EXHIBIT 10.13
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of _________, 2005 ("Agreement"),
by and among MANHATTAN MARITIME ENTERPRISES, INC., a Delaware corporation
("Company"), each of the stockholders of the Company set forth on EXHIBIT A,
annexed hereto (collectively "Initial Stockholders") and CONTINENTAL STOCK
TRANSFER & TRUST COMPANY, a New York corporation ("Escrow Agent").
WHEREAS, the Company has entered into an Underwriting Agreement,
dated _____________, 2005 ("Underwriting Agreement"), with Ladenburg Xxxxxxxx &
Co. Inc. ("Ladenburg") acting as representative of the several underwriters
(collectively, the "Underwriters"), pursuant to which, among other matters, the
Underwriters have agreed to purchase 19,000,000 units ("Units") of the Company.
Each Unit consists of one share of the Company's common stock, par value $.0001
per share ("Common Stock"), and two Warrants, each Warrant to purchase one share
of Common Stock, all as more fully described in the Company's final Prospectus,
dated _____________, 2005 ("Prospectus") comprising part of the Company's
Registration Statement on Form S-1 (File No. 333-_______) under the Securities
Act of 1933, as amended ("Registration Statement"), declared effective on
_____________, 2005 ("Effective Date").
WHEREAS, the Initial Stockholders have agreed as a condition of
the sale of the Units to deposit their shares of Common Stock of the Company, as
set forth opposite their respective names on EXHIBIT A attached hereto
(collectively "Escrow Shares"), in escrow as hereinafter provided.
WHEREAS, the Company and the Initial Stockholders desire that the
Escrow Agent accept the Escrow Shares, in escrow, to be held and disbursed as
hereinafter provided.
IT IS AGREED:
1. APPOINTMENT OF ESCROW AGENT. The Company and the Initial
Stockholders hereby appoint the Escrow Agent to act in accordance with and
subject to the terms of this Agreement and the Escrow Agent hereby accepts such
appointment and agrees to act in accordance with and subject to such terms.
2. DEPOSIT OF ESCROW SHARES. On or before the Effective Date, each of
the Initial Stockholders shall deliver to the Escrow Agent certificates
representing his respective Escrow Shares, to be held and disbursed subject to
the terms and conditions of this Agreement. Each Initial Stockholder
acknowledges that the certificate representing his Escrow Shares is legended to
reflect the deposit of such Escrow Shares under this Agreement.
3. DISBURSEMENT OF THE ESCROW SHARES. The Escrow Agent shall hold the
Escrow Shares until the third anniversary of the Effective Date ("Escrow
Period"), on which date it shall, upon written instructions from each Initial
Stockholder, disburse each of the Initial Stockholder's Escrow Shares to such
Initial Stockholder; provided, however, that if the Escrow Agent is notified
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by the Company pursuant to Section 6.7 hereof that the Company is being
liquidated at any time during the Escrow Period, then the Escrow Agent shall
promptly destroy the certificates representing the Escrow Shares; provided
further, however, that if, after the Company consummates a Business Combination
(as such term is defined in the Registration Statement), it (or the surviving
entity) subsequently consummates a liquidation, merger, stock exchange or other
similar transaction which results in all of the stockholders of such entity
having the right to exchange their shares of Common Stock for cash, securities
or other property, then the Escrow Agent will, upon receipt of a certificate,
executed by the Chief Executive Officer or Chief Financial Officer of the
Company, in form reasonably acceptable to the Escrow Agent, that such
transaction is then being consummated, release the Escrow Shares to the Initial
Stockholders upon consummation of the transaction so that they can similarly
participate. The Escrow Agent shall have no further duties hereunder after the
disbursement or destruction of the Escrow Shares in accordance with this Section
3.
4. RIGHTS OF INITIAL STOCKHOLDERS IN ESCROW SHARES.
4.1 VOTING RIGHTS AS A STOCKHOLDER. Subject to the terms of the
Insider Letter described in Section 4.4 hereof and except as herein provided,
the Initial Stockholders shall retain all of their rights as stockholders of the
Company during the Escrow Period, including, without limitation, the right to
vote such shares.
4.2 DIVIDENDS AND OTHER DISTRIBUTIONS IN RESPECT OF THE ESCROW
SHARES. During the Escrow Period, all dividends payable in cash with respect to
the Escrow Shares shall be paid to the Initial Stockholders, but all dividends
payable in stock or other non-cash property ("Non-Cash Dividends") shall be
delivered to the Escrow Agent to hold in accordance with the terms hereof. As
used herein, the term "Escrow Shares" shall be deemed to include the Non-Cash
Dividends distributed thereon, if any.
