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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
<PAGE>
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
<PAGE>
(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
neglig
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