shall
have disbursed an amount equal to $1,600,000 to the Company (net of any
income or other tax obligations relating to the income from the Property in
the Trust, the amount of such tax obligations to be determined by the
Company), if there is any income or other tax obligation payable by the
Company relating to the income from the Property in the Trust Account as
determined by the Company, then, from time to time, at the written
instruction of the Company, the Trustee shall promptly (i) disburse to the
Company by wire transfer the amount indicated by the Company as owing in
respect of such income tax obligation, to the extent there is cash available
in the Trust Account for the payment of such tax obligation, and (ii) 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 disburse to the Company by wire
transfer, out of the Property in the Trust Account, the balance of the amount
indicated by the Company as owing in respect of such income tax obligation;
(j) Upon written instructions from the Company, deliver to the Company or
to such governmental entity or taxing authority as the Company shall direct, on
a quarterly basis, from the Property in the Trust Account, an amount equal to
the taxes payable by the Company, if any, relating to interest earned on the
Property; and
(k) Commence liquidation of the Trust Account 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, signed on behalf of the Company by its Chief Executive Officer,
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; PROVIDED, HOWEVER, that in the event that a
Termination Letter has not been received by October 17, 2008 (or the date
that is six months following such date, in the event that a letter of intent,
agreement in principle or definitive agreement has been executed prior to
such date in connection with a Business Combination (as defined in the
Termination Letter attached hereto as Exhibit A) that has not been
consummated by April 17, 2009), the Trust Account shall be liquidated in
accordance with the procedures set forth in the Termination Letter attached
as EXHIBIT B to the stockholders of record on the record date; PROVIDED,
FURTHER, that the record date shall be within ten (10) days of October 17,
2008 (or the date that is six months following such date, in the event that a
letter of intent, agreement in principle or definitive agreement has been
executed prior to such date in connection with a Business Combination that
has not been consummated by April 17, 2009), or as soon thereafter as is
practicable. In all cases, the Trustee shall provide Deutsche Bank with a
copy of any Termination letter and/or any other correspondence that it
receives with respect to any proposed withdrawal from the Trust Account
promptly after it receives the same.
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(k) No distributions from the Trust Account shall be permitted except in
accordance with paragraphs 1(i), 1(j) and 1(k) hereof.
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(k) 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;
(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);
(d) Provide to the Trustee any letter of intent, agreement in principle
or definitive agreement that is executed prior to October 17, 2008 in
connection with a Business Combination; and
(e) 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 (which firm may be the Trustee) verifying the vote of the
Company's stockholders regarding such Business Combination.
3. LIMITATIONS OF LIABILITY. The Trustee shall have no responsibility or
liability to:
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(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 under
this Agreement 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 written 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 be bound by any notice or
demand, or any waiver, modification, termination or rescission of this Agreement
or any of the terms hereof, unless evidenced by a written instrument delivered
to the Trustee signed by the proper party or parties and, if the duties or
rights of the Trustee are affected, unless it shall give its prior written
consent thereto; or
(g) Verify the correctness of the information set forth in the
Registration Statement or to confirm or assure that any acquisition made by the
Company or any other action taken by it is as contemplated by the Registration
Statement.
4. TERMINATION. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to
resign under this Agreement, the Company shall use its reasonable efforts to
locate a successor trustee. At such time that the Company notifies the Trustee
that a successor trustee has been appointed by the Company and has agreed to
become subject to the terms of this Agreement, the Trustee shall transfer the
management of the Trust Account to the successor trustee, including but not
limited to the transfer of copies of the reports and statements relating to the
Trust Account, whereupon this Agreement shall terminate; PROVIDED, HOWEVER, that
in the event that the Company does not locate a successor trustee within ninety
(90) days of receipt of the resignation notice from the Trustee, the Trustee
may, upon written notice to the Company, submit an application to have the
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Property deposited with the United States District Court for the Southern
District of New York and upon such deposit, the Trustee shall be immune from any
liability whatsoever that arises due to any actions or omissions to act by any
party after such deposit; or
(b) At such time that the Trustee has completed the liquidation of the
Trust Account in accordance with the provisions of paragraph 1(k) hereof, and
distributed the Property in accordance with the provisions of the Termination
Letter, this Agreement shall terminate except with respect to paragraph 2(b).
5. MISCELLANEOUS.
(a) The Company and the Trustee each acknowledge that the Trustee will
follow the security procedures set forth below with respect to funds transferred
from the Trust Account. Upon receipt of written instructions, the Trustee will
confirm such instructions with an Authorized Individual at an Authorized
Telephone Number listed on the attached EXHIBIT C. The Company and the Trustee
will each restrict access to confidential information relating to such security
procedures to authorized persons. Each party must notify the other party
immediately if it has reason to believe unauthorized persons may have obtained
access to such information, or of any change in its authorized personnel. In
executing funds transfers, the Trustee will rely upon account numbers or other
identifying numbers of a beneficiary, beneficiary's bank or intermediary bank,
rather than names. The Trustee shall not be liable for any loss, liability or
expense resulting from any error in an account number or other identifying
number, provided it has accurately transmitted the numbers provided.
