STOCK OPTION AGREEMENT
THIS
STOCK OPTION AGREEMENT (this “Agreement”),
made
as of July 21, 2006 (the “Grant
Date”),
by
and between Energy Infrastructure Acquisition Corp., a Delaware corporation
(the
“Company”),
and
Xxxxxx Xxxxxxxx, an individual (the “Optionee”):
W
I T N E S S E T H:
WHEREAS,
the Company is in the process of effecting a proposed initial public offering
of
units (the “IPO”),
as
further described in the Company’s Registration Statement on Form S-1 (Reg. No.
333-131648); and
WHEREAS, the Optionee is the President and Chief Operating Officer of the
Company and, in consideration of his continued services for the Company,
the
Company wishes to grant options to purchase common stock of the Company to
the
Optionee, which shall be effective upon consummation of the IPO, and such
options which shall vest in accordance with the vesting schedule set forth
herein.
THEREFORE,
in consideration of the premises and mutual covenants contained herein and
for
other good and valuable consideration, the validity and sufficiency of which
is
hereby acknowledged, the parties agree as follows:
1. Grant
of Option.
Subject
to the terms and conditions of this Agreement, the Company hereby grants to
the
Optionee the right (the “Option”)
to
purchase all or any part of an aggregate of 3,000,000 shares of common stock
of
the Company, par value $.0001 per share (“Common
Stock”)
with
the
grant of such Option to be effective concurrent with the closing of the
IPO.
2. Vesting
Schedule.
Following
the effectiveness of the grant of the Option, it shall vest (i.e., become
exercisable) in four equal quarterly installments of 750,000 shares (each such
installment being referred to as an "Installment"),
with the first Installment vesting on the date of expiration of the three-month
period immediately following the consummation of a business combination (the
“Initial
Vesting Date”).
Each
vested installment thereafter shall be deemed to occur on a “Vesting
Date”. Notwithstanding the forgoing, the vesting of each
Installment shall be contingent upon the Optionee being an officer of the
Company on the corresponding Vesting Date.
3. Exercise
Price.
The
price of each share of Common Stock purchased pursuant to this Option shall
be
U.S. $.01 (the “Exercise
Price”).
4. Exercise
of Option.
(a) The
Optionee may exercise the Option, in whole or in part, with respect to any
whole
number of vested shares of Common Stock subject to the Option (the “Underlying
Shares”).
The
Optionee shall exercise the Option by giving the Company written notice, in
a
form prescribed by the Company. Such notice shall specify the number of shares
of Common Stock to be purchased.
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(i)
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In
the event the Option is exercised for cash, then such notice shall
be
accompanied by payment, in cash or certified check or by official
bank
check, of an amount equal to the Option exercise price per share
of Common
Stock, multiplied by the number of shares of Common Stock as to which
the
Option is being exercised.
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(ii)
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In
the event the Option is to be exercised by means of a "cashless exercise"
in which the Optionee shall be entitled to receive a certificate
for the
number of Underlying Shares equal to the quotient obtained by dividing
[(A-B)*(X)] by (A), where:
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(A)
= the
last sale price on the trading day immediately preceding the date of such notice
to the Company;
(B)
=
the
Exercise Price of this Option, as adjusted; and
(X)
=
the
number of Underlying Shares issuable upon exercise of this Option in accordance
with the terms of this
Option by means of a cash exercise rather than a cashless
exercise.
5. Delivery
of Common Stock Certificate.
Subject
to Section 6, as soon as practicable after receipt of the notice and payment
referred to in Section 4 above, the Company shall deliver to the Optionee a
certificate or certificates for such Underlying Shares (such date, the
“Issuance
Date”);
provided,
however,
that
the time of such delivery may be postponed by the Company for such period of
time as the Company may require for compliance with any law, rule or regulation
applicable to the issuance or transfer of Underlying Shares. The certificate
or
certificates representing the shares as to which the Option has been exercised
shall bear an appropriate legend setting forth any restrictions applicable
to
such shares of Common Stock.
