Investment Management Trust Agreement

Exhibit 10.1


INVESTMENT MANAGEMENT TRUST AGREEMENT


This Agreement is made as of , 2008 by and between K Road Acquisition Corporation (the " Company" ), whose principal office is located at 333 Madison Avenue, 25th Floor, New York, New York 10017, and Continental Stock Transfer & Trust Company (" Trustee" ), located at 17 Battery Place, New York, New York 10004.


WHEREAS, the Company' s Registration Statement on Form S-1, File No. 333- (" Registration Statement" ), for its initial public offering of securities (" IPO" ) has been declared effective on , 2008 by the Securities and Exchange Commission (" Effective Date" ); and


WHEREAS, the Company has completed a private placement of 7,750,000 Warrants (the " Insider Warrants" ) on or prior to the effective date of the Registration Statement for a purchase price of $7,750,000; and


WHEREAS, Credit Suisse Securities (USA) LLC (the " Underwriter" ) is acting as the underwriter in the IPO; and


WHEREAS, as described in the Registration Statement, in accordance with the Company' s Amended and Restated Certificate of Incorporation, $298,500,000 of the net proceeds of the IPO and the sale of the Insider Warrants ($342,262,500 if the over-allotment option (the " Over-allotment Option" ) granted to the Underwriter is exercised in full), will be delivered to the Trustee as of , 2008 to be deposited and held in a trust account for the benefit of the Company, the holders of the common stock, par value $.0001 per share, of the Company (" Common Stock" ), included in the units of the Company' s securities issued in the IPO (the " Units" ), and the Underwriter. The amount to be delivered to the Trustee will be referred to herein as the " Property" or the " Base Deposit" , the stockholders for whose benefit the Trustee shall hold the Property will be referred to as the " Public Stockholders ," and the Public Stockholders, the Company and the Underwriter will be referred to together as the " Beneficiaries" ; and


WHEREAS, a portion of the Property consists of $12,750,000 (or $14,662,500 if the Underwriter' s Over-allotment Option is exercised in full) plus interest earned on such amount in the Trust Account, net of taxes payable, attributable to the Underwriter' s discount (the " Deferred Discount" ) which the Underwriter has agreed to deposit in the Trust Account (as defined below); 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.


NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements herein contained, the parties hereto agree as follows:


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 (the " Trust Account" ) established by the Trustee with [ ] and at a brokerage institution selected by the Trustee. Such selection shall be based upon consultation with the Company and if such selection is rejected by the Company than the Trustee shall select a different brokerage institution;


(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;


1


(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 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 shall become part of the " Property," as such term is used herein;


(e) Promptly notify the Company and the Underwriter 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 or the Company;


(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 the Underwriter to do so;


(h) Render to the Company and to the Underwriter, and to such other persons 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) If there is any income tax obligation relating to the income from the Property in the Trust Account or if there is any franchise or other tax obligation to which the Company is subject, then, from time to time, at the written instruction of the Company, the Trustee shall promptly 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


(j) In the event of the dissolution and liquidation of the Company in accordance with its Amended and Restated Certificate of Incorporation, commence liquidation of the Trust Account only upon receipt of and only in accordance with the terms of a letter (the " Termination Letter" ), in a form substantially as set forth as Exhibit A or Exhibit B hereto, 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 as part of the Company' s plan of dissolution and liquidation. The Trustee understands and agrees that, except as provided in this Section 1(j) and Section 2 hereof, disbursements from the Trust Account shall be made only pursuant to a duly executed Termination Letter, together with the other documents referenced herein, including, without limitation, an independently certified oath and report of inspector of election in respect of the stock vote in favor of the Business Combination. As used in this Agreement, the term " Business Combination" means the merger, capital stock exchange, asset acquisition, stock purchase, reorganization, exchangeable share transaction, joint venture or other similar business combination having a fair market value of at least 80% of the net assets of the Trust Account (net of taxes and exclusive of any amounts subject to conversion (as described in the Registration Statement) amounts permitted to be disbursed for working capital purposes and the Deferred Discount) at the time of the signing of a definitive agreement in connection with the Business Combination and resulting in ownership by the Company of at least a controlling interest of any such target business. As used herein, a " controlling interest" shall be ownership of at least 50% of the voting equity in a target business, or such lesser percentage of the voting equity of the target business that provides Company with the power to vote on or direct the affairs of the target business.