4.3 RESTRICTIONS ON TRANSFER. During the Escrow Period, no
sale, transfer or other disposition may be made of any or all of the Escrow
Shares except (i) by gift to a member of Initial Stockholder's immediate family
or to a trust, the beneficiary of which is an Initial Stockholder or a member of
an Initial Stockholder's immediate family, (ii) by virtue of the laws of descent
and distribution upon death of any Initial Stockholder, or (iii) pursuant to a
qualified domestic relations order; PROVIDED, HOWEVER, that such permissive
transfers may be implemented only upon the respective transferee's written
agreement to be bound by the terms and conditions of this Agreement and of the
Insider Letter signed by the Initial Stockholder transferring the Escrow Shares.
During the Escrow Period, the Initial Stockholders shall not pledge or grant a
security interest in the Escrow Shares or grant a security interest in their
rights under this Agreement.
4.4 INSIDER LETTERS. Each of the Initial Stockholders has
executed a letter agreement with Ladenburg and the Company, dated as indicated
on Exhibit A hereto, and which is filed as an exhibit to the Registration
Statement ("Insider Letter"), respecting the rights and obligations of such
Initial Stockholder in certain events, including but not limited to the
liquidation of the Company.
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5. CONCERNING THE ESCROW AGENT.
5.1 GOOD FAITH RELIANCE. The Escrow Agent shall not be liable
for any action taken or omitted by it in good faith and in the exercise of its
own best judgment, and 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 Escrow Agent), 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 Escrow Agent to be
genuine and to be signed or presented by the proper person or persons. The
Escrow Agent shall not be bound by any notice or demand, or any waiver,
modification, termination or rescission of this Agreement unless evidenced by a
writing delivered to the Escrow Agent signed by the proper party or parties and,
if the duties or rights of the Escrow Agent are affected, unless it shall have
given its prior written consent thereto.
5.2 INDEMNIFICATION. The Escrow Agent shall be indemnified and
held harmless by the Company from and against any expenses, including counsel
fees and disbursements, or loss suffered by the Escrow Agent in connection with
any action, suit or other proceeding involving any claim which in any way,
directly or indirectly, arises out of or relates to this Agreement, the services
of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other
than expenses or losses arising from the gross negligence or willful misconduct
of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of
any demand or claim or the commencement of any action, suit or proceeding, the
Escrow Agent shall notify the other parties hereto in writing. In the event of
the receipt of such notice, the Escrow Agent, in its sole discretion, may
commence an action in the nature of interpleader in an appropriate court to
determine ownership or disposition of the Escrow Shares or it may deposit the
Escrow Shares with the clerk of any appropriate court or it may retain the
Escrow Shares pending receipt of a final, non-appealable order of a court having
jurisdiction over all of the parties hereto directing to whom and under what
circumstances the Escrow Shares are to be disbursed and delivered. The
provisions of this Section 5.2 shall survive in the event the Escrow Agent
resigns or is discharged pursuant to Sections 5.5 or 5.6 below.
5.3 COMPENSATION. The Escrow Agent shall be entitled to
reasonable compensation from the Company for all services rendered by it
hereunder. The Escrow Agent shall also be entitled to reimbursement from the
Company for all expenses paid or incurred by it in the administration of its
duties hereunder including, but not limited to, all counsel, advisors' and
agents' fees and disbursements and all taxes or other governmental charges.
5.4 FURTHER ASSURANCES. From time to time on and after the date
hereof, the Company and the Initial Stockholders shall deliver or cause to be
delivered to the Escrow Agent such further documents and instruments and shall
do or cause to be done such further acts as the Escrow Agent shall reasonably
request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is
protected in acting hereunder.
5.5 RESIGNATION. The Escrow Agent may resign at any time and be
discharged from its duties as escrow agent hereunder by its giving the other
parties hereto written notice and
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such resignation shall become effective as hereinafter provided. Such
resignation shall become effective at such time that the Escrow Agent shall turn
over to a successor escrow agent appointed by the Company, the Escrow Shares
held hereunder. If no new escrow agent is so appointed within the 60 day period
following the giving of such notice of resignation, the Escrow Agent may deposit
the Escrow Shares with any court it reasonably deems appropriate.
5.6 DISCHARGE OF ESCROW AGENT. The Escrow Agent shall resign
and be discharged from its duties as escrow agent hereunder if so requested in
writing at any time by the other parties hereto, jointly, provided, however,
that such resignation shall become effective only upon acceptance of appointment
by a successor escrow agent as provided in Section 5.5.