6. Conditions
to Common Stock Issuance.
Prior
to or concurrently with delivery by the Company to the Optionee of a
certificate(s) representing such shares of Common Stock, the Optionee shall
(i)
if applicable, upon notification of the amount due, promptly pay or cause to
be
paid, in cash, any amount necessary to satisfy any tax requirements (or
otherwise satisfy such requirements in a manner satisfactory to the Company),
(ii) give assurance, satisfactory to the Company, that he will hold, and refrain
from any transfer or sale of the Underlying Shares from their respective
Issuance Date until the six-month anniversary of such respective Issuance Date,
and (iii) give assurance, satisfactory to the Company. that such Underlying
Shares are being purchased for investment and not with a view toward the
distribution thereof other than in compliance with the registration provisions
of the Securities Act of 1933, as amended (the “Securities
Act”)
or any
exemption therefrom, and the Optionee shall give such other assurance and take
such other action as the Company shall require to secure compliance with any
law, rule or regulation applicable to the issuance of shares of Common Stock.
7. Termination
of Option.
This
Option and all rights of the Optionee to purchase shares of Common Stock
hereunder shall terminate on the fifth anniversary of the respective Underlying
Shares as of their respective Vesting Date (the “Expiration
Date”)
unless
terminated earlier in accordance with the terms hereof.
8. Early
Termination of Option.
In the
event that the Optionee shall no longer be an employee of the Company (i) to
the
extent that, pursuant to Section 2 of this Agreement, the Option is not vested
as of the date of such termination, the Option shall expire, and (ii) to the
extent that, pursuant to Section 2 of this Agreement, the Option is vested
as of
the date of such termination, the Option shall continue to be exercisable until
the Expiration Date.
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9. Certain
Adjustments.
(a) In
the
event that the Company or the division, subsidiary or other affiliated entity
for which the Optionee performs services is sold (including a stock or an asset
sale), spun off, merged, consolidated, reorganized or liquidated, the Board
may
determine that (i) the Option shall be assumed, or a substantially equivalent
Option shall be substituted, by an acquiring or succeeding entity (or an
affiliate thereof) on such terms as the Board determines to be appropriate;
(ii)
upon written notice to the Optionee, provide that the Option shall terminate
immediately prior to the consummation of the transaction unless exercised by
the
Optionee within a specified period following the date of the notice; (iii)
in
the event of a sale or similar transaction under the terms of which holders
of
Common Stock receive a payment for each share of Common Stock surrendered in
the
transaction (the “Sales
Price”),
make
or provide for a payment to each Optionee equal to the amount by which (A)
the
Sales Price times the number of shares of Common Stock subject to the Option
(to
the extent such Option is then exercisable) exceeds (B) the aggregate exercise
price for all such shares of Common Stock; or (iv) may make such other equitable
adjustments as the Board deems appropriate.
(b) In
the
event of any stock dividend or split, recapitalization, combination, exchange
or
similar change affecting the Common Stock, the Board shall make any or all
of
the following adjustments as it deems appropriate to equitably reflect such
event: (i) adjust the Exercise Price to be paid for any or all shares
subject to this Agreement, (ii) adjust the number of shares of Common Stock
(or such other security as is designated by the Board) subject to this Agreement
and (iii) make any other equitable adjustments or take such other equitable
action as the Board, in its discretion, shall deem appropriate.
(c) Any
and
all adjustments or actions taken by the Board pursuant to this Section shall
be
conclusive and binding for all purposes.
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10. Notice.
All
notices, request, demands, waivers and communications required or permitted
to
be given hereunder shall be in writing and shall be delivered in person or
mailed, certified or registered mail with postage prepaid, or sent by facsimile,
as follows:
To
Company:
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Attention:
Xxxxxx Xxxxxxxxxxxxx, Chief Financial Officer
Telecopy:
_______________
To
Optionee:
Xx.