(b) This Agreement may be executed by facsimile and in several
counterparts, which together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the
parties hereto with respect to the subject matter hereof. This Agreement or any
provision hereof may only be changed, amended or modified by a writing signed by
each of the parties hereto; provided that such action shall not materially
adversely affect the interests of the Public Stockholders. Any other change,
waiver, amendment or modification to this Agreement shall be subject to approval
by a majority of the Public Stockholders. As to any claim, cross-claim or
counterclaim in any way relating to this Agreement, each party waives the right
to trial by jury.
(d) This Agreement shall for all purposes be deemed to be made under and
shall be construed in accordance with the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the
application of the substantive laws of another jurisdiction. The parties hereto
agree that any action, proceeding or claim against it arising out of or relating
in any way to this Agreement shall be brought and enforced in the courts of the
State of New York or the United States District Court for the Southern District
of New York, and irrevocably submit to such jurisdiction, which jurisdiction
shall be exclusive. The parties hereby waive any objection to such exclusive
jurisdiction and that such courts represent an inconvenient forum.
(e) Any notice, consent or request to be given in connection with any of
the terms or provisions of this Agreement shall be in writing and shall be sent
by express mail or similar
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private courier service, by certified mail (return receipt requested), by hand
delivery or by facsimile transmission:
if to the Trustee, to:
American Stock Transfer & Trust Company
59 Maiden Lane, Plaza Level
New York, NY 10038
Attn: Herb Lemmer
Fax: (718) 331-1852
if to the Company, to:
Tailwind Financial Inc.
BCE Place, 181 Bay Street, Suite 2040
Toronto, Ontario, Canada M5J 2T3
Attn: Andrew A. McKay
Fax: (416) 601-2423
in either case with a copy to:
Bingham McCutchen LLP
150 Federal Street
Boston, MA 02110-01726
Attn: Kevin Barry, Esq.
Fax: (617) 951-8736
if to Deutsche Bank, to:
Deutsche Bank Securities Inc.
60 Wall Street, NYC60-1001
New York, NY 10005
Attn: Syndicate Manager
Fax: (212) 797-9344
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue
Los Angeles, CA 90071
Attn: Gregg A. Noel, Esq.
Fax: (213) 687-5600
(f) This Agreement may not be assigned by the Trustee without the prior
written consent of the Company.
(g) The obligations and rights contained in paragraph 2(b) herein will
survive the termination of this Agreement.
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(h) Each of the Trustee and the Company hereby represents that it has the
full right and power and has been duly authorized to enter into this Agreement
and to perform its respective obligations as contemplated hereunder. The Trustee
acknowledges and agrees that it shall not make any claims or proceed against,
and waives any and all right, title, interest or claim of any kind, in or to any
distribution of the Trust Account, including by way of set-off, and shall not be
entitled to any funds in, and hereby agrees not to seek recourse, reimbursement,
payment or satisfaction for any claim against, the Trust Account under any
circumstance.
(i) The Trustee hereby consents to the inclusion of American Stock
Transfer & Trust Company in the Registration Statement and other materials
relating to the IPO.
(j) Deutsche Bank shall be a third party beneficiary of this Agreement.
[remainder of page intentionally left blank]
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IN WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust Agreement as of the date first written above.
AMERICAN STOCK TRANSFER &
TRUST COMPANY, AS TRUSTEE
By: /s/ Herbert Lemmer
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Name: Herbert Lemmer
Title: Vice President
TAILWIND FINANCIAL INC.
By: /s/ Andrew A. McKay
--------------------------------------
Name: Andrew A. McKay
Title: President and Chief Executive Officer
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EXHIBIT A
[LETTERHEAD OF COMPANY]
[INSERT DATE]
American Stock Transfer & Trust Company
59 Maiden Lane, Plaza Level
New York, NY 10038
Attn: General Counsel
Re: Trust Account No. [ ] Termination Letter
Gentlemen:
Pursuant to paragraph 1(k) of the Investment Management Trust Agreement
between Tailwind Financial Inc. ("COMPANY") and American Stock Transfer & Trust
Company ("TRUSTEE"), dated as of April 17, 2007 ("TRUST AGREEMENT"),
this is to advise you that the Company has entered into an agreement ("BUSINESS
AGREEMENT") with ______________________("TARGET Business") to consummate a
business combination with Target Business ("BUSINESS COMBINATION") on or about
[insert date]. The Company shall notify you at least forty-eight (48) hours in
advance of the actual date of the consummation of the Business Combination
("CONSUMMATION DATE"). Defined terms used but not otherwise defined herein shall
have the meaning ascribed to such term in the Trust Agreement.
