SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
10-K
ANNUAL
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
x
ANNUAL REPORT PURSUANT
TO SECTION 13 OR 15(d) OF THE SECURITIES AND
EXCHANGE
ACT OF 1934
For
the
fiscal year ended December 31, 2007
OR
o
TRANSITION REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES AND
EXCHANGE
ACT OF 1934
For
the
transition period from ________________ to ________________
Commission
File No.: 001-32941
Energy
Infrastructure Acquisition Corp.
Name
of
issuer as specified in its charter)
Delaware
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|
20-3521405
|
(State
or other jurisdiction of
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|
(I.R.S.
Employer
|
incorporation
or organization)
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|
Identification
No.)
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Suite
1300
1105
North Market Street
Wilmington,
Delaware 19899
(address
of principal executive offices) (Zip Code)
Registrant's
telephone number, including area code: (302) 655-1771
Securities
registered pursuant to Section 12(b) of the Act: None
Securities
registered pursuant to Section 12(g) of the Act:
Common
Stock, $.0001 par value
(Title
of
Class)
Common
Stock Purchase Warrants
(Title
of
Class)
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined
in
Rule 405 of the Securities Act.
Yes
o
No
x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act.
Yes
o
No
x
Indicate
by check mark whether the registrant (1) has filed all reports required to
be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the
preceding 12 months (or for such shorter period that the registrant was required
to file such reports), and (2) has been subject to such filing requirements
for
the past 90 days.
Yes
x
No
o
Indicate
by check mark if disclosure of delinquent filers pursuant to item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of the registrant's knowledge in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to
this
Form 10-K.
x
Indicate
by check mark if the registrant is a large accelerated filer, an accelerated
filer or a non-accelerated filer.
Large
Accelerated Filer
o
Accelerated
Filer
x
Non-Accelerated
Filer
o
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act).
Yes
x
No
o
The
aggregate market value of the voting and non-voting stock held by non-affiliates
of the Issuer was $204,228,000 based upon the closing price of Issuer's common
stock on June 29, 2007, the last business day of the Issuer’s most recently
completed second fiscal quarter.
Indicate
the number of shares outstanding of each of the Registrant's classes of common
stock, as of the latest practicable date. 27,221,747 at March 28,
2008.
DOCUMENTS
INCORPORATED BY REFERENCE: NONE
TABLE
OF
CONTENTS
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Part
I
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1.
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Business
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3
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1A.
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Risk
Factors
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12
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1B
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Unresolved
Staff Comments
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26
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2.
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Properties
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26
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3.
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Legal
Proceedings
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26
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4.
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Submission
of Matters to a Vote of Security Holders
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26
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Part
II
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5.
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Market
for Registrant’s Common Equity, Related Stockholder Matters and Issuer
Purchases of Equity Securities
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27
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6.
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Selected
Financial Data
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29
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7.
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Management's
Discussion and Analysis of Financial Condition and Result of
Operations
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29
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7A.
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Quantitative
and Qualitative Disclosures About Market Risks
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31
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8.
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Financial
Statements and Supplementary Data
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31
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9.
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Changes
In and Disagreements With Accountants on Accounting and Financial
Disclosure
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32
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9A.
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Controls
and Procedures
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32
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9B.
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Other
Information
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32
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Part
III
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10.
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Directors
and Executive Officers of the Registrant
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32
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11.
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Executive
Compensation
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35
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12.
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Security
Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
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38
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13.
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Certain
Relationships and Related Transactions
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39
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14.
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Principal
Accountant Fees and Services
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41
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Part
IV
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15.
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Exhibits
and Financial Statement Schedules
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42
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PART
I
Item
1. Business
Overview
We
are a
Business Combination Company™, or BCC™ organized under the laws of the State of
Delaware on August 11, 2005. We were formed 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.
On
July
17, 2006, Energy Corp., an off-shore company controlled by George Sagredos,
our
President and Chief operating Officer, purchased 825,398 units of the Company
at
$10.00 per unit in a private placement pursuant to Regulation S under the
Securities Act of 1933, as amended, for an aggregate purchase price of
$8,253,980.
On
July
21, 2006, we consummated our initial public offering of 20,250,000 units with
each unit consisting of one share of our common stock and one warrant. Each
warrant entitles the holder to purchase one share of our common stock at an
exercise price of $8.00 per share. The units sold in our initial public offering
were sold at an offering price of $10.00 per unit, generating gross proceeds
of
$202,500,000. On August 31, 2006 the underwriters of our initial public offering
exercised their over allotment option to purchase an additional 675,000 units,
generating an additional $6,750,000 in gross proceeds. After deducting the
underwriting discounts and commissions and the offering expenses, the total
net
proceeds to us from the private placement and the offering were approximately
$209,295,702, of which $209,250,000 was deposited into a 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 net proceeds deposited into
the trust fund remain on deposit in the trust account earning interest. As
of
December 31, 2007, there was $217,023,161 held in the trust fund, including
$7,773,161 of interest accrued. Pursuant to the Trust Agreement between
Continental Stock Transfer & Trust Company and us, we are entitled to draw
up to $3,430,111 of interest earned on the proceeds held in the trust account
to
fund our working capital requirements. Through December 31, 2007, we drew an
aggregate of $2,405,078 of interest earned through such date for working capital
requirements.
The
prospectus provided to purchasers of our securities in our initial public
offering indicated that we would target businesses in one or more of the
following segments:
·
|
refining/petrochemical
plants that convert crude oil into products for consumption in the
marketplace;
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·
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terminalling
facilities, on land or at sea, that are used to accumulate, store
and
distribute various forms of energy and/or petrochemical products;
and
|
·
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transportation
of crude oil, gas or refined products by sea going tanker
vessels.
|
Overview
of Refining/Petrochemical Sector
Oil
refining is the process of separating hydrocarbon atoms present in crude oil
and
converting them into marketable finished petroleum products, such as gasoline
and diesel fuel. Crude oil is commonly referred to in terms of ‘heavy’ or
‘light’ and ‘sweet’ or ‘sour’. The more viscous crudes are ‘heavier,’ and those
with a higher sulphur content are called ‘sour’ (as opposed to low-sulfur
‘sweet’ crude). The heavier and more sour the crude, the more difficult, time
consuming and expensive it is to turn it into usable refined
products.
Demand
and consumption for crude oil has increased significantly over the past decade
due to increased cross-border trade, which has lead to growth in the global
economy. As worldwide crude oil demand has surged, production from OPEC and
other oil producing nations has increased. Crude oil that is extracted from
these producing nations tends to be sour crude and thus more expensive and
time
consuming to refine. New environmental regulations requiring lower sulfur fuel
specifications has lead to increased demand for extracting sweet crude oil
and
further refining sour crude oil to meet these specifications. Increased time
spent refining sour crude oil to meet lower sulfur fuel specifications has
negatively impacted worldwide refining capacity. Decreased refining capacity
due
to longer refining times coupled with increased worldwide crude oil demand
has
created a significant bottleneck in the energy chain.
Overview
of Terminalling (Storage) Sector
Petroleum
terminals are land or sea based facilities that receive, store and re-deliver
bulk quantities of crude oil, gasoline and other light petroleum products via
pipelines, sea vessels or trucks. These facilities, which are used to store
energy before it is refined and distributed to consumers, are a vital link
in
the energy chain. We believe there are several areas in the world where
opportunities to locate and identify potential target businesses in terminalling
exist. The acquisition of terminals either close to production or consumption
areas creates economies of scale, minimizes transportation costs and enables
more efficient distribution of energy to end users. These factors present
attractive opportunities for consolidation and growth in the
following:
·
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areas
of great shipping traffic such as Gibraltar and Singapore, where
the
demand for bunkering (supplying another vessel with fuel) has increased
over the years and we believe will continue to increase in the
future;
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·
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areas
with numerous small product streams that are accumulated for shipment,
such as, the Black Sea, the Baltic Sea, the Arctic and the Caribbean;
and
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·
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areas
with poor distribution infrastructure and storage capacities, including
a
majority of the world’s emerging/developing markets where the demand for
energy has left these markets behind other industrial regions, such
as
South America, India and China.
|
Overview
of Transportation Sector
The
transportation of crude oil, gas or refined products by sea going tanker vessels
is another important link in the energy chain. Energy must be transported from
producing areas to refineries and then onto locations where consumers
reside.
The
world
tanker fleet is divided into two primary categories: crude oil and product
tankers. As indicated below, crude oil tankers carry only crude oil and are
very
large sea vessel while product tankers carry only refined products and are
smaller see vessels than crude oil tankers. Tanker charters of wet cargo will
typically charter the appropriate sized tanker based on the length of journey,
cargo size and port and canal restrictions. Crude oil tankers are typically
larger than product tankers. The four major tanker categories with reference
to
size are:
·
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Very
Large Crude Carriers, or VLCCs
.
Tanker vessels that are used to transport crude oil with cargo capacity
typically 200,000 to 320,000 dead weight tons, or dwt, that are more
than
300 meters in length. VLCCs are highly automated and their advanced
computer systems allow for a minimal crew. The majority of the world’s
crude oil is transported via VLCCs.
|
·
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Suezmax
.
Tanker vessels with cargo capacity typically 120,000 to 200,000 dwt.
These
vessels are used in some of the fastest growing oil producing regions
of
the world, including the Caspian Sea and West Africa. Suezmax tankers
are
the largest ships able to transit the Suez Canal with a full payload
and
are capable of both long and short haul
voyages.
|
·
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Aframax
.
Tanker vessels with cargo capacity typically 80,000 to 120,000 dwt.
These
tankers carry crude oil and serve various trade routes from short
to
medium distances mainly in the North Sea and Venezuela. These vessels
are
able to enter a larger number of ports throughout the world as compared
to
the larger crude oil tankers.
|
·
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Product
.
Tanker vessels with cargo capacity typically less than 60,000 dwt.
Product
tankers are capable of carrying refined petroleum products, such
as fuel
oils, gasoline and jet fuel, as well as various edible oils, such
as
vegetable and palm oil.
|
We
believe that the demand for sea going transportation followed the increased
worldwide demand for energy. This demand created significant opportunities
to
take advantage of certain sectors where increased vessel production has created
oversupply, especially with VLCC’s. We believe that oversupply of tankers may
present an investment opportunity because it historically contributes to
depressing acquisition values. For example, if a tanker fleet is part of an
overall investment package, including an oil refinery and terminal, this fleet
could most probably be allocated to service the cargo contracts and requirements
of the mainstream business we may acquire (refinery/terminal). In other words,
it could be used to either transfer the crude oil required for the refinery
process or the finished product of the refinery (clean products) or be used
as a
floating storage facility.
On
December 3, 2007, we entered into a Share Purchase Agreement with our
wholly-owned subsidiary Energy Infrastructure Merger Corporation, a Marshall
Islands corporation, or Energy Merger, and Vanship Holdings Limited, a Liberian
corporation, or Vanship, which was amended and restated on February 6, 2008.
Pursuant to the terms of the Share Purchase Agreement, Energy Merger will
purchase all of the outstanding shares of each of nine special purpose vehicles,
or SPVs (each of which SPV owns one VLCC), from Vanship for an aggregate
purchase price of $778,000,000, consisting of $643,000,000 in cash (reduced
by
the aggregate amount of net indebtedness of the SPVs at the time of the
completion of the business combination and subject to other closing adjustments)
and 13,500,000 shares of common stock of Energy Merger. In addition to such
purchase price, Energy Merger will be obligated to effect the transfer of
425,000 warrants of Energy Merger from one of Energy Infrastructure's initial
stockholders to Vanship upon completion of the Business Combination and Vanship
may receive an additional 3,000,000 shares of Energy Merger common stock
following each of the first and second anniversaries of the Business Combination
(6,000,000 shares in the aggregate), subject to certain annual earning criteria
of the vessels in Energy Merger’s initial fleet. We have entered into an
Agreement and Plan of Merger with Energy Merger, pursuant to which we will
merge
with and into Energy Merger immediately prior to completion of the Business
Combination.
Upon
delivery of the outstanding shares of the SPVs from Vanship, Energy Merger’s
fleet will be comprised of five double hull VLCCs and four single hull VLCCs.
These VLCCs transport crude oil principally from the Middle East to Asia. The
vessels have a combined cargo-carrying capacity of 2,519,213 deadweight tons
and
are expected to have an average age of approximately 12.9 years upon completion
of the Business Combination. The vessels are currently 100% chartered out and
are expected to have an average remaining charter life of approximately 5.7
years upon completion of the business combination.
Management
and Board Expertise
Our
executive officers and directors have extensive experience in the energy
industry as managers, principals or directors of worldwide energy companies.
In
addition, they collectively comprise a formidable pool of expertise covering
the
key areas of the energy industry, with more than 100 years of total experience
in negotiating and structuring transactions in the areas in which we will
attempt to compete. Subsequent to the consummation of a business combination,
we
believe that the strengths of our management team, particularly their extensive
operations experience in the energy industry, will be valuable with respect
to
operating any business we may acquire.
Regulations
Government
Regulation
Government
regulation significantly affects the energy industry, including international
conventions, national, state and local laws and regulations in force in the
countries in which we may operate. Because these laws and regulations are
frequently changed and may impose increasingly stricter requirements, we cannot
predict the ultimate cost of complying with these requirements, or the impact
of
these requirements on our proposed business.
Environmental
Regulation
We
will
be subject to numerous national and local environmental laws and regulations
relating to our operations and activities. Current and proposed fuel and product
specifications under a number of environmental laws could have a significant
effect on our profitability. Environmental laws and regulations could also
require us to remediate or otherwise redress the effects on the environment
of
prior disposal or release of chemicals or petroleum substances. Such
contingencies may exist for various sites, including storage facilities,
refineries, chemicals plants and waste disposal areas. The extent and cost
of
future environmental restoration, remediation and abatement programs are often
inherently difficult to estimate. They depend on the magnitude of any possible
contamination, the timing and extent of the corrective actions required and
our
share of liability relative to that of other solvent responsible parties. Our
operations will also be subject to environmental and common law claims for
personal injury and property damage caused by the release of chemicals,
hazardous materials or petroleum substances.
United
States Regulation
The
Clean
Air Act and its regulations require, among other things, new fuel specifications
and sulphur reductions, enhanced monitoring of major sources of specified
pollutants; stringent air emission limits and new operating permits for chemical
plants, refineries, marine and distribution terminals; and risk management
plans
for storage of hazardous substances. In addition, the Clean Water Act is
designed to protect and enhance the quality of U.S. surface waters by regulating
the discharge of wastewater and other discharges from both onshore and offshore
operations. Facilities are required to obtain permits for most surface water
discharges, install control equipment and implement operational controls and
preventative measures, including spill prevention and control plans.
The
Resource Conservation and Recovery Act, or RCRA, regulates the storage,
handling, treatment, transportation and disposal of hazardous and non-hazardous
wastes. It also requires the investigation and remediation of certain locations
at a facility where such wastes have been handled, released or disposed of.
Our
facilities may generate and handle a number of wastes regulated by RCRA that
are
subject to investigation and corrective action.
Under
the
Comprehensive Environmental Response, Compensation, and Liability Act, also
known as CERCLA or Superfund, waste generators, site owners, facility operators
and certain other parties are strictly liable for part or all of the cost of
addressing sites contaminated by spills or waste disposal regardless of fault
or
the amount of waste sent to a site. Additionally, each state has laws similar
to
CERCLA.
The
Petroleum Marketing Practices Act, or PMPA, is a federal law that governs the
relationship between a refiner and a distributor pursuant to which the refiner
permits a distributor to use a trademark in connection with the sale or
distribution of motor fuel. The PMPA provides that a refiner may not terminate
or fail to renew its distributor contracts unless certain enumerated
preconditions or grounds for termination or nonrenewal are met and it also
complies with prescribed notice requirements. The PMPA provides that
distributors may enforce the provisions of the act through civil actions against
the refiner. If we terminate or fail to renew one or more of our distributor
contracts in the absence of the specific grounds permitted by the PMPA, or
fail
to comply with the prescribed notice requirements in effecting a termination
or
nonrenewal, those distributors may file lawsuits against us to compel
continuation of their contracts or to recover damages from us.
In
addition, we are regulated under the Oil Pollution Act, which amended the Clean
Water Act. Among other requirements, the Oil Pollution Act requires the owner or
operator of a tank vessel or facility to maintain an emergency oil response
plan
to respond to releases of oil or hazardous substances. We have developed and
implemented such a plan for each of our facilities covered by the Oil Pollution
Act. Also, in case of such releases, the Oil Pollution Act requires responsible
parties to pay the resulting removal costs and damages, provides for substantial
civil penalties, and authorizes the imposition of criminal and civil sanctions
for violations. States where we have operations have similar laws to the Oil
Pollution Act. As a result of our operations, spills of oil and other hazardous
substances could occur at our facilities.
Other
significant legislation includes the Toxic Substances Control Act, which
regulates the development, testing, import, export and introduction of new
chemical products into commerce; the Occupational Safety and Health Act which
imposes workplace safety and health, training and process standards to reduce
the risks of chemical exposure and injury to employees; the Emergency Planning
and Community Right-to-Know Act, which requires emergency planning and spill
notification as well as public disclosure of chemical usage and emissions.
In
addition, the U.S. Department of Transportation through agencies such as the
Office of Pipeline Safety and the Office of Hazardous Materials Safety regulates
in a comprehensive manner the transportation of products such as gasoline and
chemicals to protect the health and safety of the public.
European
Union Regulation
Within
the European Union, member states either apply the Directives of the European
Commission or enact regulations. By joint agreement, European Union Directives
may also be applied within countries outside of Europe.
A
European Commission Directive for a system of Integrated Pollution Prevention
and Control, or IPPC, was approved in 1996. This system requires the issuance
of
permits through the application of Best Available Techniques, also know as
BAT.
In the event that the use of BAT results in the breach of an environmental
quality standard, plant emissions must be reduced. The Directive encompasses
most activities and processes undertaken by the oil and petrochemical industry
within the European Union.
The
European Union Large Combustion Plant Directive sets emission limit values
for
sulphur dioxide, nitrogen oxides and particulates from large combustion plants.
It also required phased reductions in emissions from existing large combustion
plants. The second important set of air emission regulations that may affect
our
operations is the Air Quality Framework Directive and its three set of
directives on ambient air quality assessment and management, which prescribe,
among other things, ambient limit values for sulphur dioxide, oxides of
nitrogen, particulate matter, lead, carbon monoxide, ozone, cadmium, arsenic,
nickel, mercury and polyaromatic hydrocarbons.
The
European Commission’s Clean Air for Europe Program is expected to lead to the
publication of a Thematic Strategy on Air Pollution, or TSAP. TSAP will outline
the environmental objectives for air quality and measures to be taken to achieve
the Commission’s objectives.
In
Europe
there is no overall soil protection regulation, although proposals on measures
may be presented by the European Commission in the near future. Certain
individual member states have soil protection policies. Each has its own
contaminated land regulations.
The
European Commission adopted an official proposal on October 29, 2003 for a
future regulation on European Chemical Policy referred to as the Registration,
Evaluation and Authorization of Chemicals, or REACH. This proposal is now being
discussed by the European Parliament and Council. Although oil and natural
gas
have been temporarily exempted from the scope under the current proposal, about
30,000 other chemicals will have to be re-registered and evaluated. This could
affect our refinery products and chemicals manufactured and imported in the
European Union. Local costs could also be associated with further testing,
data
availability systems, management and administration.
The
European Commission adopted a Directive on Environmental Liability on April
21,
2004. The proposal seeks to implement a strict liability approach for damage
to
biodiversity and services lost from high-risk operations by April 30, 2007.
