PLACEMENT UNIT AGREEMENT
PLACEMENT
UNIT AGREEMENT (this
“Agreement”) made
as
of this ____ day of _______________ between Energy Infrastructure Acquisition
Corp., a Delaware corporation (the “Company”), Maxim Group LLC (“Maxim”) and the
undersigned (the “Purchasers”).
WHEREAS,
the Company has filed with the Securities and Exchange Commission (“SEC”) a
registration statement on Form S-1, as amended (the “Registration Statement”),
in connection with the Company’s initial public offering (the “IPO”) of up to
17,250,000 units, each unit (“Unit”) consisting of one share of the Company’s
common stock, $.0001 par value (the “Common Stock”), and (ii) one warrant (the
“Warrants”), each Warrant to purchase one share of Common Stock;
and
WHEREAS,
the Company desires to sell in a private placement pursuant to Regulation
S
under the Securities Act of 1933, as amended (the “Securities Act”), to the
Purchasers (the “Placement”) an aggregate of 825,398 units (the “Placement
Units”) substantially identical to the Units being issued in the IPO pursuant to
the terms and conditions hereof and as set forth in the Registration Statement,
except that the Placement Units, Common Stock and Warrants to be issued in
the
Placement shall not be registered under the Securities Act; and
WHEREAS,
the Purchasers have agreed, directly or through nominees, to purchase an
aggregate of 825,398 Placement Units at a purchase price of $10.00 per Placement
Unit, or an aggregate of $8,253,980 (the “Purchase Price”); and
WHEREAS,
the Warrants included in the Placement Units shall be governed by the Warrant
Agreement filed as an exhibit to the Registration Statement; and
WHEREAS,
Maxim is acting as placement agent for the Placement;
NOW,
THEREFORE, for and in consideration of the premises and the mutual covenants
hereinafter set forth, the parties hereto do hereby agree as
follows:
1. Closing.
The
closing of the purchase and sale of the Placement Units (the “Closing”) will
take place upon the earlier of (i) four days prior to the effective date of
the Company's IPO or (ii) December 31, 2006 (the “Closing Date”).
Immediately prior to the closing of the IPO, the Company shall deposit the
Purchase Price into the trust account described in the Registration Statement
(the “Trust Account”).
2. Placement
Fees.
The
Company agrees that Maxim is entitled to a placement fee equal to 6% of the
Purchase Price. Of such 6% placement fee, Maxim agrees that (i) 5% of such
fee
("Deferred Fees") shall be paid by the Company from the interest earned on
the
Trust Account (net of taxes payable and otherwise available to the Company)
in
four quarterly installments of $103,174.75, following the consummation of
the IPO, but only after the first full quarter after the Company has drawn
an
aggregate of $1 million in accrued interest from the Trust Account to fund
working capital and other expenses and (ii) 1% of the Purchase Price
($82,540) (the “Placement Contingency Fee”) will be deposited into and held in
the Trust Account and will be payable to Maxim only upon the consummation
of a
“Business Combination” as described in the Registration Statement. In the event
that the Company does not consummate a Business Combination in the time
described in the Registration Statement and the Trust Account is liquidated,
Maxim agrees it shall have forfeited all rights and claims whatsoever to
the
Placement Contingency Fee. Notwithstanding the above payment schedule with
respect to the Deferred Fees, any balance due of the Deferred Fees shall
be paid
upon the earlier to occur of the consummation of a Business Combination or
dissolution and liquidation of the Company.
3. Representations
and Warranties of the Company, Maxim and the Purchasers.
3.1 Each
of
the Company and Maxim warrants and represents to one another and to the
Purchasers that such party has, nor have their respective affiliates, nor
any
person acting on their behalf (i) offered or sold the Placement Units within
the
United States, or to any “U.S. Person” (within the meaning of 902(k) of
Regulation S under the Securities Act), or (ii) offered or sold the Placement
Units by means of any “Directed Selling Efforts” (within the meaning of Rule
902(c) of Regulation S under the Securities Act).
3.2 Each
of
Maxim, the Company and the Purchasers have the full right, power and authority
to enter into this Agreement and this Agreement is a valid and legally binding
obligation of Maxim, the Company and the Purchasers enforceable against them
in
accordance with its terms.
4. Voting
of Shares.
If the
Company solicits approval of its stockholders of a Business Combination,
the
Purchasers shall vote all of the shares of the Common Stock acquired by the
Purchasers (i) pursuant to this Agreement, (ii) in the IPO and (iii) in the
aftermarket following the IPO in favor of the Business Combination.
5. Waiver
of Liquidation Distributions.
In
connection with the Placement Units purchased pursuant to this Agreement,
the
Purchasers hereby waive any and all right, title, interest or claim of any
kind
in or to any liquidating distributions by the Company in the event of a
liquidation of the Company upon the Company's failure to timely complete
a
Business Combination. For purposes of clarity, any shares of Common Stock
purchased in the IPO or the aftermarket by the Purchasers shall be eligible
to
receive any liquidating distributions by the Company.
6. Restrictions
on Transfer.
The
Purchasers agree to be bound by the transfer restrictions contained in that
certain subscription agreement dated January 2, 2006 between the Company
and
Xxxxxx Xxxxxxxx (the “Subscription Agreement”).
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7. Waiver
of Claims; Indemnification. Each
Purchaser hereby waives any and all rights to assert any present or future
claims, including any right of rescission, against the Company, Maxim or
the
other underwriters in the IPO exclusively with respect to their purchase
of the
Placement Units hereunder, and each Purchaser agrees to indemnify and hold
the
Company, Maxim and the other underwriters in the IPO harmless from all losses,
damages or expenses that relate to claims or proceedings brought against
the
Company, Maxim or such other underwriters by such Purchaser of the Placement
Units arising solely out of the purchase of the Placement Units
hereunder.
8. Transfers
and Assigns.
In the
event a Purchaser transfers or assigns any interest in the Placement Units,
any
such transferee or assignee, as a condition precedent to such transfer or
assignment, shall agree to be bound by the terms of this Agreement and the
Subscription Agreement. Such agreement to be bound shall be evidenced by
an
agreement, in form and substance satisfactory to the Company, duly executed
by
and among the Company, the Purchaser and the Purchaser’s transferee or
assignee.
9. Counterparts;
Facsimile.
This
Agreement may be executed in any number of counterparts, each of which when
so
executed shall be deemed to be an original and all of which taken together
shall
constitute one and the same instrument. This Agreement or any counterpart
may be
executed via facsimile transmission, and any such executed facsimile copy
shall
be treated as an original.
10.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. Each of the
parties hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced
in
the courts of the State of New York or the United States District Court for
the
Southern District of New York, and irrevocably submits to such jurisdiction,
which jurisdiction shall be exclusive. Each of the parties hereby waives
any
objection to such exclusive jurisdiction and that such courts represent an
inconvenient forum.
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IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of the __
day
of ____________ , 2006.
| ENERGY INFRASTRUCTURE ACQUISITION CORP. | ||
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| By: | ||
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Xxxxxx Xxxxxxxxxxxxx, Chief Financial Officer |
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| MAXIM GROUP LLC | ||
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| By: | ||
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| PURCHASERS | ||
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