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 Xxxx 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 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 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, 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;
(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; and
(h) Pay any taxes on behalf of the Trust Account (it being
expressly understood that as set forth in Section 1 (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).
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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 days of receipt of the resignation notice from the Trustee, the
Trustee may submit an application to have the 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;
(b) At such time that the Trustee has completed the liquidation of
the Trust Account in accordance with the provisions of paragraph 1(i) 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); or
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 shall be governed by and construed and enforced
in accordance with the laws of the State of Delaware, without giving effect to
conflict of laws. It may be executed in several counterparts, each one of which
shall constitute an original, and 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, however, that (i) such action
shall not have a material adverse effect on the interests of the Public
Stockholders; and (ii) no such change, amendment or modification may be made
without the prior written consent of The Shemano Group. 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) The parties hereto consent to the jurisdiction and venue of
any state or federal court located in the City of Los Angeles for purposes of
resolving any disputes hereunder.
(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 private courier service, by certified mail
(return receipt requested), by hand delivery or by facsimile transmission:
If to the Trustee, to:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx
Fax No.: (000) 000-0000
If to the Company, to:
Viceroy Acquisition Corporation
000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxx 00000
Attn: Chief Executive Officer
Fax No.: ( ) ______ - ________
in either case with a copy to:
The Shemano Group, Inc.
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Xxxx Xxxxxxx
Fax No.: (000) 000-0000
(f) This Agreement may not be assigned by the Trustee without the
prior consent of the Company.
(g) 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 the Trust Account, including by way of set-off, and shall not be
entitled to any funds in the Trust Account under any circumstance.
(h) The Trustee hereby waives any and all right, title, interest
or claim of any kind ("Claim") in or to any distribution of the Trust Account,
and hereby agrees not to seek recourse, reimbursement, payment or satisfaction
for any Claim against the Trust Account for any reason whatsoever.
(i) The Trustee hereby consents to the inclusion of Continental
Stock Transfer & Trust Company in the Registration Statement and other materials
relating to the IPO.
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IN WITNESS WHEREOF, the parties have duly executed this Investment
Management Trust Agreement as of the date first written above.
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, as Trustee
By:
-------------------------------
Name:
Title:
VICEROY ACQUISITION CORPORATION
By:
-------------------------------
Name: Xxx X. Xxxxxx
Title: Chief Executive Officer
5
EXHIBIT A
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Trust Account No. Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement
between Viceroy Acquisition Corporation ("Company") and Continental Stock
Transfer & Trust Company ("Trustee"), dated as of ____________ , 2005 ("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 48 hours in
advance of the actual date of the consummation of the Business Combination
("Consummation Date").
Pursuant to paragraph 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 funds
held in the Trust Account will be immediately available for transfer to the
account or accounts that the Company shall direct on the Consummation Date.
On the Consummation Date (i) counsel for the Company shall deliver to you
written notification that (a) the Business Combination shall be consummated
immediately after receipt of the funds held in the Trust Account and (b) the
provisions of Section 11-51-302(6) and Rule 51-3.4 of the Colorado Statute, if
applicable, have been met, and (ii) the Company shall deliver to you written
instructions with respect to the transfer of the funds held in the Trust Account
("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. 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,
VICEROY ACQUISITION CORPORATION
By:
-------------------------------
A-1
EXHIBIT B
[LETTERHEAD OF COMPANY]
[INSERT DATE]
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx Xxxxxx
Re: Trust Account No. Termination Letter
Gentlemen:
Pursuant to paragraph 1(i) of the Investment Management Trust Agreement
between Viceroy Acquisition Corporation ("Company") and Continental Stock
Transfer & Trust Company ("Trustee"), dated as of , 2005 ("Trust Agreement"),
this is to advise you that as a result of the Company's inability to effect a
Business Combination with a Target Company within the time frame specified in
the Company's prospectus relating to its IPO, the Board of Directors of the
Company has voted to dissolve and liquidate the Company. Attached hereto is a
copy of the minutes of the meeting of the Board of Directors of the Company
relating thereto, certified by the Secretary of the Company as true and correct
and in full force and effect.
In accordance with the terms of the Trust Agreement, we hereby (a) certify
to you that the provisions of Section 11-51-302(6) and Rule 51-3.4 of the
Colorado Statute have been met and (b) 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,
VICEROY ACQUISITION CORPORATION
By:
-------------------------------
B-1
EXHIBIT C
AUTHORIZED INDIVIDUAL(S) AUTHORIZED
FOR TELEPHONE CALL BACK TELEPHONE NUMBER(S)
--------------------------------- --------------------
COMPANY:
Viceroy Acquisition Corporation
0000 Xxxxxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxx, XX 00000
Attn: Chief Executive Officer (000) 000-0000
TRUSTEE:
Continental Stock Transfer
& Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxx X. Xxxxxx, Chairman [Telephone]
C-1