Member states are considering how to implement the regime. Possibilities of
damage insurance, increased preventive provisions and injunctive relief to
third
parties are also possible.
Other
environment-related existing regulations which may have an impact on our
operations include the Major Hazards Directive which requires emergency
planning, public disclosure of emergency plans and ensuring that hazards are
assessed, and effective emergency management systems are in place; the Water
Framework Directive which includes protection of groundwater; and the Framework
Directive on Waste to ensure that waste is recovered or disposed without
endangering human health and without using processes or methods which could
harm
the environment.
Maritime
Oil Spill Regulation
The
United States Oil Pollution Act of 1990, or OPA, established an extensive
regulatory and liability regime for the protection and cleanup of the
environment from oil spills. OPA affects all owners and operators whose vessels
trade in the United States, its territories and possessions, and those vessels
that operate in United States waters, which includes the United States’
territorial sea and its two hundred nautical mile exclusive economic
zone.
Under
OPA, vessel owners, operators and bareboat charterers are “responsible parties”
and are jointly, severally and strictly liable (unless the spill results solely
from the act or omission of a third party, an act of God or an act of war)
for
all containment and clean-up costs and other damages arising from discharges
or
threatened discharges of oil from their vessels. OPA defines these other damages
broadly to include:
·
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natural
resources damages and the costs of assessment
thereof;
|
·
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real
and personal property damages;
|
·
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net
loss of taxes, royalties, rents, fees and other lost
revenues;
|
·
|
lost
profits or impairment of earning capacity due to property or natural
resources damage; and
|
·
|
net
cost of public services necessitated by a spill response, such as
protection from fire, safety or health hazards, and loss of subsistence
use of natural resources.
|
OPA
specifically permits individual states to impose their own liability regimes
with regard to oil pollution incidents occurring within their boundaries, and
some states have enacted legislation providing for unlimited liability for
oil
spills. Some states which have enacted such legislation have not yet issued
implementing regulations defining vessels owners’ responsibilities under these
laws.
Other
environmental initiatives
The
European Union is considering legislation that will affect the operation of
vessels and the liability of owners for oil pollution. It is difficult to
predict what legislation, if any, may be promulgated by the European Union
or
any other country or authority.
Although
the United States is not a party thereto, many countries have ratified and
follow the liability scheme adopted by the IMO and set out in the International
Convention on Civil Liability for Oil Pollution Damage, 1969, as amended, or
the
CLC, and the Convention for the Establishment of an International Fund for
Oil
Pollution of 1971, as amended. Under these conventions, a vessel’s registered
owner is strictly liable for pollution damage caused on the territorial waters
of a contracting state by discharge of persistent oil, subject to certain
complete defenses. Many of the countries that have ratified the CLC have
increased the liability limits through a 1992 Protocol to the CLC. The liability
limits in the countries that have ratified this Protocol are currently
approximately $4 million plus approximately $566 per gross registered ton above
5,000 gross tons with an approximate maximum of $80.5 million per vessel, with
the exact amount tied to a unit of account which varies according to a basket
of
currencies. The right to limit liability is forfeited under the CLC where the
spill is caused by the owner’s actual fault or privity and, under the 1992
Protocol, where the spill is caused by the owner’s intentional or reckless
conduct. Vessels trading to contracting states must provide evidence of
insurance covering the limited liability of the owner. In jurisdictions where
the CLC has not been adopted, various legislative schemes or common law govern,
and liability is imposed either on the basis of fault or in a manner similar
to
the CLC.
Security
regulation
Since
the
terrorist attacks of September 11, 2001, there have been a variety of
initiatives intended to enhance vessel security. On November 25, 2002, the
Maritime Transportation Security Act of 2002, or MTSA, came into effect. To
implement certain portions of the MTSA, in July 2003, the United States Coast
Guard issued regulations requiring the implementation of certain security
requirements aboard vessels operating in waters subject to the jurisdiction
of
the United States. Similarly, in December 2002, amendments to the International
Convention for the Safety of Life at Sea, or SOLAS, created a new chapter of
the
convention dealing specifically with maritime security. The new chapter went
into effect on July 1, 2004 and imposes various detailed security obligations
on
vessels and port authorities, most of which are contained in the newly created
International Ship and Port Facilities Security, or ISPS Code. Among the various
requirements are:
·
|
on-board
installation of automatic information systems, or AIS, to enhance
vessel-to-vessel and vessel-to-shore communications;
|
·
|
on-board
installation of ship security alert systems;
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the
development of vessel security plans; and
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compliance
with flag state security certification requirements.
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The
United States Coast Guard regulations, intended to align with international
maritime security standards, exempt non-U.S. vessels from MTSA vessel security
measures provided such vessels have on board, by July 1, 2004, a valid
International Ship Security Certificate, or ISSC, that attests to the vessel’s
compliance with SOLAS security requirements and the ISPS Code.
Effecting
a Business Combination
General
We
are
not presently engaged in any substantive commercial business. We intend to
utilize cash derived from the proceeds of our public offering, the Regulation
S
private placement and loans from our President and Chief Operating Officer
(excluding any funds held for the benefit of the underwriters, Maxim Group
LLC
or redeeming stockholders), our capital stock, debt or a combination of these
in
effecting a business combination.
Selection
of a target business and structuring of a business combination
Subject
to the requirement that our initial business combination must be with a target
business or businesses with a collective fair market value that is at least
80%
of the amount in the trust account (exclusive of the underwriters’ contingent
compensation and Maxim Group LLC’s contingent placement fees being held in the
trust account) at the time of such acquisition, our management had virtually
unrestricted flexibility in identifying and selecting a prospective target
business. In evaluating a prospective target business, our management conducted
the necessary business, legal and accounting due diligence on such target
business and considered, among other factors, the following:
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earnings
and growth potential;
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experience
and skill of management and availability of additional personnel;
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financial
condition and results of operation;
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barriers
to entry into the energy and related
industries;
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stage
of development of the products, processes or
services;
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breadth
of services offered;
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degree
of current or potential market acceptance of the
services;
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regulatory
environment of the industry; and
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costs
associated with effecting the business combination.
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Fair
Market Value of Target Business
Pursuant
to the terms of our initial public offering, the initial target business that
we
acquire must have a fair market value equal to at least 80% of the amount in
the
Trust Account (exclusive of the underwriters’ contingent compensation and Maxim
Group LLC’s contingent placement fees being held in the Trust Account) at the
time of the Business Combination, determined by our board of directors based
on
standards generally accepted by the financial community, such as actual and
potential sales, earnings, cash flow and book value. Although we are not
required to obtain an opinion from an investment banking firm as to fair market
value if our board independently determines that the target business has
sufficient fair market value, we have obtained a fairness opinion from New
Century Capital Partners, an investment banking firm.
Possible
lack of business diversification
While
we
may seek to effect business combinations with more than one target business,
our
initial business combination must be with a target business that satisfies
the
minimum valuation standard at the time of such acquisition, as discussed above.
Consequently, it is likely that we will have the ability to effect only one,
or
perhaps, two business combinations. Accordingly, for an indefinite period of
time, the prospects for our future viability may be entirely dependent upon
the
future performance of a single business. Unlike other entities which may have
the resources to complete several business combinations of entities operating
in
multiple industries or multiple areas of a single industry, it is probable
that
we will not have the resources to diversify our operations or benefit from
the
possible spreading of risks or offsetting of losses. By consummating a business
combination with only a single entity, our lack of diversification
may:
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subject
us to numerous economic, competitive and regulatory developments,
any or
all of which may have a substantial adverse impact upon the particular
industry in which we may operate subsequent to a business combination;
and
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result
in our dependency upon the development or market acceptance of
a single or
limited number of products, processes or
services.
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Additionally,
as our business combination may entail the simultaneous acquisitions of several
entities at the same time and may be with different sellers, we will need to
convince such sellers to agree that the purchase of their entities is contingent
upon the simultaneous closings of the other acquisitions.
Limited
ability to evaluate the target business’ management
Although
we closely examined the management of Vanship when evaluating the desirability
of effecting a business combination, we cannot assure you that our assessment
of
Vanship’s management will prove to be correct. In addition, we cannot assure you
that the future management will have the necessary skills, qualifications or
abilities to manage a public company. Furthermore, the future role of our
officers and directors, if any, in the target business cannot presently be
stated with any certainty. Moreover, our current management will only be able
to
remain with the combined company after the consummation of a business
combination if they are able to negotiate and agree to mutually acceptable
employment terms in connection with any such combination, which terms would
be
disclosed to stockholders in any proxy statement relating to such transaction.
While it is possible that one or more of our directors will remain associated
in
some capacity with us following a business combination, it is unlikely that
any
of them will devote their full efforts to our affairs subsequent to a business
combination.
Opportunity
for stockholder approval of business combination
Prior
to
the completion of a business combination, we will submit the transaction to
our
stockholders for approval, even if the nature of the acquisition is such as
would not ordinarily require stockholder approval under applicable state law.
In
connection with seeking stockholder approval of a business combination, we
will
furnish our stockholders with proxy solicitation materials prepared in
accordance with the Securities Exchange Act of 1934, which, among other matters,
will include a description of the operations of the target business and audited
historical financial statements of the target business based on United States
generally accepted accounting principles.
In
connection with the vote required for any business combination, all of our
existing stockholders, including all of our officers and directors, have agreed
to vote their respective shares of common stock owned by them immediately prior
to the public offering, and the Regulation S private placement, in accordance
with the vote of the majority of the shares of common stock issued in the public
offering and the Regulation S private placement. Our existing stockholders
have
agreed to vote all the shares of our common stock acquired in the public
offering, in the Regulation S private placement, upon conversion of convertible
debt or in the aftermarket in favor of any transaction that they negotiate
and
present for approval to our stockholders. We will proceed with the business
combination only if a majority of the shares of common stock voted by the
holders of the common stock included in the units sold in the public offering
and in the Regulation S private placement are voted in favor of the business
combination and public stockholders owning less than 30% of the shares sold
in
the public offering and the Regulation S private placement exercise their
redemption rights.
Redemption
rights
At
the
time we seek stockholder approval of any business combination, we will offer
each public stockholder the right to have such stockholder’s shares of common
stock redeemed for cash if the stockholder votes against the business
combination and the business combination is approved and completed. The actual
per-share redemption price will be equal to $10.00 per share (plus a portion
of
the interest earned, but net of (i) taxes payable on interest earned, (ii)
up to
$3,430,111 of interest income released to us to fund our working capital, (iii)
payment of quarterly interest payments on the convertible loans and repayment
of
the convertible loans, if not converted, and (iv) repayment of the term loan,
plus accrued interest). Any determination of the portion of interest payable
to
public stockholders redeeming their common stock shall be made on a pro rata
basis, in relation to all the public stockholders through the date of
redemption. An eligible stockholder may request redemption at any time after
the
mailing to our stockholders of the proxy statement and prior to the vote taken
with respect to a proposed business combination at a meeting held for that
purpose, but the request will not be granted unless the stockholder votes
against the business combination and the business combination is approved and
completed. If a stockholder votes against the business combination but fails
to
properly exercise its redemption rights, such stockholder will not have its
shares of common stock redeemed. Any request for redemption, once made, may
be
withdrawn at any time up to the date of the meeting. It is anticipated that
the
funds to be distributed to stockholders entitled to redeem their shares who
elect redemption will be distributed promptly after completion of a business
combination. Public stockholders who redeem their stock for their share of
the
trust account still have the right to exercise the warrants that they received
as part of the units. We will not complete any business combination if public
stockholders, owning 30% or more of the total number of shares sold in the
public offering and the Regulation S private placement exercise their redemption
rights. Even if less than 30% of the stockholders exercise their redemption
rights, we may be unable to consummate a business combination if such redemption
leaves us with funds less than a fair market value equal to 80% of the amount
in
the trust account (excluding any funds held for the benefit of the underwriters
and Maxim Group LLC) at the time of such acquisition which amount is required
as
a condition to the consummation of our initial business combination, and we
may
be forced to find additional financing to consummate such a business
combination, consummate a different business combination or liquidate. The
securities issued in the Regulation S private placement do not have redemption
rights.
Liquidation
If No Business Combination
If
we do
not complete a business combination with a target business by July 21, 2008,
we
will be dissolved as a part of a plan of dissolution and liquidation in
accordance with the applicable provisions of General Corporation Law of the
State of Delaware, or DGCL, and will distribute to holders of shares that were
initially issued in its initial public offering, in proportion to their
respective equity interests, sums in the Trust Account, inclusive of any
interest, plus any remaining available assets. In the event we seek stockholder
approval for a plan of dissolution and distribution and do not obtain such
approval, we will nonetheless continue to pursue stockholder approval for our
dissolution. Pursuant to the terms of our Amended and Restated Certificate
of
Incorporation, our directors have agreed to dissolve after July 21, 2008
(assuming that there has been no business combination consummated), and our
powers following the expiration of the permitted time period for consummating
a
business combination will automatically thereafter be limited to acts and
activities relating to dissolving and winding up its affairs, including
liquidation. The funds held in the Trust Account may not be distributed except
upon our dissolution and, unless and until such approval is obtained from our
stockholders, the funds held in the Trust Account will not be released.
Consequently, holders of a majority of our outstanding stock must approve our
dissolution in order to receive the funds held in the Trust Account and the
funds will not be available for any other corporate purpose. Immediately upon
the approval by our stockholders of a plan of dissolution and distribution,
we
will liquidate the Trust Account to the holders of shares that were initially
issued in its initial public offering (subject to any provision for unpaid
claims against us which we are advised must or should be withheld). Our
stockholders who acquired their shares prior to our initial public offering
have
waived their rights to participate in any liquidation distribution with respect
to shares of common stock owned by them prior to the initial public offering.
There will be no distribution from the Trust Account with respect to our
warrants.
We
expect
that all costs associated with the implementation and completion of our plan
of
dissolution and liquidation, which we currently estimate to be approximately
$60,000 to $85,000, will be funded by any funds not held in the Trust Account.
There currently are not, and may not at that time, be sufficient funds for
such
purpose, in which event we would have to seek funding or other accommodation
to
complete the dissolution and liquidation.
We
currently believe that any plan of dissolution and distribution would proceed
in
the following manner:
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our
board of directors will, consistent with its obligations described
in our
charter to dissolve, prior to the passing of such deadline, convene
and
adopt a specific plan of dissolution and distribution, which it will
then
vote to recommend to its stockholders; at such time it will also
cause to
be prepared a preliminary proxy statement setting out such plan of
dissolution and distribution and the board’s recommendation of such
plan;
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upon
such deadline, we would file the preliminary proxy statement with
the
SEC;
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if
the SEC does not review the preliminary proxy statement, then
approximately ten days following the passing of such deadline, we
will
mail the proxy statement to our stockholders, and approximately 30
days
following the passing of such deadline we will convene a meeting
of our
stockholders at which they will either approve or reject the plan
of
dissolution and distribution; and
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if
the SEC does review the preliminary proxy statement, we estimate
that we
will receive the SEC’s comments approximately 30 days following the
passing of such deadline. We will mail the proxy statements to our
stockholders following the conclusion of the comment and review process
(the length of which cannot be predicted with certainty), and we
will
convene a meeting of our stockholders at which they will either approve
or
reject our plan of dissolution and
distribution.
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In
the
event we seek stockholder approval for a plan of dissolution
and
distribution and do not obtain such approval, we will nonetheless continue
to
pursue stockholder approval for our dissolution. Pursuant to the terms of our
charter, our powers following the expiration of the permitted time period for
consummating a business combination will automatically thereafter be limited
to
acts and activities relating to dissolving and winding up our affairs, including
liquidation. The funds held in the Trust Account may not be distributed except
upon our dissolution (subject to certain third party claims) and, unless and
until such approval is obtained from our stockholders, the funds held in its
Trust Account will not be released (subject to such third party claims).
Consequently, holders of a majority of our outstanding stock must approve our
dissolution in order to receive the funds held in the Trust Account and the
funds will not be available for any other corporate purpose (although they
may
be subject to such third party claims). In addition, if we seek approval from
our stockholders to consummate a business combination within 90 days of July
21,
2008, the date by which we are required to consummate a business combination,
the proxy statement related to such business combination will also seek
stockholder approval for our board’s recommended plan of distribution and
dissolution, in the event our stockholders do not approve such business
combination. If no proxy statement seeking the approval of our stockholders
for
a business combination has been filed 30 days prior to July 21, 2008, our board
will, prior to such date, convene, adopt and recommend to our stockholders
a
plan of dissolution and distribution and on such date file a proxy statement
with the SEC seeking stockholder approval for such plan. Immediately upon the
approval by our stockholders of our plan of dissolution and distribution, we
will liquidate the Trust Account to the holders of our shares initially
purchased in our initial public offering.
Competition
If
we do
not ultimately consummate the transaction with Vanship, we may encounter intense
competition in connection with identifying, evaluating and selecting a target
from other entities having a business objective similar to ours. Many of these
entities possess greater technical, human and other resources than us and our
financial resources will be relatively limited when contrasted with those of
many of these competitors, which may limit our ability to compete in acquiring
certain sizable target businesses. This inherent competitive limitation gives
others an advantage in pursuing the acquisition of a target business. Further:
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our
obligation to seek stockholder approval of a business combination
or
obtain the necessary financial information to be included in the
proxy
statement to be sent to stockholders in connection with such business
combination may delay or prevent the completion of a transaction;
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our
obligation to redeem for cash up to 6,525,118 shares of common stock
held
by our public stockholders in certain instances will limit the manner
in
which we may structure a business combination (i.e., we will not
be able
to undertake an all cash acquisition transaction) and may reduce
the
resources available to us for this purpose, as well as for funding
a
target company’s business;
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our
outstanding warrants, and the future dilution they potentially represent,
may not be viewed favorably by certain target businesses;
and
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the
requirement to acquire either an operating business or assets, or
a
combination thereof, that has a fair market value equal to at least
80% of
the trust account (exclusive of underwriters’ contingent compensation and
Maxim Group LLC’s contingent placement fee to be held in the trust
account) at the time of the acquisition could require us to acquire
several companies, or closely related operating businesses and/or
assets
from different parties at the same time, all of which sales would
be
contingent on the closings of the other sales, which could make it
more
difficult to consummate the business
combination.
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Any
of
these factors may place us at a competitive disadvantage in successfully
negotiating a business combination. Our management believes, however, that
to
the extent that our target business is a privately held entity, our status
as a
well-financed public entity may give us a competitive advantage over entities
having a similar business objective as ours in acquiring a target business
with
significant growth potential on favorable terms.
If
we
succeed in effecting a business combination, there will be, in all likelihood,
intense competition from competitors of the target business. We cannot assure
you that, subsequent to a business combination, we will have the resources
or
ability to compete effectively.
Property
We
maintain our executive offices at Suite 1300, 1105 North Market Street,
Wilmington, Delaware 19899 and our telephone number is (302) 656-1771. We
sublease these premises from Wilmington Trust SP Services, Inc., a Delaware
corporation, or Wilmington Trust. Wilmington Trust provides us with certain
administrative, technology and secretarial services, as well as the use of
certain limited office space at this location at an annual cost of $10,000
pursuant to an agreement between us and Wilmington Trust.
Employees
We
do not
have any full time employees. We have four officers, two of whom are also
members of its board of directors. These individuals are not obligated to
contribute any specific number of hours per week and since our initial public
offering, have devoted such time as they deem necessary to our affairs. The
amount of time they devote in any time period varies based on the availability
of suitable target businesses to investigate.
Item
1A. Risk factors
Risks
associated with our business
We
are a development-stage company with no operating history and, accordingly,
our
stockholders will not have any basis on which to evaluate our ability to achieve
our business objective.