Xxxxxx Xxxxxxxx
000
Xxxxx
Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopy:
_______________
or
to
such other address or to the attention of such other person as the recipient
party shall have specified by prior written notice to the sending party. In
the
case of mailing, all such notices, requests, demands, waivers and communications
shall be deemed to have been received on the third business day after the date
of the mailing.
11. No
Restriction on the Right of the Company to Effect Corporate
Changes.
The
Option granted hereunder shall not affect in any way the right or power of
the
Company or its stockholders to make or authorize any or all adjustments,
recapitalization, reorganizations or other changes in the Company’s capital
structure or its business, or any merger or consolidation of the Company, or
any
issue of stock or of options, warrants or rights to purchase stock or of bonds,
debentures, preferred or prior preference stocks whose rights are superior
to or
affect the Common Stock or the rights of holders thereof or which are
convertible into or exchangeable for Common Stock, or the dissolution or
liquidation of the Company, or any sale or transfer of all or any part of its
assets or business, or any other corporate act or proceeding, whether of a
similar character or otherwise.
12. No
Stockholder Rights.
The
Optionee shall have no rights as a stockholder of the Company with respect
to
the Underlying Shares subject to the Option until such Underlying Shares have
been fully paid in accordance with this Agreement.
13. Transferability.
(a) Except
as
provided in paragraph (b) to this Section 13, the Option is not transferable,
and may be exercised only by the Optionee. In the event of any attempt by the
Optionee to transfer, assign, pledge, hypothecate or otherwise dispose of the
Option or of any right hereunder, except as provided for herein, or in the
event
of the levy of any attachment, execution or similar process upon the rights
or
interest hereby conferred, the Company may terminate the Option by notice to
the
Optionee and it shall thereupon become null and void.
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(b) Notwithstanding
paragraph (a), the Optionee may transfer or assign the Option to its assignees
or designees so long as such assignees or designees agree (in writing) to be
bound by the terms of this Agreement.
14. Representations
By and Covenants of Optionee.
The
following representations, warranties and covenants by Optionee are made as
of
the date of this Agreement and, unless stated otherwise herein, are also made
as
of each date of exercise of this Agreement.
(a) Optionee
recognizes that an investment in the Company involves a high degree of risk
for
many reasons, including without limitation, in that (i) the Underlying
Shares are highly speculative and only investors who can afford the loss of
their entire investment of money should consider purchasing the Underlying
Shares; (ii) as of the date of this Agreement, there is no public market for
the
Underlying Shares and an investor may not be able to liquidate its investment;
(iii) as of the date of this Agreement, the Company has no operating history
upon which to base its likelihood for success; and (iv) transferability of
the Underlying Shares is extremely limited. Optionee
should invest only with the expectation of losing its entire
investment.
(b) The
Optionee represents that it is an “accredited investor” as such term is defined
in Rule 501 of Regulation D (“Reg.
D”)
promulgated under the Securities Act by virtue of the fact that Optionee comes
within any one or more of the following categories (please initial below all
as
applicable).
(i) A
bank as
defined in Section 3(a)(2) of the Securities Act, or any savings and loan
association or other institution as defined in Section 3(a)(5)(A) of the
Securities Act whether acting in its individual or fiduciary capacity; a broker
dealer registered pursuant to Section 15 of the Securities and Exchange Act
of
1934; an insurance company as defined in Section 2(13) of the Securities Act;
an
investment company registered under the Investment Company Act of 1940 or a
business development company as defined in Section 2(a)(48) of the Investment
Company Act of 1940; a Small Business Investment Company licensed by the U.S.