5.7 LIABILITY. Notwithstanding anything herein to the contrary,
the Escrow Agent shall not be relieved from liability hereunder for its own
gross negligence or its own willful misconduct.
6. MISCELLANEOUS.
6.1 GOVERNING LAW. This Agreement shall for all purposes be
deemed to be made under and shall be construed in accordance with the laws of
the State of New York, without giving effect to conflicts of law principles that
would result in the application of the substantive laws of another jurisdiction.
6.2 THIRD PARTY BENEFICIARIES. Each of the Initial Stockholders
hereby acknowledges that the Underwriters are third party beneficiaries of this
Agreement and this Agreement may not be modified or changed without the prior
written consent of Ladenburg.
6.3 ENTIRE AGREEMENT. This Agreement contains the entire
agreement of the parties hereto with respect to the subject matter hereof and,
except as expressly provided herein, may not be changed or modified except by an
instrument in writing signed by the party to the charged. It may be executed in
several original or facsimile counterparts, each one of which shall constitute
an original, and together shall constitute but one instrument.
6.4 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation thereof.
6.5 BINDING EFFECT. This Agreement shall be binding upon and
inure to the benefit of the respective parties hereto and their legal
representatives, successors and assigns.
6.6 NOTICES. Any notice or other communication required or
which may be given hereunder shall be in writing and either be delivered
personally or be mailed, certified or registered mail, or by private national
courier service, return receipt requested, postage prepaid, and shall be deemed
given when so delivered personally or, if mailed, two days after the date of
mailing, as follows:
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If to the Company, to:
Manhattan Maritime Enterprises, Inc.
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
If to a Stockholder, to his address set forth in Exhibit A.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
00 Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Chairman
A copy of any notice sent hereunder shall be sent to:
Xxxxxxxx Xxxx & Brandeis, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx XX 00000
Attn: Xxxxxxxx Xxxxxxxx, Esq.
and:
Ladenburg Xxxxxxxx & Co. Inc.
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx X. Xxxx
and:
Xxxxxxxx Xxxxxx
The Chrysler Building
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxx Xxxx Xxxxxx, Esq.
The parties may change the persons and addresses to which the
notices or other communications are to be sent by giving written notice to any
such change in the manner provided herein for giving notice.
6.7 LIQUIDATION OF THE COMPANY. The Company shall give the
Escrow Agent written notification of the liquidation and dissolution of the
Company in the event that the Company fails to consummate a Business Combination
within the time period(s) specified in the Prospectus.
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WITNESS the execution of this Agreement as of the date first above
written.
MANHATTAN MARITIME ENTERPRISES, INC.
By: ____________________________________
Xxxxxxxx X. Xxxxxxx
Chairman and Chief Executive Officer
INITIAL STOCKHOLDERS:
____________________________________
Xxxxxxxx X. Xxxxxxx
____________________________________
Xxxx X. Xxxxxxxxx
____________________________________
Xxxxx X. Xxxxxxx
____________________________________
Xxxxx Xxxxx Di Mizzurati
____________________________________
Xxxx X. Xxxxxxx
POTOMAC CAPITAL PARTNERS LP
By:________________________________
Xxxx X. Xxxxx
President
POTOMAC CAPITAL INTERNATIONAL LTD.
By:________________________________
Xxxx X. Xxxxx
President
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PLEIADES INVESTMENT PARTNERS-R, LP
By:________________________________
Xxxx X. Xxxxx
President
CONTINENTAL STOCK TRANSFER
& TRUST COMPANY
By:________________________________
Name:
Title:
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EXHIBIT A
Stock
Name and Address of Number Certificate Date of
Initial Stockholder of Shares Number Insider Letter
------------------- --------- ----------- --------------
Xxxxxxxx X. Xxxxxxx 950,000 1 June 30, 2005
c/o Manhattan Group Partners, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx X. Xxxxxxxxx 950,000 2 June 30, 2005
c/o Manhattan Group Partners, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx X. Xxxxxxx 950,000 3 June 30, 2005
c/o Manhattan Group Partners, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxx Xxxxx Di Mizzurati 950,000 4 June 30, 2005
c/o Manhattan Group Partners, LLC
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxx X. Xxxxxxx 273,125 5 June 30, 2005
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Potomac Capital Partners, LP 297,825 6 June 30, 2005
c/o Potomac Capital Management Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Potomac Capital International Ltd. 182,757 7 June 30, 2005
c/o Potomac Capital Management Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Pleiades Investment Partners-R, LP 196,293 8 June 30, 2005
c/o Potomac Capital Management Inc.
000 Xxxx 00xx Xxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