We
are a
recently incorporated development-stage company with no operating results to
date. We will not generate any revenue (other than interest income on the
proceeds of our public offering) until, at the earliest, after the consummation
of a business combination. Due to our limited operating history, our
stockholders have no basis to evaluate our business objective, which is to
acquire an operating business.
If
we are forced to liquidate before a business combination, our warrants will
expire worthless.
If
we are
unable to complete a business combination and are forced to liquidate the trust
account, there will be no distribution with respect to our outstanding warrants
and, accordingly, the warrants will expire worthless.
If
third parties bring claims against us, the proceeds held in trust could be
reduced and the per-share liquidation value receivable by our public
stockholders from the trust account as part of our plan of dissolution and
liquidation will be less than $10.00 per share.
Our
placing of funds in trust may not protect those funds from third party claims
against us. Although we will seek to have all vendors, prospective target
businesses or other entities with which we execute agreements waive any right,
title, interest or claim of any kind in or to any monies held in the trust
account for the benefit of our public stockholders, there is no guarantee that
they will execute such agreements, or even if they execute such agreements
that
they would be prevented from bringing claims against the trust account
including, but not limited to, claims alleging fraudulent inducement, breach
of
fiduciary responsibility or other similar claims, as well as claims challenging
the enforceability of the waiver, in each case in order to gain an advantage
with a claim against our assets, including the funds held in the trust account.
If any third party refused to execute an agreement waiving such claims to the
monies held in the trust account, we would perform an analysis of the
alternatives available to us if we chose not to engage such third party and
evaluate if such engagement would be in the best interest of our stockholders
if
such third party refused to waive such claims. Examples of possible instances
where we may engage a third party that refused to execute a waiver include
the
engagement of a third party consultant whose particular expertise or skills
are
believed by management to be significantly superior to those of other
consultants that would agree to execute a waiver or in cases where management
is
unable to find a provider of required services willing to provide the waiver.
In
any event, our management would perform an analysis of the alternatives
available to it and would only enter into an agreement with a third party that
did not execute a waiver if management believed that such third party’s
engagement would be significantly more beneficial to us than any alternative.
In
addition, there is no guarantee that such entities will agree to waive any
claims they may have in the future as a result of, or arising out of, any
negotiations, contracts or agreements with us and not seek recourse against
the
trust account for any reason.
Accordingly,
the proceeds held in trust could be subject to claims that could take priority
over the claims of our public stockholders and the per-share liquidation value
receivable by our public stockholders could be less than the $10.00 per share
held in the trust account, plus interest (net of any taxes due on such interest,
which taxes, if any, shall be paid from the trust account), due to claims of
such creditors. If we are unable to complete a business combination and dissolve
the company, each of our officers and directors will be personally liable to
the
extent of their pro rata beneficial interest in our company immediately prior
to
the public offering, if we did not obtain a valid and enforceable waiver from
any vendor, prospective target business or other entity of any rights or claims
by such creditors to the trust account, to ensure that the proceeds in the
trust
account are not reduced by the claims of various vendors, prospective target
businesses or other entities that are owed money by us for services rendered
or
products sold to us, to the extent necessary to ensure that such claims do
not
reduce the amount in the trust account. Prior to the public offering, six of
our
directors and officers collectively owned on a beneficial basis all of our
outstanding shares of common stock. Based on information we have obtained from
such individuals, we currently believe that such persons are of substantial
means and capable of funding a shortfall in our trust account, even though
we
have not asked them to reserve for such an eventuality. However, we cannot
assure you that our directors will be able to satisfy those obligations. We
believe the likelihood of our directors having to indemnify the trust account
is
limited because we will endeavor to have all vendors and prospective target
businesses as well as other entities execute agreements with us waiving any
right, title, interest or claim of any kind in or to monies held in the trust
account. We also will have access to any funds available outside the trust
account or released to us to fund working capital requirements with which to
pay
any such potential claims (including costs and expenses incurred in connection
with our plan of dissolution and liquidation currently estimated at
approximately $50,000 to $75,000). The indemnification provisions are set forth
in the insider letters, dated as of June 6, 2006, executed by each of our
officers and directors. The insider letters specifically set forth that in
the
event we obtain a valid and enforceable waiver of any right, title, interest
or
claim of any kind in or to any monies held in the trust account for the benefit
of our stockholders from a vendor, prospective target business or other entity,
the indemnification will not be available. In the event that our board
recommends and our stockholders approve a plan of dissolution and liquidation
where it is subsequently determined that the reserve for claims and liabilities
is insufficient, stockholders who received a return of funds from our trust
account as part of its liquidation could be liable for claims made by
creditors.
Additionally,
if we are forced to file a bankruptcy case or an involuntary bankruptcy case
is
filed against us which is not dismissed, the funds held in our trust account
will be subject to applicable bankruptcy law, and may be included in our
bankruptcy estate and subject to the claims of third parties with priority
over
the claims of our stockholders. To the extent any bankruptcy claims deplete
the
trust account we cannot assure you we will be able to return to our public
stockholders the liquidation amounts due them.
We
will dissolve and liquidate if we do not consummate a business combination
and
our stockholders may be held liable for claims by third parties against us
to
the extent of distributions received by them.
We
will
dissolve and liquidate our trust account to our public stockholders if we do
not
complete a business combination within 18 months after the consummation of
our
public offering (or within 24 months after the consummation of the public
offering if certain extension criteria are satisfied). Under Sections 280
through 282 of the Delaware General Corporation Law, stockholders may be held
liable for claims by third parties against a corporation to the extent of
distributions received by them in a dissolution. If a corporation complies
with
certain procedures intended to ensure that it makes reasonable provision for
all
claims against it, including a 60-day notice period during which any third-party
claims can be brought against the corporation, a 90-day period during which
the
corporation may reject any claims brought, and an additional 150-day waiting
period before any liquidating distributions are made to stockholders, any
liability of stockholders with respect to a liquidating distribution is limited
to the lesser of such stockholder’s pro rata share of the claim or the amount
distributed to the stockholder, and any liability of the stockholder would
be
barred after the third anniversary of the dissolution. Although we will seek
stockholder approval to liquidate the trust account to our public stockholders
as part of our plan of dissolution and liquidation, we do not intend to comply
with those procedures. In the event that our board of directors recommends
and
the stockholders approve a plan of dissolution and liquidation where it is
subsequently determined that the reserve for claims and liabilities was
insufficient, stockholders who received a return of funds could be liable for
claims made by creditors. As such, our stockholders could potentially be liable
for any claims to the extent of distributions received by them in a dissolution
and any such liability of our stockholders will likely extend beyond the third
anniversary of such dissolution. Accordingly, we cannot assure you that third
parties will not seek to recover from our stockholders amounts owed to them
by
us.
The
procedures we must follow under Delaware law and our amended and restated
certificate of incorporation if we dissolve and liquidate may result in
substantial delays in the liquidation of our trust account to our public
stockholders as part of our plan of dissolution and
distribution.
Pursuant
to, among other documents, our amended and restated certificate of
incorporation, if we do not complete a business combination within 18 months
after the consummation of our public offering, or within 24 months after the
consummation of the public offering if the extension criteria have been
satisfied, we will be required to dissolve, liquidate and wind up in compliance
with the provisions of the Delaware General Corporation Law. In addition, in
the
event we seek stockholder approval for a plan of dissolution and distribution
and do not obtain such approval, we will nonetheless continue to pursue
stockholder approval for our dissolution. The funds held in our trust account
may not be distributed except upon our dissolution and, unless and until such
approval is obtained from our stockholders, the funds held in our trust account
will not be released. Consequently, holders of a majority of our outstanding
stock must approve our dissolution in order to receive the funds held in our
trust account and the funds will not be available for any other corporate
purpose. The procedures required for us to liquidate under the Delaware General
Corporation Law, or a vote to reject any plan of dissolution and distribution
by
our stockholders, may result in substantial delays in the liquidation of our
trust account to our public stockholders as part of our plan of dissolution
and
distribution.
If
we do not consummate a business combination and dissolve, payments from the
trust account to our public stockholders may be
delayed.
We
currently believe that any plan of dissolution and liquidation subsequent to
the
expiration of the 18 and 24 month deadlines would proceed in approximately
the
following manner:
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our
board of directors will, consistent with its obligations described
in our
charter to dissolve, prior to the passing of such deadline, convene
and
adopt a specific plan of dissolution and distribution, which it will
then
vote to recommend to its stockholders; at such time it will also
cause to
be prepared a preliminary proxy statement setting out such plan of
dissolution and distribution and the board’s recommendation of such
plan;
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upon
such deadline, we would file the preliminary proxy statement with
the
SEC;
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if
the SEC does not review the preliminary proxy statement, then
approximately ten days following the passing of such deadline, we
will
mail the proxy statement to our stockholders, and approximately 30
days
following the passing of such deadline we will convene a meeting
of our
stockholders at which they will either approve or reject the plan
of
dissolution and distribution; and
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if
the SEC does review the preliminary proxy statement, we estimate
that we
will receive the SEC’s comments approximately 30 days following the
passing of such deadline. We will mail the proxy statements to our
stockholders following the conclusion of the comment and review process
(the length of which cannot be predicted with certainty), and we
will
convene a meeting of our stockholders at which they will either approve
or
reject our plan of dissolution and
distribution.
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In
the
event we seek stockholder approval for a plan of dissolution and liquidation
and
do not obtain such approval, we will nonetheless continue to pursue stockholder
approval for our dissolution. Pursuant to the terms of our amended and restated
certificate of incorporation, our powers following the expiration of the
permitted time periods for consummating a business combination will
automatically thereafter be limited to acts and activities relating to
dissolving and winding up our affairs, including liquidation. The funds held
in
our trust account may not be distributed except upon our dissolution and, unless
and until such approval is obtained from our stockholders, the funds held in
our
trust account will not be released. Consequently, holders of a majority of
our
outstanding stock must approve our dissolution in order to receive the funds
held in our trust account and the funds will not be available for any other
corporate purpose.
Our
Amended and Restated Certificate of Incorporation provides for mandatory
liquidation of the Company, without stockholder approval, in the event that
we
do not consummate a business combination by July 21, 2008, which raises
substantial doubt about our ability to continue as a going
concern.
Our
independent registered public accounting firm for the fiscal year ended
December
31, 2007 has included a qualification in its audit report referring to our
mandatory liquidation if a business combination is not consummated by July
21,
2008.
On
December 3, 2007, the we executed a definitive agreement to acquire certain
operating assets. This transaction is subject to various closing conditions,
including the approval of the our stockholders, the preparation and execution
of
definitive transaction documents, the preparation of audited financial
statements of the entities to be acquired, and compliance with various
securities laws and regulations. If we are not able to consummate this
transaction by July 21, 2008, we will dissolve and liquidate.
The
procedures required for us to liquidate under the Delaware law, or a vote to
reject any plan of dissolution and liquidation by our stockholders, may result
in substantial delays in the liquidation of our trust account to our public
stockholders as part of our plan of dissolution and liquidation.
We
may choose to redeem our outstanding warrants at a time that is disadvantageous
to our warrant holders.
Subject
to there being a current prospectus under the Securities Act of 1933 with
respect to the shares of common stock issuable upon exercise of the warrants,
we
may redeem the warrants issued as a part of our units at any time after the
warrants become exercisable in whole and not in part, at a price of $.01 per
warrant, upon a minimum of 30 days’ prior written notice of redemption, if and
only if, the last sales price of our common stock equals or exceeds $14.25
per
share for any 20 trading days within a 30 trading day period ending three
business days before we send the notice of redemption. Redemption of the
warrants could force the warrant holders (i) to exercise the warrants and pay
the exercise price therefore at a time when it may be disadvantageous for the
holders to do so, (ii) to sell the warrants at the then current market price
when they might otherwise wish to hold the warrants, or (iii) to accept the
nominal redemption price which, at the time the warrants are called for
redemption, is likely to be substantially less than the market value of the
warrants.
Although
we are required to use our best efforts to have an effective registration
statement covering the issuance of the shares underlying the warrants at the
time that our warrant holders exercise their warrants, we cannot guarantee
that
a registration statement will be effective, in which case our warrant holders
may not be able to exercise our warrants.
Holders
of our warrants will be able to exercise the warrants only if (i) a current
registration statement under the Securities Act of 1933 relating to the shares
of our common stock underlying the warrants is then effective and (ii) such
shares are qualified for sale or exempt from qualification under the applicable
securities laws of the states in which the various holders of warrants reside.
Although we have undertaken in the Warrant Agreement, and therefore have a
contractual obligation, to use our best efforts to maintain a current
registration statement covering the shares underlying the warrants to the extent
required by federal securities laws, and we intend to comply with such
undertaking, we cannot assure that we will be able to do so. In addition, we
have agreed to use our reasonable efforts to register the shares underlying
the
warrants under the blue sky laws of the states of residence of the exercising
warrantholders, to the extent an exemption is not available. The value of the
warrants may be greatly reduced if a registration statement covering the shares
issuable upon the exercise of the warrants is not kept current or if the
securities are not qualified, or exempt from qualification, in the states in
which the holders of warrants reside. Holders of warrants who reside in
jurisdictions in which the shares underlying the warrants are not qualified
and
in which there is no exemption will be unable to exercise their warrants and
would either have to sell their warrants in the open market or allow them to
expire unexercised. If and when the warrants become redeemable by us, we may
exercise our redemption right even if we are unable to qualify the underlying
securities for sale under all applicable state securities laws.
Because
the units sold in the Regulation S private placement were originally issued
pursuant to an exemption from registration requirements under the federal
securities laws, the holders of the warrants contained in such units will be
able to exercise their warrants even if, at the time of exercise, a prospectus
relating to the common stock issuable upon exercise of such warrants is not
current. As a result, the holders of the warrants purchased in the Regulation
S
private placement will not have any restrictions with respect to the exercise
of
their warrants. As described above, the holders of the warrants purchased in
the
public offering will not be able to exercise them unless we have a current
registration statement covering the shares issuable upon their
exercise.
We
may issue shares of our capital stock or debt securities to complete a business
combination, which would reduce the equity interest of our stockholders and
likely cause a change in control of our ownership.
We
may
issue a substantial number of additional shares of our common stock or preferred
stock, or a combination of common and preferred stock, to complete a business
combination. The issuance of additional shares of our common stock or any number
of shares of our preferred stock:
·
|
may
significantly reduce the equity interest of our existing stockholders;
|
·
|
will
likely cause a change in control if a substantial number of our shares
of
common stock are issued, which may affect, among other things, our
ability
to use our net operating loss carry forwards, if any, and most likely
also
result in the resignation or removal of our present officers and
directors; and
|
·
|
may
adversely affect prevailing market prices for our common stock.
|
Additionally,
the energy industry is capital intensive, traditionally using substantial
amounts of indebtedness to finance acquisitions, capital expenditures and
working capital needs. If we finance any acquisitions through the issuance
of
debt securities, it could result in:
·
|
default
and foreclosure on our assets if our operating cash flow after a
business
combination were insufficient to pay our debt obligations;
|
·
|
acceleration
of our obligations to repay the indebtedness even if we have made
all
principal and interest payments when due if the debt security contained
covenants that required the maintenance of certain financial ratios
or
reserves and any such covenant were breached without a waiver or
renegotiation of that covenant;
|
·
|
our
immediate payment of all principal and accrued interest, if any,
if the
debt security was payable on demand; and
|
·
|
our
inability to obtain additional financing, if necessary, if the
debt
security contained covenants restricting our ability to obtain
additional
financing while such security was outstanding.
|
Our
officers and directors control a substantial interest in us and thus may
influence certain actions requiring stockholder vote.
Our
officers and directors (and their nominees) beneficially own approximately
22.4%
of our issued and outstanding shares of common stock, which could permit them
to
effectively influence the outcome of all matters requiring approval by our
stockholders at such time, including the approval of our initial business
combination, and, following such business combination, the election of directors
and approval of significant corporate transactions. Furthermore, our board
of
directors is divided into three classes, each of which will generally serve
for
a term of three years with only one class of directors being elected in each
year. It is unlikely that there will be an annual meeting of stockholders to
elect new directors prior to the consummation of a business combination, in
which case all of the current directors will continue in office at least until
the consummation of the business combination. If there is an annual meeting,
as
a consequence of our “staggered” board of directors, only a minority of the
board of directors will be considered for election and our existing
stockholders, because of their ownership position, will have considerable
influence regarding the outcome. Accordingly, our existing stockholders will
continue to exert control at least until the consummation of a business
combination.
We
will be dependent upon interest earned on the trust account to fund our search
for a target company and consummation of a business
combination.
We
are
dependent upon sufficient interest being earned on the proceeds held in the
trust account to provide us with the additional working capital we will need
to
search for a target company and consummate a business combination. While we
are
entitled to up to $3,430,111 of the interest earned on the trust account, if
interest rates were to decline substantially, we may not have sufficient funds
available to complete a business combination. In such event, we would need
to
borrow funds from our insiders or others or be forced to liquidate.
Our
ability to effect a business combination and to be successful afterward will
be
totally dependent upon the efforts of our key personnel, some of whom may join
us following a business combination and whom we would have only a limited
ability to evaluate. It is also possible that our current officers and directors
will resign upon the consummation of a business
combination.
Our
ability to effect a business combination will be totally dependent upon the
efforts of our key personnel. The future role of our key personnel following
a
business combination, however, cannot presently be fully ascertained. Although
we expect several of our management and other key personnel, particularly our
President and Chief Operating Officer, Chief Executive Officer and Chairman
of
the Board, to remain associated with us following a business combination, we
may
employ other personnel following the business combination. Moreover, our current
management will only be able to remain with the combined company after the
consummation of a business combination if they are able to negotiate and agree
to mutually acceptable employment terms as part of any such combination, which
terms would be disclosed to stockholders in any proxy statement relating to
such
transaction. If we acquired a target business in an all-cash transaction, it
would be more likely that current members of management would remain with the
combined company if they chose to do so. If a business combination were
structured as a merger whereby the stockholders of the target company were
to
control the combined company following a business combination, it may be less
likely that our current management would remain with the combined company unless
it was negotiated as part of the transaction via the acquisition agreement,
an
employment agreement or other arrangement. In making the determination as to
whether current management should remain with us following the business
combination, management will analyze the experience and skill set of the target
business’ management and negotiate as part of the business combination that
certain members of current management remain if it is believed that it is in
the
best interests of the combined company post-business combination. If management
negotiates such retention as a condition to any potential business combination,
management may look unfavorably upon or reject a business combination with
a
potential target business whose owners refuse to retain members of our
management post-business combination, thereby resulting in a conflict of
interest. While we intend to closely scrutinize any additional individuals
we
engage after a business combination, we cannot assure you that our assessment
of
these individuals will prove to be correct. These individuals may be unfamiliar
with the requirements of operating a public company as well as United States
securities laws which could cause us to have to expend time and resources
helping them become familiar with such laws. This could be expensive and
time-consuming and could lead to various regulatory issues which may adversely
affect our operations.
None
of our officers or directors has ever been associated with a blank check company
which could adversely affect our ability to consummate a business combination.
None
of
our officers or directors has ever been associated with a blank check company.
Accordingly, you may not have sufficient information with which to evaluate
the
ability of our management team to identify and complete a business combination
using the proceeds of the public offering and the Regulation S private
placement. Our management’s lack of experience in operating a blank check
company could adversely affect our ability to consummate a business combination
and force us to liquidate.
If
we seek to effect a business combination with an entity that is directly or
indirectly affiliated with one or more of our existing stockholders, conflicts
of interest could arise.
Our
existing stockholders either currently have or may in the future have
affiliations with companies in the energy and energy related industries. If
we
were to seek a business combination with a target company with which one or
more
of our existing stockholders is affiliated, conflicts of interest could arise
in
connection with negotiating the terms of and completing the business
combination. If conflicts arise, they may not necessarily be resolved in our
favor.
