UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14A
Proxy
Statement Pursuant to Section 14(a) of
the
Securities Exchange Act of 1934
Filed
by
the Registrant
x
Filed
by
a Party other than the Registrant
o
Check
the
appropriate box:
x
Preliminary Proxy Statement
o
Confidential, for Use of the Commission
Only (as permitted by Rule 14a-6(e)(2))
o
Definitive Proxy Statement
o
Definitive Additional
Materials
o
Soliciting Material Pursuant to
240.14a-12
Energy
Infrastructure Acquisition Corp.
(Name
of
Registrant as Specified In Its Charter)
(Name
of
Person(s) Filing Proxy Statement, if other than the Registrant)
Payment
of Filing Fee (Check the appropriate box):
x
No fee required.
o
Fee computed on table below per Exchange
Act Rules 14a-6(i)(1) and 0-11.
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(1)
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Title
of each class of securities to which transaction
applies:
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(2)
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Aggregate
number of securities to which transaction
applies:
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(3)
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Per
unit price or other underlying value of transaction computed pursuant
to
Exchange Act Rule 0-11 (set forth the amount on which the filing
fee is
calculated and state how it was
determined):
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(4)
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Proposed
maximum aggregate value of
transaction:
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o
Fee paid previously with preliminary
materials.
o
Check box if any part of the fee is
offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing
for
which the offsetting fee was paid previously. Identify the previous
filing
by
registration statement number, or the Form or Schedule and the date of its
filing.
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(1)
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Amount
Previously Paid:
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(2)
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Form,
Schedule or Registration Statement
No.:
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ENERGY
INFRASTRUCTURE ACQUISITION CORP.
1105
North Market Street, Suite 1300
Wilmington,
Delaware 19899
(302)
655-1771
September
__, 2008
TO
OUR
STOCKHOLDERS:
You
are
cordially invited to attend a special meeting of stockholders of Energy
Infrastructure Acquisition Corp., or Energy Infrastructure or the Company,
to be
held on October __, 2008. At this meeting, you will be asked to approve the
dissolution and liquidation of Energy Infrastructure, as contemplated by its
certificate of incorporation, as the two-year period for it to complete a
business combination has passed without one being consummated. Upon dissolution,
Energy Infrastructure will, pursuant to a Plan of Liquidation, discharge its
liabilities, wind up its affairs and distribute to its public stockholders
the
proceeds of the Company’s initial public offering (IPO) trust account as
contemplated by its charter and its IPO prospectus.
This
meeting is particularly significant in that stockholders must approve the
Company’s dissolution and liquidation for Energy Infrastructure to be authorized
to distribute the trust account proceeds to its stockholders. It is important
that your shares are voted at this special meeting.
On
December 3, 2007, Energy Infrastructure, Energy Infrastructure Merger
Corporation, the Company’s wholly-owned Marshall Islands subsidiary, or Energy
Merger, and Vanship Holdings Limited, or Vanship, entered into a Share Purchase
Agreement, as subsequently amended and restated, which we refer to as the Share
Purchase Agreement, pursuant to which Energy Merger was to purchase all of
the
outstanding shares of each of nine special purpose vehicles, or SPVs, each
of
which owns one very large crude carrier, or VLCC, from Vanship. On July 19,
2008, Energy Infrastructure and Vanship mutually agreed to terminate the Share
Purchase Agreement. As a result, the two-year period for Energy Infrastructure
to complete a business combination has passed without a business combination
being consummated, and Energy Infrastructure is now required to dissolve and
liquidate as provided in its charter and public filings.
The
Plan
of Liquidation included in the enclosed proxy statement provides for the
discharge of the Company’s liabilities and the winding up of its affairs,
including distribution to current holders of shares Energy Infrastructure common
stock originally issued in its IPO, which we refer to as the Public Holders,
of
the principal and accumulated interest of the trust account as contemplated
by
its charter and its IPO prospectus. Energy Infrastructure’s pre-IPO
stockholders, which we refer to as the Private Stockholders, consisting of
the
Company’s initial stockholders (each of whom is a director) and Energy Corp., an
off-shore company controlled by George Sagredos, our President and Chief
Operating Officer, which purchased an aggregate of 825,398 units of the Company
at $10.00 per unit in a private placement prior to the Company’s IPO, have
waived their rights to participate in any liquidation distribution with respect
to shares of common stock owned by them prior to the IPO. There will be no
distribution from the trust account with respect to our warrants.
Enclosed
is a notice of special meeting and proxy statement containing detailed
information concerning the Plan of Liquidation and the meeting.
Whether
or not you plan to attend the special meeting, we urge you to read this material
carefully and vote your shares. In particular, you should review the matters
discussed under the caption “RISK FACTORS” beginning on page 14.
I
look
forward to seeing you at the meeting.
Sincerely,
Andreas
Theotokis
Chairman
of the Board
of Directors
Your
vote is important.
Whether
you plan to attend the special meeting or not, please sign, date and return
the
enclosed proxy card as soon as possible in the envelope provided.
ENERGY
INFRASTRUCTURE
ACQUISITION CORP.
1105
North Market Street, Suite 1300
Wilmington,
Delaware 19899
(302)
655-1771
NOTICE
OF SPECIAL MEETING OF STOCKHOLDERS
TO
BE HELD OCTOBER __, 2008
TO
THE
STOCKHOLDERS OF
ENERGY
INFRASTRUCTURE ACQUISITION CORP.:
NOTICE
IS
HEREBY GIVEN that a special meeting of stockholders of Energy Infrastructure
Acquisition Corp., a Delaware corporation, will be held 10:00 a.m. Eastern
time,
on October __, 2008, at the offices of Loeb & Loeb LLP, 345 Park Avenue, New
York, New York 10154-1895, for the sole purpose of considering and voting upon
proposals to:
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1.
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Approve
the dissolution of the Company and the proposed Plan of Liquidation
in the
form of Annex A to the accompanying proxy statement;
and
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2.
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Authorize
Energy Infrastructure’s Board of Directors or its Chairman, in their
discretion, to adjourn or postpone the special meeting for further
solicitation of proxies, if there are not sufficient votes at the
originally scheduled time of the special meeting to approve the foregoing
proposal.
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Under
Delaware law and Energy Infrastructure’s by-laws, no other business may be
transacted at the meeting.
The
Board
of Directors has fixed the close of business on September __, 2008 as the
date for determining Energy Infrastructure stockholders entitled to receive
notice of and vote at the special meeting and any adjournment thereof. Only
holders of record of Energy Infrastructure common stock on that date are
entitled to have their votes counted at the special meeting or any adjournment.
A list of stockholders entitled to vote at the meeting will be available for
inspection at the offices of the Company and at the special
meeting.
Your
vote
is important. Please sign, date and return your proxy card as soon as possible
to make sure that your shares are represented at the special meeting. If you
are
a stockholder of record, you may also cast your vote in person at the special
meeting. If your shares are held in an account at a brokerage firm or bank,
you
must instruct your broker or bank how to vote your shares, or you may cast
your
vote in person at the special meeting by presenting a proxy obtained from your
brokerage firm or bank.
Your
failure to vote or instruct your broker or bank how to vote will have the same
effect as voting against the dissolution and liquidation.
Energy
Infrastructure’s Board of Directors unanimously recommends that you vote “FOR”
approval of each proposal.
Dated: September
__, 2008
By
Order of the Board
of Directors,
Andreas
Theotokis
Chairman
of the Board
of Directors
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
1105
North Market Street, Suite 1305
Wilmington,
Delaware 19899
(302)
655-1771
SPECIAL
MEETING OF STOCKHOLDERS
TO
BE HELD OCTOBER __, 2008
PROXY
STATEMENT
A
special
meeting of stockholders of Energy Infrastructure Acquisition Corp. will be
held
at 10:00 a.m., Eastern time, on October __, 2008, at the offices of Loeb &
Loeb LLP, 345 Park Avenue, New York, New York 10154-1895. At this meeting,
you
will be asked to consider and vote upon proposals to:
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1.
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Approve
the dissolution of the Company and the proposed Plan of Liquidation
in the
form of Annex A to this proxy statement;
and
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2.
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Authorize
Energy Infrastructure’s Board of Directors or its Chairman, in their
discretion, to adjourn or postpone the special meeting for further
solicitation of proxies, if there are not sufficient votes at the
originally scheduled time of the special meeting to approve the foregoing
proposal.
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Under
Delaware law and Energy Infrastructure’s by-laws, no other business may be
transacted at the meeting.
This
proxy statement contains important information about the meeting and the
proposals. Please read it carefully and vote your shares.
The
“record date” for the special meeting is September __, 2008. Record holders
of Energy Infrastructure common stock at the close of business on the record
date are entitled to vote or have their votes cast at the special meeting.
On
the record date, there were 27,221,747 outstanding shares of Energy
Infrastructure common stock, of which 20,925,000 were issued in the Company’s
initial public offering, 5,268,849 were issued to the Company’s initial
stockholders before the IPO, and 825,398 were issued to Energy Corp., an
offshore company controlled by George Sagredos, our President and Chief
Operating Officer, in a private placement prior to the Company’s IPO, and each
of which entitles its holder to one vote per proposal at the special meeting.
Energy Infrastructure’s warrants do not have voting rights.
This
proxy statement is dated September __, 2008 and is first being mailed to
stockholders on or about September __, 2008.
CONTENTS
SUMMARY
OF THE PLAN OF LIQUIDATION
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3
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CAUTION
REGARDING FORWARD-LOOKING STATEMENTS
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4
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QUESTIONS
AND ANSWERS ABOUT THE SPECIAL MEETING AND THE PLAN
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5
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GENERAL
INFORMATION ABOUT THE SPECIAL MEETING
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9
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THE
DISSOLUTION AND PLAN OF LIQUIDATION
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12
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RISK
FACTORS
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14
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INFORMATION
ABOUT ENERGY INFRASTRUCTURE
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21
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BENEFICIAL
OWNERSHIP OF SECURITIES
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STOCKHOLDER
PROPOSALS
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24
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DELIVERY
OF DOCUMENTS TO STOCKHOLDERS
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24
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WHERE
YOU CAN FIND MORE INFORMATION
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SUMMARY
OF THE PLAN OF LIQUIDATION
At
the special meeting, you will be asked to approve the dissolution and
liquidation of the Company, as contemplated by its certificate of
incorporation.
The
following describes briefly the material terms of the proposed dissolution
and
liquidation of the Company. This information is provided to assist stockholders
in reviewing this proxy statement and considering the proposed dissolution
and
liquidation, but does not include all of the information contained herein and
may not contain all of the information that is important to you. To understand
fully the dissolution and liquidation being submitted for stockholder approval,
you should carefully read this proxy statement, including the accompanying
copy
of the Plan of Liquidation attached as Annex A, in its entirety.
