INVESTMENT MANAGEMENT TRUST AGREEMENT
This
Agreement is made as of _________, 2006 by and between Energy Infrastructure
Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust
Company (“Trustee”).
WHEREAS,
the Company’s Registration Statement on Form S-1, File No. 333-131648
(“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,
the Company has issued securities in a private placement (the “Placement”); and
WHEREAS,
Maxim Group LLC (“Maxim”) is acting as the representative of the underwriters
(the “Underwriters”) in the IPO and acted as placement agent for the Placement;
and
WHEREAS,
as described in the Company’s Registration Statement, (i) in accordance with the
Company’s Amended and Restated Certificate of Incorporation, $210,571,020 of the
net proceeds of the IPO ($242,623,520 if the Underwriters’ over-allotment option
is exercised in full), (ii) in accordance with the Placement Unit Agreement,
dated as of _______, 2006, among the Company, Maxim and certain purchasers,
$8,171,435 of the net proceeds of the Placement (together with the IPO proceeds,
the “Base Deposit”) and $82,540 of the net proceeds of the placement
representing a portion of Maxim’s placement fees (the “Contingent Fee”), (iii)
in accordance with the Underwriting Agreement, dated as of ________, 2006,
between the Company and Maxim, as representative of the Underwriters, an
additional $2,250,000 ($3,262,500 if the Underwriters’ over-allotment option is
exercised in full), representing a portion of the Underwriters’ discount (the
“Contingent Discount”), (iv)
in
accordance with the terms of the convertible promissory note dated June __,
2006
between the Company and ________, an entity incorporated under the laws of
the
Cayman Islands (such entity, the “Note Payee” and such note, the “Promissory
Note”), $3,675,000 ($4,350,000 if the over-allotment option is exercised in
full;
in
either case, such delivered amount, the “Principal Amount” of the Promissory
Note), and (v) in accordance with the terms of a promissory note in the
principal amount of $250,000 dated June __, 2006 between Xx. Xxxxxx Xxxxxxxx
and
the Company (the “Term Note”), $250,000 will
be
delivered to the Trustee as of ______ to be deposited and held in a trust
account for the benefit of the Company, the public 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 Maxim and
the Underwriters. 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, the Company and Maxim and the Underwriters 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;
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 (“Trust Account”)
established by the Trustee with Xxxxxx Brothers Inc.;
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(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 “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) under Rule 2a-7
promulgated under the Investment Company Act of 1940;
(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 Maxim 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 Maxim to do so;
(h)
Render to the Company and to Maxim, 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;
(i)
Commence liquidation of the Trust Account upon receipt of the
Officers Certificate signed by the Chief Executive Officer and Chief Financial
Officer in accordance with the terms of a letter (“Termination Letter”), in a
form substantially similar to that attached hereto as Exhibit
A or
Exhibit
B ,
signed
on behalf of the Company by its Chief Executive Officer and Chief Financial
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 approved by the Company’s
stockholders. The directions given by such documents shall include the
instruction that a distribution to the Note Payee in the amount of
$3,675,000 ($4,350,000 if the over-allotment option is exercised in full),
plus
interest accrued thereon since the date of the most recent prior Note Interest
Payment Date (as defined in Section 2(c) of this Agreement), at a per annum
rate
equivalent to the per annum interest rate applied to funds held in the Trust
Account since such Note Interest Payment Date, shall be made after the
distribution to each Public Stockholder of an amount equal to $10.00 for each
share represented by certificates delivered by such Public Stockholder to the
Company or the Trustee as prescribed in Paragraph (i) of Section 1(j)
of this Agreement, but before the distribution to each Public Stockholder of
the
remainder, if any, of its ratable share of the Property. The Trustee
understands and agrees that, except as provided in 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 stockholder vote in favor
of
the Business Combination (as hereinafter defined). In all cases, the Trustee
shall provide Maxim with a copy of any Termination Letters, Officers
Certificates and/or any other correspondence that it receives with respect
to
any proposed withdrawal from the Trust Account promptly after it receives same.