Our
officers and directors may allocate their time to other businesses thereby
causing conflicts of interest in their determination as to how much time to
devote to our affairs. This could have a negative impact on our ability to
consummate a business combination.
Our
officers and directors are not required to commit their full time to our
affairs, which may result in a conflict of interest in allocating their time
between our operations and other businesses. We do not intend to have any full
time employees prior to the consummation of a business combination. All of
our
executive officers are engaged in several other business endeavors and are
not
obligated to contribute any specific number of hours per week to our affairs.
If
our executive officers’ other business affairs require them to devote more
substantial amounts of time to such affairs, it could limit their ability to
devote time to our affairs and could have a negative impact on our ability
to
consummate a business combination.
Our
officers and directors may in the future become affiliated with entities engaged
in business activities similar to those intended to be conducted by us and
accordingly, may have conflicts of interest in determining to which entity
a
particular business opportunity should be presented.
Our
officers and directors may in the future become affiliated with entities,
including other “blank check” companies, engaged in business activities similar
to those intended to be conducted by us. Additionally, our officers and
directors may become aware of business opportunities which may be appropriate
for presentation to us as well as the other entities with which they are or
may
be affiliated. Further, certain of our officers and directors are currently
involved in other businesses that are similar to the business activities that
we
intend to conduct following a business combination. Due to these existing
affiliations, they may have fiduciary obligations to present potential business
opportunities to those entities prior to presenting them to us which could
cause
additional conflicts of interest. Accordingly, they may have conflicts of
interest in determining to which entity a particular business opportunity should
be presented. For a complete discussion of our management’s business
affiliations and the potential conflicts of interest that you should be aware
of, see the sections below entitled “Management — Directors and Executive
Officers” and “Management — Conflicts of Interest.” We cannot assure you that
these conflicts will be resolved in our favor.
Certain
of our stockholders, including our officers and directors, beneficially own
shares of our common stock that will not participate in liquidation
distributions and, therefore, they may have a conflict of interest in
determining whether a particular target business is appropriate for a business
combination.
Certain
of our stockholders, including our officers and directors, who beneficially
own
shares of our common stock (which were issued prior to the public offering),
have waived their right to receive distributions with respect to those shares
upon our liquidation if we fail to complete a business combination.
Additionally, Energy Corp., an off-shore company controlled by Mr. George
Sagredos, our President and Chief Operating Officer, has agreed to waive its
right to liquidation distributions with respect to the shares included in units
it purchased in the Regulation S private placement. Similarly, the holder of
the
convertible loans has agreed to waive such right to liquidation distributions
with respect to the shares issuable upon its conversion. The shares and warrants
beneficially owned by our officers and directors and their affiliates will
be
worthless if we do not consummate a business combination. Accordingly, the
personal and financial interests of our officers and directors may influence
their motivation in identifying and selecting a target business and completing
a
business combination timely. Consequently, our directors’ and officers’
discretion in identifying and selecting a suitable target business may result
in
a conflict of interest when determining whether the terms, conditions and timing
of a particular business combination are appropriate and in our stockholders’
best interest.
Our
existing stockholders will not receive reimbursement for any out-of-pocket
expenses incurred by them to the extent that such expenses exceed the amount
outside of the trust account unless the business combination is consummated
and
therefore they may have a conflict of interest in determining whether a
particular target business is appropriate for a business combination and in
the
public stockholders’ best interest.
Certain
of our stockholders, including all of our officers and directors, will not
receive reimbursement for any out-of-pocket expenses incurred by them to the
extent that such expenses exceed the available proceeds not deposited in the
trust account and the portion of the interest on the trust account released
to
us (which, because interest rates are unknown, may be insufficient to fund
all
of our working capital requirements) unless the business combination is
consummated. The financial interest of our officers and directors could
influence their motivation in selecting a target business and thus, there may
be
a conflict of interest when determining whether a particular business
combination is in the stockholders’ best interest. For instance, our existing
stockholders may, as part of any such combination, negotiate the repayment
of
some or all of their out-of-pocket expenses in excess of the amount not placed
in the trust account, which if not agreed to by the target business’ owners,
could cause our management to view such potential business combination
unfavorably, thereby resulting in a conflict of interest.
It
is probable that our initial business combination will be with a single target
business, which may cause us to be solely dependent on a single business and
a
limited number of services.
Our
initial business combination must be with a business or businesses with a
collective fair market value of at least 80% of the amount held in the trust
account (excluding any funds held for the benefit of the underwriters and Maxim
Group LLC) at the time of such acquisition. We may not be able to acquire more
than one target business because of various factors, including possible complex
accounting issues, which would include generating pro forma financial statements
reflecting the operations of several target businesses as if they had been
combined, and numerous logistical issues, which could include attempting to
coordinate the timing of negotiations, proxy statement disclosure and closings
with multiple target businesses. In addition, we would also be exposed to the
risk that conditions to closings with respect to the acquisition of one or
more
of the target businesses would not be satisfied bringing the fair market value
of the initial business combination below the required fair market value of
80%
of the amount in the trust account threshold. Accordingly, while it is possible
that we may attempt to effect our initial business combination with more than
one target business, we are more likely to choose a single target business
if
deciding between one target business meeting such 80% threshold and comparable
multiple target business candidates collectively meeting the 80% threshold.
Consequently, it is probable that, unless the purchase price consists
substantially of our equity, we will have the ability to complete only the
initial business combination with the proceeds of our public offering and the
Regulation S private placement. Accordingly, the prospects for our success
may
be:
·
|
solely
dependent upon the performance of a single business, or
|
·
|
dependent
upon the development or market acceptance of a single or limited
number of
processes or services.
|
In
this
case, we will not be able to diversify our operations or benefit from the
possible spreading of risks or offsetting of losses, unlike other entities
which
may have the resources to complete several business combinations in different
industries or different areas of a single industry.
Because
of our limited resources and the significant competition for business
combination opportunities, we may not be able to consummate an attractive
business combination.
We
expect
to encounter intense competition from other entities having a business objective
similar to ours, including venture capital funds, leveraged buyout funds and
operating businesses competing for acquisitions. Many of these entities are
well
established and have extensive experience in identifying and effecting business
combinations directly or through affiliates. Many of these competitors possess
greater technical, human and other resources than we do and our financial
resources will be relatively limited when contrasted with those of many of
these
competitors. While we believe that there are numerous potential target
businesses that we could acquire with the net proceeds of the public offering
offering, our ability to compete in acquiring certain sizable target businesses
will be limited by our available financial resources. This inherent competitive
limitation gives others an advantage in pursuing the acquisition of certain
target businesses. Further, the obligation we have to seek stockholder approval
of a business combination may delay the consummation of a transaction, and
our
obligation to redeem for cash up to 29.99% of the total number of shares of
common stock sold in our public offering and the Regulation S private placement
in certain instances will limit the manner in which we can structure a business
combination (i.e. we will not be able to undertake an all cash acquisition)
and
may reduce the resources available to us for such purpose, as well as for
funding a target company’s business. Additionally, our outstanding warrants, and
the future dilution they potentially represent, may not be viewed favorably
by
certain target businesses. Any of these obligations may place us at a
competitive disadvantage in successfully negotiating a business combination.
We
may be unable to obtain additional financing, if required, to complete a
business combination or to fund the operations and growth of the target
business, which could compel us to restructure the transaction or abandon a
particular business combination.
If
the
net proceeds of the public offering prove to be insufficient, either because
of
the size of the business combination or the depletion of the available net
proceeds not held in trust (including interest earned on the trust account
released to us) in search of a target business, or because we become obligated
to redeem for cash a significant number of shares from dissenting stockholders,
we will be required to seek additional financing. We cannot assure you that
such
financing would be available on acceptable terms, if at all. To the extent
that
additional financing proves to be unavailable when needed to consummate a
particular business combination, we would be compelled to restructure the
transaction or abandon that particular business combination and seek an
alternative target business candidate. In addition, it is possible that we
could
use a portion of the funds not in the trust account (including amounts we
borrowed, if any) to make a deposit, down payment or fund a “no-shop” provision
with respect to a particular proposed business combination, although we do
not
have any current intention to do so. In the event that we were ultimately
required to forfeit such funds, if such payment was large enough and we had
already used up the funds allocated to due diligence and related expenses in
connection with the aborted transaction, we could be left with insufficient
funds to continue searching for, or conduct due diligence with respect to,
other
potential target businesses. If we were unable to secure additional financing,
we would most likely fail to consummate a business combination in the allotted
time and would dissolve and liquidate the trust account as part of our plan
of
dissolution and liquidation. In addition, if we consummate a business
combination, we may require additional financing to fund the operations or
growth of the target business. The failure to secure additional financing could
have a material adverse effect on the continued development or growth of the
target business. None of our officers, directors or existing stockholders is
required to provide any financing to us in connection with or after a business
combination.
Risks
associated with our acquisition of a target business in the energy
industry
The
energy industry is highly competitive.
The
production, refining, terminalling and transportation industries are highly
competitive. There is strong competition, both within the production and
refining of energy industries and with other related industries, in supplying
the fuel needs of commerce, industry and the home. Competition puts pressure
on
product prices, affects oil products marketing and requires continuous
management focus on reducing unit costs and improving efficiency. Many of our
competitors are fully integrated companies engaged on a national and/or
international basis in many segments of the energy industry, on scales that
may
be much larger than ours. Large oil companies, because of the diversity and
integration of their operations, larger capitalization and greater resources,
may be better able to withstand volatile market conditions, compete on the
basis
of price, and more readily obtain oil, gas and petrochemicals in times of
shortages.
The
price volatility of crude oil depends upon many factors that are beyond our
control and could adversely affect our profitability.
If
we
consummate a business combination with a target company in the business of
refining crude oil, we anticipate that our refining and marketing earnings,
profitability and cash flows will depend on the margin above fixed and variable
expenses (including the cost of refinery feedstock’s, such as crude oil) at
which we are able to sell refined products. Refining margins historically have
been volatile, and are likely to continue to be volatile, as a result of a
variety of factors, including fluctuations in the prices of crude oil. Prices
of
crude oil, other feedstock’s and refined products depend on numerous factors
beyond our control, including the supply of and demand for crude oil. Such
supply and demand are affected by, among other things:
·
|
changes
in global and local economic
conditions;
|
·
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domestic
and foreign demand for fuel products, especially in the United States,
China and India;
|
·
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worldwide
political conditions, particularly in significant oil-producing regions
such as the Middle East, West Africa and
Venezuela;
|
·
|
the
level of foreign and domestic production of crude oil and refined
products;
|
·
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development
and marketing of alternative and competing fuels;
and
|
·
|
local
factors, including market conditions, weather conditions and the
level of
operations of other refineries and pipelines in our
markets.
|
A
large,
rapid increase in crude oil prices would adversely affect our operating margins
if the increased cost of raw materials could not be passed to our customers
on a
timely basis, and would adversely affect our sales volumes if consumption of
refined products, particularly gasoline, were to decline as a result of such
price increases. A sudden drop in crude oil prices would adversely affect our
operating margins since wholesale prices typically decline promptly in response
thereto, while we will be paying the higher crude oil prices until our crude
supply at such higher prices is processed. The prices which we may obtain for
our refined products are also affected by regional factors, such as local market
conditions and the operations of competing refiners of petroleum products as
well as seasonal factors influencing demand for such products.
We
may be subject to interruptions of supply as a result of relying on pipelines
for transportation of crude oil and refined products.
If
we
consummate a business combination with a target business in the refining
industry, our refinery or refineries may rely heavily on pipelines to receive
all or substantially all of its crude oil and we may deliver a substantial
percentage of its refined products through pipelines. We could experience an
interruption of supply or delivery, or an increased cost of receiving crude
oil
and delivering refined products to market, if the ability of these pipelines
to
transport crude oil or refined products is disrupted because of accidents,
governmental regulation, terrorism, other third-party action or any of the
types
of events described in the preceding risk factor. Our prolonged inability to
use
any of the pipelines that we use to transport crude oil or refined products
could have a material adverse effect on our business, financial condition and
results of operations.
If
we consummate a business combination with a target (business) in the refining
industry, we may experience difficulties in marketing some of our
products.
Our
ability to market the products of a target business we acquired may depend
on:
·
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obtaining
the financing necessary to develop our feedstock, such as crude oil,
to
the point where production is available for
sale;
|
·
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the
proximity, capacity and cost of pipelines and other facilities for
the
transportation of crude oil and refined
products;
|
·
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the
quantity and quality of the refined products produced;
and
|
·
|
the
availability of viable purchasers willing to buy our refined
products.
|
If
a business combination involves the ownership of vessels, such vessels could
be
arrested by maritime claimants, which could result in the interruption of
business and have an adverse effect on revenue and profitability.
Crew
members, tort claimants, claimants for breach of certain maritime contracts,
vessel mortgagees, suppliers of goods and services to a vessel, shippers of
cargo and other persons may be entitled to a maritime lien against a vessel
for
unsatisfied debts, claims or damages, and in many circumstances a maritime
lien
holder may enforce its lien by “arresting” a vessel through court processes.
Additionally, in certain jurisdictions, such as South Africa, under the “sister
ship” theory of liability, a claimant may arrest not only the vessel with
respect to which the claimant’s lien has arisen, but also any “associated”
vessel owned or controlled by the legal or beneficial owner of that vessel.
If
any vessel ultimately owned and operated by us is “arrested”, this could result
in a material loss of revenues, or require us to pay substantial amounts to
have
the “arrest” lifted.
Governments
could requisition vessels of a target company during a period of war or
emergency, resulting in a loss of earnings.
If
we
consummate a business combination with a target company in the transportation
business, a government could requisition our vessels for title or hire.
Requisition for title occurs when a government takes control of a vessel and
becomes her owner, while requisition for hire occurs when a government takes
control of a vessel and effectively becomes her charter at dictated charter
rates. Generally, requisitions occur during periods of war or emergency,
although governments may elect to requisition vessels in other circumstances.
Although a target company would be entitled to compensation in the event of
a
requisition of any of its vessels, the amount and timing of payment would be
uncertain.
If
we experience a catastrophic loss and our insurance is not adequate to cover
such loss, it could have a material adverse affect on our operations.
If
we
consummate a business combination in the energy related industry and acquire
ownership and operation of vessels, storage facilities and refineries our
business could be affected by a number of risks, including mechanical failure,
personal injury, loss or damage, business interruption due to political
conditions in foreign countries, hostilities, labor strikes, adverse weather
conditions and catastrophic disasters, including environmental accidents. All
of
these risks could result in liability, loss of revenues, increased costs and
loss of reputation. We intend to maintain insurance, consistent with industry
standards, against these risks on business assets we may acquire upon completion
of a business combination. However, we cannot assure you that we will be able
to
adequately insure against all risks, that any particular claim will be paid
out
of our insurance, or that we will be able to procure adequate insurance coverage
at commercially reasonable rates in the future. Our insurers will also require
us to pay certain deductible amounts, before they will pay claims, and insurance
policies may contain limitations and exclusions, which, although we believe
will
be standard for the energy industry, may nevertheless increase our costs and
lower our profitability. Additionally, any increase in environmental and other
regulations may also result in increased costs for, or the lack of availability
of, insurance against the risks of environmental damage, pollution and other
claims for damages that may be asserted against us. Our inability to obtain
insurance sufficient to cover potential claims or the failure of insurers to
pay
any significant claims, could have a material adverse effect on our
profitability and operations.
The
dangers inherent in the production, refining, terminalling or transporting
and
storing of energy could cause disruptions and could expose us to potentially
significant losses, costs or liabilities.
If
we
consummate a business combination with a target business in the production,
refining, terminalling or transportation of energy industry, our operations
may
be subject to significant hazards and risks inherent in refining operations
and
in transporting and storing crude oil, intermediate products and refined
products. These hazards and risks include, but are not limited to, natural
disasters, fires, explosions, pipeline ruptures and spills, third party
interference and mechanical failure of equipment, any of which could result
in
production and distribution difficulties and disruptions, environmental
pollution, personal injury or wrongful death claims and other damage to our
properties and the properties of others. Any such event at a refining,
terminalling or transportation facility could significantly disrupt our
production and distribution of refined products, and any sustained disruption
could have a material adverse effect on our acquired business, financial
condition and results of operations.
The
energy industry is subject to intense governmental
regulation.
The
energy industry is subject to regulation and intervention by governments
throughout the world in such matters as exploration and production interests,
environmental protection controls, controls over the development and
decommissioning of a field (including restrictions on production) and, possibly,
nationalization, expropriation, cancellation or non-renewal of contract rights.
The energy industry is also subject to the payment of royalties and taxation,
which tend to be high compared with those payable in respect of other commercial
activities and operates in certain tax jurisdictions which have a degree of
uncertainty relating to the interpretation of, and changes to, tax law. As
a
result of new laws and regulations or other factors, we could be required to
curtail or cease certain operations.
We
may incur significant costs in complying with environmental, safety and other
governmental regulations and our failure to comply with these regulations could
result in the imposition of penalties, fines and restrictions on our operations.
The
energy industry is subject to extensive and changing environmental protection,
safety and other federal, state and local laws, rules, regulations and treaties,
compliance with which may entail significant expense, including expenses
associated with changes in operating procedures. We cannot assure you that
we
will be able to comply with all laws, rules, regulations and treaties following
a business combination. If we are unable to adhere to these requirements, it
could result in the imposition of penalties and fines against us, and could
also
result in the imposition of restrictions on our business and operations.
Furthermore, the costs of compliance also could have a material adverse effect
on our profitability and operations.
Our
operations may harm the environment.
We
will
attempt to conduct our activities in such a manner that there is no or minimum
damage to the environment. However, risk could arise if we do not apply our
resources to overcome the perceived trade-off between global access to energy
and the protection or improvement of the natural environment.
Inherent
in our operations are hazards which require continual oversight and control.
If
we
consummate a business combination, we may be engaged in transporting and
refining materials with potential toxicity in the course of our business. There
is a risk of loss of containment of hydrocarbons and other hazardous material
at
operating sites and during transportation. If operational risks materialized
it
could result in loss of life, damage to the environment or loss of
production.
Conservation
measures and technological advances could reduce demand for oil and
gas.
Fuel
conservation measures, alternative fuel requirements, increasing consumer demand
for alternatives to oil and gas, technological advances in fuel economy and
energy generation devices could reduce demand for oil and gas. We cannot predict
the impact of the changing demand for oil and gas services and products, and
any
major changes may have a material adverse effect on our business, financial
condition, results of operations and cash flows.
Political
instability could harm our business.
We
may
target businesses that have operations in developing countries where political,
economic and social transition is taking place. Some countries have experienced
political instability, expropriation or nationalization of property, civil
strife, strikes, acts of war and insurrections. Any of these conditions
occurring could disrupt or terminate our operations, causing our operations
to
be curtailed or terminated in these areas or our production to decline and
could
cause us to incur additional costs.
Our
business is subject to foreign currency risks.
Crude
oil
prices are generally set in U.S. dollars while sales of refined products may
be
in a variety of currencies. If we consummate a business combination with a
target business with operations outside of the United States, our business
will
be subject to foreign currency risks. These risks include
·
|
difficulty
in converting local currencies to U.S. dollars;
and
|
·
|
the
market for conversion of local currency into other currencies may
deteriorate or cease to exist.
|
Fluctuation
in exchange rates can therefore give rise to foreign exchange
exposures.
We
may re-incorporate in another jurisdiction in connection with a business
combination, and the laws of such jurisdiction will likely govern all of our
material agreements and we may not be able to enforce our legal rights.