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If
the dissolution and liquidation is approved, we will:
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file
a certificate of dissolution with the Delaware Secretary of State;
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adopt
a Plan of Liquidation in or substantially in the form of Annex A
to this
proxy statement by Board action in compliance with Delaware law;
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establish
a contingency reserve for the satisfaction of any known or potential
liabilities, consisting of (i) the obligations of our officers and
directors to indemnify the trust account to the extent necessary
to ensure
that our public stockholders receive a liquidation amount of at least
$10.00 per share, which indemnification obligations were provided
to
Energy Infrastructure at the time of its initial public offering
and (ii)
proceeds from the trust account sufficient to cover Energy
Infrastructure’s known liabilities not otherwise subject to
indemnification by any of our officers and directors;
and
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pay
or adequately provide for the payment of our liabilities, including
(i)
existing liabilities for taxes and to providers of professional and
other
services, (ii) expenses of the dissolution and liquidation, and (iii)
our
obligations to Energy Infrastructure’s public stockholders in accordance
with Energy Infrastructure’s certificate of
incorporation.
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We
expect to make a liquidating distribution to the public stockholders
from
the trust account as soon as practicable following the filing of
our
certificate of dissolution with the Delaware Secretary of State after
stockholder approval of the Plan of Liquidation proposal and adoption
of
the Plan of Liquidation by our Board of Directors. Energy Infrastructure
and its officers and directors are currently negotiating with Energy
Infrastructure’s third parties regarding the satisfaction of Energy
Infrastructure's other liabilities, which it expects to accomplish,
concurrently with such liquidating distribution, with the proceeds
of
payments made from its contingency reserve, consisting of (i) the
indemnification obligations of our officers and directors and (ii)
proceeds from the trust account sufficient to cover the liabilities
of
Energy Infrastructure not otherwise subject to indemnification by
our
officers and directors. As Energy Infrastructure does not have any
material assets beyond the funds held in the trust account, we do
not
anticipate that any additional distributions to stockholders will
be made.
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As
a result of the Company’s liquidation, a stockholder generally
should recognize a gain or loss for U.S. federal income tax purposes,
equal to the difference between (i) the amount of cash distributed
to such
stockholder (including distributions to any liquidating trust), less
any
known liabilities assumed by the stockholder or to which the distributed
property is subject, and (ii) such stockholder's tax basis in
shares of the Company’s common stock. You should consult your tax advisor
as to the tax effects of the Plan of Liquidation and the Company’s
dissolution and liquidation in your particular
circumstances.
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Under
Delaware law, stockholders will not have dissenters’ appraisal rights in
connection with the dissolution and liquidation.
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Under
Delaware law, if we distribute the trust account proceeds to Public
Stockholders, but fail to pay or make adequate provision for our
liabilities, and if the Company’s initial stockholders do not perform
their indemnification obligations, which are expected to fund any
amounts
that would reduce the initial $209,250,000 placed in the trust account,
each Energy Infrastructure stockholder could be held liable for amounts
due Company creditors to the extent of the stockholder’s pro rata share of
the liabilities not so discharged, but not in excess of the total
amount
received by such stockholder. Energy Infrastructure’s pre-IPO stockholders
have informed the Company that they intend to honor their indemnification
obligations. If they fail to do so, however, under Delaware law,
Public
Stockholders could be required to return a portion of the distributions
they receive pursuant to the Plan of Liquidation up to their pro
rata
shares of the liabilities not so discharged, but not in excess of
the
total amounts received by them from the Company. As the directors’
obligations are not collateralized or guaranteed, Energy Infrastructure
cannot assure you that the directors will perform their obligations,
or
that stockholders would be able to enforce those
obligations.
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If
our stockholders do not vote to approve the Company’s dissolution and
liquidation, our Board of Directors will explore what, if any,
alternatives are available for the future of the Company. The Board
believes, however, there are no viable alternatives to the Company’s
dissolution and liquidation pursuant to the Plan of Liquidation.
The Board
has unanimously approved the Company’s dissolution and liquidation, deems
it advisable and recommends you approve it.
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CAUTION
REGARDING FORWARD-LOOKING STATEMENTS
This
proxy statement contains certain forward-looking statements, including
statements concerning our expectations, beliefs, plans, objectives and
assumptions about the value of the Company’s net assets, the anticipated
liquidation value per share of our common stock, and the timing and amounts
of
any distributions of liquidation proceeds to stockholders. These statements
are
often, but not always, made through the use of words or phrases such as
“believe,” “will likely result,” “expect,” “will continue,” “anticipate,”
“estimate,” “intend,” “plan,” “projection” and “would.” The Company intends such
forward-looking statements to be covered by the safe harbor provisions for
forward-looking statements contained in the Private Securities Litigation Reform
Act of 1995, and includes this statement for purposes of invoking those
provisions. Forward-looking statements involve known and unknown risks,
uncertainties and other important factors that could cause the Company’s actual
results, performance or achievements, or other subjects of such statements,
to
differ materially from its expectations regarding such matters expressed or
implied by those statements. These factors include the risks that we may incur
additional liabilities, that the amount required for the settlement of our
liabilities could be higher than expected, and that we may not meet the
anticipated timing for the dissolution and liquidation, as well as the other
factors set forth under the caption “Risk Factors - Risk Factors to be
Considered in Connection with the Company’s Dissolution and the Plan of
Liquidation” and elsewhere in this proxy statement. All of such factors could
reduce the amount available for, or affect the timing of, distribution to our
stockholders, and could cause other actual outcomes to differ materially from
those expressed in any forward-looking statements made in this proxy statement.
You should therefore not place undue reliance on any such forward-looking
statements. Although the Company believes that the expectations reflected in
the
forward-looking statements contained in this proxy statement are reasonable,
it
cannot guarantee future events or results. Except as required by law, the
Company undertakes no obligation to update publicly any forward-looking
statements for any reason, even if new information becomes available or other
events occur.
QUESTIONS
AND ANSWERS ABOUT THE SPECIAL MEETING
AND THE PLAN
These
Questions and Answers are only summaries of the matters they discuss. Please
read this entire proxy statement.
Q.
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What
is being voted on?
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A.
You
are being asked to vote upon proposals to:
1.
Approve
the dissolution of the Company and the proposed Plan of Liquidation
in, or
substantially in the form of Annex A to this proxy statement;
and
2.
Authorize
Energy Infrastructure’s Board of Directors or its Chairman, in their
discretion, to adjourn or postpone the special meeting for further
solicitation of proxies, if there are not sufficient votes at
the
originally scheduled time of the special meeting to approve the
foregoing
proposal.
Under
Delaware law and Energy Infrastructure’s by-laws, no other business may be
transacted at the meeting.
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Q.
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Why
is Energy Infrastructure proposing dissolution and
liquidation?
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A.
Energy
Infrastructure was organized in 2005 to acquire, through a merger,
capital
stock exchange, asset acquisition or other similar business combination,
one or more businesses that supports the process of bringing
energy, in
the form of crude oil, natural and liquefied petroleum gas, and
refined
and specialized products (such as petrochemicals), from production
to
final consumption throughout the world (a “business combination”). On July
21, 2006, Energy Infrastructure consummated its initial public
offering of
20,250,000 units, with each unit consisting of one share of its
common
stock and one warrant. On August 31, 2006 the underwriters of
Energy
Infrastructure’s initial public offering exercised their over allotment
option to purchase an additional 675,000 units, generating an
additional
$6,750,000 in gross proceeds. This, along with a private placement
prior
to the closing of the initial public offering, which generated
gross
proceeds of $8,253,980, resulted in a total of $209,250,000 in
net
proceeds, including certain deferred offering costs and deferred
placement
fees being held in an interest-bearing trust account. The initial
public
offering proceeds held in the trust account were to be used in
connection
with a business combination or to be returned to Energy Infrastructure's
public stockholders if an initial business combination was not
completed
within eighteen months from the consummation of the initial public
offering, or within twenty four months if a letter of intent,
agreement in
principle or definitive agreement relating to a business combination
was
executed by Energy Infrastructure within such eighteen-month
period, all
as set forth in Energy Infrastructure’s certificate of incorporation.
On
December 3, 2007, Energy Infrastructure, Energy Infrastructure
Merger
Corporation, the Company’s wholly-owned Marshall Islands subsidiary, or
Energy Merger, and Vanship Holdings Limited, or Vanship, entered
into a
Share Purchase Agreement, as subsequently amended and restated,
which we
refer to as the Share Purchase Agreement, pursuant to which Energy
Merger
was to purchase all of the outstanding shares of each of nine
special
purpose vehicles, or SPVs, each of which owns one very large
crude
carrier, or VLCC, from Vanship. On July 19, 2008, Energy Infrastructure
and Vanship mutually agreed to terminate the Share Purchase Agreement.
As
a result, the two-year period for Energy Infrastructure to complete
a
business combination has passed without one being consummated,
and Energy
Infrastructure is now required to dissolve and liquidate as
provided in its charter and public
filings.
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Q.
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How
will the liquidation of Energy Infrastructure be
accomplished?
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The
Plan of Liquidation provides for the discharge of Energy Infrastructure’s
liabilities and the winding up of its affairs, including distribution
to
its public stockholders (Public Stockholders) of the full purchase
price
of $10.00 per unit (plus a portion of the interest earned, but
net of (i)
taxes payable on interest earned, (ii) interest income released
to us to
fund our working capital, (iii) payment of quarterly interest
payments on
the convertible loan and repayment of the convertible loan upon
the
earlier to occur of our dissolution and liquidation or a business
combination, if not converted, and (iv) repayment of the term
loan, plus
accrued interest), plus a pro rata share of any remaining net
assets,
subject to any valid claims by third parties that are not covered
by
amounts held in the trust account or the indemnities provided
by our
directors and officers. Energy Infrastructure’s pre-IPO stockholders have
waived their rights to participate in any liquidation distribution
with
respect to shares of common stock owned by them prior to the
IPO.
Stockholder approval of the Company’s dissolution is required by Delaware
law, under which Energy Infrastructure is organized.
The
affirmative vote of the holders of a majority of the shares of
Energy
Infrastructure’s outstanding common stock will be required to approve the
dissolution and liquidation. Your Board of Directors has unanimously
approved the Company’s dissolution, deems it advisable and recommends you
approve the dissolution and liquidation. The Board intends to
approve the
Plan of Liquidation, as required by Delaware law, immediately
following
stockholder approval of the dissolution and
liquidation.
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Q.
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How
do the Energy Infrastructure insiders intend to vote their
shares?
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A.
The
Private Stockholders have advised the Company that they support
the
dissolution and liquidation and will vote their 6,094,247 shares
for it,
together with the adjournment proposal.
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Q.
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What
vote is required to adopt the proposals?
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A.