As used in this Agreement, the term “Business Combination” means the acquisition
by the Company, through merger, capital stock exchange, asset or stock
acquisition of, or similar business combination with, one or more entities
with agreements to acquire vessels or an operating business in the
refining, terminalling or transportation of energy industry as more fully
described in the prospectus forming a part of the Registration Statement; and
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(j)
(i) Subject to the limitations and conditions set
forth in paragraph (ii) of this section 1(j), as of the date 18
months from the date of this Agreement (the “LOI Termination Date”) (or 24
months from the date hereof in the event the Company has executed a Letter
of
Intent (defined below) prior to the LOI Termination Date but failed to
consummate a Business Combination (“Second Termination Date”)), commence
liquidation of the Trust Account as part of the Company’s plan
of
dissolution and liquidation approved by the Company’s stockholders.
The Trustee, upon consultation with the Company and Maxim, shall deliver a
notice to Public Stockholders of record as of the LOI Termination Date or Second
Termination Date, whichever the case may be, by U.S. mail or via the Depository
Trust Company (“DTC”), within five days of the LOI Termination Date or Second
Termination Date, to notify the Public Stockholders of such event and take
such
other actions as it may deem necessary to inform the Beneficiaries. 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.
(ii)
Paragraph (i)
of this
Section 1(j) shall be subject to the following conditions and limitations:
(x)
If the Trustee receives a bona fide, executed letter of intent, agreement in
principle or engagement letter (a “Letter of Intent”) for a Business Combination
prior to the LOI Termination Date accompanied by an Officers Certificate as
described in Section 3(e) hereof, then the Trustee shall forego or suspend
any
liquidation of the Trust Account until the earlier of a Business Combination
or
the Second Termination Date.
(y)
If, on the date on which the Trustee is to begin delivery to each Public
Stockholder of its ratable share of the Property, the Trustee has not received
notice that the Note Payee has elected to convert its convertible loan
into common stock of the Company, then the Trustee shall deliver the Property
according to the following schedule: First,
it will
deliver to each Public Stockholder an amount equal to $10.00 for each share
represented by certificates delivered by such Public Stockholder to the Company
or the Trustee as prescribed in Paragraph (i)
of
Section 1(j) of this Agreement. Second,
it will
deliver payment to the Note Payee in the amount of $3,675,000
($4,350,000 if the over-allotment option is exercised in full), plus interest
accrued thereon since the most recent Note Interest Payment Date (as defined
in
Section 2(c) of this Agreement) at a per annum rate equivalent to the per
annum
interest rate applied to funds held in the Trust Account since such Note
Interest Payment Date. Third,
it will
deliver to each Public Stockholder the remainder, if any, of its ratable
share
of the Property.
2.
Limited
Distributions of Income on Property .
(a)
Upon receipt by the Trustee of an Officer’s Certificate signed by
the Chief Executive Officer and Chief Financial Officer of the Company
certifying as true, accurate and complete a copy of any tax return required
to
be filed on behalf of the Trust Account in respect of income earned on the
Property held therein, the Trustee shall deliver to the Company for submission
to the appropriate taxing authority a check made payable to the order of such
taxing authority in the amount required to pay such taxes; provided
,
however
,
that in
no event shall the aggregate amount of all checks issued to taxing authorities
pursuant to this Section 2(a) exceed the income in respect of which such taxes
are due and owing.
(b)
Upon written request from the Company, the Trustee shall distribute
to the Company an amount equal to up to $3,363,000 ($3,665,000 if the
Underwriters’ over-allotment option is exercised in full) of the income earned
on the Base Deposit, net of taxes payable, through the last day of the month
immediately preceding the date of receipt of the Company’s written request;
provided, however, that any distribution pursuant to this Section 2(b) shall
only be used to fund the working capital requirements of the Company and the
costs related to identifying, researching and acquiring a prospective target
businesses, including $412,699 payable to Maxim as fees and expenses
relating to the Placement, in each case as described in the prospectus that
forms a part of the Registration Statement.
(c) On
every March 31, June 30, September 30, and December 31 prior to the LOI
Termination Date (or, in the event the Company has executed a letter of intent
prior to the LOI Termination Date but failed to consummate a Business
Combination, the Second Termination Date; in either case, each such date a
“Note
Interest Payment Date”), the Trustee shall make payment to the Note Payee of
interest on the Principal Amount of the Promissory Note accrued during the
quarterly period ended on such date at a per annum rate equivalent to the per
annum interest rate applied to funds held in the Trust Account during such
quarterly period; provided, however, that (i) if the first scheduled interest
payment represents interest
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accrued
during a period less than one full quarterly period, such payment shall be
deferred until the date of the next occurring Note Interest Payment Date,
(ii)
if interest shall be due on a day that is not a Business Day, it shall be
payable on the next occurring Business Day; and (iii) no such interest shall
be
paid or payable until the expiration of the first full quarter after the
date on
which the Company has drawn interest from the Trust Account aggregating to
$1,000,000. For purposes of this Section 2(c), the term “Business Day” shall
mean any day other than a Saturday, Sunday or day on which national banks
in New
York, New York are not open for business.