Pursuant to Section 2(e) of the Trust Agreement, we are providing you with
[an affidavit] [a certificate] of ____________________, which verifies the vote
of the Company's stockholders in connection with the Business Combination. In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of the Trust Account to the effect that, on the
Consummation Date, all of the funds held in the Trust Account will be
immediately available for transfer to the account or accounts that the Company
and Deutsche Bank shall direct in writing on the Consummation Date.
On the Consummation Date (i) counsel for the Company shall deliver to you
written notification that the Business Combination has been consummated and (ii)
the Company shall deliver to you written instructions with respect to the
transfer of the funds held in the Trust Account, including, but not limited to,
(a) funds to be delivered to any Public Stockholder that has properly exercised
its conversion rights (as described in the Registration Statement), and (b)
pursuant to the terms of the Underwriting Agreement, dated as of April 11,
2007, between the Company and Deutsche Bank, the portion of the Property
attributable to the deferred Underwriters' fees ("INSTRUCTION LETTER"). You are
hereby directed and authorized to transfer the funds held in the Trust Account
immediately upon your receipt of the counsel's letter and the Instruction
Letter, in accordance with the terms of the Instruction Letter. In the event
that certain deposits held in the Trust Account may not be liquidated by the
Consummation Date without penalty, you will notify the Company of the same and
the Company shall direct you as to whether such funds should remain in the Trust
Account and be distributed after the Consummation Date to the Company or, with
respect to the deferred Underwriters' fees, to
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Deutsche Bank. Upon the distribution of all the funds in the Trust Account
pursuant to the terms hereof, the Trust Agreement shall be terminated.
In the event that the Business Combination is not consummated on the
Consummation Date described in the notice thereof and we have not notified you
on or before the original Consummation Date of a new Consummation Date, then the
funds held in the Trust Account shall be reinvested as provided in the Trust
Agreement on the business day immediately following the Consummation Date as set
forth in the notice.
Very truly yours,
TAILWIND FINANCIAL INC.
By:
-------------------------------
Name: Andrew A. McKay
Title: President and Chief Executive Officer
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EXHIBIT B
[LETTERHEAD OF COMPANY]
[Insert date]
American Stock Transfer & Trust Company
59 Maiden Lane, Plaza Level
New York, NY 10038
Attn: General Counsel
Re: Trust Account No. [ ] Termination Letter
Gentlemen:
Pursuant to paragraph 1(k) of the Investment Management Trust Agreement
between Tailwind Financial Inc. ("COMPANY") and American Stock Transfer & Trust
Company dated as of April 17, 2007 ("TRUST AGREEMENT"), this is to advise you
that the Board of Directors of the Company has voted to dissolve and
liquidate the Company. Attached hereto is a certified copy of the Certificate
of Dissolution as filed with the Delaware Secretary of State.
In accordance with the terms of the Trust Agreement, we hereby authorize
you, to commence liquidation of the Trust Account. In connection with this
liquidation, you are hereby authorized to establish a record date for the
purposes of determining the stockholders of record entitled to receive their per
share portion of the Trust Account. The record date shall be within ten (10)
days of the liquidation date, or as soon thereafter as is practicable. You will
notify the Company in writing as to when all of the funds in the Trust Account
will be available for immediate transfer ("TRANSFER DATE") in accordance with
the terms of the Trust Agreement and the Amended and Restated Certificate of
Incorporation of the Company. You shall commence distribution of such funds in
accordance with the terms of the Trust Agreement and the Amended and Restated
Certificate of Incorporation of the Company and you shall oversee the
distribution of the funds. Upon the payment of all the funds in the Trust
Account, the Trust Agreement shall be terminated.
Very truly yours,
TAILWIND FINANCIAL INC.
By:
------------------------------------------
Name: Andrew A. McKay
Title: President and Chief Executive Officer
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EXHIBIT C
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AUTHORIZED INDIVIDUAL(S) AUTHORIZED
FOR TELEPHONE CALL BACK TELEPHONE NUMBER(S)
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COMPANY:
Tailwind Financial Inc.
BCE Place, 181 Bay Street, Suite 2040
Toronto, Ontario, Canada M5J 2T3
Attn: Andrew A. McKay (416) 601-2422
TRUSTEE:
American Stock Transfer & Trust Company
59 Maiden Lane, Plaza Level
New York, NY 10038
Attn: Herb Lemmer (718) 921-8209
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