Approval
of the dissolution and liquidation proposal requires the affirmative
vote
of holders of a majority of Energy Infrastructure’s outstanding common
stock. Approval of the adjournment proposal requires the affirmative
vote
of holders of a majority of Energy Infrastructure’s common stock voting on
the proposal.
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Q.
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Why
should I vote for the proposals?
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A.
The
Plan of Liquidation provides for the distribution to current
holders of
Energy Infrastructure common shares originally issued in its
IPO of the
principal and accumulated interest of the trust account as contemplated
by
the Company’s charter and its IPO prospectus. Stockholder approval of the
Company’s dissolution is required by Delaware law, under which Energy
Infrastructure is organized. If the dissolution and liquidation
is not
approved, Energy Infrastructure will not be authorized to dissolve
and
liquidate, and will not be authorized to distribute the funds
held in the
trust account to holders of
shares
issued in its initial public offering, which we refer to as the
Public
Shares.
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Q.
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How
much do I get if the dissolution and liquidation is
approved?
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A.
If
the dissolution and liquidation is approved, each current holder
of Public
Shares is expected to receive $10.00 of original principal of
the trust account and approximately $0.29 of accumulated interest
(as of
July 31, 2008, when the account’s most recent investment matured), or
$10.29, per public share. This amount assumes repayment of convertible
loans and interest in the amount of $2,703,000 and payments to
vendors and
service providers of approximately $459,000, which amount may
be reduced
pursuant to negotiations currently in progress, but does not
include the
approximately $3,400,000 Vanship has claimed it is owed. The
Company is
disputing this claim and plans to return such amounts to its
public
stockholders in connection with the dissolution and liquidation.
The trust
account contained $218,589,294 as of July 31, 2008.
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Q.
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What
if I don’t want to vote for the dissolution and
liquidation?
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A.
If
you do not want the dissolution and liquidation to be approved,
you must
abstain, not vote, or vote against it. You should be aware, however,
that
if the dissolution and liquidation is not approved, Energy Infrastructure
will not be authorized to dissolve and liquidate, and will not
be
authorized to distribute the funds held in the trust account
to holders of
Public Shares.
Whether
or not you vote against it, if the dissolution and liquidation
is
approved, all Public Stockholders will be entitled to share in
the
liquidation of the trust account.
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Q.
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What
happens if the dissolution and liquidation isn’t
approved?
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A.
If
the dissolution and liquidation is not approved, Energy Infrastructure
will not be authorized to dissolve and liquidate, and will not
be
authorized to distribute the funds held in the trust account
to holders of
Public Shares. If sufficient votes to approve the dissolution
and
liquidation are not available at the meeting, or if a quorum
is not
present in person or by proxy, the Company’s Board of Directors may seek
to adjourn or postpone the meeting to continue to seek such
approval.
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Q.
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If
the dissolution and liquidation is approved, what happens
next?
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A.
We
will:
·
file
a Certificate of Dissolution with the Delaware authorities;
·
adopt
the Plan of Liquidation by Board action in compliance with Delaware
law;
·
conclude
our negotiations with creditors and pay or adequately provide
for the
payment of the Company’s liabilities;
·
distribute
the proceeds of the trust account to Public Stockholders, less
Energy
Infrastructure’s debts and obligations not subject to indemnification;
and
·
otherwise
effectuate the Plan.
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Q.
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If
I am not going to attend the special meeting in person, should
I return my
proxy card instead?
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A.
Yes.
After carefully reading and considering the information in this
document,
please fill out and sign your proxy card. Then return it in the
enclosed
envelope as soon as possible, so that your shares may be represented
at
the special meeting.
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Q.
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What
will happen if I abstain from voting or fail to
vote?
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A.
Abstaining
or failing to vote will have the same effect as a vote against
the
proposed dissolution and liquidation.
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Q.
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How
do I change my vote?
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A.
Send
a later-dated, signed proxy card to Energy Infrastructure's secretary
no
later than _________, 2008, or attend the Special Meeting in
person and
vote. You also may revoke your proxy by sending a notice of revocation
to
Energy Infrastructure Acquisition Corp, Suite 1300, 1105 North
Market
Street, Wilmington, Delaware 19899, Attn: Secretary.
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Q.
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If
my shares are held in “street name,” will my broker automatically vote
them for me?
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A.
No.
Your broker can vote your shares only if you provide instructions
on how
to vote. You should instruct your broker sto vote your shares.
Your broker
can tell you how to provide these instructions.
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Q.
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Can
I still sell my shares?
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A.
Yes,
you may sell your shares at this time. If you sell shares before,
or
purchase shares after, the record date for the special meeting,
you will
not be entitled to vote those shares at the special meeting.
Delaware law
restricts transfers of our common stock after dissolving, which
we expect
will occur upon approval of the Company’s dissolution by stockholders at
the special meeting. Thereafter, and until trading on the American
Stock
Exchange is halted through termination of registration, we believe
that
any trades of the Company’s shares will be tracked and marked with a due
bill by the Depository Trust
Company.
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Q.
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Who
can help answer my questions?
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A.
If
you have questions, you may write or call Energy Infrastructure
Acquisition Corp., 1105 North Market Street, Suite 1300, Wilmington,
Delaware, 19899, (302) 655-1771, Attention: Mr. George Sagredos,
President
and Chief Operating
Officer.
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GENERAL
INFORMATION ABOUT THE SPECIAL MEETING
Energy
Infrastructure is furnishing this proxy statement to its stockholders as part
of
the solicitation of proxies by the Board of Directors for use at the special
meeting in connection with the proposed dissolution and liquidation of the
Company. This proxy statement provides you with information you need to know
to
vote or instruct your vote to be cast at the special meeting.
Date,
Time and Place
.
We will
hold the special meeting at 10:00 a.m., Eastern time, on October __, 2008,
at
the offices of Loeb & Loeb LLP, 345 Park Avenue, New York, New York
10154-1895, to vote on the proposals to approve the Company’s dissolution and
liquidation and the proposal to adjourn or postpone the meeting if necessary
to
solicit additional proxies.
Purpose
.
At the
special meeting, holders of Energy Infrastructure common stock will be asked
to
approve the Company’s dissolution and liquidation and the proposal to authorize
Company management to adjourn or postpone the meeting to solicit additional
proxies.
Energy
Infrastructure’s Board of Directors has determined that the proposed dissolution
and liquidation is fair to and in the best interests of Energy Infrastructure
and its stockholders, approved and declared it advisable, and recommends that
Energy Infrastructure stockholders vote
“FOR”
it.
The
Board
of Directors also recommends that you vote or give instruction to vote
“
FOR
”
adoption of the proposal to permit Energy Infrastructure’s Board of Directors or
its Chairman, in their discretion, to adjourn or postpone the special meeting
for further solicitation of proxies, if there are not sufficient votes at the
originally scheduled time of the special meeting to approve any of the foregoing
proposals.
The
special meeting has been called only to consider approval of the proposed
dissolution and liquidation and management authority to adjourn or postpone
the
meeting if necessary to solicit additional proxies. Under Delaware law and
Energy Infrastructure’s by-laws, no other business may be transacted at the
special meeting.
Record
Date; Who is Entitled to Vote
.
The
“record date” for the special meeting is September __, 2008. Record holders
of Energy Infrastructure’s common stock at the close of business on the record
date are entitled to vote or have their votes cast at the special meeting.
On
the record date, there were 27,221,747 outstanding shares of Energy
Infrastructure common stock, of which 20,925,000 were issued in the Company’s
initial public offering, 5,268,849 were issued to the Company’s initial
stockholders and 825,398 were issued to Energy Corp., an off-shore company
controlled by George Sagredos, our President and Chief Operating Officer, in
a
private placement prior to the Company’s IPO. Each common share entitles its
holder to one vote per proposal at the special meeting. Energy Infrastructure’s
warrants do not have voting rights.
The
Private Stockholders have advised the Company that they will vote in favor
of
the Plan of Liquidation.
During
the ten-day period before the special meeting, Energy Infrastructure will keep
a
list of holders of record entitled to vote at the special meeting available
for
inspection during normal business hours at its offices in Wilmington, Delaware
for any purpose germane to the special meeting. The list of stockholders will
also be provided and kept at the location of the special meeting for the
duration of the special meeting, and may be inspected by any stockholder who
is
present.
Quorum;
Vote Required
.
The
presence of the holders of a majority of the outstanding shares of common stock
of the Company, present in person or by proxy, will be required to constitute
a
quorum for the transaction of business at the special meeting, other than
adjournment to seek a quorum. Approval of the Company’s dissolution and
liquidation will require the affirmative vote of holders of a majority of Energy
Infrastructure’s outstanding shares of common stock. Approval of the proposal
for discretionary authority to adjourn or postpone the special meeting to
solicit additional proxies will require the affirmative vote of holders of
a
majority of Energy Infrastructure’s common stock voting on the
proposal.
Abstaining
from voting or not voting, either in person or by proxy or by voting
instruction, will have the same effect as a vote against the dissolution and
liquidation proposal
.
Voting
Your Shares
.
Each
share of common stock that you own in your name entitles you to one vote per
proposal. Your proxy card shows the number of shares you own.
There
are
three ways to vote your shares at the special meeting:
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By
signing and returning the enclosed proxy card
.
If you vote by proxy card, your “proxies,” whose names are listed on the
proxy card, will vote your shares as you instruct on the card.
If you sign
and return the proxy card, but do not give instructions on how
to vote
your shares, your shares will be voted as recommended by the Energy
Infrastructure Board
“for”
approval of the dissolution and liquidation and the proposal to
authorize
management to adjourn or postpone the meeting to solicit additional
proxies.
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By
telephone or on the Internet
.
You can vote this way by following the telephone or Internet voting
instructions that are included with your proxy card. If you do,
you should
not return the proxy card.
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You
can attend the special meeting and vote in person
.
We will give you a ballot at the meeting. However, if your shares
are held
in the name of your broker, bank or another nominee, you must present
a
proxy from the broker, bank or other nominee. That is the only
way we can
be sure that the broker, bank or nominee has not already voted your
shares.
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Adjournment
or Postponement.
If the
adjournment proposal is approved at the special meeting, Energy Infrastructure
may adjourn or postpone the special meeting if necessary to solicit further
proxies. In addition, Energy Infrastructure may adjourn or postpone the special
meeting as set forth in Energy Infrastructure’s certificate of incorporation or
by-laws or as otherwise permitted by law.
Questions
About Voting
.
If you
have any questions about how to vote or direct a vote in respect of your Energy
Infrastructure common stock, you may call Mr. George Sagredos, our President
and
Chief Operating Officer, at (302) 655-1771. You may also want to consult your
financial and other advisors about the vote.
Revoking
Your Proxy and Changing Your Vote
.