(d)
(i)
Subject to the limitations and conditions set forth in paragraphs (ii),
(iii)
and
(iv) of this Section 2(d), upon either the consummation of
a Business Combination or the LOI Termination Date (or, in the event the
Company
has executed a letter of intent prior to the LOI Termination Date but failed
to
consummate a Business Combination, the Second Termination Date), the
Trustee shall deliver payment to the Note Payee in the amount of the Principal
Amount of the Promissory Note, plus interest accrued thereon, since the date
of
the most recent prior Note Interest Payment Date, at a per annum rate equivalent
to the per annum interest rate applied to funds held in the Trust Account
since
such Note Interest Payment Date.
(ii)
The Trustee shall not make the payment described in paragraph (i)
of this
Section 2(d) if the Trustee has received notice, in the form of a letter
in
substantially the form attached hereto as Exhibit D and signed by Xx.
Xxxxxx Xxxxxxxx, of the Note Payee’s desire to convert the Note into shares
pursuant to the terms of the Note.
(iii)
The Trustee shall not make the payment described in paragraph (i)
of this
Section 2(d) unless it has first received a Termination Letter in substantially
the form attached hereto as Exhibit A or Exhibit B, notifying the Trustee
that
the Company has either consummated a Business Combination or adopted a
stockholder-approved plan of dissolution and liquidation.
(iv)
The Trustee shall not make any payment of interest described in paragraph
(i)
of this
Section 2(d) until after the Trustee has done the following: (A) in case
a
Business Combination has been consummated, distributed to each Public
Stockholder that has exercised its right to redeem its IPO Shares as described
in greater detail in the Registration Statement $10.00 for each IPO share
redeemed by such stockholder; and (B) in case of a dissolution and liquidation
of the Company, distributed to each Public Stockholder at least $10.00 for
each
IPO Share held by such Public Stockholder.
(e)
Upon receipt by the Trustee of a written request from the Company for
distributions from the Trust Account in connection with a plan of dissolution
and distribution, accompanied by an Officers Certificate signed by the Chief
Executive Officer and Chief Financial Officer of the Company certifying as
true,
accurate and complete (i) a statement of the amount of actual expenses incurred
or, where known with reasonable certainty, imminently to be incurred by the
Company in connection with its dissolution and distribution, including any
fees
and expenses incurred or imminently to be incurred by the Company in connection
with seeking stockholder approval of the Company’s plan of dissolution and
distribution, and (ii) any amounts due to pay creditors or required to reserve
for payment to creditors, the Trustee shall distribute to the Company an
amount
equal to the income earned on the Property through the last day of the month
immediately preceding the date of receipt of the Company’s written request;
provided, however, that any distribution pursuant to this Section 2(e) shall
only be used to fund the amount of actual expenses incurred or imminently
to be
incurred by the Company in connection with its dissolution and liquidation,
including any fees and expenses incurred or imminently to be incurred by
the
Company in connection with seeking stockholder approval of the Company’s plan of
dissolution and liquidation.
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(f)
Upon the expiration of the second full quarter after the date on which the
Trustee has distributed to the Company accrued interest on the Trust Account
in
an aggregate amount of at least $1,000,000 to fund the Company’s working capital
under Section 2(b) above, the Trustee shall deliver from the Trust Account
to
the Note Payee (i) $250,000, representing the principal amount of the
Term Note, and (ii) interest accrued on such amount at the per annum rate
interest rate applied to funds in the Trust Account during the same period
that
such loan is outstanding.
(g)
Except as provided in this Section 2, no other distributions from
the Trust Account shall be permitted except in accordance with Sections 1(i)
and
1(j) hereof.
3.
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 and Chief Financial Officer. In
addition, except with respect to its duties under paragraph 1(i) and 1(j) 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 and/or Maxim shall promptly confirm
such
instructions in writing;
(b)
To 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 Company shall have the right to conduct and manage the defense
against such Indemnified Claim, provided that the Company shall obtain the
consent of the Trustee with respect to the selection of counsel, which
consent shall not be unreasonably withheld. The Company may not agree to
settle any Indemnified Claim without the prior written consent of the Trustee.