Small Business Administration under Section 301(c) or (d) of the Small Business
Investment Act of 1958; any plan established and maintained by a state, its
political subdivisions, or any agency or instrumentality of a state or its
political subdivisions, for the benefit of its employees, if such plan has
total
assets in excess of $5,000,000; an employee benefit plan within the meaning
of
the Employee Retirement Income Security Act of 1974 (“ERISA”),
if
the investment decision is made by a plan fiduciary, as defined in Section
3(21)
of ERISA, which is either a bank, savings and loan association, insurance
company, or registered investment advisor, or if the employee benefit plan
has
total assets in excess of $5,000,000, or if a self-directed plan, with
investment decisions made solely by persons that are accredited
investors;
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(ii) Any
private business development company as defined in Section 202(a)(22) of the
Investment Advisers Act of 1940;
(iii) Any
organization
described in Section 501(c)(3) of the Internal Revenue Code, corporation,
Massachusetts or similar business trust, or partnership not formed for the
specific purpose of acquiring the securities offered, with total assets in
excess of $5,000,000;
(iv) Any
trust, with total assets in excess of $5,000,000, not formed for the specific
purpose of acquiring the securities offered, whose purchase is directed by
a
sophisticated person as described in Rule 506(b)(2)(ii) of Regulation
D;
(v) Any
natural person whose individual net worth or joint net worth with that person’s
spouse, at the time of his purchase, exceeds $1,000,000;
(vi) Any
natural person who had an individual income in excess of $200,000 in each of
the
two most recent years or joint income with that person’s spouse is in excess of
$300,000 in each of those years and has a reasonable expectation of reaching
the
same income in the current year, or
(vii) Any
entity in which all of the equity owners are accredited investors.
The
Optionee acknowledges that the Company has the right to require evidence of
the
Optionee’s status as an accredited investor.
(c) Notwithstanding
anything contained
in Section 14(a), by initializing this line _____ the Optionee:
(i) represents
and warrants that it is not a “U.S. Person,” as defined in Rule 902(k) of Reg. S
and is not acquiring the Underlying Shares for the account or benefit of any
U.
S. person;
(ii) acknowledges
its understanding that the offering and sale of the Underlying Shares is also
intended to be exempt under the Securities Act by virtue of Reg. S;
(iii) acknowledges
that the purchase of the Underlying Shares by the Optionee is not taking place
within the “United States,” as defined in Rule 902(l) of Reg. S, but rather in
an “offshore transaction,” as defined in Rule 902 (h) of Reg. S;
(iv) understands
and acknowledges that the Underlying Shares are not registered under the
Securities Act and as such the Optionee agrees to resell the Underlying Shares
only in accordance with the provisions of Reg. S (subject to the other
provisions hereof), pursuant to registration under the Securities Act or
pursuant to an exemption from the registration requirements of the Securities
Act;
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(v) acknowledges
that the Underlying Shares have not been registered under the laws of any other
country or jurisdiction, and the Company takes no responsibility for complying
with such laws; and
(vi) understands
that the Company will not register any transfer of the Underlying Shares not
made in accordance with Reg. S, pursuant to registration under the Securities
Act or pursuant to an available exemption under the Securities Act.
(d) Optionee
acknowledges that it has significant prior investment experience, including
investments in non-listed and non-registered securities, or it has employed
the
services of an investment advisor, attorney or accountant to read all of the
documents furnished or made available by the Company and to evaluate the merits
and risks of such an investment on its behalf, and Optionee represents that
it
understands the highly speculative nature of this investment which may result
in
the loss of the total amount of such investment.
(e) Optionee
has adequate means of providing for his current needs and possible personal
contingencies, and Optionee has no need, and anticipates no need in the
foreseeable future, for liquidity in his investment in the Underlying Shares.
Optionee is able to bear the economic risks of this investment and,
consequently, without limiting the generality of the foregoing, Optionee is
able
to hold the Underlying Shares an indefinite period of time and has a sufficient
net worth to sustain a loss of the entire investment in the event such loss
should occur. Optionee has not made an overall commitment to investments which
are not readily marketable that are disproportionate to his net worth, and
his
investment in the Underlying Shares will not cause such overall commitment
to
become excessive.