If you
give a proxy, you may revoke it or change your voting instructions at any time
before it is exercised by:
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·
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Delivering
another proxy card with a later
date;
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Notifying
Energy Infrastructure Acquisition Corp, Suite 1300, 1105 North
Market
Street, Wilmington, Delaware 19899, Attn: Secretary, in writing
before the
special meeting that you have revoked your proxy;
or
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Attending
the special meeting, revoking your proxy and voting in
person.
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If
your
shares are held in “street name,” consult your broker for instructions on how to
revoke your proxy or change your vote. If an executed proxy card is returned
by
a broker or bank holding shares that indicates that the broker or bank does
not
have discretionary authority to vote on the proposals, the shares will be
considered present at the meeting for purposes of determining the presence
of a
quorum, but will not be considered to have been voted on the proposals. Your
broker or bank will vote your shares only if you provide instructions on how
to
vote by following the information provided to you by your broker.
Broker
Non-Votes
.
If your
broker holds your shares in its name and you do not give the broker voting
instructions, National Association of Securities Dealers, Inc. (NASD) rules
prohibit your broker from voting your shares on the dissolution and liquidation
proposal or the proposal to adjourn or postpone the special meeting to solicit
additional proxies. This is known as a “broker non-vote.” Abstentions or broker
non-votes will have the same effect as a vote against the dissolution and
liquidation proposal. Abstentions or broker non-votes will not be counted as
votes for or against the proposal to authorize management to adjourn or postpone
the special meeting, as the vote required to approve this discretionary
authority is a majority of the shares present in person or by proxy and entitled
to vote.
No
Dissenters’ Rights.
Under
Delaware law, stockholders are not entitled to dissenters’ rights of appraisal
in connection with the Company’s dissolution and liquidation.
Solicitation
Costs
.
Energy
Infrastructure is soliciting proxies on behalf of the Energy Infrastructure
Board of Directors. This solicitation is being made by mail but also may be
made
in person or by telephone or other electronic means. Energy Infrastructure
and
its respective directors, officers, employees and consultants may also solicit
proxies in person or by mail, telephone or other electronic means. These persons
will not be paid for doing this.
Energy
Infrastructure has not hired a firm to assist in the proxy solicitation process
but may do so if it deems this assistance desirable. Energy Infrastructure
will
pay all fees and expenses related to the retention of any proxy solicitation
firm.
Energy
Infrastructure will ask banks, brokers and other institutions, nominees and
fiduciaries to forward its proxy materials to their principals and to obtain
their authority to execute proxies and voting instructions. Energy
Infrastructure will reimburse them for their reasonable expenses.
Stock
Ownership
.
Information concerning the holdings of certain Energy Infrastructure
stockholders is set forth under “Beneficial Ownership of
Securities.”
THE
DISSOLUTION AND PLAN OF LIQUIDATION
The
Board
of Directors is proposing the Company’s dissolution and liquidation for approval
by our stockholders at the special meeting. The Board has unanimously approved
the Company’s dissolution, declared it advisable and directed that it be
submitted for stockholder action at the meeting. The Board has also approved
the
Plan of Liquidation and directed that it be submitted for stockholder action,
and, as required by Delaware law, intends to re-approve it immediately following
stockholder approval of the dissolution and liquidation and the filing of a
Certificate of Dissolution with the Delaware Secretary of State. A copy of
the
Plan of Liquidation is attached as Annex A to this proxy statement.
After
approval of the Company’s dissolution, we anticipate that our activities will be
limited to actions we deem necessary or appropriate to accomplish,
inter
alia
,
the
following:
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filing
a Certificate of Dissolution with the Secretary of State of Delaware
and,
thereafter, remaining in existence as a non-operating entity for
three
years;
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adopting
a Plan of Liquidation in, or substantially in, the form of Annex
A to this
proxy statement by Board action in compliance with Delaware law;
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establishing a
contingency reserve for the satisfaction of any known or potential
liabilities, consisting of (i) the indemnification obligations of
our
officers and directors provided to Energy Infrastructure at the time
of
its initial public offering and (ii) proceeds from the trust account
sufficient to cover Energy Infrastructure’s known liabilities not
otherwise subject to indemnification by any of our officers and directors;
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paying
or adequately providing for the payment of our liabilities, including
(i)
existing liabilities for taxes and to providers of professional and
other
services, (ii)
repayment
of the convertible loan,
(iii) expenses of the dissolution and
liquidation, and (iv) our obligations to Energy Infrastructure’s Public
Stockholders in accordance with Energy Infrastructure’s certificate of
incorporation;
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winding
up our remaining business activities;
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complying
with U.S. Securities and Exchange Commission filing requirements,
for so
long as we are required to do so;
and
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making
tax and other regulatory filings.
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Following
dissolution, although they do not expect to do so, our directors may, at any
time, engage third parties to complete the liquidation pursuant to the Plan
of
Liquidation. In addition, although it does not anticipate that it will be
necessary to do so, since we do not have any material assets outside the trust
account, the Board will be authorized to establish a liquidating trust to
complete the Company’s liquidation.
At
July
31, 2008, we had approximately $7,300 in cash outside the trust account and
an
additional $218,589,294 in marketable securities and cash in the trust account.
Our balance sheet as of that date also reflected total liabilities of
approximately $4,300,000, of which $900,000 consists of loans by entities
controlled by George Sagredos, the Company’s President and Chief Operating
Officer, repayment of which is subordinate to repayment of the Company’s public
stockholders, resulting in net amounts payable of approximately $3,400,000.
In
addition, Vanship has initiated an arbitration proceeding claiming that it
is
owed approximately $3,400,000. We are disputing this claim and have not included
this disputed amount in the calculation of our current liabilities. Therefore,
we currently have net liabilities and obligations that exceed available cash
outside the trust account by approximately $3,400,000, or $0.16 per public
share. We expect to pay the Company’s liabilities in full or, in some cases, in
a reduced amount agreed to by the relevant creditor(s) pursuant to negotiations
currently in progress. In addition to satisfying these liabilities, we
anticipate incurring additional professional, legal and accounting fees in
connection with the Company’s dissolution and liquidation. To the extent payment
of the foregoing exceeds assets of the Company outside the trust account,
the
Company will satisfy such liabilities and obligations from interest earned
on
the principal in the trust account and from the indemnities provided by our
officers and directors. We believe we have identified all of the Company’s
liabilities.
Our
Board of Directors has unanimously approved the dissolution and liquidation
of
the Company and unanimously recommends that our stockholders vote “FOR” it.
RISK
FACTORS
Risk
Factors to be Considered in Connection with the Company’s Dissolution and the
Plan of Liquidation
There
are
a number of factors that our stockholders should consider when deciding whether
to vote to approve the Company’s dissolution and liquidation, including the
following:
We
may not meet the anticipated timing for the dissolution and liquidation.
Promptly
following the meeting, if our stockholders approve the Company’s dissolution and
liquidation, we intend to file a Certificate of Dissolution with the Secretary
of State of Delaware and wind up our business promptly thereafter. We expect
that the Company will make the liquidation distribution of the trust account
proceeds to its Public Stockholders as soon as practicable following the filing
of our Certificate of Dissolution with the State of Delaware after approval
of
the dissolution by the stockholders. We do not expect that there will be any
additional Company assets remaining for distribution to Public Stockholders
after payment, provision for payment or compromise of its liabilities and
obligations. There are a number of factors that could delay our anticipated
timetable, including the following:
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delays
in the payment, or arrangement for payment or compromise, of remaining
Company liabilities or obligations;
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lawsuits
or other claims asserted against us; and
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unanticipated
legal, regulatory or administrative
requirements.
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We
may not be able to settle all of our obligations to creditors.
We
have
current and future obligations to creditors. The Plan of Liquidation takes
into
account all of our known obligations and our best estimate of the amount
reasonably required to satisfy such obligations. As part of the winding up
process, we are attempting to settle those obligations with our creditors.
We
cannot assure you that we will be able to settle all of these obligations or
that they can be settled for the amounts we have estimated. If we are unable
to
reach agreement with a creditor relating to an obligation, that creditor may
bring a lawsuit against us. Our officers and directors have each agreed on
a pro
rata basis to be liable to ensure that the principal in the trust
account is not reduced by claims of (i) various vendors' or other entities'
expenses for services rendered or products sold to Energy Infrastructure or
(ii)
any prospective target business that Energy Infrastructure did not pay, or
reimburse, for the fees and expenses of third party service providers to such
target which Energy Infrastructure agreed in writing to be liable for, in each
case to the extent the payment of such debts and obligations actually reduces
the amount of principal in the trust account (or, in the event that such
claim arises after the distribution of the trust account, to the extent
necessary to ensure that Energy Infrastructure’s former stockholders are not
liable for any amount of such loss, liability, claim, damage or expense, up
to
$10.00 per share). If they do not perform those obligations, such creditors
may
seek to recover such claims from the Company’s stockholders within three years
of the Company’s dissolution.
If
our reserves for payments to creditors are inadequate, each stockholder may
be
liable to our creditors for a pro rata portion of their claims up to the amount
distributed to such stockholder by us.
Pursuant
to Delaware law, we will continue to exist for three years after the dissolution
becomes effective for completion of our winding up. If we fail to provide
adequately for all our liabilities, each of our stockholders could be liable
for
payment to our creditors of the stockholder’s pro rata portion of such
creditors’ claims up to the amount distributed to such stockholder in the
liquidation.
We
cannot assure you that claims will not be made against the trust account,
the
result of which could impair or delay its distribution to the Public
Stockholders.
Energy
Infrastructure currently has little available funds outside the trust account.
Therefore, Energy Infrastructure’s third parties may seek to satisfy their
claims from funds in the trust account, which could further reduce a
stockholder's distribution from the trust account, or delay stockholder
distributions.
Recordation
of transfers of our common stock on our stock transfer books will be restricted
as of the date fixed by the Board for filing the Certificate of Dissolution,
and
thereafter it generally will not be possible for stockholders to change record
ownership of our stock.
After
dissolution, Delaware law will prohibit transfers of record of our common stock
except by will, intestate succession or operation of law. We believe, however,
that after dissolution any trades of shares of our common stock held in “street”
name will be tracked and marked with a due bill by the Depository Trust Company.
Our
Board of Directors may delay implementation of the Plan of Liquidation, even
if
dissolution is approved by our stockholders.
Even
if
the Company’s dissolution is approved by our stockholders, our Board of
Directors has reserved the right, in its discretion, to delay implementation
of
the Plan of Liquidation, if it determines that doing so is in the best interests
of the Company and its stockholders. The Board is, however, unaware of any
circumstances under which it would do so.
If
our stockholders do not approve the Dissolution and Plan of Liquidation
proposal, no assurances can be given as to how or when, if ever, amounts in
the
trust account will be distributed to our
stockholders.