The Trustee may participate in such action with its own counsel at its own
expense;
(c)
To 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 Account. The Company shall not be responsible for
any
other fees or charges of the Trustee except as may be provided in paragraph
3(b)
hereof (it being expressly understood that the Property shall not be used to
make any payments to the Trustee under such paragraph);
(d)
That, in the event that the Company consummates a Business
Combination and the Trust Account is liquidated in accordance with Section
1(i)
hereof, the Trustee or another independent party designated by Maxim shall
act
as the inspector of election to certify the results of the stockholder
vote;
(e)
That the Officers Certificate referenced in Sections 1(i) and 1(j)
hereof shall require the Company’s Chief Executive Officer and Chief Financial
Officer to each certify the following (wherever applicable): (1) prior to the
LOI Termination Date, the Company has entered into a bona fide Letter of Intent
with a target business; and/or (2) prior to the LOI Termination Date, the
Company has entered into a Business Combination with a target business, the
terms of which are consistent with the requirements set forth in the
Registration Statement; and/or (3) prior to the Second Termination Date, the
Company has entered into a Business Combination with a target business, the
terms of which are consistent with the requirements set forth in the
Registration Statement; and (4) the Board of Directors (the “Board”) pursuant to
the unanimous written consent of the Board has approved (where applicable):
(i)
the Letter of Intent; and/or (ii) the Business Combination. A copy of such
consent and the Letter of Intent and/or the definitive agreement relating to
the
Business Combination so approved shall be attached as an exhibit to the Officers
Certificate;
5
(f)
In
connection with any vote of the Company’s stockholders regarding a Business
Combination, to provide to the Trustee an affidavit or certificate of a firm
regularly engaged in the business of soliciting proxies and tabulating
stockholder votes (which firm may be the Trustee) verifying the vote of the
Company’s stockholders regarding such Business
Combination;
(g)
In
connection with any vote of the Company’s stockholders regarding a dissolution
and liquidation, to provide to the Trustee an affidavit or certificate of
a firm
regularly engaged in the business of tabulating stockholder votes (which
firm
may be the Trustee) verifying the vote of the Company’s stockholders regarding
such dissolution and liquidation;
(h)
Within five business days after the Underwriters’ over-allotment option (or any
unexercised portion thereof) expires or is exercised in full, to provide
the
Trustee notice in writing (with a copy to the Underwriters) of the total
amount
of the Contingent Fee and Contingent Discount, which shall in no event be
less
than $2,332,540; and
(i)
To
promptly notify the Trustee of any decision by the Note Payee to
convert its convertible loan into shares of Common Stock by forwarding to
the
Trustee a letter in substantially the form attached hereto as Exhibit D at
least
[ two full ] business days before such conversion
occurs.
4.
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 Sections 1 and 2 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 written 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 Section 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 rely conclusively and shall
be
protected in acting upon any order, notice, demand, certificate, opinion or
advice of counsel (including counsel chosen by the Trustee), 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
Trustee, in good faith, to be genuine and to be signed or presented by the
proper person or persons. The Trustee shall not be bound by any notice or
demand, or any waiver, modification, termination or rescission of this agreement
or any of the terms hereof, unless evidenced by a written instrument delivered
to the Trustee signed by the proper party or parties and, if the duties or
rights of the Trustee are affected, unless it shall give its prior written
consent thereto;
6
(g)
Verify the correctness of the information set forth in the
Registration Statement or to confirm or assure that any acquisition made by
the
Company or any other action taken by it is as contemplated by the Registration
Statement; and
(h)
Pay any taxes on behalf of the Trust Account (it being expressly
understood that the Trustee’s sole obligation with respect to taxes shall be to
issue the checks with respect thereto provided for by Section 2(a) hereof).
5.
Certain
Rights Of Trustee .
(a)
Before the Trustee acts or refrains from acting, it may require an
Officers Certificate or opinion of counsel or both. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance on
such Officers Certificate or opinion of counsel. The Trustee may consult with
counsel and the advice of such counsel or any opinion of counsel shall be full
and complete authorization and protection from liability in respect of any
action taken, suffered or omitted by it hereunder in good faith and in reliance
thereon.