(f) Optionee
acknowledges and represents that Optionee is the President and Chief Operating
Officer of the Company and as such has furnished with all information regarding
the Company which it requested or desired to know; and that it has been afforded
the opportunity to ask questions of and receive answers from duly authorized
officers or other representatives of the Company concerning the terms and
conditions of this offering; and that the Company has no business plan other
than effecting a business combination.
(g) Optionee
acknowledges that he is not acquiring the Underlying Shares as a result of
any
general solicitation or advertising.
(h) Optionee
acknowledges that the Company has not provided any tax advice or other
information related thereto. The Optionee acknowledges that it must retain
its
own professional advisors to evaluate the tax and other consequences of an
investment in the Underlying Shares.
(i) Optionee
acknowledges that this offering of Underlying Shares has not been reviewed
by
the United States Securities and Exchange Commission (the “SEC”)
because of the Company’s representations that this is intended to be a
non-public offering pursuant to Section 3(b) or Section 4(2) of the Securities
Act and Rule 506 under Reg. D and/or Rule 903 under Reg. S. The Optionee
represents that the Underlying Shares are purchased for its own account, for
investment and not for distribution or resale to others.
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(j) Optionee
understands and consents to the placement of a legend on any certificate or
other document evidencing the Underlying Shares stating that they have not
been
registered under the Securities Act and setting forth or referring to the
restrictions on transferability and sale thereof. Each certificate evidencing
the Underlying Shares shall bear the legends set forth below, or legends
substantially equivalent thereto, together with any other legends that may
be
required by federal or state securities laws at the time of the issuance of
the
Underlying Shares:
THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED UNLESS AND UNTIL (I) REGISTERED
UNDER THE SECURITIES ACT OR (II) (A) THE ISSUER OF THE SHARES (THE “ISSUER”) HAS
RECEIVED AN OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER
THAT SUCH OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE
WITH
THE SECURITIES ACT AND (B) THE TRANSFEREE IS ACCEPTABLE TO THE ISSUER;
and
If
the
Optionee is not a “U.S. Person” as defined in Rule 902(k) of Reg. S, then the
Underlying Shares shall also contain the following legend:
THE
SHARES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE “ACT”), AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, PLEDGED OR HYPOTHECATED IN THE UNITED STATES OR TO OR
FOR
THE ACCOUNT OR BENEFIT OF U.S. PERSONS, UNLESS AND UNTIL REGISTERED UNDER THE
SECURITIES ACT OR THE ISSUER OF THE SHARES (THE “ISSUER”) HAS RECEIVED AN
OPINION OF COUNSEL IN FORM AND SUBSTANCE SATISFACTORY TO THE ISSUER THAT SUCH
OFFER, SALE OR TRANSFER, PLEDGE OR HYPOTHECATION IS IN COMPLIANCE WITH THE
SECURITIES ACT. ACCORDINGLY, THE SHARES ARE BEING OFFERED AND SOLD ONLY OUTSIDE
OF THE UNITED STATES IN COMPLIANCE WITH REGULATION S OF THE SECURITIES ACT;
and
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(k) The
Optionee understands that prior to the IPO, there has been no market
for any of the Company’s securities. The Optionee understands that
notwithstanding the IPO, Rule 144 (the “Rule”)
promulgated under the Securities Act requires, among other conditions, a one
year holding period prior to the resale (in limited amounts) of securities
acquired in a non public offering without having to satisfy the registration
requirements under the Securities Act. The Optionee understands that the Company
makes no representation or warranty regarding its fulfillment in the future
of
any reporting requirements under the Securities Exchange Act of 1934, as
amended, or its dissemination to the public of any current financial or other
information concerning the Company, as is required by the Rule as one of the
conditions of its availability. The Optionee consents that the Company may
permit the transfer of the Underlying Shares out of its name only when its
request for transfer is accompanied by an opinion of counsel reasonably
satisfactory to the Company that neither the sale nor the proposed transfer
results in a violation of the Securities Act or any applicable foreign
securities or U.S. state “blue sky” laws (collectively “Securities
Laws”).
