EXHIBIT 10.12
INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of __________, 2005 by and between Viceroy
Acquisition Corporation (the "Company") and
Continental Stock
Transfer & Trust
Company ("Trustee").
WHEREAS,
the Company's
Registration Statement
on Form S-1, No. _________
("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,
The Shemano Group,
Inc. (the "Shemano
Group") 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 Amended and
Restated Certificate of Incorporation,
$146,800,000 of the gross proceeds of the
IPO ($168,820,000 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
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 written instruction of the
Company, invest and reinvest the Property
in any Government
Security or in any
open ended investment company 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) of Rule 2a-7 promulgated under the
Investment Company Act of 1940. 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;
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(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 the
Shemano Group,
and to such
other person as the Company may instruct in
writing, 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 tax
obligation relating to
the income
of the Property in the Trust Account, then, at the written instruction of the
Company, the Trustee shall issue a check directly to the taxing
authorities
designated by the Company, out of the Property in the Trust
Account, in the
amount indicated by the Company as owing to
each such taxing authority; and
(j) 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, Executive Vice President or Chairman of the Board
and Secretary and
affirmed by the entire Board of Directors,
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
____________, 2007 (or the date that is the six
month anniversary of 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
____________, 2007), 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
____________, 2007 (or the date that is the six
month anniversary of 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 ____________, 2007), or as soon
thereafter as is practicable.
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, Executive Vice 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 Account.
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).
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(d) Provide to
the Trustee
any letter of
intent, agreement in
principle or definitive agreement that is executed prior
to ____________,
2007
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:
(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 pro