(b)
The Trustee may act through its attorneys and agents and shall not
be responsible for the misconduct or negligence of any agent appointed with
due
care.
(c)
The Trustee shall not be liable for any action it takes or omits to
take in good faith that it believes to be authorized or within the rights or
powers conferred upon it by this Agreement.
(d)
The Trustee shall not be responsible for and makes no
representation as to the validity or adequacy of this Agreement; it shall not
be
accountable for the Company’s use of the proceeds from the Trust Account.
Notwithstanding the effective date of this Agreement or anything to the contrary
contained in this Agreement, the Trustee shall have no liability or
responsibility for any act or event relating to this Agreement or the
transactions related thereto which occurs prior to the date of this Agreement,
and shall have no contractual obligations to the Beneficiaries until the date
of
this Agreement.
6.
Termination
.
This
Agreement shall terminate as follows:
(a)
If the Trustee gives written notice to the Company that it desires
to resign under this Agreement, the Company shall use its reasonable efforts
to
locate a successor trustee during which time the Trustee shall continue to
act
in accordance with the terms of this Agreement. At such time that the Company
notifies the Trustee that a successor trustee has been appointed by the Company
and has agreed to become subject to the terms of this Agreement, the Trustee
shall transfer the management of the Trust Account to the successor trustee,
including, but not limited to, the transfer of copies of the reports and
statements relating to the Trust Account, whereupon this Agreement shall
terminate; provided, however, that, in the event that the Company does not
locate a successor trustee within ninety days of receipt of the resignation
notice from the Trustee, the Trustee may, but shall not be obligated to, submit
an application to have the Property deposited with the United States District
Court for the Southern District of New York and upon such deposit, the Trustee
shall be immune from any liability whatsoever that arises due to any actions
or
omissions to act by any party after such deposit;
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(b)
At such time that the Trustee has completed the liquidation of the
Trust Account in accordance with the provisions of Section 1(i) hereof, and
distributed the Property in accordance with the provisions of the Termination
Letter, this Agreement shall terminate except with respect to Section 3(b);
or
(c)
At such time that the Trustee has completed the liquidation of the
Trust Account and distributed the Property in accordance with Sections 1(i)
and
1(j) hereof, this Agreement shall terminate except with respect to Section
3(b).
7.
Miscellaneous
.
(a)
The Company and the Trustee each acknowledge that the Trustee will
follow the security procedures set forth below with respect to funds transferred
from the Trust Account. Upon receipt of written instructions, the Trustee will
confirm such instructions with an Authorized Individual at an Authorized
Telephone Number listed on the attached Exhibit
C .
The
Company and the Trustee will each restrict access to confidential information
relating to such security procedures to authorized persons. Each party must
notify the other party immediately if it has reason to believe unauthorized
persons may have obtained access to such information, or of any change in its
authorized personnel. In executing funds transfers, the Trustee will rely upon
account numbers or other identifying numbers of a beneficiary, beneficiary’s
bank or intermediary bank, rather than names. The Trustee shall not be liable
for any loss, liability or expense resulting from any error in an account number
or other identifying number, provided it has accurately transmitted the numbers
provided.
(b)
This Agreement shall be governed by and construed and enforced in
accordance with the laws of the State of Delaware, without giving effect to
conflict of laws. It may be executed in several counterparts, each one of which
shall constitute an original, and together shall constitute but one instrument.
Facsimile signatures shall constitute original signatures for all purposes
of
this Agreement.
(c)
This Agreement contains the entire agreement and understanding of
the parties hereto with respect to the subject matter hereof. This Agreement
or
any provision hereof may only be changed, amended or modified by a writing
signed by each of the parties hereto; provided, however, that no such change,
amendment or modification may be made without the prior written consent of
Maxim, who, along with each other Underwriter, the parties specifically
agree, is and shall be a third party beneficiary for purposes of this
Agreement; and provided further, any amendment to Section 1(j) shall require
the
consent of all of the Public Stockholders. As to any claim, cross-claim or
counterclaim in any way relating to this Agreement, each party waives the right
to trial by jury.
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(d)
The parties hereto consent to the jurisdiction and venue of any
state or federal court located in the State and County of New York for purposes
of resolving any disputes hereunder. The parties hereto irrevocably submit
to
such jurisdiction, which jurisdiction shall be exclusive, and hereby waive
any
objection to such exclusive jurisdiction and accept such venue, and waive any
objection that such courts represent an inconvenient forum.