In
connection with our proposed business combination with Vanship, we plan to
relocate the home jurisdiction of our business from Delaware to another
jurisdiction to take advantage of favorable tax laws. If we do this, the laws
of
such jurisdiction will likely govern all of our material agreements. We cannot
assure you that the system of laws and the enforcement of existing laws in
such
jurisdiction would be as certain in implementation and interpretation as in
the
United States. The inability to enforce or obtain a remedy under any of our
future agreements could result in a significant loss of business, business
opportunities or capital. Any such reincorporation and the international nature
of the energy industry will likely subject us to foreign
regulation.
Because
all but one of our directors and officers reside outside of the United States
and, after the consummation of a business combination, substantially all of
our
assets may be located outside of the United States, it may be difficult for
investors to enforce their legal rights against such individuals.
All
but
one of our directors and officers reside outside of the United States and,
after
the consummation of a business combination, substantially all of our assets
may
be located outside of the United States. As a result, it may not be possible
for
investors in the United States to enforce their legal rights, to effect service
of process upon all of our directors or officers or to enforce judgments of
United States courts predicated upon civil liabilities and criminal penalties
of
such directors and officers under Federal securities laws.
Management
services relating to a target company may be performed by management companies
that are affiliates of our officers and directors which could result in
potential conflicts of interest.
We
anticipate engaging the services of one or more management companies to provide
technical and management services, relating to the operation of vessels, storage
facilities and/or refineries. If members of existing management remain our
officers or directors post business combination, it is possible that these
management services will be performed by management companies that are
controlled by one or more of our existing stockholders, officers or directors.
The management companies may receive fees and commissions in connection with
their services rendered. The relationships between our officers and directors
and the applicable management companies may give rise to conflicts of interest
between us on the one hand and the management companies on the other. In
addition, some of our officers and directors also may hold senior management
positions with one or more of these management companies. In light of their
positions, these individuals may experience conflicts of interest in selecting
between our interests and those of the applicable management
companies.
Because
certain financial information will be required to be provided to our
stockholders in connection with a proposed business combination, prospective
target businesses may be limited.
In
order
to seek stockholder approval of a business combination with an operating
business in the energy industry, the proposed target business will be required
to have certain financial statements which are prepared in accordance with,
or
which can be reconciled to, U.S. generally accepted accounting principles and
audited in accordance with the standards of the United States Public Company
Accounting Oversight Board. Some of the businesses in the energy industry may
not keep financial statements in accordance with, or that can be reconciled
with, U.S. generally accepted accounting principles. To the extent that the
required financial statements or information cannot be prepared or obtained,
we
will not be able to complete a business combination with such entities.
Accordingly, these financial information requirements may limit the pool of
potential target businesses which we may acquire.
If
we choose to enter the shipping industry and we re-incorporate in a foreign
jurisdiction, we may become subject to United States Federal income taxation
on
our United States source shipping income.
Should
we
choose to enter the shipping industry and complete a business combination with
a
target business outside of the United States and, such acquisition involved
our
reincorporation as a foreign entity, we would then attempt to qualify under
Section 883 of the U.S. Internal Revenue Code of 1986, as amended, for an
exemption from United States federal income tax on substantially all of our
shipping income. This exemption may not be available, or may subsequently be
lost, if 50% or more of our stock is owned, for more than half the number of
days during the taxable year, by persons in the United States. We can give
no
assurance that the ownership of our stock will permit us to qualify for the
Section 883 exemption. If we do not qualify for an exemption pursuant to Section
883, we will be subject to United States federal income tax, likely imposed
on a
gross basis at 4%, on our United States source shipping income, which
constitutes not more than 50% of our gross shipping income. In such case, we
may
seek to elect to be taxed under what is in essence an alternative tonnage tax
created by the American Job Creation Act of 2004, which would likely provide
for
a substantially reduced tax to the extent it applies. In such a case, our net
income and cash flow will be reduced by the amount of such tax.
Risks
associated with our securities
Our
outstanding warrants, options and convertible debt may have an adverse effect
on
the market price of common stock and make it more difficult to effect a business
combination.
Following
our public offering, as part of the units, we issued warrants to purchase
21,750,398 shares of common stock (which includes the units sold in the
Regulation S private placement). In addition, we reserved (i) up to an
additional 3,585,000 shares of common stock issuable upon exercise of options
to
be issued to Messrs. Sagredos and Theotokis and (ii) up to an additional 631,500
shares of common stock underlying 315,750 units issuable upon conversion of
a
loan to be made by an off-shore company controlled by Mr. Sagredos. To the
extent we issue shares of common stock to effect a business combination, the
potential for the issuance of substantial numbers of additional shares upon
exercise or conversion of these warrants, options and convertible debt could
make us a less attractive acquisition vehicle in the eyes of a target business
as such securities, when exercised or converted, will increase the number of
issued and outstanding shares of our common stock and reduce the value of the
shares issued to complete the business combination. Accordingly, our warrants,
options and convertible debt may make it more difficult to effectuate a business
combination or increase the cost of the target business. Additionally, the
sale,
or even the possibility of sale, of the shares underlying the warrants, options
and convertible debt could have an adverse effect on the market price for our
securities or on our ability to obtain future public financing. If and to the
extent these warrants, options and convertible debt are exercised or converted,
you may experience dilution to your holdings.
If
certain of our stockholders exercise their registration rights, it may have
an
adverse effect on the market price of our common stock and the existence of
these rights may make it more difficult to effect a business combination.
Certain
of our stockholders are entitled to demand that we register the resale of the
5,268,849 shares of common stock they acquired prior to our public offering
at
any time after the date on which their shares are released from escrow, which,
except in limited circumstances, will not be before July 18, 2009. Furthermore,
we have agreed to grant demand registration rights with respect to the
securities underlying the 825,398 units purchased in the Regulation S private
placement and the securities underlying the 268,500 units issuable upon
conversion of the convertible loans at any time after we announce that we have
entered a letter of intent, an agreement in principle or a definitive agreement
in connection with a business combination. We have also agreed to apply our
best
efforts to register the 3,585,000 shares of common stock underlying the options
we issued to Messrs. Sagredos and Theotokis upon the closing of the public
offering. If the stockholders exercise their registration rights with respect
to
all of their shares of common stock, then there will be up to an additional
9,947,747 shares of common stock (assuming that the convertible loans are
converted and all of the options granted to Messrs. Sagredos and Theotokis
have
vested and are exercised) eligible for trading in the public market. The
presence of this additional number of shares of common stock eligible for
trading in the public market may have an adverse effect on the market price
of
our common stock. In addition, the existence of these rights may make it more
difficult to effectuate a business combination or increase the cost of the
target business, as the stockholders of the target business may be discouraged
from entering into a business combination with us or request a higher price
for
their securities as a result of these registration rights and the potential
future effect their exercise may have on the trading market for our common
stock.
The
American Stock Exchange may delist our securities from quotation on its exchange
which could limit investors’ ability to make transactions in our securities and
subject us to additional trading restrictions.
Our
common stock and warrants are listed on the American Stock Exchange. We cannot
assure you that our securities will continue to be listed on the American Stock
Exchange in the future prior to, or following, a business combination.
Additionally, in connection with our business combination, it is likely that
the
American Stock Exchange may require us to file a new initial listing application
and meet its initial listing requirements as opposed to its more lenient
continued listing requirements. We cannot assure you that we will be able to
meet those initial listing requirements at that time.
If
the
American Stock Exchange delists our securities from trading on its exchange,
we
could face significant material adverse consequences including:
|
·
|
a
limited availability of market quotations for our securities;
|
|
·
|
a
determination that our common stock is a “penny stock,” which will require
brokers trading in our common stock to adhere to more stringent rules
and
possibly resulting in a reduced level of trading activity in the
secondary
trading market for our common stock;
|
|
·
|
a
limited amount of news and analyst coverage for our company; and
|
|
·
|
a
decreased ability to issue additional securities or obtain additional
financing in the future.
|
An
investment in our securities may involve adverse tax consequences because the
redemption and liquidation price per share may be greater than the investor’s
per share purchase price.
While
we
intend to take a contrary position, there is a risk that an investor’s
entitlement to receive payments in excess of the investor’s tax basis in our
common stock upon exercise of the investor’s redemption right or upon our
liquidation will result in constructive income to the investor, which could
affect the timing and character of income recognition and result in a tax
liability to the investor without the investor’s receipt of cash from us. Such
risk might also arise as a result of management’s agreement to surrender shares
if and to the extent investors exercise their redemption rights. Prospective
investors are urged to consult their own tax advisors with respect to these
tax
risks, as well as the specific tax consequences to them of purchasing, holding
or disposing of our units.
If
we are deemed to be an investment company, we may be required to institute
burdensome compliance requirements and our activities may be restricted, which
may make it difficult for us to complete a business combination.
We
may be
deemed to be an investment company, as defined under Sections 3(a)(1)(A) and
(C)
of the Investment Company Act of 1940 because, prior to the consummation of
a
business combination, we may be viewed as engaging in the business of investing
in securities and we will own investment securities having a value exceeding
forty percent of our total assets. If we are deemed to be an investment company
under the Investment Company Act of 1940, our activities may be restricted,
including:
|
·
|
restrictions
on the nature of our investments;
and
|
|
·
|
restrictions
on the issuance of securities;
|
which
may
make it difficult for us to complete a business combination.
In
addition, we may have imposed upon us burdensome requirements, including:
|
·
|
registration
as an investment company;
|
|
·
|
adoption
of a specific form of corporate structure; and
|
|
·
|
reporting,
record keeping, voting, proxy and disclosure requirements and other
rules
and regulations.
|
However,
we do not believe that our anticipated principal activities will subject us
to
the Investment Company Act of 1940. To this end, the proceeds held in trust
may
only be invested by the trust agent in Treasury Bills issued by the United
States with maturity dates of 180 days or less or in money market funds meeting
certain conditions under Rule 2a-7 promulgated under the Investment Company
Act
of 1940. By restricting the investment of the proceeds to these instruments,
we
intend to avoid being deemed an investment company within the meaning of the
Investment Company Act of 1940. Our securities are not intended for persons
who
are seeking a return on investments in government securities. The trust account
and the purchase of government securities for the trust account is intended
as a
holding place for funds pending the earlier to occur of either: (i) the
consummation of our primary business objective, which is a business combination,
or (ii) absent a business combination, our dissolution and return of the funds
held in the trust account to our public stockholders as part of our plan of
dissolution and liquidation. Notwithstanding our belief that we are not required
to comply with the requirements of such act, in the event that the stockholders
do not approve a plan of dissolution and liquidation and the funds remain in
the
trust account for an indeterminable amount of time, we may be considered to
be
an investment company and thus required to comply with such act. If we were
deemed to be subject to the act, compliance with these additional regulatory
burdens would require additional expense that we have not allotted for.
Our
directors may not be considered “independent” under the policies of the North
American Securities Administrators Association, Inc.
Under
the
policies of the North American Securities Administrators Association, Inc.,
an
international organization devoted to investor protection, because each of
our
directors owns shares of our securities and may receive reimbursement for
out-of-pocket expenses incurred by them in connection with activities on our
behalf such as identifying potential target businesses and performing due
diligence on suitable business combinations, state securities administrators
could take the position that such individuals are not “independent.” If this
were the case, they would take the position that we would not have the benefit
of independent directors examining the propriety of expenses incurred on our
behalf and subject to reimbursement. Additionally, there is no limit on the
amount of out-of-pocket expenses that could be incurred and there will be no
review of the reasonableness of the expenses by anyone other than our board
of
directors, which would include persons who may seek reimbursement, or a court
of
competent jurisdiction if such reimbursement is challenged. To the extent such
out-of-pocket expenses exceed the available proceeds not deposited in the trust
account, such out-of-pocket expenses would not be reimbursed by us unless we
consummate a business combination, in which event this reimbursement obligation
would in all likelihood be negotiated with the owners of a target business.
Although we believe that all actions taken by our directors on our behalf will
be in our best interests, whether or not they are deemed to be “independent”
under the policies of the North American Securities Administrator Association,
we cannot assure you that this will actually be the case. If actions are taken,
or expenses are incurred that are actually not in our best interests, it could
have a material adverse effect on our business and operations and the price
of
our stock held by the public stockholders.
Because
we may acquire a company located outside of the United States, we may be subject
to various risks of the foreign jurisdiction in which we ultimately operate.
If
we
acquire a company that has sales or operations outside the United States, we
could be exposed to risks that negatively impact our future sales or
profitability following a business combination, especially if the acquired
company is in a developing country or a country that is not fully
market-oriented. If we were to acquire a business that operates in such a
country, our operations might not develop in the same way or at the same rate
as
might be expected in the United States or another country with an economy
similar to the market-oriented economies of member countries which are members
of the Organization for Economic Cooperation and Development, or the OECD (an
international organization helping governments through the economic, social
and
governance challenges of a globalized economy).
Item
1B. Unresolved Staff Comments
None
Item
2. Properties
We
maintain our executive offices at Suite 1300, 1105 North Market Street,
Wilmington, DE 19899. Wilmington Trust SP Services, Inc. has agreed to provide
us with certain administrative, technology and secretarial services, as well
as
the use of certain limited office space at this location at an annual cost
of
$10,000 pursuant to an agreement between us and Wilmington Trust. We consider
our current office space adequate for our current operations.
Item
3. Legal Proceedings
To
the
knowledge of management, there is no litigation currently pending or
contemplated against us or any of our officers or directors in their capacity
as
such.
Item
4. Submission of Matters to a Vote of Security Holders
We
held
our 2007 annual meeting of stockholders on December 19, 2007. At the meeting
David Wong, Maximos Kremos and Peter Blumen were each re-elected to serve a
three year term as director. Mr. Wong received 14,548,904 votes for his
re-election, with 78,127 votes withheld. Mr. Kremos received 14,548,984 votes
for his re-election, with 78,047 votes withheld. Mr. Blumen received 14,546,084
votes for his re-election, with 80,947 votes withheld. The terms of Andreas
Theotokis, Arie Silverberg, George Sagredos, Marios Pantazopoulos, Jonathan
Kollek and Philippe Meyer continued after the meeting.
In
addition, at the 2007 annual meeting, the stockholders ratified the appointment
of Goldstein Golub Kessler LLP (“GGK”) as our independent auditors for the year
ended December 12, 2007. 14,608,531 votes were cast in favor of the ratification
of the appointment of GGK and 13,000 votes were cast against the ratification
of
the appointment of GGK.
PART
II
Item
5. Market for Registrant's Common Equity, Related Stockholder Matters and Issuer
Purchases of Equity Securities
The
Company’s common stock and warrants are traded on the American Stock Exchange
under the symbols “EEI” and “EII - WT,” respectively. The Company’s Units were
traded on the American Stock Exchange under the symbol EEIU from July 21, 2006
to October 4, 2006, on which date the Units ceased trading and Common Stock
and
Warrants began to trade separately. The Company’s securities did not trade on
any market or exchange prior to July 21, 2006. The following table sets forth
the high and low prices, for the period indicated, for the Company’s securities
from the commencement of trading through December 31, 2007 as reported by the
American Stock Exchange.
|
|
Common
Stock
|
|
Warrants
|
|
Units
|
|
|
|
High
|
|
Low
|
|
High
|
|
Low
|
|
High
|
|
Low
|
|
2007
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
Quarter
|
|
$
|
10.83
|
|
$
|
9.71
|
|
$
|
1.30
|
|
$
|
0.95
|
|
|
--
|
|
|
--
|
|
Third
Quarter
|
|
$
|
9.92
|
|
$
|
9.61
|
|
|
1.61
|
|
$
|
0.82
|
|
|
--
|
|
|
--
|
|
Second
Quarter
|
|
$
|
9.99
|
|
$
|
9.56
|
|
|
1.67
|
|
$
|
0.80
|
|
|
--
|
|
|
--
|
|
First
Quarter
|
|
$
|
10.50
|
|
$
|
9.31
|
|
|
0.86
|
|
$
|
0.45
|
|
|
--
|
|
|
--
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
Quarter
|
|
$
|
9.55
|
|
$
|
9.11
|
|
$
|
0.78
|
|
$
|
0.27
|
|
$
|
9.85
|
|
$
|
9.74
|
|
Third
Quarter (July 21 - September 30)
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
$
|
10.00
|
|
$
|
9.70
|
|
Third
Quarter (July 1 - July 20)*
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
Second
Quarter*
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
First
Quarter*
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
|
--
|
|
*
No
figures are included as our Units commenced trading on the American Stock
Exchange on July 21, 2006 and our common stock and warrants commenced trading
on
the American Stock Exchange on October 4, 2006, on which date trading in
our
units ceased.
Number
of Holders of Common Stock
There
were nine holders of record of our common stock on March 31, 2008. However,
the total number of beneficial holders is unknown as the majority of our common
stock is held in street name through CEDE & Co.
Dividends.
There
were no cash dividends or other cash distributions made by us during the fiscal
year ended December 31, 2007. Future dividend policy will be determined by
our
Board of Directors based on our earnings, financial condition, capital
requirements and other then existing conditions. It is anticipated that cash
dividends will not be paid to the holders of our common stock in the foreseeable
future.
Recent
Sales of Unregistered Securities
On
December 30, 2005, we issued 5,831,349 shares of our common stock to the
individuals set forth below for $25,000 in cash, at an average purchase price
of
$0.004 per share (giving retroactive effect to a 0.4739219-for-1 stock
dividend effective as of April 26, 2006 as follows:
Name
|
|
Number
of
Shares
|
|
Relationship
to us
|
Arie
Silverberg
|
|
583,134
|
|
Chief
Executive Officer and Director
|
Marios
Pantazopoulos
|
|
145,784
|
|
Chief
Financial Officer and Director
|
George
Sagredos
|
|
2,332,541
|
|
Chief
Operating Officer, President and Director
|
Andreas
Theotokis
|
|
2,040,972
|
|
Chairman
of the Board of Directors and Director
|
Jonathan
Kollek
|
|
583,134
|
|
Director
|
David
Wong
|
|
145,784
|
|
Director
|
|
|
|
|
|
Such
shares were issued pursuant to the exemption from registration contained in
Section 4(2) of the Securities Act as they were sold to sophisticated, wealthy
individuals. No underwriting discounts or commissions were paid with respect
to
such sales.
On
July
17, 2006, we sold 825,398 units in a Private Placement to Energy Corp., a
corporation formed under the laws of the Cayman Islands, which is controlled
by
our President and Chief Operating Officer. The units were sold at a purchase
price of $10.00 per unit, generating gross proceeds of $8,253,980.
Use
of Proceeds of our Initial Public Offering and Private
Placement
On
July
21, 2006, we consummated our initial public offering of 20,250,000 units and
on
August 31, 2006, the underwriters of our public offering exercised their option
to purchase an additional 675,000 units to cover over-allotments. Each unit
consists of one share of common stock and one warrant. Each warrant entitles
the
holder to purchase from us one share of our common stock at an exercise price
of
$8.00. The units were sold at an offering price of $10.00 per unit, generating
total gross proceeds of $209,250,000. Maxim Group LLC acted as lead underwriter.
The securities sold in the offering were registered under the Securities Act
of
1933 on a registration statement on Form S-1 (No. 333-131648). The Securities
and Exchange Commission declared the registration statement effective on July
17, 2006. Prior to the closing of the initial public offering Robert Ventures
Limited, an off-shore company controlled by the our President and Chief
Operating Officer made a convertible loan to us in the principal amount of
$2,550,000 and our President and Chief Operating Officer made a term loan to
us
in the principal amount of $475,000. On August 31, 2006, Robert Ventures Limited
made an additional convertible loan to us in the amount of
$135,000.