The
certificate of incorporation of Energy Infrastructure provides that the trust
account proceeds will be distributed to the Public Stockholders upon the
liquidation and dissolution of Energy Infrastructure, and Delaware law requires
that the stockholders approve such Plan of Liquidation proposal. If Energy
Infrastructure’s stockholders do not approve the Plan of Liquidation proposal,
Energy Infrastructure will not have the requisite legal authority to distribute
the trust account proceeds to stockholders. In such case, no assurance can
be
given as to how or when, if ever, such amounts will be distributed.
If
third parties bring claims against Energy Infrastructure, the proceeds held
in
trust could be reduced, which would result in a per-share liquidation value
receivable by Energy Infrastructure's Public Stockholders from the trust account
as part of its plan of dissolution and liquidation that is less than
$10.00.
Energy
Infrastructure’s placing of funds in trust may not protect those funds from
third party claims against it. Energy Infrastructure has not procured waivers
from any creditors or prospective target businesses, and if the Business
Combination is not effected, the material creditors of Energy Infrastructure
would consist of its legal advisors, accountants, and other service providers.
As of July 31, 2008, claims by third parties amounted to approximately
$3,860,000.
Accordingly,
the proceeds held in trust could be subject to claims that could take priority
over the claims of Energy Infrastructure’s Public Stockholders, which would
result in a per-share liquidation value receivable by Energy Infrastructure’s
Public Stockholders from funds held in the trust account that is less than
$10.00 per share, plus interest (net of any taxes due on such interest and
repayment of $2,685,000 of convertible loans, plus accrued
interest).
In
connection with its initial public offering, Energy Infrastructure’s initial
officers and directors each entered into a letter agreement whereby they agreed
to indemnify Energy Infrastructure against any loss, liability, claims, damage
and expense whatsoever (including, but not limited to, any and all legal and
other expenses reasonably incurred in investigating, preparing or defending
against any litigation, whether pending or threatened, or any claim whatsoever)
which Energy Infrastructure may become subject as a result of any claim by
any
vendor that is owed money by Energy Infrastructure for services rendered or
products sold, but only to the extent necessary to ensure that such loss,
liability, claim, damage or expense does not reduce the initial $209,250,000
in
the trust account. Pursuant to these letter agreements, Energy Infrastructure
may seek indemnity from its officers and directors to the extent of their pro
rata beneficial interest in Energy Infrastructure immediately prior to the
initial public offering and to the extent interest held in the trust account
is
not sufficient to fund the Energy Infrastructure’s liabilities and expenses.
Energy Infrastructure and its board of directors may be obligated to seek
enforcement of the letter agreements to ensure against reductions in the
principal in the trust account.
In
the
event that it is subsequently determined that the reserve for claims and
liabilities is insufficient, stockholders who received a return of funds from
the trust account as part of the liquidation could be liable for claims made
by
creditors.
Dissolution
Under Delaware Law
Section
275 of the Delaware General Corporation Law (DGCL) provides that a corporation
may dissolve upon a majority vote of the board of directors of the corporation
followed by a favorable vote of holders of a majority of the outstanding stock
entitled to vote. Following such approval, the dissolution is effected by filing
a certificate of dissolution with the State of Delaware. Once a corporation
is
dissolved, its existence is automatically continued for a term of three years,
but solely for the purpose of winding up its business. The process of winding
up
includes:
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prosecution
and defense of any lawsuits;
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settling
and closing of any business;
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disposition
and conveyance of any property;
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discharge
of any liabilities; and
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distribution
of any remaining assets to the stockholders of the corporation.
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Principal
Provisions of the Plan of Liquidation
General.
We
will
distribute pro rata to our Public Stockholders all of the proceeds of the trust
account, which we anticipate will be the only amounts available for distribution
to stockholders. Liquidation is expected to commence as soon as practicable
after approval of the Company’s dissolution by stockholders at the special
meeting. We do not anticipate that we will solicit any further votes of our
stockholders with respect to the Plan of Liquidation.
Subject
to the payment or the provision for payment of our liabilities, we expect to
distribute to our Public Stockholders the amounts to which they are entitled
under the Company’s certificate of incorporation, consisting of the entire
amount of the trust account at the record date for the special meeting. We
do
not anticipate making any other distributions to stockholders.
We
will
also pay or provide for our known liabilities in accordance with negotiations
between the Company’s directors and its creditors. Since we do not know of any
other Company liabilities or any facts suggesting that any other Company
liabilities may exist or arise, we intend to establish a contingency reserve,
consisting of the indemnification obligations of the Company’s directors
provided to Energy Infrastructure at the time of its IPO, which the Board
expects will be sufficient to satisfy actual and potential liabilities. As
this
contingency reserve will be funded by the Company’s directors pursuant to their
indemnification obligations as and when needed to discharge Company liabilities
and obligations, we do not believe there will be any net balance of the
contingency reserve, after payment, provision for or discharge of all of our
liabilities, for distribution to our stockholders.
We
will
discontinue recording transfers of shares of our common stock on the date of
the
Company’s dissolution. Thereafter, certificates representing shares of our
common stock will not be assignable or transferable on our books, except by
will, intestate succession or operation of law. After that date, we will not
issue any new stock certificates, except in connection with such transfers
or as
replacement certificates.
Our
Conduct Following Approval of the Dissolution and Adoption of the Plan of
Liquidation.
Our
directors and officers will not receive any compensation, other than
reimbursement for expenses, for the duties that each performs in connection
with
the Company’s dissolution or under the Plan of Liquidation. Following approval
of the Company’s dissolution by our stockholders at the special meeting, our
activities will be limited to adopting the Plan of Liquidation, winding up
our
affairs, taking such actions as we believe may be necessary, appropriate or
desirable to preserve the value of our assets, and distributing our assets
in
accordance with the Plan of Liquidation.
We
will
indemnify our officers, directors and agents in accordance with our certificate
of incorporation and bylaws for actions taken in connection with winding up
our
affairs. Our obligation to indemnify such persons may be satisfied out of our
remaining assets, which we expect will be limited to the proceeds of our
directors’ indemnification obligations. The Board and the trustees of any
liquidating trust may obtain and maintain such insurance as they believe may
be
appropriate to cover our indemnification obligations under the Plan of
Liquidation. We intend to continue to maintain directors’ and officers’
liability insurance.
Contingency
Reserve.
We
generally are required, in connection with the Company’s dissolution, to provide
for payment of our liabilities. We intend to pay or provide for payment of
all
our known liabilities promptly after approval of the Plan of Liquidation, and
to
set aside a contingency reserve, that we believe will be adequate to satisfy
all
of our remaining liabilities. If it is not, a creditor could bring a claim
against one or more of our stockholders for each such stockholder’s pro rata
portion of the claim, up to the total amount distributed by us to that
stockholder pursuant to the Plan of Liquidation. Once we have established a
contingency reserve, we would distribute to stockholders any portion thereof
that our Board deems no longer to be required, although because of the nature
of
our limited assets and liabilities, we do not expect that any such distributions
will be made.
Potential
Liability of Stockholders.
Under
the
DGCL, in the event we fail to create adequate reserves for liabilities, or
should such reserve be insufficient to satisfy the aggregate amount ultimately
found payable in respect of our expenses and liabilities, each stockholder
could
be held liable for amounts due creditors to the extent of amounts that such
stockholder received from us and from any liquidating trust under the Plan
of
Liquidation. Each stockholder’s exposure to liability is limited to his, her or
its pro rata portion of the amounts due each creditor. In addition, a creditor
could seek an injunction to prevent us from making distributions under the
Plan
of Liquidation, which could delay and/or diminish distributions to stockholders.
Stock
Certificates.
Stockholders
should not forward their stock certificates before receiving instructions to
do
so. After such instructions are sent, stockholders of record must surrender
their stock certificates to receive distributions, pending which their shares
of
the trust account may be held in trust, without interest and subject to escheat
laws. If a stock certificate has been lost, stolen or destroyed, the holder
may
be required to furnish us with satisfactory evidence of the loss, theft or
destruction, together with a surety bond or other indemnity, as a condition
to
the receipt of any distribution.
Exchange
Act Registration.
Our
common stock is listed on the American Stock Exchange under the symbols EII.
After dissolution, because we will discontinue recording transfers of our common
stock and in view of the significant costs involved in compliance with reporting
requirements and other laws and regulations applicable to public companies,
the
Board may apply to terminate the Company’s registration and reporting
requirements under the Securities Exchange Act of 1934. If registration is
terminated, trading in the common stock on the American Stock Exchange would
terminate.
Liquidating
Trusts.
Although
the Board does not believe it will be necessary, we may transfer any of our
remaining assets to one or more liquidating trusts, the purpose of which would
be to serve as a temporary repository for the trust property prior to its
disposition or distribution to our stockholders. Any liquidating trust would
be
evidenced by a trust agreement between Energy Infrastructure and the person(s)
the Board chooses as trustee(s).
Sales
of Assets.
The
Plan
of Liquidation gives the Board the authority to sell all of our remaining
assets, although the Company’s assets outside the trust account are immaterial.
Any such sale proceeds may be reduced by transaction expenses, and may be less
for a particular asset than if we were not in liquidation. We do not expect
any
material asset sales to occur.
Absence
of Appraisal Rights.
Stockholders
are not entitled to appraisal rights in connection with the Company’s
dissolution and liquidation.
Regulatory
Approvals.
We
do not
believe that any material United States federal or state regulatory requirements
must be met or approvals obtained in connection with the Company’s dissolution
or the Plan of Liquidation.
Treatment
of Warrants.
There
will be no distribution from the trust account with respect to Energy
Infrastructure’s warrants.
Payment
of Expenses.
In
the
discretion of our Board of Directors, we may pay brokerage, agency, professional
and other fees and expenses to any person in connection the implementation
of
the Plan of Liquidation.
Votes
Required and Board Recommendation
Approval
of the Company’s dissolution and liquidation requires the affirmative vote of a
majority of the total number of votes entitled to be cast by all shares
outstanding on the record date. The holders of common stock will vote on the
matter of the approval of the Company’s dissolution and liquidation, with each
holder entitled to one vote per share on the matter.
The
Company’s Board of Directors believes that the Company’s dissolution and
liquidation is in the best interests of our stockholders. The Board has
unanimously approved the dissolution and unanimously recommends that our
stockholders vote “FOR” the dissolution and liquidation. Our directors and
executive officers, who hold, as of the record date, an aggregate of 6,094,247
outstanding shares of our common stock, have indicated that they will vote
“FOR”
the dissolution and liquidation. See “Beneficial Ownership of
Securities.”
Shares
represented by proxy cards received in time for the special meeting that are
properly signed, dated and returned without specifying choices will be voted
“FOR”
this
proposal.