(e)
Any notice, consent or request to be given in connection with any
of the terms or provisions of this Agreement shall be in writing and shall
be
sent by express mail or similar private courier service, by certified mail
(return receipt requested), by hand delivery or by facsimile transmission:
if
to the
Trustee, to:
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Fax
No.:
if
to the
Company, to:
000 Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxxxxxx
Fax
No.:
in
either
case with a copy to:
Maxim
Group LLC
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
Fax
No.:
(000) 000-0000
and
Ellenoff,
Xxxxxxxx & Schote LLP
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxx X. Xxxxxxxx
Fax
No.:
(000) 000-0000
9
and
Loeb
& Loeb LLP
000
Xxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxxxx
Fax
No.:
(000) 000-0000
(f)
This Agreement may not be assigned by the Trustee without the prior
written consent of the Company and Maxim.
(g)
Each of the Trustee and the Company hereby represents that it has
the full right and power and has been duly authorized to enter into this
Agreement and to perform its respective obligations as contemplated hereunder.
The Trustee acknowledges and agrees that it shall not make any claims or proceed
against the Trust Account, including by way of set-off, and shall not be
entitled to any funds in the Trust Account under any circumstance.
10
IN
WITNESS WHEREOF, the parties have duly executed this Investment Management
Trust
Agreement as of the date first written above.
CONTINENTAL
STOCK TRANSFER & TRUST COMPANY, as Trustee
By:
______________________________________
Name:
Title:
By:_______________________________________
Name:
Xxxxxx Xxxxxxxxxxxxx
Title:
Chief Financial Officer
11
EXHIBIT
A
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Re:
Trust
Account No. [ ] Termination Letter
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Energy
Infrastructure Acquisition Corp. (“Company”) and Continental Stock Transfer
& Trust Company (“Trustee”), dated as of __________, 2006 (“Trust
Agreement”), this is to advise you that the Company has entered into an
agreement (“Business Agreement”) with __________________ (“Target Business”) to
consummate a business combination with Target Business (“Business Combination”)
on or about [_______]. The Company shall notify you at least 48 hours in advance
of the actual date of the consummation of the Business Combination
(“Consummation Date”). Capitalized words used herein and not otherwise defined
shall have the meanings ascribed to them in the Trust Agreement.
In
accordance with paragraph 2 of Article 6 of the Amended and Restated Certificate
of Incorporation of the Company, the Business Combination has been approved
by
the stockholders of the Company and by the Public Stockholders holding a
majority of the IPO Shares, and Public Stockholders holding less than 30% of
the
IPO Shares and shares issued in the Placement have voted against the Business
Combination and given notice of exercise of their conversion rights described
in
paragraph 3 of Article 6 of the Amended and Restated Certificate of
Incorporation of the Company. Pursuant to Section 2(e) of the Trust Agreement,
we are providing you with [ an affidavit ] [ a certificate ] of __________,
which verifies the vote of the Company’s stockholders in connection with the
Business Combination. In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of the Trust Account to the effect that, on the
Consummation Date, all of funds held in the Trust Account will be immediately
available for transfer to the account or accounts that the Company shall direct
in writing on the Consummation Date.
On
the
Consummation Date (i) counsel for the Company shall deliver to you written
notification that the Business Combination has been consummated or will,
concurrently with your transfer of funds to the accounts as directed by the
Company, be consummated, and (ii) the Company shall deliver to you written
instructions with respect to the transfer of the funds held in the Trust Account
(“Instruction Letter”). You are hereby directed and authorized to transfer the
funds held in the Trust Account immediately upon your receipt of the counsel’s
letter and the Instruction Letter in accordance with the terms of the
Instruction Letter. In the event that certain deposits held in the Trust Account
may not be liquidated by the Consummation Date without penalty, you will notify
the Company of the same and the Company shall direct you as to whether such
funds should remain in the Trust Account and be distributed after the
Consummation Date to the Company or be distributed immediately and the penalty
incurred. Upon the distribution of all the funds in the Trust Account pursuant
to the terms hereof, the Trust Agreement shall be terminated.
