EXHIBIT 10.12
INVESTMENT MANAGEMENT TRUST AGREEMENT
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This Agreement is made
as of _____________,
2005 by and
between
Manhattan Maritime Enterprises, Inc. (the "Company") and Continental Stock
Transfer & Trust Company
("Trustee").
WHEREAS, the
Company's registration statement on Form S-1, No.
333-_______ ("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, Ladenburg
Thalmann & Co. Inc. ("Ladenburg") is acting as
the representative of the underwriters in
the IPO; and
WHEREAS, as
described in the Registration Statement, and in
accordance with the Company's Certificate
of Incorporation,
$103,880,000 of the
gross proceeds of the IPO ($119,954,000 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;
(b)
Manage, supervise and
administer the Trust Account subject
to the terms and conditions set forth
herein;
(c) In a
timely manner, upon the instruction of the Company, to
invest and reinvest the Property in United States "government securities"
within the meaning of Section
2(a)(16) of the
Investment
Company Act of
1940
having a maturity of 180 days or less, 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;
(d)
Collect and receive,
when due, all
principal and income
arising from the
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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
Ladenburg, 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; and
(i)
Commence liquidation
of the Trust Account only 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 President or
Chairman of the Board and Secretary or Assistant Secretary, 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.
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 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 Trustee may not agree to settle any
Indemnified Claim without the prior written
consent of the Company. The Company
may participate in such action with its own
counsel; and
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(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).
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
