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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 institut
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