In
the
event that the Business Combination is not consummated on the Consummation
Date
described in the notice thereof and we have not notified you on or before the
original Consummation Date of a new Consummation Date, then the funds held
in
the Trust Account shall be reinvested as provided in the Trust Agreement on
the
business day immediately following the Consummation Date as set forth in the
notice.
| Very truly yours, | ||
| ENERGY INFRASTRUCTURE ACQUISITION CORP. | ||
| |
|
|
| By: | ||
|
Xxxxxx Xxxxxxxxxxxxx |
||
| Chief Financial Officer | ||
Cc:
Maxim Group LLC
12
EXHIBIT
B
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Re:
Trust
Account No. [ ] Termination Letter
Gentlemen:
Pursuant
to paragraphs 1(i) and 2(e) of the Investment Management Trust Agreement between
Energy Infrastructure Acquisition Corp. (“Company”) and Continental Stock
Transfer & Trust Company (“Trustee”), dated as of _____________, 2006
(“Trust Agreement”), this is to advise you that the Board of Directors of the
Company and the stockholders of the Company have voted to dissolve the
Company and liquidate the Trust Account (as defined in the Trust Agreement).
Attached hereto is a copy of the minutes of the meeting of the Board of
Directors of the Company relating thereto, certified by the Secretary of the
Company as true and correct and in full force and effect.
In
accordance with the terms of the Trust Agreement, we hereby authorize you to
commence liquidation of the Trust Account as
part
of the Company’s plan of dissolution and liquidation. In connection with this
liquidation, you are hereby authorized to establish a record date for the
purposes of determining the stockholders of record entitled to receive their
per
share portion of the Trust Account. The record date shall be within ten (10)
days of the liquidation date, or as soon thereafter as is
practicable.
You will notify the Company in writing as to when all of the funds
in the Trust Account will be available for immediate transfer (“Transfer Date”)
in accordance
with the terms of the Trust Agreement and the Amended and Restated Certificate
of Incorporation of the Company. You shall commence distribution of such
funds in accordance with the terms of the Trust Agreement and the Amended
and Restated Certificate of Incorporation of the Company and you shall
oversee the distribution of such funds. Upon the payment of all the funds in
the
Trust Account, the Trust Agreement shall be terminated.
| Very truly yours, | ||
| ENERGY INFRASTRUCTURE ACQUISITION CORP. | ||
| |
|
|
| By: | ||
|
Xxxxxx Xxxxxxxxxxxxx |
||
| Chief Financial Officer | ||
Cc:
Maxim
Group LLC
13
EXHIBIT
C
|
AUTHORIZED
INDIVIDUAL(S)
FOR
TELEPHONE CALL BACK
|
|
AUTHORIZED
TELEPHONE
NUMBER(S)
|
|
|
|
|
|
|
|
|
|
Company:
|
|
|
|
|
|
|
|
000 Xxxxx
Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx Xxxxxxxxxxxxx, Chief Financial Officer
|
|
()
|
|
|
|
|
|
Maxim
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxxxx X. Xxxxxx
|
||
|
Trustee:
|
|
|
|
|
|
|
|
Continental
Stock Transfer & Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx, Xxx Xxxx 00000
Attn:
|
|
|
14
EXHIBIT
D
[Letterhead
of Company]
[Insert
date]
Continental
Stock Transfer
&
Trust Company
00
Xxxxxxx Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attn:
Re:
Trust
Account No. [ ] Conversion of Loan Letter
Gentlemen:
Pursuant
to Section 1(i) of the Investment Management Trust Agreement between Energy
Infrastructure Acquisition Corp. (“Company”) and Continental Stock Transfer
& Trust Company (“Trustee”), dated as of June _, 2006 (the “Trust
Agreement”), __________, hereby advises you that it desires to convert the
principal amount of its Promissory Note executed on June ___, 2006 by and
between the Company and _________, $3,3675,000 ($4,350,000 if the over-allotment
option was exercised in full), into shares of common stock of the Company
under
the terms of the Promissory Note.
In
accordance with the terms of the Trust Agreement, we hereby acknowledge that
delivery of the shares of common stock as set forth in the terms of the note
is
to be made in lieu of repayment of the Principal Amount of the Promissory
Note,
and that upon receipt of such shares in accordance with such
terms, ___________ will no longer be entitled to repayment of the Principal
Amount of the Promissory Note.
| Very truly yours, | ||
| ________________ | ||
| By: | ||
|
Xxxxxx Xxxxxxxx
[
]
|
||
15