Material
U.S. Federal Income Tax Consequences
The
following discussion is a general summary of the material U.S. federal income
tax consequences of the Plan of Liquidation to the Company and to current
holders of our common stock and warrants originally issued in our IPO, who
are “United States persons,” as defined in the Internal Revenue Code of 1986, as
amended (the “Code”) and who hold such shares and warrants as “capital assets,”
as defined in the Code. The discussion does not purport to be a complete
analysis of all of the potential tax effects of the Plan of Liquidation. Tax
considerations applicable to a particular stockholder or warrant holder will
depend on that stockholder’s or warrant holder’s individual circumstances. The
discussion addresses neither the tax consequences that may be relevant to
particular categories of stockholders or warrant holders subject to special
treatment under certain U.S. federal income tax laws (such as dealers in
securities, banks, insurance companies, tax-exempt organizations, mutual funds,
and foreign individuals and entities) nor any tax consequences arising under
the
laws of any state, local or foreign jurisdiction or any other federal tax.
In
addition, the discussion does not consider the tax treatment of partnerships
or
other pass-through entities or persons who hold our shares or warrants through
such entities.
The
discussion is based upon the Code, U.S. Treasury Department regulations, rulings
of the Internal Revenue Service (“IRS”), and judicial decisions now in effect,
all of which are subject to change or to varying interpretation at any time.
Any
such changes or varying interpretations may also be applied retroactively.
The
following discussion has no binding effect on the IRS or the courts and assumes
that we will liquidate substantially in accordance with the Plan of Liquidation.
We
can
give no assurance that the tax treatment described herein will remain unchanged.
No ruling has been requested from the IRS with respect to the anticipated tax
treatment of the Plan of Liquidation, and we will not seek either such a ruling
or an opinion of counsel with respect to the anticipated tax treatment. If
any
tax consequences or facts prove not to be as anticipated and described herein,
the result could be increased taxation at the stockholder or warrant holder
level.
Because
of the complexity of the tax laws and because the tax consequences to the
Company or to any particular stockholder or warrant holder may be affected
by
matters not discussed herein, s
tockholders and warrant holders are urged
to consult their own tax advisors as to the specific tax consequences to them
in
connection with the Plan of Liquidation and our dissolution, including tax
reporting requirements, the applicability and effect of foreign, federal, state,
local and other applicable tax laws and the effect of any proposed changes
in
the tax laws.
Consequences
to the Company
The
Company may recognize gain or loss on the sale or other taxable disposition
of
any of its assets pursuant to its liquidation to the extent of the difference
between the amount realized on such sale (or the fair market value of the asset)
and its tax basis in such asset.
Consequences
to Stockholders
Gain
or Loss on Liquidation
Amounts
received by stockholders pursuant to the liquidation generally will be treated
as full payment in exchange for their shares of our common stock. As a result
of
our liquidation, a stockholder generally will recognize gain or loss equal
to
the difference between (i) the amount of cash distributed to such stockholder
(including distributions to any liquidating trust), less any known liabilities
assumed by the stockholder or to which the distributed property is subject,
and
(ii) such stockholder’s tax basis in the shares of our common
stock.
A
stockholder’s gain or loss generally will be computed on a “per share” basis, so
that gain or loss is calculated separately for blocks of stock acquired at
different dates or for different prices. Each liquidation distribution generally
will be allocated proportionately to each share of stock owned by a stockholder,
and generally will be applied first to recover a stockholder’s tax basis with
respect to such share of stock. Gain generally will be recognized in connection
with a liquidation distribution allocated to a share of stock only to the extent
that the aggregate value of all liquidation distributions received by a
stockholder with respect to that share exceeds such stockholder’s tax basis for
that share. Any loss generally will be recognized only when a stockholder
receives our final distribution to stockholders, and then only if the aggregate
value of the liquidation distributions with respect to a share of stock is
less
than the stockholder’s tax basis for that share. Any payments by a stockholder
in satisfaction of any Company contingent liability not covered by our
contingency reserve generally would produce a loss in the year paid. Gain or
loss recognized by a stockholder in connection with our liquidation generally
will be capital gain or loss, and will be long-term capital gain or loss if
the
share has been held for more than one year, and short term capital gain or
loss
if the share has not been held for more than one year. Long term capital gain
of
non-corporate taxpayers may be subject to more favorable tax rates than ordinary
income or short term capital gain. The deductibility of capital losses is
subject to various limitations.
Liquidating
Trusts
If
we
transfer assets to a liquidating trust for the benefit of the stockholders,
we
intend to structure any such liquidating trust as a grantor trust of the
stockholders, so that stockholders will be treated for U.S. federal income
tax
purposes as first having constructively received their pro rata share of the
property transferred to the trust and then having contributed such property
to
the trust. In the event that one or more liquidating trusts are formed, the
stockholders generally will receive notice of the transfer(s). The amount of
the
deemed distribution to the stockholders generally will be reduced by the amount
of any known liabilities assumed by the liquidating trust or to which the
transferred property is subject. A liquidating trust qualifying as a grantor
trust is itself not subject to U.S. federal income tax. Our former stockholders,
as owners of the liquidating trust, would be required to take into account
for
U.S. federal income tax purposes their respective allocable portions of any
future income, gain, or loss recognized by such liquidating trust, whether
or
not they have received any actual distributions from the liquidating trust
with
which to pay any tax on such tax items. Stockholders would receive annual
statements from the liquidating trust reporting their respective allocable
shares of the various tax items of the trust.
Back-Up
Withholding
Unless
a
stockholder complies with certain reporting and/or Form W-9 certification
procedures or is an exempt recipient under applicable provisions of the Code
and
Treasury Regulations, such stockholder may be subject to back-up
withholding tax with respect to any payments received pursuant to the
liquidation. The back-up withholding tax is currently imposed at a rate of
28%.
If
backup withholding applies, the amount withheld is not an additional tax, but
generally should be allowed as a credit against the stockholder’s U.S. federal
income tax liability and may entitle the stockholder to a refund, provided
that
certain required information is timely furnished to the IRS. Stockholders are
urged to consult with their own tax advisors regarding the application of backup
withholding and the availability of and procedure for obtaining an exemption
from backup withholding in their particular circumstances.
Consequences
to Warrant Holders
Since
no
distributions will be made to warrant holders pursuant to the Plan of
Liquidation, a holder of our warrants should recognize a capital loss equal
to
such warrant holder's tax basis in the warrant in the tax year in which such
warrant becomes worthless (or expires).
INFORMATION
ABOUT
ENERGY
INFRASTRUCTURE
Energy
Infrastructure was incorporated in Delaware on August 11, 2005 as a blank check
company formed for the purpose of acquiring, through a merger, capital stock
exchange, asset acquisition, stock purchase or other similar business
combination, one or more businesses that support the process of bringing energy,
in the form of crude oil, natural and liquefied petroleum gas, and refined
and
specialized products (such as petrochemicals), from production to final
consumption throughout the world. To date, Energy Infrastructure’s efforts have
been limited to organizational activities, completion of its IPO and the
evaluation and pursuit of a possible business combination.
The
IPO, Private Placement and Trust Account.
On July
21, 2006, Energy Infrastructure consummated its IPO of 20,250,000 units with
each unit consisting of one share of Energy Infrastructure common stock and
one
warrant. Each warrant entitled the holder to purchase one share of Energy
Infrastructure common stock at an exercise price of US$8.00 per share. The
IPO
generated gross proceeds of US$202,500,000. On August 31, 2006 the underwriters
of Energy Infrastructure’s IPO exercised their over allotment option to purchase
an additional 675,000 units, generating an additional $6,750,000 in gross
proceeds. This, along with a private placement prior to the closing of the
IPO,
which generated gross proceeds of $8,253,980, resulted in a total of
$209,250,000 in net proceeds, including certain deferred offering costs and
deferred placement fees being held in the trust account. After deducting the
underwriting discounts and commissions and the offering expenses, the total
net
proceeds to the Company from the private placement and the IPO were
approximately $209,295,702, of which $209,250,000 was deposited into the trust
account and the remaining proceeds of $45,702 became available to be used to
provide for business, legal and accounting due diligence for a prospective
business combination and continuing operating expenses. The trust account is
not
to be released until the earlier of the consummation of a business combination
or liquidation of Energy Infrastructure, although, as noted elsewhere in this
proxy statement, claims might be made against the Company by creditors who
might
seek to have such claims satisfied from the trust account. The trust account
contained $218,589,294 as of July 31, 2008.
Because
Energy Infrastructure did not consummate a business combination by the time
stipulated in its charter, its Board has proposed to dissolve the Company as
contemplated by its certificate of incorporation and IPO prospectus and
distribute to holders of Public Shares, in proportion to their respective equity
interests, sums in the trust account, inclusive of any interest. Energy
Infrastructure’s pre-IPO stockholders have waived their rights to participate in
any liquidation distribution with respect to shares of common stock owned by
them prior to the IPO. There will be no distribution from the trust account
with
respect to Energy Infrastructure’s warrants.
Facilities.
Energy
Infrastructure maintains executive offices at 1105 North Market Street, Suite
1300, Wilmington, Delaware 19899 pursuant to an agreement with Wilmington Trust
SP Services, Inc.. We pay Wilmington Trust an annual fee of US$10,000 for
general and administrative services including office space, utilities and
secretarial support and consulting services.
Employees.
Energy
Infrastructure does not have any full-time employees.
Mr.
George Sagredos, Energy Infrastructure’s President and Chief Operating Officer,
Mr. Marios Pantazopoulos, its Chief Financial Officer, and Mr. Arie Silverberg,
its Chief Executive Officer, are Energy Infrastructure’s only executive
officers. They are not obligated to contribute any specific number of hours
per
week and devote only as much time as they deem necessary to Energy
Infrastructure’s affairs.
Periodic
Reporting and Audited Financial Statements.
Energy
Infrastructure has registered its securities under the Securities and Exchange
Act of 1934, as amended, or the Exchaneg Act, and has reporting obligations,
including the requirement to file annual and quarterly reports with the SEC.
In
accordance with the requirements of the Exchange Act, Energy Infrastructure’s
annual reports contain financial statements audited and reported on by Energy
Infrastructure’s independent accountants.
Legal
Proceedings.
To
the
knowledge of the Company’s management, there is no litigation currently pending
or contemplated against Energy Infrastructure or any of its officers or
directors in their capacity as such, other than an arbitration proceeding
initiated by Vanship, claiming that it is owed approximately $3,400,000. The
Company is disputing this claim.
BENEFICIAL
OWNERSHIP OF SECURITIES
The
following table sets forth information regarding the beneficial ownership of
the
Company’s common stock as of July 31, 2008, by each person known by us to be the
owner of more than 5% of our outstanding shares of common stock; each of our
officers and directors; and all our officers and directors as a
group.
Unless
otherwise indicated, we believe that all persons named in the table have sole
voting and investment power with respect to all shares of common stock
beneficially owned by them.