We
incurred a total of $11,987,500 in underwriting discounts and commissions,
$495,239 in placement fees and $1,826,467 of expenses related to the public
offering (including the over-allotment) and private placement.
After
deducting the underwriting discounts and commissions, the placement fee and
the
offering expenses (excluding $2,770,239 in underwriting discounts, commissions
and placement fees for which the payment was deferred), the total net proceeds
to us from the offering and the private placement were $203,194,775. Such
proceeds, plus deferred offering costs and placement fees, plus the proceeds
from the loans totaled $209,250,000, which was placed in a trust account
and
invested until the earlier of (i) the consummation of the first business
combination or (ii) the distribution of the trust account as described below.
The amount in the Trust Account includes $2,227,500 of contingent underwriting
compensation and $82,540 of contingent private placement fees which will
be paid
to the underwriters if a business combination is consummated, but which will
be
forfeited in part if public stockholders elect to have their shares redeemed
for
cash if a business combination is not consummated. $300,000 of the net proceeds
were used to repay debt to Mr. Sagredos for a loan used to cover expenses
related to the public offering. $12,600 was used to pay accrued offering
costs
and fees. The remaining proceeds in the amount of $109,605 may be used to
pay
for business, legal and accounting due diligence on prospective acquisitions
and
continuing general and administrative expenses.
Securities
Authorized for Issuance Under Equity Compensation
Plans
None.
Repurchases
of Equity Securities
None.
Item
6. Selected Financial Data
The
selected financial data presented below summarizes certain financial data which
has been derived from and should be read in conjunction with our financial
statements and notes thereto included in the section beginning on page F-1.
See also “Item 7. Management’s Discussion and Analysis of Financial Condition
and Results of Operations.”
Statement
of Operations Data:
|
|
Year
Ended December 31,
2007
|
|
Year
Ended December 31,
2006
|
|
Period
from August 11, 2005 (Inception) to December 31,
2005
|
|
Period
from
August
11, 2005 (Inception)
to
December 31, 2007
|
|
Operating
expenses:
|
|
$
|
(12,971,706
|
)
|
$
|
(5,924,945
|
)
|
|
(910
|
)
|
$
|
(18,897,561
|
)
|
Interest
income
|
|
$
|
6,369,468
|
|
$
|
3,139,543
|
|
|
1,781
|
|
$
|
9,510,792
|
|
Net
loss
|
|
$
|
(6,704,000
|
)
|
$
|
(2,841,301
|
)
|
|
(1,879
|
)
|
$
|
(9,547,180
|
)
|
Net
loss per common share - basic and diluted
|
|
|
(0.25
|
)
|
|
(0.18
|
)
|
|
(0.00
|
)
|
|
(0.51
|
)
|
|
|
As
of
December
31,
2007
|
|
As
of
December
31,
2006
|
|
Balance
Sheet Data:
|
|
|
|
|
|
Cash
|
|
$
|
13,933
|
|
$
|
553,716
|
|
Money
market funds - held in trust
|
|
$
|
217,023,161
|
|
$
|
211,414,806
|
|
Total
Assets
|
|
$
|
218,210,478
|
|
$
|
212,082,482
|
|
Total
stockholders’ equity
|
|
$
|
146,027,445
|
|
$
|
141,092,145
|
|
Item
7. Management's Discussion and Analysis of Financial Condition and Results
of
Operations
Overview
We
were
formed on August 11, 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.
Our
initial business combination must be with a target business or businesses whose
fair market value is at least equal to 80% of the amount in the Trust Account
(excluding any funds held for the benefit of the underwriters and Maxim Group
LLC) at the time of such acquisition. We intend to utilize cash derived from
the
proceeds of our recently completed initial public offering, our capital stock,
debt or a combination of cash, capital stock and debt, in effecting a business
combination.
Critical
Accounting Policies
The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities at the date of the financial statements and the reported amounts
of
expenses during the reporting period. Actual results could differ from those
estimates.
The
Company accounts for share-based payments pursuant to Statement of Financial
Accounting Standards No. 123R, “Share-Based Payments” (“SFAS No. 123R”). SFAS
No. 123R requires all share-based payments, including grants of employee
stock
options to employees, to be recognized in the financial statements based
on
their fair values.
The
Company adopted SFAS No. 123R effective January 1, 2006, and is using the
modified prospective method in which compensation cost is recognized beginning
with the effective date (a) based on the requirements of SFAS No. 123R for
all
share-based payments granted after the effective date and (b) based on the
requirements of SFAS No. 123R for all awards granted to employees prior to
the
effective date of SFAS No. 123R that remained unvested on the effective
date.
The
Company accounts for income taxes pursuant to Statement of Financial Accounting
Standards No. 109, “Accounting for Income Taxes” (“SFAS No. 109”), which
establishes financial accounting and reporting standards for the effects
of
income taxes that result from an enterprise’s activities during the current and
preceding years. SFAS No. 109 requires an asset and liability approach for
financial accounting and reporting for income taxes.
In
July
2006, the Financial Accounting Standards Board (“FASB”) issued FASB
Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an
interpretation of FASB Statement No. 109” (“FIN 48”), which provides criteria
for the recognition, measurement, presentation and disclosure of uncertain
tax
positions. A tax benefit from an uncertain position may be recognized only
if it
is “more likely than not” that the position is sustainable based on its
technical merits.
Management
does not believe that any recently issued, but not yet effective, accounting
standards if currently adopted would have a material effect on the accompanying
financial statements.
Results
of Operations
For
the
year ended December 31, 2007 we incurred a net loss of $6,704,000. The net
loss
consisted of $12,971,706 of operating expenses and $101,762 of interest expense.
Operating expenses of $12,971,706 consisted of consulting and professional
fees
of $696,577, stock-based compensation of $11,639,300, insurance expense of
$144,469, office expense of $74,050, travel expense of $222,950, state franchise
tax of $163,707 and other operating costs of $30,653. During this period, the
Company earned interest income of $6,369,468.
For
the
year ended December 31, 2006 we incurred a net loss of $2,841,301. The net
loss
consisted of $5,924,945 of operating expenses and $55,899 of interest expense.
Operating expenses of $5,924,945 consisted of consulting and professional fees
of $171,301, stock-based compensation of $5,334,679, insurance expense of
$44,115, office expense of $48,812, travel expense of $151,676, state franchise
tax of $167,250 and other operating costs of $7,112. During this period, the
Company earned interest income of $3,139,543.
Liquidity
and Capital Resources
On
July
17, 2006, we sold 825,398 units in a Regulation S private placement to Energy
Corp., a corporation formed under the laws of the Cayman Islands, which is
controlled by our President and Chief Operating Officer. On July 21, 2006, we
consummated our initial public offering of 20,250,000 units. Each unit in the
private placement and the public offering consists of one share of common stock
and one redeemable common stock purchase warrant. The common stock and warrants
included in the units began to trade separately on October 4, 2006, and trading
in the units ceased on such date. Each warrant entitles the holder to purchase
from us one share of our common stock at an exercise price of $8.00. Prior
to
the closing of the initial public offering Robert Ventures Limited, an off-shore
company controlled by the our President and Chief Operating Officer made a
convertible loan to us in the principal amount of $2,550,000 and our President
and Chief Operating Officer made a term loan to us in the principal amount
of
$475,000.
On
July
21, 2006, the closing date of our public offering, $202,500,000 was placed
in
the Trust Account at Lehman Brothers’ Inc. maintained by Continental Stock
Transfer & Trust Company, New York, New York, as trustee. This amount
includes the net proceeds of the private placement and our public offering,
the
$2,550,000 convertible loan and the $475,000 term loan, $2,107,540 of contingent
underwriting compensation and placement fees, to be paid to the underwriters
and
Maxim Group LLC, respectively, if and only if, a business combination is
consummated, and $412,699 in deferred placement fees to be paid to Maxim Group
LLC in connection with the Private Placement. The funds in the Trust Account
will be invested until the earlier of (i) the consummation of the Company’s
first business combination or (ii) the liquidation of the Trust Account as
part
of a plan of dissolution and liquidation approved by the Company’s
stockholders.
On
August
31, 2006, the underwriters of our public offering exercised their option to
purchase an additional 675,000 units to cover over-allotments. An additional
$6,750,000 was placed in the Trust Account, bringing the total amount in the
Trust Account to $209,250,000. This additional amount includes $6,615,000,
representing the net proceeds of the over-allotment and an additional
convertible loan made to us by Robert Ventures Limited in the amount of
$135,000.
We
will
use substantially all of the net proceeds of our private placement and initial
public offering to acquire a target business, including identifying and
evaluating prospective acquisition candidates, selecting the target business,
and structuring, negotiating and consummating the business combination. To
the
extent that our capital stock is used in whole or in part as consideration
to
effect a business combination, the proceeds held in the Trust Account, as well
as any other net proceeds not expended, will be used to finance the operations
of the target business. We have agreed with Maxim Group, LLC, the representative
of the underwriters, that up to $3,430,111 of the interest earned on the
proceeds being held in the trust account for our benefit (net of taxes payable)
will be released to us upon our request, and in such intervals and in such
amounts as we desire and are available to fund our working capital. We believe
that the working capital available to us, in addition to the funds available
to
us outside of the trust account will be sufficient to allow us to operate for
at
least the next 24 months, assuming that a business combination is not
consummated during that time. Over this time, we have estimated that the
$3,430,111 shall be allocated approximately as follows: $1,017,412 for working
capital and reserves (including finders’ fees, consulting fees or other similar
compensation, potential deposits, down payments, franchise taxes or funding
of a
“no-shop” provision with respect to a particular business combination and the
costs of dissolution, if any); $7,500 per month in connection with a consulting
agreement we entered into on October 16, 2006; $800,000 for legal, accounting
and other expenses attendant to the structuring and negotiation of a business
combination; $250,000 with respect to legal and accounting fees relating to
our
SEC reporting obligations; $620,000 for due diligence, identification and
research of prospective target business and reimbursement of out of pocket
due
diligence expenses to management; $150,000 for director and officer liability
insurance premiums; and $412,699 for placement fees to Maxim Group LLC related
to the Regulation S private placement. In addition, additional interest earned
on the proceeds held in trust will be allocated (i) to make quarterly interest
payments aggregating approximately $215,000 on the $2,550,000 convertible loan
and the $135,000 convertible loan and (ii) to repay the $475,000 term loan.
Accrued interest shall also be applied to repay the principal of the convertible
loans on the earlier of our dissolution and liquidation or a business
combination to the extent such loans have not been converted.
In
March 2008, Energy EIAC Capital Ltd., an off-shore
company controlled by George Sagredos, our President and Chief Operating
Officer, loaned $500,000 to us in the form of a note payable. Such loan bears
interest at a per annum interest rate equivalent to the per annum interest
rate
applied to the funds held in the Trust Account during the same period that
such
loan is outstanding (average 3.503% from inception to December 31,
2007). We are obligated to repay the principal and accrued interest on
such loan following the earlier of (i) the consummation of a Business
Combination or (ii) the dissolution and liquidation of the Company.
In
addition to the above described allocation of interest accrued on the trust
account, at December 31, 2007 we had funds aggregating $13,933 held outside
of
the trust account.
Pursuant
to amendments to the Underwriting Agreement effective as of September 30, 2006
and December 26, 2006, Maxim Group LLC, as representative of the underwriters,
agreed to waive the Company’s obligation to pay the underwriters deferred
compensation of $500,000. In connection with such amendments, the Company
recorded a credit to additional paid in capital in the amount of $500,000 during
the fiscal year ended December 31, 2006.
Pursuant
to the Company’s certificate of incorporation, holders of shares purchased in
the Company’s initial public offering (other than the Company’s initial
stockholders) may vote against the business combination and demand that the
Company redeem their shares for a cash payment of $10.00 per share, plus a
portion of the interest earned not previously released to it (net of taxes
payable), as of the record date. The Company will not consummate the business
combination if holders of 6,525,119 or more shares exercise these redemption
rights. If holders of the maximum permissible number of shares elect redemption
without the Company being required to abandon the business combination, the
Company may not have funds available to proceed with the business combination
unless it is able to obtain additional capital. Assuming that the Company’s
stockholders approve the Business Combination, Energy Merger intends to sell
such number of shares of its common stock equal to the number of shares of
the
Company’s common stock that are redeemed upon completion of the business
combination. The proceeds of such sale would be used to fund redemptions of
common stock by the Company’s stockholders. There can be no assurance that
Energy Merger will be able to successfully complete such sale. To the extent
such sale is not completed and the Company has insufficient funds to complete
the business combination, the business combination will not occur, and it is
likely that the Company will be required to dissolve and liquidate.
Off-Balance
Sheet Arrangements
We
have
never entered into any off-balance sheet financing arrangements and have never
established any special purpose entities. We have not guaranteed any debt or
commitments of other entities or entered into any options on non-financial
assets.
Contractual
Obligations
We
do not
have any long term debt, capital lease obligations, operating lease obligations,
purchase obligations or other long term liabilities.
Forward
Looking Statements
This
Annual Report on Form 10-K includes forward-looking statements within the
meaning of Section 27A of the Securities Act of 1933, as amended, and Section
21E of the Securities Exchange Act of 1934, as amended. We have based these
forward-looking statements on our current expectations and projections about
future events. These forward-looking statements are subject to known and unknown
risks, uncertainties and assumptions about us that may cause our actual results,
levels of activity, performance or achievements to be materially different
from
any future results, levels of activity, performance or achievements expressed
or
implied by such forward-looking statements. In some cases, you can identify
forward-looking statements by terminology such as “may,” “should,” “could,”
“would,” “expect,” “plan,” “anticipate,” “believe,” “estimate,” “continue,” or
the negative of such terms or other similar expressions. Factors that might
cause or contribute to such a discrepancy include, but are not limited to,
those
described in our other Securities and Exchange Commission filings. The following
discussion should be read in conjunction with our Financial Statements and
related Notes thereto included elsewhere in this report.
Item
7A. Quantitative and Qualitative Disclosures About Market Risk
Market
risk is the sensitivity of income to changes in interest rates, foreign
exchanges, commodity prices, equity prices, and other market-driven rates or
prices. We are not presently engaged in and, if a suitable business target
is
not identified by us prior to the prescribed liquidation date of the trust
fund,
we may not engage in, any substantive commercial business. Accordingly, we
are
not and, until such time as we consummate a business combination, we will not
be, exposed to risks associated with foreign exchange rates, commodity prices,
equity prices or other market-driven rates or prices. The net proceeds of our
initial public offering held in the trust fund have been invested only in money
market funds meeting certain conditions under Rule 2a-7 promulgated under the
Investment Company Act of 1940. Given our limited risk in our exposure to money
market funds, we do not view the interest rate risk to be significant.
Item
8. Financial Statements and Supplementary Data
Financial
statements are attached hereto beginning on Page F-1.
Item
9. Changes in and Disagreements with Accountants on Accounting and Financial
Disclosure
None.
Item
9A. Controls and Procedures
Evaluation
of disclosure controls and procedures.
As
required by Rule 13a-15 under the Securities Exchange Act of 1934
("Exchange Act"), we carried out an evaluation under the supervision and
with
the participation of the our management, including our chief executive officer
and chief financial officer, of the effectiveness of the design and operation
of
our disclosure controls and procedures as of the end of the period covered
by
this report. Based upon that evaluation, the chief executive officer and
principal financial officer have concluded that our disclosure controls and
procedures are effective to ensure that information required to be disclosed
by
us in reports we file or submit under the Exchange Act is recorded, processed,
summarized and reported, within the time periods specified in Securities
and
Exchange Commission rules and forms. Disclosure controls and procedures include,
without limitation, controls and procedures designed to ensure that information
required to be disclosed by the Company in the reports it files or submits
under
the Exchange Act is accumulated and communicated to the Company's management,
including our chief executive officer and chief financial officer, or persons
performing similar functions, as appropriate to allow timely decisions regarding
required disclosure. On an on-going basis, we review and document our disclosure
controls and procedures, and our internal control over financial reporting,
and
may from time to time make changes aimed at enhancing their effectiveness
and to
ensure that our systems evolve with our business.
Management's
Report on Internal Control Over Financial Reporting
Our
management is responsible for establishing and maintaining adequate internal
control over financial reporting as defined in Rules 13a-15(f) and
15d-15(f) under the Securities Exchange Act of 1934. Our internal control
over
financial reporting is a process designed to provide reasonable assurance
regarding the reliability of financial reporting and the preparation of
financial statements for external purposes in accordance with generally
accepted
accounting principles.
Because
of its inherent limitations, internal control over financial reporting
can
provide only reasonable assurance and may not prevent or detect misstatements.
Also, projections of any evaluation of effectiveness to future periods
are
subject to the risk that controls may become inadequate because of changes
in
conditions, or that the degree of compliance with the policies or procedures
may
deteriorate.
Our
management assessed the effectiveness of our internal control over financial
reporting as of December 31, 2007. In making this assessment, management
used the criteria set forth by the Committee of Sponsoring Organizations
of the
Treadway Commission (“COSO”) in
Internal
Control—Integrated Framework
.
On
March
17, 2008, our Board of Directors determined that, in connection with the
preparation and audit of the Company’s financial statements for the year ended
December 31, 2007, it was appropriate to restate our previously issued
audited
financial statements for the year ended December 31, 2006 and our unaudited
financial statements for the quarters ended September 30, 2006, and March
31,
June 30 and September 30, 2007.
The
restatements relate to the incorrect calculation of interest potentially
distributable to redeeming stockholders for the period from July 21, 2006
through June 30, 2007. At June 30, 2007, we had recorded $2,119,280 of
deferred
interest on funds held in trust as a liability payable to stockholders
who vote
against a business combination. Based on our revised calculations, the
deferred
interest on funds held in trust should have been $19,367 at June 30, 2007.
At no
time did this matter affect the funds held in the trust account or the
rights of
the Public Stockholders with respect to their redemption rights.
Based
on
our assessment of this issue when it was originally identified, we initially
recorded an adjustment to our interim financial statements for the three
months
and nine months ended September 30, 2007 to reflect this adjustment as
a gain in
our statement of operations. However, management reviewed this matter in
conjunction with the audit of the 2007 financial statements and, based
on
various factors, including the potential business combination with Vanship,
determined that it was appropriate to restate our financial statements
to more
accurately reflect the accounting for the interest potentially distributable
to
redeeming stockholders in the appropriate periods.
The
Company also determined that during the year ended December 31, 2007,
it did not
maintain effective internal control over its accounting for certain costs
incurred in connection with a proposed business combination, which have
been
accrued at December 31, 2007.
Due
in
part to (i) the restatement of our financial statements and (ii) the
failure to
maintain effective internal control over our accounting for certain costs
incurred in connection with a proposed business combination, and based
on our
assessment and the criteria set by COSO, our management determined that
there
was a material weakness in the Company’s internal control over financial
reporting as of December 31, 2007. In response, we have implemented expanded
review procedures at each period end to address accounting issues that
could
affect our financial reporting.
Changes
in internal controls over financial reporting
.
There
were no changes in our internal control over financial reporting during
the
fourth quarter of fiscal year 2007 that have materially affected, or
that are
reasonably likely to materially affect, our internal controls over financial
reporting.
The
effectiveness of our internal control over financial reporting as of
December 31, 2007 has been audited by McGladrey & Pullen, LLP, an
independent registered public accounting firm, as stated in their report
which
is included herein.
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To
the Board of Directors and Stockholders
Energy
Infrastructure Acquisition Corp.