The
Optionee agrees to hold the Company and its directors, officers and controlling
persons and their respective heirs, representatives, successors and assigns
harmless and to indemnify them against all liabilities, costs and expenses
incurred by them as a result of any misrepresentation made by it contained
herein or any sale or distribution by the undersigned Optionee in violation
of
any Securities Laws.
(l) Optionee
hereby represents that the address of Optionee furnished by him in this
Agreement is accurate. Optionee understands that the Company is relying on
the
accuracy of this representation for purposes of its compliance with applicable
law or applicable Securities Laws.
(m) The
Optionee hereby represents that no representations or warranties have been
made
to the Optionee by the Company or any agent, employee or affiliate of the
Company except as set forth herein and in entering into this transaction, the
Optionee is not relying on any information, other than the results of
independent investigation by the Optionee.
(n) The
Optionee represents and warrants that it has not retained any finder, broker,
agent, or other intermediary in connection with the transactions contemplated
by
this Agreement and agrees to indemnify and hold harmless the Company from any
liability for any compensation to any such intermediary retained by Optionee
and
the fees and expenses of defending against such liability or alleged
liability.
(o) The
Optionee recognizes and understands that the Company was incorporated on August
11, 2005 and has engaged in limited activities since its incorporation other
than corporate organizational activities and has a business plan strictly
limited to effecting a business combination.
(p) This
Agreement has been duly executed and delivered by the Optionee and constitutes
the legal, valid and binding obligation of the Optionee, enforceable in
accordance with its terms.
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15. NSO.
It is
intended that this Option shall be a non-qualified stock option and shall not
constitute and incentive stock option for purposes of Section 422 of the
Internal Revenue Code of 1986, as amended.
16. Compliance
with Law; Registration of Shares.
(a) The
Option grant provided hereunder shall be subject to all applicable laws, rules,
and regulations of any applicable jurisdiction or authority or agency thereof
and to such approvals by any regulatory or governmental authority or agency
or
securities exchange which, in the opinion of Company’s counsel, may be required
or appropriate.
(b) Upon
exercise of the Option into shares of Common Stock, the Company shall use its
best efforts to register such shares under the Securities Act. The Company
shall
bear all expenses incurred in connection with the filing of any such
registration statement.
(c) Notwithstanding
any other provision of this Agreement, the Company shall not be required to
issue or deliver any certificate or certificates for shares of Common Stock
under this Agreement prior to fulfillment of all of the following
conditions:
(i) Effectiveness
of any registration or other qualification of such shares of the Company under
any law or regulation of any applicable jurisdiction or authority or agency
thereof which the Board shall, in its absolute discretion or upon the advice
of
counsel, deem necessary or advisable; and
(ii) Grant
of
any other consent, approval or permit from any applicable jurisdiction or
authority or agency thereof or securities exchange which the Board shall, in
its
absolute discretion or upon the advice of counsel, deem necessary or
advisable.
The
Company shall use all reasonable efforts to obtain any consent, approval or
permit described above; provided, however, that the Company shall use its best
efforts to register or qualify any shares subject to this Agreement under any
federal or state securities law or on any exchange.
17.
Waiver of Claims. For and in consideration of the Company engaging the
services of the undersigned, the undersigned hereby agrees that, insofar as
this
option agreement, or the Underlying Shares create any rights in or for the
benefit of the undersigned (or any assignee thereof), it does not have any
right, title, interest or claim of any kind in or to any monies in the
Trust Fund and any assets of the Company upon liquidation of the Trust Fund
and
dissolution of the Company (the "Claim") or against any
director, officer or agent of the Company or any of their respective affiliates,
and hereby waives any Claim it may have in the future as a result of, or arising
out of, any contracts or agreements with the Company and will not seek recourse
against the Trust Fund or any director, officer or agent of the Company or
any
of their respective affiliates, for any reason whatsoever.