Name
and Address of Beneficial Owner
(1)
|
|
Amount
and Nature
of
Beneficial
Ownership
(2)(3)
|
|
Percent
of Outstanding Common Stock
|
|
|
|
|
|
|
|
Arie
Silverberg
|
|
|
526,885
|
|
|
1.94
|
%
|
Marios
Pantazopoulos(4)
|
|
|
490,003
|
|
|
1.80
|
%
|
George
Sagredos(5) (6)
|
|
|
4,418,753
|
|
|
16.23
|
%
|
Andreas
Theotokis (5) (7)
|
|
|
4,418,753
|
|
|
16.23
|
%
|
Jonathan
Kollek
|
|
|
526,885
|
|
|
1.94
|
%
|
David
Wong
|
|
|
131,721
|
|
|
*
|
|
Maximos
Kremos
|
|
|
0
|
|
|
*
|
|
Energy
Corp. (8)
|
|
|
4,418,753
|
|
|
16.23
|
%
|
Sappling,
LLC
|
|
|
1,802,108
|
|
|
6.62
|
%
|
Acqua
Wellington North America Equities, Ltd.
|
|
|
1,378,520
|
|
|
5.06
|
%
|
All
directors and executive officers as a group (8 individuals)
(4)
|
|
|
6,094,247
|
|
|
22.39
|
%
|
_______________
*
Less
than 1%
|
(1)
|
Unless
otherwise indicated, the business of each of the individuals is Suite
1300, 1105 North Market Street, Wilmington, Delaware
19899.
|
|
(2)
|
Does
not include shares of common stock issuable upon exercise of warrants
that
are not exercisable in the next 60
days.
|
|
(3)
|
Our
existing stockholders and officers and directors have agreed to surrender
to us for cancellation up to an aggregate of 270,000 shares in the
event,
and to the extent, stockholders exercise their right to redeem their
shares for cash upon a business combination. The share amounts do
not
reflect any surrender of shares.
|
|
(4)
|
Does
not include 1,000,000 shares of Energy Merger common stock underlying
units (giving effect to the exercise of the warrants included in
such
units) which were to be issued to Mr. Sagredos upon completion
of a business combination.
|
|
(5)
|
Reflects
shares of common stock owned by Energy Corp., a corporation organized
under the laws of the Cayman Islands, which is wholly-owned by Energy
Star
Trust, a Cayman Islands trust. Each of Mr. Sagredos and Mr. Theotokis,
as
co-enforcers and beneficiaries of Energy Star Trust, has voting and
dispositive control over such shares owned by Energy
Corp.
|
|
(6)
|
Does
not include (i) 2,688,750 shares of our common stock underlying options
issued to Mr. Sagredos, or his assignees, or (ii) up to 537,000 shares
of
common stock underlying units that would have been issued upon
the consummation of the Business Combination upon conversion of loans
made
by an off-shore entity controlled by Mr. Sagredos into units (giving
effect to the exercise of warrants included in such units), (or (iii)
2,000,000 shares of Energy Merger common stock underlying units (giving
effect to the exercise of warrants included in such units) which
were to
be issued to Mr. Sagredos, or his assignees upon consummation of a
business combination.
|
|
(7)
|
Does
not include the issuance of up to 896,250 shares of our common stock
underlying options issued to Mr. Theotokis, or his assignees, which
options were to be terminated upon the consummation of a business
combination.
|
|
(8)
|
The
address of Energy Corp. is c/o Genesis Trust and Corporate Services
Ltd.,
P.O. Box 448, Georgetown, Grand Cayman KYI-1106, Cayman
Islands.
|
All
of
the outstanding shares of Energy Infrastructure’s common stock owned by our
initial stockholders, including all of the Company’s officers and directors,
have been placed in escrow with Continental Stock Transfer & Trust Company,
as escrow agent, until the earlier of July 17, 2009 or Energy Infrastructure’s
liquidation.
During
the escrow period, the holders of these shares will not be able to sell their
securities, but will retain all other rights as our stockholders, including,
without limitation, the right to vote their shares of common stock and the
right
to receive cash dividends, if declared. If dividends are declared and payable
in
shares of common stock, such dividends will also be placed in escrow. None
of
our initial stockholders will receive any portion of the liquidation proceeds
with respect to common stock owned by them prior to our initial public
offering.
STOCKHOLDER
PROPOSALS
Whether
or not the dissolution is approved, Energy Infrastructure does not expect to
have an annual meeting of stockholders after the special meeting.
DELIVERY
OF DOCUMENTS TO STOCKHOLDERS
Pursuant
to the rules of the Securities and Exchange Commission, Energy Infrastructure
and services that it employs to deliver communications to its stockholders
are
permitted to deliver to two or more stockholders sharing the same address a
single copy of each of Energy Infrastructure’s annual report to stockholders and
proxy statement. Upon written or oral request, Energy Infrastructure will
deliver a separate copy of the annual report to stockholders and/or proxy
statement to any stockholder at a shared address who wishes to receive separate
copies of such documents in the future. Stockholders receiving multiple copies
of such documents may likewise request that Energy Infrastructure deliver single
copies of such documents in the future. Stockholders may notify Energy
Infrastructure of their requests by calling or writing us at our principal
executive offices at 1105 North Market Street, Suite 1300, Wilmington, Delaware
19899.
WHERE
YOU CAN FIND MORE INFORMATION
Energy
Infrastructure files reports, proxy statements and other information with the
Securities and Exchange Commission, or SEC, as required by the Securities
Exchange Act of 1934, as amended.
You
may
read and copy reports, proxy statements and other information filed by Energy
Infrastructure with the SEC at its Public Reference Room located at 100 F
Street, N.E., Washington, D.C. 20549-1004. You may obtain information on the
operation of the Public Reference Room by calling the SEC at 1-800-SEC-0330.
You
may also obtain copies of the materials described above at prescribed rates
by
writing to the SEC, Public Reference Section, 100 F Street, N.E., Washington,
D.C. 20549-1004.
Energy
Infrastructure files its reports, proxy statements and other information
electronically with the SEC. You may access information on Energy Infrastructure
at the SEC’s web site containing reports, proxy and information statements and
other information regarding issuers that file electronically with the SEC at
http://www.sec.gov.
Information
and statements contained in this proxy statement or any annex are qualified
in
all respects by reference to the copy of the relevant contract or other annex
filed as an exhibit to or incorporated by reference into this
document.
This
proxy statement incorporates important business and financial information about
Energy Infrastructure that is not included in or delivered with the document.
This information is available without charge to security holders upon written
or
oral request. If you would like such information or additional copies of this
proxy statement, or if you have questions about the Plan of Liquidation, you
should contact:
Mr.
George Sagredos
Energy
Infrastructure Acquisition Corp.
1105
North Market Street, Suite 1300
Wilmington,
Delaware 19899
(302)
655-1771
To
obtain
timely delivery of requested materials, security holders must request the
information no later than five business days before the date they submit their
proxies or attend the special meeting. The latest date to request the
information to be received timely is September __, 2008.
ANNEX
A
FORM
OF
PLAN
OF LIQUIDATION
OF
ENERGY
INFRASTRUCTURE ACQUISITON CORP.
(A
DISSOLVED DELAWARE CORPORATION)
This
Plan
of Liquidation of Energy Infrastructure Acquisition Corp. (the “Company”) is
dated this [ ] day of [ ], 2008.
WHEREAS,
the dissolution of the Company was duly authorized by its Board of Directors
(the “Board”) and stockholders, and the Company was dissolved on [ ], 2008 by
the filing of a Certificate of Dissolution with the Office of the Secretary
of
State of the State of Delaware;
WHEREAS,
the Company elects to adopt a plan of distribution pursuant to Section 281(b)
of
the Delaware General Corporation Law (the “DGCL”);
WHEREAS,
the Company has paid or otherwise satisfied or made provision for all claims
and
obligations of the Company known to the Company, including conditional,
contingent, or unmatured contractual claims known to the Company, other than
the
following:
|
1.
|
Fees
and expenses in connection with legal, accounting and other professional
services rendered prior to the date hereof and liabilities and
obligations
for federal and state income taxes, all as shown on the Company's
unaudited interim financial statements at and for the period ending
[ ],
2008, and liabilities and obligations incurred or to be incurred
after
such date, including for federal and state income taxes and fees
and
expenses in connection with legal, accounting and other professional
services to be rendered in connection with the dissolution and
Plan of
Liquidation of the Company and the winding-up of its business and
affairs;
and
|
|
2.
|
The
Company's obligations to holders (the “Public Stockholders”) of its common
stock issued and sold in its initial public offering (the “IPO”) to
distribute the proceeds of the trust account in which the net proceeds
of
the IPO (including the deferred portion of the underwriters' fee)
were
deposited (the “Trust Account”), less the estimated amount of any accrued
and unpaid federal and state taxes, in connection with the dissolution
and
Plan of Liquidation of the Company as provided in the Company's
amended
and restated certificate of incorporation and its IPO
prospectus;
|
WHEREAS,
there are no pending actions, suits or proceedings to which the Company is
a
party;
WHEREAS,
there are no facts known to the Company indicating that claims that have not
been made known to the Company or that have not arisen are likely to become
known to the Company or to arise within ten years after the date of dissolution;
and
WHEREAS,
each of our officers and directors have reaffirmed, and by their respective
adoption of this Plan of Liquidation do hereby each reaffirm their respective
obligations to be personally liable to ensure, on a pro rata basis, that the
proceeds in the Trust Account are not reduced by the claims of (i) various
vendors or other entities for services rendered or products sold to the Company
or (ii) any prospective target business that the Company did not pay, or
reimburse, for the fees and expenses of third party service providers to such
target which the Company agreed in writing to be liable for, in each case only
to the extent the payment of such debts and obligations actually reduces the
amount of funds in the Trust Account (or, in the event that such claim arises
after the distribution of the Trust Account, to the extent necessary to ensure
that the Company's former stockholders other than our officers and directors
are
not liable for any amount of such loss, liability, claim, damage or expense),
provided, however, that for the avoidance of doubt our officers and directors
shall not be liable hereunder for the amount of any accrued and unpaid federal
or state taxes;
NOW
THEREFORE, the Company hereby adopts the following Plan of Liquidation, which
shall constitute a plan of distribution in accordance with Section 281(b) of
the
DGCL:
1.
PAYMENT
OF LIABILITIES AND OBLIGATIONS.
The
Company shall, as soon as practicable following the adoption of this Plan of
Liquidation by the Board after the filing of a Certificate of Dissolution of
the
Company in accordance with Delaware law, (a) pay or provide for the payment
in
full or in such other amount as shall be agreed upon by the Company and the
relevant creditor the liabilities, obligations, fees and expenses described
in
paragraph 1 of the third recital above and (b) pay in full the obligations
described in paragraph 2 of such third recital.