2


(k) The Trustee, upon consultation with and receipt of written instruction from the Company and the Underwriter, shall deliver a notice to Public Stockholders of record as of the Termination Date, by U.S. mail or via the Depository Trust Company (" DTC" ), within five days of the Termination Date, to notify the Public Stockholders of such event and take such other actions as the Company and the Underwriter may direct to inform the Beneficiaries. Thereafter, the Trustee shall deliver to each Public Stockholder its ratable share of the Property against satisfactory evidence of delivery of the stock certificates by the Public Stockholders to the Company through DTC, its Deposit Withdraw Agent Commission (DWAC) system or as otherwise presented to the Trustee.


2. Limited Distributions of Interest Income on Property .


(a) If there is any income tax obligation relating to the income from the Property in the Trust Account, or if there is any franchise or other tax obligation to which the Company is subject, then, at the written instruction of the Company, the Trustee shall disburse to the Company or the Internal Revenue Service or other appropriate state or taxing authority by wire transfer or check (as directed by the Company in its instruction letter), out of the Property in the Trust Account, the amount indicated by the Company as required to pay income, franchise or other taxes.


(b) In addition to any distribution pursuant to Section 2(a) above, upon written request from the Company containing certification that such distribution pursuant to this Section 2(b) shall only be used to fund the working capital requirements of the Company, the Trustee shall distribute to the Company an amount up to $3,500,000 of the interest earned and collected on the Property in the Trust Account through the last day of the month immediately preceding the date of receipt of the Company' s written request.


(c) In addition to any distribution pursuant to Sections 2(a) and 2(b) above, upon written request from the Company as provided in Section 3(a), the Trustee shall distribute to the Converting Stockholders (as defined below) a pro rata portion of the interest earned and collected on the Property on the shares of Common Stock sold as part of the Units in the IPO (the " IPO Shares" ), converted by the Converting Stockholders.


(d) It is acknowledged and agreed by the parties hereto that with respect to all requests for distributions to or on behalf of the Company pursuant to this Section 2, the Trustee' s only responsibility is to follow the instruction of the Company.


3. Limited Distributions of Property .


(a) In the event the Company seeks approval of an Extension Amendment, , as set forth in the Company' s Amended and Restated Certificate of Incorporation, and such Extension Amendment is approved by the Company' s stockholders as provided in the Company' s Amended and Restated Certificate of Incorporation, the Trustee shall, upon and in accordance with the written instruction of the Company, disburse to the Public Stockholders who voted against the Extension Amendment (the " Converting Stockholders" ) and gave notice of exercise of their conversion rights, by wire transfer or check (as directed by the Company in its instruction letter) and out of the Property, the amount indicated by the Company as required to pay the Public Stockholders electing to exercise their conversion rights in connection with the stockholder vote on the Extension Amendment.


(b) Except as provided in Sections 1(i), 1(j), 1(k), Section 2 or Section 3(a), no other distributions from the Trust Account shall be permitted.


3


(c) It is acknowledged and agreed by the parties hereto that with respect to all requests for distributions to or on behalf of the Company pursuant to this Section 3, the Trustee' s only responsibility is to follow the instruction of the Company.


4. Agreements and Covenants of the Company . The Company hereby agrees and covenants:


(a) To provide all instructions to the Trustee hereunder in writing, signed by the Company' s Chief Executive Officer. In addition, except with respect to its duties under Sections 1(i), 1(j), 1(k), 2 and 3(a), 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 and/or the Underwriter shall promptly confirm such instructions in writing;


(b) To hold the Trustee harmless and indemnify the Trustee fr ...