18. Replacement
of Prior Agreements.
This
Agreement sets forth the entire understanding of the parties with respect to
the
subject matter provided for herein, including, the grant of stock options and
the terms thereof, and supersedes any and all existing agreements between the
parties concerning such subject matter. The Optionee hereby waives any and
all
claims that may exist on the date this Agreement is signed, including, but
not
limited to, contingent claims, arising from any oral or written agreement
between the parties, including, but not limited to, stock option provisions
which may appear in an consultancy agreement, which relate to the grant of
or
the terms of stock options and all other subject matter provided for
herein.
19. Headings.
The
headings of sections and subsections herein are included solely for convenience
of reference and shall not affect the meaning of any of the provisions of the
Agreement.
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20. Severability.
In the
event that any one or more provisions of this Agreement, or any action taken
pursuant to this Agreement, should, for any reason, be unenforceable or invalid
in any respect under the laws of the United States, any state of the United
States or any other jurisdiction, such unenforceability or invalidity shall
not
affect any other provision of this Agreement, but in such particular
jurisdiction and instance the Agreement shall be construed as if such
unenforceable or invalid provision had not been contained therein or if the
action in question had not been taken thereunder.
21. Board
Determinations.
In the
event that any question or controversy shall arise with respect to the nature,
scope or extent of any one or more rights conferred by the Option, or any
provision of this Agreement, the determination by the Board of Directors of
the
Company of the rights of the Optionee shall be conclusive, final and binding
upon the Optionee and upon any other person who shall assert any right pursuant
to this Option.
22. Governing
Law.
This
Agreement and all rights hereunder shall be construed in accordance with and
governed by the internal laws of the State of New York, except to the extent
that the General Corporation Law of the State of Delaware is mandatorily
applicable.
23. Jurisdiction;
Venue.
Each of
the Company and the Optionee irrevocably (i) agrees that any suit, action
or proceeding arising out of or relating to this Agreement may be brought in
the
State or Federal courts located in New York County, New York; (ii) consents
to the exclusive jurisdiction of each such court in any suit, action or
proceeding relating to or arising out of this Agreement; (iii) waives any
objection which it may have to the laying of venue in any such suit, action
or
proceeding in any of such court; and (iv) agrees that service of any court
paper may be made in such manner as may be provided under applicable laws or
court rules governing service of process, including, without limitation, by
the
mailing of copies thereof by registered or certified mail, postage pre-paid,
to
the other party at its address set forth in Section 9 hereof, such service
to
become effective five (5) business days after such mailing.
24. Amendment.
This
Agreement may not be changed or modified except by an instrument in writing
signed by both of the parties hereto.
25. Facsimile,
Counterparts.
This
Agreement may be executed by facsimile or telecopy in one or more counterparts,
each of which shall be deemed to be an original but all of which together will
constitute one and the same instrument.
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IN
WITNESS WHEREOF, the Company and the Optionee have executed this Agreement
effective as of the Grant Date specified above.
| Energy Infrastructure Acquisition Corp. | ||
| |
|
|
| By: | /s/ Xxxxxx Xxxxxxxxxxxxx | |
|
Name: Xxxxxx Xxxxxxxxxxxxx |
||
| Title: Chief Financial Officer | ||
| Xxxxxx Xxxxxxxx, Optionee | ||
| |
|
|
| /s/ Xxxxxx Xxxxxxxx | ||
|
Xxxxxx Xxxxxxxx |
||
| Optionee’s Name: | |||
| Xxxxxx Xxxxxxxx | |||
| Optionee’s Address: | |||
| c/o Energy Infrastructure Acquisition Corp. | |||
| 000 Xxxxx Xxxxxx | |||
| Xxx Xxxx, Xxx Xxxx 00000 | |||
| Social Security or Taxpayer I.D. No. (if applicable): | |||
|
|
|||
12