2.
CONTINGENCY
RESERVE.
The
Company shall retain the indemnification obligations to the Company referred
to
in the sixth recital above as provision for and as a reserve against any and
all
claims against, and obligations of, the Company.
3.
AUTHORITY
OF OFFICERS AND DIRECTORS.
The
Board
and the officers of the Company shall continue in their positions for the
purpose of winding up the affairs of the Company as contemplated by Delaware
law. The Board may appoint officers, hire employees and retain independent
contractors in connection with the winding up process, and is authorized to
pay
such persons compensation for their services, provided that no current officer
or director of the Company shall receive any compensation for his services
as
aforesaid, and that any such compensation to such other persons shall be fair
and reasonable and consistent with disclosures made to the Company's
stockholders in connection with the adoption of this Plan of Liquidation.
Adoption of this Plan of Liquidation by holders of a majority of the voting
power represented collectively by the outstanding shares of the Company's common
stock shall constitute the approval of the Company's stockholders of the Board's
authorization of the payment of any such compensation.
The
adoption of this Plan of Liquidation by the holders of the Company's common
stock shall constitute full and complete authority for the Board and the
officers of the Company, without further stockholder action, to do and perform
any and all acts and to make, execute and deliver any and all agreements,
conveyances, assignments, transfers, certificates and other documents of any
kind and character that the Board or such officers deem necessary, appropriate
or advisable: (a) to dissolve the Company in accordance with the laws of the
State of Delaware and cause its withdrawal from all jurisdictions in which
it is
authorized to do business; (b) to sell, dispose, convey, transfer and deliver
the assets of the Company; (c) to satisfy or provide for the satisfaction of
the
Company's obligations in accordance with Section 281(b) of the DGCL; and (d)
to
distribute all of the remaining assets of the Company to the holders of the
Company's common stock in complete cancellation or redemption of its stock.
4.
CONVERSION
OF ASSETS INTO CASH OR OTHER DISTRIBUTABLE FORM.
Subject
to approval by the Board, the officers, employees and agents of the Company
shall, as promptly as feasible, proceed to collect all sums due or owing to
the
Company, to sell and convert into cash any and all corporate assets and, out
of
the assets of the Company, to pay, satisfy and discharge or make adequate
provision for the payment, satisfaction and discharge of all debts and
liabilities of the Company pursuant to Sections 1 and 2 above, including all
expenses of the sale of assets and of the dissolution and Plan of Liquidation
provided for by this Plan of Liquidation.
5.
RECOVERY
OF ASSETS.
In
the
event that the Company (or any trustee or receiver for the Company appointed
pursuant to Section 279 of the DGCL) shall recover any assets or funds belonging
to the Company, such funds shall first be used to satisfy any claims against
or
obligations of the Company, and to the extent any assets or funds remain
thereafter, shall be distributed to the stockholders of the Company in
accordance with and subject to the terms of the Company's amended and restated
certificate of incorporation and the DGCL, and further subject to such terms
and
conditions as the Board of Directors of the Company (or any trustee or receiver
for the Company) may deem appropriate; provided, however, that nothing herein
shall be deemed to preclude the Company (or any trustee or receiver for the
Company) from petitioning any court of competent jurisdiction for instructions
as to the proper distribution and allocation of any such assets or funds that
may be recovered by or on behalf of the Company.
6.
PROFESSIONAL
FEES AND EXPENSES.
It
is
specifically contemplated that the Board may authorize the payment of a retainer
fee to a law firm or law firms selected by the Board for legal fees and expenses
of the Company, including, among other things, to cover any costs payable
pursuant to the indemnification of the Company's officers or members of the
Board provided by the Company pursuant to its amended and restated certificate
of incorporation and amended and restated bylaws or the DGCL or otherwise,
and
may authorize the payment of fees to an accounting firm or firms selected by
the
Board for services rendered to the Company..
In
addition, in connection with and for the purpose of implementing and assuring
completion of this Plan of Liquidation, the Company may, in the sole and
absolute discretion of the Board, pay any brokerage, agency and other fees
and
expenses of persons rendering services to the Company in connection with the
collection, sale, exchange or other disposition of the Company's property and
assets and the implementation of this Plan of Liquidation.
7.
INDEMNIFICATION.
The
Company shall continue to indemnify its officers, directors, employees and
agents in accordance with its amended and restated certificate of incorporation
and amended and restated bylaws and any contractual arrangements, for actions
taken in connection with this Plan of Liquidation and the winding up of the
affairs of the Company. The Board, in its sole and absolute discretion, is
authorized to obtain and maintain insurance as may be necessary, appropriate
or
advisable to cover the Company's obligations hereunder, including without
limitation directors' and officers' liability coverage.
8.
LIQUIDATING
TRUST.
The
Board
may, but is not required to, establish and distribute assets of the Company
to a
liquidating trust, which may be established by agreement in form and substance
determined by the Board with one or more trustees selected by the Board. In
the
alternative, the Board may petition a Court of competent jurisdiction for the
appointment of one more trustees to conduct the liquidation of the Company,
subject to the supervision of the Court. Whether appointed by an agreement
or by
the Court, the trustees shall in general be authorized to take charge of the
Company's property, and to collect the debts and property due and belonging
to
the Company, with power to prosecute and defend, in the name of the Company
or
otherwise, all such suits as may be necessary or proper for the foregoing
purposes, and to appoint agents under them and to do all other acts which might
be done by the Company that may be necessary, appropriate or advisable for
the
final settlement of the unfinished business of the Company..
9.
LIQUIDATING
DISTRIBUTIONS.
Liquidating
distributions shall be made from time to time after the adoption of this Plan
of
Liquidation in accordance with the Company's amended and restated certificate
of
incorporation to the holders of record, at the close of business on the date
of
the filing of a Certificate of Dissolution of the Company, of outstanding shares
of common stock of the Company, pro rata in accordance with the respective
number of shares then held of record; provided that, in the opinion of the
Board, adequate provision has been made for the payment, satisfaction and
discharge of all known, unascertained or contingent debts, obligations and
liabilities of the Company (including costs and expenses incurred and
anticipated to be incurred in connection with the complete liquidation of the
Company). All determinations as to the time for and the amount of liquidating
distributions shall be made in the exercise of the absolute discretion of the
Board and in accordance with Section 281 of the DGCL. As provided in Section
12
below, distributions made pursuant to this Plan of Liquidation shall be treated
as made in complete liquidation of the Company within the meaning of the
Internal Revenue Code of 1986, as amended (the “Code”), and the regulations
promulgated thereunder.
10.
AMENDMENT
OR MODIFICATION OF PLAN OF LIQUIDATION.
If
for
any reason the Board determines that such action would be in the best interests
of the Company, it may amend or modify this Plan of Liquidation and all action
contemplated thereunder, notwithstanding stockholder approval of this Plan
of
Liquidation, to the extent permitted by the DGCL; provided, however, that the
Company will not amend or modify this Plan of Liquidation under circumstances
that would require additional stockholder approval under the DGCL and/or the
federal securities laws without complying with such laws.
11.
CANCELLATION
OF STOCK AND STOCK CERTIFICATES.
Following
the dissolution of the Company, the Company shall no longer permit or effect
transfers of any of its stock, except by will, intestate succession or operation
of law.
12.
LIQUIDATION
UNDER CODE SECTIONS 331 AND 336.
It
is
intended that this Plan of Liquidation shall be a plan of complete liquidation
of the Company in accordance with the terms of Sections 331 and 336 of the
Code.
This Plan of Liquidation shall be deemed to authorize the taking of such action
as may be necessary to conform with the provisions of said Sections 331 and
336
and the regulations promulgated thereunder, including, without limitation,
the
making of an election under Code Section 336(e), if applicable.
13.
FILING
OF TAX FORMS.
The
appropriate officers of the Company are authorized and directed, within 30
days
after the effective date of this Plan of Liquidation, to execute and file a
United States Treasury Form 966 pursuant to Section 6043 of the Code and such
additional forms and reports with the Internal Revenue Service as may be
necessary or appropriate in connection with this Plan of Liquidation and the
carrying out thereof.
[remainder
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FOLD
AND DETACH HERE AND READ THE REVERSE SIDE
PROXY
Energy
Infrastructure Acquisition Corp.
1105
North Market Street, Suite 1300
Wilmington,
Delaware 19899
SPECIAL
MEETING OF STOCKHOLDERS
THIS
PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
OF
ENERGY INFRASTRUCTURE ACQUISITION CORP.
The
undersigned appoints George Sagredos and Marios Pantazopoulos, and each of
them
with full power to act without the other, as proxies, each with the power to
appoint a substitute, and thereby authorizes either of them to represent and
to
vote, as designated on the reverse side, all shares of common stock of Energy
Infrastructure held of record by the undersigned on September __, 2008 at
the Special Meeting of Stockholders to be held on October __, 2008, and any
postponement or adjournment thereof.
THIS
PROXY REVOKES ALL PRIOR PROXIES GIVEN BY THE UNDERSIGNED.
THIS
PROXY WILL BE VOTED AS DIRECTED. IF NO DIRECTIONS ARE GIVEN WITH RESPECT TO
A
PROPOSAL, THIS PROXY WILL BE VOTED “FOR” THE PROPOSAL. ENERGY INFRASTRUCTURE’S
BOARD OF DIRECTORS UNANIMOUSLY RECOMMENDS A VOTE “FOR” EACH OF THE PROPOSALS
SHOWN ON THE REVERSE SIDE.
(Continued
and to be signed on reverse side)
PROXY
THIS
PROXY WILL BE VOTED AS DIRECTED, IF NO DIRECTIONS ARE GIVEN WITH RESPECT TO
A
PROPOSAL, THIS PROXY WILL BE VOTED “FOR” THE PROPOSAL. ENERGY INFRASTRUCTURE’S
BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” EACH OF THE
PROPOSALS.
1.
To approve the dissolution of the Company and the Plan of Liquidation
submitted to stockholders at the special
meeting.
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FOR
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AGAINST
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ABSTAIN
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2.
To permit Energy Infrastructure’s Board of Directors or its Chairman, in
their discretion, to adjourn or postpone the special meeting if necessary
for further solicitation of proxies if there are not sufficient votes
at
the originally scheduled time of the special meeting to approve the
foregoing proposal.
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MARK
HERE FOR ADDRESS CHANGE AND NOTE
BELOW
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New
Address: ______________________________
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PLEASE
MARK, DATE AND RETURN THIS PROXY PROMPTLY.
Signature
_____________________
|
Signature
_____________________
|
Date
_____________________
|
Sign
exactly as name appears on this proxy card. If shares are held jointly, each
holder should sign. Executors, administrators, trustees, guardians, attorneys
and agents should give their full titles. If stockholder is a corporation,
sign
in full name by an authorized officer.
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