We
have audited Energy Infrastructure Acquisition Corp.'s (a corporation
in the
development stage) internal control over financial reporting as of
December 31,
2007, based on criteria established in Internal Control—Integrated Framework
issued by the Committee of Sponsoring Organizations of the Treadway
Commission
(COSO). Energy Infrastructure Acquisition Corp.'s management is responsible
for
maintaining effective internal control over financial reporting and
for its
assessment of the effectiveness of internal control over financial
reporting
included in the accompany Management's Report on Internal Control Over
Financial
Reporting. Our responsibility is to express an opinion on the Company's
internal
control over financial reporting based on our audit.
We
conducted our audit in accordance with the standards of the Public
Company
Accounting Oversight Board (United States). Those standards require
that we plan
and perform the audit to obtain reasonable assurance about whether
effective
internal control over financial reporting was maintained in all material
respects. Our audit included obtaining an understanding of internal
control over
financial reporting, assessing the risk that a material weakness exists,
and
testing and evaluating the design and operating effectiveness of internal
control based on the assessed risk. Our audit also included performing
such
other procedures as we considered necessary in the circumstances. We
believe
that our audit provides a reasonable basis for our opinion.
A
company's internal control over financial reporting is a process designed
to
provide reasonable assurance regarding the reliability of financial
reporting
and the preparation of financial statements for external purposes in
accordance
with generally accepted accounting principles. A company's internal
control over
financial reporting includes those policies and procedures that (1)
pertain to
the maintenance of records that, in reasonable detail, accurately and
fairly
reflect the transactions and dispositions of the assets of the company;
(2)
provide reasonable assurance that transactions are recorded as necessary
to
permit preparation of financial statements in accordance with generally
accepted
accounting principles, and that receipts and expenditures of the company
are
being made only in accordance with authorizations of management and
directors of
the company; and (3) provide reasonable assurance regarding prevention
or timely
detection of unauthorized acquisition, use, or disposition of the company's
assets that could have a material effect on the financial
statements.
Because
of its inherent limitations, internal control over financial reporting
may not
prevent or detect misstatements. Also, projections of any evaluation
of
effectiveness to future periods are subject to the risk that controls
may become
inadequate because of changes in conditions, or that the degree of
compliance
with the policies or procedures may deteriorate.
A
material weakness is a deficiency, or a combination of deficiencies,
in internal
control over financial reporting, such that there is a reasonable possibility
that a material misstatement of the company's annual or interim financial
statements will not be prevented or detected on a timely basis. The
following
material weaknesses have been identified and included in management's
assessment. As of December 31, 2007, the Company did not maintain effective
internal control over accounting for accrued costs in connection with
a
potential business combination and calculations of interest potentially
distributable to redeeming stockholders for the period from July 21,
2006 though
June 30, 2007. These material weaknesses were considered in determining
the
nature, timing, and extent of audit tests applied in our audit of the
2007
financial statements, and this report does not affect our report dated
March 31,
2008, on those financial statements.
In
our
opinion, because of the effect of the material weakness described above
on the
achievement of the objectives of the control criteria, Energy Infrastructure
Acquisition Corp. has not maintained effective internal control over
financial
reporting as of December 31, 2007, based on criteria established in
Internal
Control—Integrated Framework issued by the Committee of Sponsoring Organizations
of the Treadway Commission (COSO).
We
have also audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), the financial statements
of Energy
Infrastructure Acquisition Corp. and our report dated March 31, 2008
expressed
an unqualified opinion.
/s/MCGLADREY
& PULLEN, LLP
MCGLADREY
& PULLEN, LLP
New
York, NY
March
31, 2008
Item
9B. Other Information
None.
PART
III
Item
10. Directors and Executive Officers of the Company
Directors
and Executive Officers
Our
current directors and executive officers are as follows:
Name
|
|
Age
|
|
Position
|
|
|
|
|
|
Andreas
Theotokis
|
|
51
|
|
Chairman
of the Board of Directors and Director
|
Arie
Silverberg
|
|
60
|
|
Chief
Executive Officer and Director
|
George
Sagredos
|
|
51
|
|
Chief
Operating Officer, President and Director
|
Marios
Pantazopoulos
|
|
41
|
|
Chief
Financial Officer and Director
|
Jonathan
Kollek
|
|
47
|
|
Director
|
David
Wong
|
|
52
|
|
Director
|
Maximos
Kremos
|
|
60
|
|
Director
|
Peter
Blumen
|
|
47
|
|
Director
|
Philippe
Meyer
|
|
55
|
|
Director
|
Andreas
Theotokis
has been
our chairman of the board of directors since inception and a director since
December 2005. Mr. Theotokis has over 25 years of experience in the oil industry
including operations, shipping, finance, refinery economics, marketing and
risk
management. From 2001 to 2006, Mr. Theotokis has served as the senior advisor
on
Trading and Business Development for Samsung U.K. Limited. Mr. Theotokis was
instrumental in creating Samsung’s niche oil trading business based on East-West
Arbitrage. Prior to joining Samsung, Mr. Theotokis was the managing director
-
European Business of Oilspace, Inc., from August 2000 through September 2002.
Oilspace is a London-based software consulting company providing supply chain
management solutions for companies in the energy industry. While at Oilspace,
Mr. Theotokis started an internet-based service provider for the oil industry
that was ultimately introduced to European and Russian oil companies that
enables operational efficiency and successful business process improvements.
From 1999 to 2000, Mr. Theotokis served as a director of the trading and
logistics division at Oil Distributing Systems in Argentina, an importer and
distributor of distillates and gasoline. From 1992 to 1996, Mr. Theotokis served
as the head of the clean products trading group for Galaxy Energy Corporation,
an oil and gas trading company. During his tenure, Galaxy became the principal
suppliers of crude/gas oil for the Greek government and the largest fuel oil
and
distillate exporter from Russia and the Ukraine. Between 1987 and 1992, Mr.
Theotokis worked for Astroline Mediterranean’s Milan and Los Angeles offices,
actively trading products from Europe to the Far East, and the U.S. Gulf Coast
to Singapore. During his tenure, Astroline Mediterranean became one of the
first
arbitrage/value trading oil companies. Prior to joining Astroline Mediterranean,
Mr. Theotokis was a fuel oil and gasoline trader for Petraco SPA in Milan from
1985 to 1986. Mr. Theotokis was primarily involved with exports of fuels,
distillates and crude oil to Western Europe and the United States. Mr. Theotokis
began his career in 1980 with Petrola Hellas/Latsis Group, where he spent
several months working on refinery economics, finance, demurrage and shipping.
During the next five years, he was employed at the London office where he became
a managing director and ultimately the head of the oil marketing team in London.
Mr. Theotokis earned a Faculty of Law degree from Athens University in 1980
and
went on to obtain a postgraduate degree in the area of petroleum law from
Scotland’s Dundee University in 1982.
Arie
Silverberg
has been
our chief executive officer and a director of our company since inception.
Mr.
Silverberg also serves as a director of Scailex Corporation Ltd. and Avgol
Ltd.
From July 1998 to November 2006, Mr. Silverberg was a director of Granite
Hacarmel Ltd., one of Israel’s largest holding companies with interests in
petroleum products and LPG gas (Liquefied Petroleum Gas), among other assets.
From 1999 to November 2006, he served as a director of Sonol, one of Israel’s
largest and oldest oil and gas marketing firms, and as a director of Tambur
Ltd., Israel’s largest paint manufacturer. He has also served as a director of
Tambur Ecology, one of Israel’s major water desalination and water treatment
companies. Prior to 2001, he served as head of the crude oil and oil products
division of Glencore International in Switzerland a privately held company
that
is one of the world’s largest suppliers of a wide range of commodities and raw
materials to industrial consumers. Mr. Silverberg currently serves as a
consultant to Glencore. At Glencore, Mr. Silverberg was responsible for the
company’s worldwide trading, shipping and financing, and processing agreements
for crude oil. During his tenure, he built the oil division into a worldwide
trading operation encompassing all aspects of the petroleum industry. Prior to
this, Mr. Silverberg held various positions over the course of an 18 year career
at ORL Israel, Israel’s sole crude oil refiner, where he ultimately became
senior vice president of operations. His responsibilities included planning
refinery operations, purchasing and shipping of crude oil, marketing various
oil
products and operations of petrochemicals. Mr. Silverberg received a B.Sc.
and
M.Sc., with honors, in chemical engineering from the Israel Institute of
Technology in Haifa, Israel in 1972 and 1975, respectively.
George
Sagredos
has been
our chief operating officer, president and a director since inception. Mr.
Sagredos is currently serving as the managing director of the Hermitage Group.
The Hermitage Group’s business operates in the former Commonwealth of
Independent States (CIS), the Mediterranean, Far East, China, and Central and
South America. In 1993, Mr. Sagredos founded Hermitage Resources Ltd., a
predecessor to the Hermitage Group, a trading firm involved in the arbitrage
of
oil products in the emerging growth markets. While at Hermitage Resources,
Mr.
Sagredos served as the president of the Crude Oil and Products Trading division,
focusing on the Russian and Mediterranean markets. From 1991 to 1993, Mr.
Sagredos served as senior trader in the international oil trading division
of
A.O.T. Zug, in Switzerland. From 1987 to 1990, Mr. Sagredos was the senior
trader for clean products in the Oil Products Trading and International
Arbitrage division of Phibro Energy, Switzerland. As the senior trader, he
was
responsible for Mediterranean and International Arbitrage for Europe and the
Far
East. From 1986 to 1987, he was the senior clean products trader of the Oil
Trading Products division of Petrogulf S.A., a privately owned independent
oil
and gas producer, in both the New York and London offices. Mr. Sagredos joined
Goldman Sachs & Co. in their New York offices as a trader specializing in
the oil futures industry in 1985. Prior to joining Goldman Sachs & Co., Mr.
Sagredos was a tanker broker for D&L Partners in New York. From 1983 to
1984, he was part of the dry cargo chartering operations for Thenamaris
Maritime. Mr. Sagredos began his career with Noga, S.A./Olegine, S.A. in Geneva,
managing the company’s shipping finances. Mr. Sagredos received his M.Sc. in
chemical engineering from ETH Zurich, Switzerland in 1980. He received a Masters
in Business Administration from the Wharton School of Business at the University
of Pennsylvania in 1982.
Marios
Pantazopoulos
has been
our chief financial officer since inception and a director since December 2005.
Since September 2006 he has been the General Manager of LMZ Transoil Shipping
Enterprises S.A., an Athens-based ship management company. Between 1998 and
2005, he was the chief financial officer of Oceanbulk Maritime SA, an
Athens-based ship management company that is part of the Oceanbulk Group of
affiliated companies. At Oceanbulk, Mr. Pantazopoulos was responsible for
Oceanbulk’s banking relationships including financing and private wealth
management. He facilitated bilateral and syndicated loans with the world’s 10
largest shipping banks and also arranged access to private equity in the US
capital markets. During his tenure at Oceanbulk, his responsibilities also
included assessing non-shipping projects, coordinating auditing procedures,
reporting to shareholders and supervising Oceanbulk’s financial operations.
Before joining Oceanbulk, Mr. Pantazopoulos served from 1991 to 1998, as an
assistant director for the project finance and shipping department of Hambros
Bank Plc, a UK merchant bank, which was acquired in 1998 by Societe Generale.
At
Hambros, Mr. Pantazopoulos was primarily responsible for managing the bank’s
shipping loan portfolio in Greece as well as providing other investment banking
services such as mergers and acquisitions, private finance initiative projects,
structured leases, treasury products and private wealth management. Mr.
Pantazopoulos was part of the Hambros Bank’s team for the privatization of
Hellenic Shipyards SA and was a board member at Alpha Trust SA, a private fund
management company in Greece. Mr. Pantazopoulos received his BSc in Economics
from Athens University of Economics & Business in 1988, and his MSc in
Shipping Trade & Finance from City University Business School in London, UK,
in 1991.
Jonathan
Kollek
has been
a director of our company since inception. Mr. Kollek has over 20 years of
experience in the oil trade industry. Since 2002, Mr. Kollek has been the vice
president for sales, trading and logistics for TNK-BP Management, Russia’s
third-largest oil company. He is responsible for the transportation and sale
of
approximately 77 million tons of crude oil and oil products per year. In 1992,
Mr. Kollek co-founded Projector S.A., where he served as the company’s chairman
until 2002. Projector traded in crude oil and oil products through its offices
in London, New York, Geneva, Singapore, Seoul, Santiago, Kiev and Moscow. Prior
to co-founding Projector, Mr. Kollek held various positions with Marc Rich
A.G.
(now Glencore International). Mr. Kollek began his career with Marc Rich A.G.,
in 1984 as the general manager for East of Suez Trading in its Singapore office,
and in 1986, the director of fuel oil trading at the company’s London office.
Mr. Kolleck then served as the head of the crude oil and products department
at
the company’s Moscow office from 1989 to 1992. Prior to his career in the oil
industry, Mr. Kollek was a member of the Economic Committee of the Knesset
in
Israel, where he served as the Parliamentary assistant to Gad Yaacobi, a member
of the Knesset. Mr. Kollek received his B.Sc. in economics and international
relations from the Hebrew University of Jerusalem, Israel in 1984.
David
Wong
has been
a director since inception. Since January 2006, Mr. Wong has been employed
by
Concorde Energy Pte, Ltd, as the chief representative of its Kuala Lumpur
representative office in Malaysia. From May 2003 to September 2005, Mr. Wong
was
a contract trader for Petronas Trading Corporation, where he was responsible
for
overseeing the logistics of supply requirements and tankage (the amount a tank
can hold) for the company’s Malaysia and Singapore operations. Petronas ranks
among the world’s major oil companies with extensive worldwide operations. From
1999 to December 2002, Mr. Wong was employed by Marubeni International Petroleum
Company (MIPCO), a subsidiary of the international trading company, Marubeni
Corporation where he last held the position of Chief Operating Officer. From
1997 to 1999, Mr. Wong worked for Marc Rich Investments B.V., one of the world’s
leading commodity trading companies, and Marubeni Singapore, developing their
supplies of petroleum products. Mr. Wong received a B.Sc. degree, with honors,
in civil engineering and management studies from the University of Leeds in
the
United Kingdom in 1978, and a Masters in Business Administration, with an
emphasis in finance and transportation economics, from the University of British
Columbia in Canada in 1980.
Maximos
Kremos
has been
a director of our company since December 2005. Mr. Kremos has over 32 years
of
experience in the shipping industry. Since November 2005, he has been a fleet
manager for Genoa Maritime S.A., a Shipping company in the business of managing
fleets of vessels, where he previously worked from June to November 2005 as
a
consultant. From 2002 to 2004, Mr. Kremos worked at Hermitage Resources Ltd.,
a
predecessor to the Hermitage Group, in connection with the winding down of
the
business of Unideal/Navitankers where Mr. Kremos worked from 1995 to 2002,
as
the general manager and director. Unideal/Navitankers was a tanker ship
management company managing a 12-vessel tanker fleet ranging from 30,000 to
150,000 dwt in which Hermitage Resources was a principal investor. From 1990
to
1995, Mr. Kremos was the general manager for Silver Carriers Shipping Co.,
where
he was responsible for a fleet of general-purpose drybulk carriers as well
as
containerships and tankers. From 1987 to 1990, Mr. Kremos was managing director
of Theomax Fishing Co. From 1981 to 1987, Mr. Kremos was the Technical director
for Enterprises Shipping and Trading, as well as in charge of their Operations
and Chartering Department of their reefer fleet from 1985 to 1987. From 1978
to
1981, Mr. Kremos was in charge of the Technical and Claims Department of Specova
Shipping. From 1977 to 1978, he served as a technical director for Thomarin
Shipping Co. Prior to that, from 1974 to 1977, he was the superintendent
engineer for Thenamaris Shipping Co., a ship management company with a fleet
of
approximately 5 million dwt. At Thenamaris, Mr. Kremos was in charge of
approximately ten vessels and involved in 15 vessel acquisitions. From 1973
to
1974, Mr. Kremos worked for the Chronos Shipping Co., where he was in charge
of
the repair team for diesel and steam turbine tankers. Mr. Kremos began his
career in 1966 with Nereus Shipping, S.A. Mr. Kremos graduated from the National
Merchant Marine Academy of Aspropyrgos with honors in 1966.
Peter
Blumen
has been
a director of our company since April 2006. Since January 2004 he has been
a
trader and Fund Manager at PTS Management, overseeing an automated trading
system. From 2002 to 2004, Mr. Blumen was an executive at Maple Bank, where
he
was in charge of a proprietary trading group. Prior to that, he was a fund
manager at Whitebox Partners, a hedge fund, where he managed securities in
event
related strategies. Mr. Blumen has extensive capital markets experience in
trading, investment banking and corporate finance. Mr. Blumen received his
MBA
from Wharton Business School in 1989, a Sc.M. in Computer Sciences from Brown
University in 1987 and his A.B. from Brown University in economics in
1984.
Philippe
Meyer
has been
a director of our company since November 2007. Since 1996, Mr. Meyer has been
a
lawyer in private practice. Mr. Meyer received his law degree from the
University of Zurich and a Masters of Comparative Jurisprudence from New York
University.
Our
board
of directors is divided into three classes with only one class of directors
being elected in each year and each class serving a three-year term. The term
of
office of the Class B of directors, consisting of Jonathan Kollek, Marios
Pantazopoulos and Philippe will expire at our next annual meeting of
stockholders. The term of office of the Class C directors, consisting of Arie
Silverberg, George Sagredos and Andreas Theotokis will expire at the annual
meeting of stockholders in 2009. The term of office of the Class C of directors,
consisting of David Wong, Maximos Kremos and Peter Blumen will expire at the
annual meeting of stockholders in 2010.
Section
16(a) Beneficial Ownership Reporting Compliance.
Section
16(a) of the Securities Exchange Act requires our directors, executive officers
and persons who own more than 10% of our common stock to file reports of
ownership and changes in ownership of our common stock with the Securities
and
Exchange Commission. Directors, executive officers and persons who own more
than
10% of our common stock are required by Securities and Exchange Commission
regulations to furnish to us copies of all Section 16(a) forms they file. To
our
knowledge, based solely upon review of the copies of such reports received
or
written representations from the reporting persons, we believe that during
the
year ended December 31, 2006, our directors, executive officers and persons
who
own more than 10% of our common stock complied with all Section 16(a) filing
requirements.
Code
of Ethics
.
We
currently do not have a formal code of ethics. Upon consummation of a business
combination, we intend to adopt a code of ethics that applies to our principal
executive officer, principal financial officer, principal accounting officer
or
controller or persons performing similar functions.
Board
Committees
.
Our
board
of directors has an audit committee and a nominating committee. Our board of
directors has adopted a charter for each of the audit and nominating committees,
as well as a code of conduct and ethics that governs the conduct of our
directors, officers and employees.
Our
audit
committee consists of David Wong, Maximos Kremos and Peter Blumen. Each member
of our audit committee is financially literate under the current listing
standards of the American Stock Exchange, and our board of directors has
determined that Peter Blumen qualifies as an “audit committee financial expert,”
as such term is defined by SEC rules. We intend to locate and appoint at least
one additional independent director to our audit committee within one year
after
the completion of the offering.
The
audit
committee will review the professional services and independence of our
independent registered public accounting firm and our accounts, procedures
and
internal controls. The audit committee will also select our independent
registered public accounting firm, review and approve the scope of the annual
audit, review and evaluate with the independent public accounting firm our
annual audit and annual consolidated financial statements, review with
management the status of internal accounting controls, evaluate problem areas
having a potential financial impact on us that may be brought to the committee’s
attention by management, the independent registered public accounting firm
or
the board of directors, and evaluate all of our public financial reporting
documents.
Our
Nominating Committee consists of David Wong and Maximos Kremos. The compensation
of our chief executive officer and other officers will be determined by a
majority of our independent directors in accordance with Section 805 of the
American Stock Exchange Company Guide.
Item
11. Executive
Compensation
COMPENSATION
DISCUSSION AND ANALYSIS
The
compensation of our chief executive officer and other officers is determined
by
a majority of our independent directors in accordance with Section 805 of the
American Stock Exchange Company Guide.
Compensation
Objectives
Our
primary goal with respect to executive compensation has been to provide
compensation to certain of our executive officers who are expected to devote
a
greater percentage of their time to identifying and consummating a business
combination.
Elements
of Compensation
Base
Salary
.
No
executive officer has received any cash compensation for services rendered
and
no compensation of any kind, including finder’s and consulting fees, will be
paid to any of our existing stockholders, including our officers and directors,
or any of their respective affiliates, for services rendered to us prior to
or
in connection with a business combination. However, these individuals will
be
reimbursed for any out-of-pocket expenses incurred in connection with activities
on our behalf such as identifying potential target businesses and performing
due
diligence on suitable business combinations. Such individuals may be paid
consulting, management or other fees from target businesses as a result of
the
business combination, with any and all amounts being fully disclosed to
stockholders, to the extent then known, in the proxy solicitation materials
furnished to the stockholders.
Equity
Incentive Compensation
.
Currently, we do not maintain any incentive compensation plans based on
pre-defined performance criteria.
Determination
of Compensation
The
Compensation Committee is responsible for evaluating our executive officers’
performance to determine executive compensation. The Compensation Committee
will
also determine whether an executive officer is eligible for incentive
compensation and, if it is deemed in the best interests of the Company, the
Committee may recommend that stock options be granted to one or more executive
officers.
EXECUTIVE
COMPENSATION
The
following table sets forth the cash and other compensation paid by us in 2007,
2006 and 2005 to all individuals who served as our chief executive officer
and
each other executive officer whose total compensation exceeded $100,000 during
the 2007 fiscal year, who we collectively refer to as the named executive
officers (“NEOs”).
Summary
Compensation Table
Name
and Principal Position
|
|
Year
|
|
Salary
|
|
Option Awards
|
|
Total
|
Arie
Silverberg
|
|
|
|
($)
|
|
($)
|
|
($)
|
Chief
Executive Officer
|
|
2007
|
|
--
|
|
--
|
|
--
|
|
|
2006
|
|
--
|
|
--
|
|
--
|
|
|
2005
|
|
--
|
|
--
|
|
--
|
Pension
Benefits
We
do not
sponsor any qualified or non-qualified defined benefit plans.
Nonqualified
Deferred Compensation
We
do not
maintain any non-qualified defined contribution or deferred compensation plans.
Our Compensation Committee, which is comprised solely of “outside directors” as
defined for purposes of Section 162(m) of the Code, may elect to provide our
officers and other employees with non-qualified defined contribution or deferred
compensation benefits if the Compensation Committee determines that doing so
is
in our best interests.
Compensation
of Directors
We
do not
provide cash or other compensation to our directors for their services as
members of the Board or for attendance at Board or committee meetings. However,
our directors will be reimbursed for out-of-pocket expenses incurred by them
in
connection with activities on our behalf such as identifying potential target
businesses and performing due diligence on suitable business
combinations.
Item
12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters
The
following table sets forth, as of March 23, 2007, certain information regarding
beneficial ownership of our common stock by each person who is known by us
to
beneficially own more than 5% of our common stock. The table also identifies
the
stock ownership of each of our directors, each of our officers, and all
directors and officers as a group. Except as otherwise indicated, the
stockholders listed in the table have sole voting and investment powers with
respect to the shares indicated.
Shares
of
common stock which an individual or group has a right to acquire within 60
days
pursuant to the exercise or conversion of options, warrants or other similar
convertible or derivative securities are deemed to be outstanding for the
purpose of computing the percentage ownership of such individual or group,
but
are not deemed to be outstanding for the purpose of computing the percentage
ownership of any other person shown in the table.
Name
and Address
of
Beneficial Owner (1)
|
|
Amount
and Nature of Beneficial
Ownership
(2)(3)
|
|
Percentage
of
Outstanding
Common
Stock
|
|
Arie
Silverberg
|
|
|
526,885
|
|
|
1.94
|
%
|
Marios
Pantazopoulos (4)
|
|
|
490,003
|
|
|
1.80
|
%
|
George
Sargredos (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
|
|
|
*
|
|
Peter
Blumen
|
|
|
0
|
|
|
*
|
|
Energy
Corp. (8)
|
|
|
4,418,753
|
|
|
16.23
|
%
|
Sapling,
LLC
|
|
|
1,802,108
|
|
|
6.62
|
%
|
Acqua
Wellington North American 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 one (1%) percent
(1)
Unless otherwise indicated, the business address 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
will be issued to Mr. Sagredos upon completion of the Business Combination,
which he has agreed to assign and transfer to Mr. Pantazopoulos.
(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, which options will be terminated upon the
completion of the Business Combination, or (ii) up to 537,000 shares of common
stock underlying units that will be 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) to
be
issued to Mr. Sagredos, or his assignees upon consummation of the Business
Combination, 1,000,000 of which he has agreed to assign and transfer to Mr.
Pantazopoulos (giving effect to the exercise of warrants included in such
units). See the section entitled, “Certain Relationships and Related
Transactions.”
(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 will be
terminated upon the consummation of the Business Combination.
(8)
The
address of Energy Corp. is c/o Genesis Trust & Corporate Services Ltd., P.O.
Box 448, Georgetown, Grand Cayman KYI-1106, Cayman Islands.
Securities
Authorized for Issuance Under Equity Compensation
Plans
None.
Item
13. Certain Relationships and Related Transactions
On
December 30, 2005, we issued an aggregate of 5,831,349 shares of our common
stock to the individuals set forth below for $25,000 in cash, at a purchase
price of $0.004 per share, as follows:
Name
|
|
Number
of
Shares(1)
|
|
Relationship
to us
|
Arie
Silverberg
|
|
583,134
|
|
Chief
Executive Officer and Director
|
Marios
Pantazopoulos
|
|
145,784
|
|
Chief
Financial Officer and Director
|
George
Sagredos
|
|
2,332,541
|
|
Chief
Operating Officer, President and Director
|
Andreas
Theotokis
|
|
2,040,972
|
|
Chairman
of the Board of Directors and Director
|
Jonathan
Kollek
|
|
583,134
|
|
Director
|
David
Wong
|
|
145,784
|
|
Director
|
|
|
|
|
|
(1)
All
such numbers give retroactive effect to a 0.4739219-for-1 stock dividend
effective as of April 21, 2006.
In
June
2006, Mr. Sagredos transferred 397,778 of his shares to Marios Pantazopoulos
for
nominal consideration.
Each
of
Messrs. Sagredos and Theotokis subsequently transferred the shares owned by
them
to Energy Corp., a corporation formed under the laws of the Cayman Islands.
See
“Principal Stockholders”.
On
July
18, 2006 an aggregate of 562,500 shares were surrendered for cancellation by
certain of our stockholders.
The
holders of the majority of these shares are entitled to make up to two demands
that we register these shares. The holders of the majority of these shares
may
elect to exercise these registration rights at any time after the date on which
these shares of common stock are released from escrow, which, except in limited
circumstances, is not before July 18, 2009. In addition, these stockholders
have
certain “piggy-back” registration rights on registration statements filed
subsequent to the date on which these shares of common stock are released from
escrow. We will bear the expenses incurred in connection with the filing of
any
such registration statements.
Energy
Corp., a corporation formed under the laws of the Cayman Islands, which is
controlled by our President and Chief Operating Officer, purchased 825,398
units
from us at a purchase price of $10.00 per unit in a Regulation S private
placement in accordance with Regulation S under the Securities Act of 1933.
Mr.
Sagredos originally agreed to purchase the 825,398 units from us in January
2006
pursuant to the terms of a subscription agreement, and subsequently assigned
such rights to Energy Corp. in June 2006, which assumed such obligations
pursuant to the terms of an Assignment and Assumption Agreement.
The
holders of such units subscribed for in the Regulation S private placement
have
been granted demand and “piggy-back” registration rights with respect to the
825,398 shares, the 825,398 warrants and the 825,398 shares underlying the
warrants at any time commencing on the date we announce that we have entered
into a letter of intent with respect to a proposed a business combination.
The
demand registration may be exercised by the holders of a majority of such units.
We will bear the expenses incurred in connection with the filing of any such
registration statements.
Because
the units sold in the Regulation S private placement were originally issued
pursuant to an exemption from the registration requirements under the federal
securities laws, the holders of the warrants purchased in the Regulation S
private placement will be able to exercise their warrants even if, at the time
of exercise, a prospectus relating to the common stock issuable upon exercise
of
such warrants is not current.
On
October 6, 2005, Mr. Sagredos advanced a total of $300,000 to us to cover
expenses related to our public offering, which loan, plus accrued interest,
was
repaid from the proceeds of the public offering. Mr. Sagredos made an additional
loan to us in the amount of $475,000 four days prior to the effective date
of
the public offering. Such loan bears interest at a per annum interest rate
equivalent to the per annum interest rate applied to funds held in the trust
account during the same period that such loan is outstanding, and principal
and
accrued interest is to be repaid from interest accrued on the trust account.
We
are not obligated to repay such loan until the earlier of (i) expiration of
the
second full quarter after the date that we have drawn down at least $1,000,000
from accrued interest on the trust account to fund our working capital
requirements, (ii) the consummation of a business combination and (iii) our
dissolution and liquidation.
In
addition, four days prior to the effective date of the public offering, Robert
Ventures Limited, a corporation formed under the laws of the British Virgin
Islands controlled by George Sagredos loaned us an additional $2,550,000 in
the
form of a convertible loan. An additional $135,000 was loaned by Robert Ventures
Limited at the time the underwriters exercised a portion of the over-allotment
option. Such loans bear interest at a per annum rate equivalent to the per
annum
interest rate applied to the funds held in the trust account during the
quarterly period covered by such interest payment. We are obligated to make
quarterly interest payments on such loans following the expiration of the first
full quarter after the date that we have drawn down at least $1 million in
accrued interest on the trust account to fund our working capital requirements.
Such loans are due the earlier of our liquidation or the consummation of a
business combination. Quarterly interest payments and the repayment of principal
will be made from interest accrued on the trust account. In addition, the
principal of the convertible loans is convertible into units at a conversion
price of $10.00 per unit, subject to adjustment, commencing two business days
following our filing of a preliminary proxy statement with respect to a business
combination. These securities have the same registration rights as the units
to
be sold in the Regulation S private placement.
The
repayment of each of the $475,000 term loan and the $2,550,000 and $135,000
convertible loans is subordinate to the public stockholders receiving a minimum
of $10.00 per share, subject to any valid claims by our creditors which are
not
covered by amounts in the trust account or indemnities provided by our officers
and directors, in the event of our liquidation and dissolution if we do not
consummate a business combination, or if they exercise their redemption
rights.
The
Company has decided to treat the $300,000 loan that was made by Mr. Sagredos
in
October 2005, the $2,550,000 and $135,000 convertible loans and $475,000 term
loan, as separate transactions because each of such loans, as described above,
contains different business terms with respect to the timing of repayment,
applicable interest rate and convertibility, due to the differing facts and
circumstances of the Company at the time such funds were required, which
reflects the actual sequencing of such transactions.
The
units
purchased in the Regulation S private placement and issuable upon conversion
of
the loan will contain restrictions prohibiting their transfer until the earlier
of a business combination or our liquidation. In addition, the holders of such
units will agree to vote the shares of common stock included in such units
in
favor of a business combination brought to the stockholders for their approval,
and to waive their respective rights to participate in any liquidation
distribution occurring upon our failure to consummate a business
combination.
We
granted Mr. Sagredos, our President and Chief Operating Officer and a director,
concurrent with the closing of our public offering, options to purchase an
aggregate of 2,688,750 shares of our common stock. The options will vest in
four
quarterly installments with 672,187 options vesting on each of the first three
installments, and the remaining 672,189 options vesting on the final
installment. The first installment shall vest on the date of expiration of
the
three-month period immediately following the consummation of a business
combination. We granted Mr. Theotokis, our Chairman of the Board of Directors,
concurrent with the closing of our public offering, assignable options to
purchase an aggregate of 896,250 shares of our common stock. The options will
vest in four quarterly installments with 224,062 options vesting on each of
the
first three installments and the remaining 224,064 options vesting on the final
installment. The first installment shall vest on the date of expiration of
the
three-month period immediately following the consummation of a business
combination. The vesting of each installment of the options is contingent upon
Mr. Theotokis being an officer of us on the applicable vesting date. Each of
the
options, which is assignable, is exercisable for a five-year period from the
date of vesting at an exercise price of $.01 per share, and contains cashless
exercise provisions. In the event of a stock dividend, recapitalization,
reorganization merger or consolidation, or certain other events, the exercise
price and number of underlying shares of common stock may be adjusted. The
shares of common stock underlying the options will be subject to a six-month
holding period from the date of issuance. The vesting of the options following
the consummation of the business combination is contingent upon each of Messrs.
Sagredos and Theotokis each remaining as an officer of us on each applicable
quarterly vesting date. However, options that have already vested shall continue
for their five-year term regardless of whether Mr. Sagredos continues to be
an
officer and/or director of us. When such shares are issued, we have agreed
to
use our best efforts to register such shares under the Securities Act of 1933.
We will bear the expenses incurred in connection with the filing of any such
registration statements. Because the vesting of such of each of Messrs. Sagredos
and Theotokis options is contingent upon the consummation of a business
combination, his personal and financial interests may influence the motivation
in consummating a business combination, including identifying and selecting
a
target business and negotiating the business terms of such
transaction.
We
will
reimburse our officers and directors for any reasonable out-of-pocket business
expenses incurred by them in connection with certain activities on our behalf
such as identifying and investigating possible target businesses and business
combinations. There is no limit on the amount of accountable out-of-pocket
expenses reimbursable by us, which will be reviewed only by our board or a
court
of competent jurisdiction if such reimbursement is challenged.
Other
than reimbursable out-of-pocket expenses payable to our officers and directors,
no compensation or fees of any kind, including finders and consulting fees,
will
be paid to any of our existing stockholders, officers or directors who owned
our
common stock prior to the public offering, or to any of their respective
affiliates for services rendered to us prior to or with respect to the business
combination.
Item
14. Principal Accountant Fees and Services
As
previously disclosed in our December 13, 2007 8-K filing, certain of the
partners of Goldstein Golub Kessler LLP (“GGK”) became partners of McGladrey
& Pullen, LLP (“M&P”). As a result, GGK resigned as auditors of
the Company effective December 10, 2007 and M&P was appointed as our
independent registered public accounting firm for the year ended December
31,
2007. M&P and RSM McGladrey, Inc. (“RSM”), an affiliate of M&P and
GGK, have billed and anticipate billing the Company as follows for the years
ended December 31, 2007 and 2006.
Fee
Category
|
|
|
2007
|
|
|
2006
|
|
Audit
fees - McGladrey & Pullen, LLP
|
|
$
|
75,327
|
|
|
--
|
|
Audit
Fees - Goldstein Golub Kessler LLP
|
|
$
|
91,414
|
|
$
|
83,500
|
|
Tax
fees - RSM McGladrey, Inc.
|
|
$
|
7,611
|
|
$
|
4,500
|
|
Audit
Fees
Audit
fees consist of fees for professional services rendered for the audit of
the
Company's financial statements and review of the interim financial statements
included in our quarterly reports on form 10-Q and services rendered in
connection with our registration statement on form S-1 and our proxy
filing.
Audit-Related
Fees
We
did
not incur any audit-related fees with M&P or GGK for the years ended
December 31, 2007 and 2006.
Tax
Fees
For
the
years ended December 31, 2007 and 2006, RSM provided tax compliance services,
which related to the preparation of U.S. and applicable state income tax
returns.
All
Other Fees
There
were no fees billed by M&P or GGK for other professional services rendered
during the years ended December 31, 2007 or 2006.
Pre-Approval
of Services
All
audit
and non-audit services to be performed by the Company's independent accountant
must be approved in advance by the Audit Committee. The Audit Committee may
delegate to one member of the committee the authority to grant pre-approvals
with respect to non-audit services. For audit services, each year the
independent accountant provides the Audit Committee with an engagement letter
outlining the scope of proposed audit services to be performed during the year,
which must be formally accepted by the Committee before the audit commences.
The
independent accountant also submits an audit services fee proposal, which also
must be approved by the Committee before the audit commences.
Item
15. Exhibits and Financial Statement Schedules
(a)(1)
Financial
Statements.
An
index
to Financial Statements appears on page F-1.
(b)
Exhibits.
The
following Exhibits are filed as part of this report
Exhibit
No.
|
|
Description
|
1.1
|
|
Form
of Underwriting Agreement (1)
|
|
|
|
1.2
|
|
Form
of Selected Dealers Agreement (1)
|
|
|
|
3.1
|
|
Amended
and Restated Certificate of Incorporation (1)
|
|
|
|
3.2
|
|
By-laws
(1)
|
|
|
|
4.1
|
|
Specimen
Unit Certificate (1)
|
|
|
|
4.2
|
|
Specimen
Common Stock Certificate (1)
|
|
|
|
4.3
|
|
Specimen
Warrant Certificate (1)
|
|
|
|
4.4
|
|
Form
of Warrant Agreement between Continental Stock Transfer and Trust
Company
and the Registrant (1)
|
|
|
|
10.1
|
|
Form
of Letter Agreement by George Sagredos (1)
|
|
|
|
10.2
|
|
Form
of Letter Agreement by Andreas Theotokis (1)
|
|
|
|
10.3
|
|
Form
of Letter Agreement by Jonathan Kollek (1)
|
|
|
|
10.4
|
|
Form
of Letter Agreement by Arie Silverberg (1)
|
|
|
|
10.5
|
|
Form
of Letter Agreement by David Wong (1)
|
|
|
|
10.6
|
|
Form
of Letter Agreement by Marios Pantazopoulos (1)
|
|
|
|
10.7
|
|
Form
of Letter Agreement by Maximos Kremos (1)
|
|
|
|
10.8
|
|
Form
of Letter Agreement by Peter Blumen (1)
|
|
|
|
10.9
|
|
Investment
Management Trust Agreement between Continental Stock Transfer and
Trust
Company and the Registrant (1)
|
|
|
|
10.10
|
|
Form
of Stock Escrow Agreement between the Registrant, Continental Stock
Transfer and Trust Company and the Initial Stockholders
(1)
|
|
|
|
10.12
|
|
Promissory
Note dated October 6, 2005 issued to George Sagredos
(1)
|
|
|
|
10.13
|
|
Form
of Registration Rights Agreement among the Registrant and the Initial
Stockholders (1)
|
|
|
|
10.14
|
|
Form
of Placement Unit Agreement between the Registrant and Maxim Group
LLC
(1)
|
|
|
|
10.15
|
|
Subscription
Agreement and Amendment thereto between the Registrant and George
Sagredos
(1)
|
|
|
|
10.16
|
|
Stock
Option Agreement, dated as of July 21, 2006, between the Registrant
and
George Sagredos (1)
|
|
|
|
10.17
|
|
Form
of $250,000 Promissory Note issued to George Sagredos
(1)
|
|
|
|
10.18
|
|
Form
of $3,675,000 Convertible Promissory Note (1)
|
|
|
|
10.19
|
|
Form
of Assignment and Assumption of Subscription Agreement
(1)
|
|
|
|
10.20
|
|
Form
of Letter Agreement by Energy Corp. (1)
|
|
|
|
10.21
|
|
Stock
Option Agreement, dated as of June 6, 2006, between the Registrant
and Andreas Theotokis (1)
|
|
|
|
10.22
|
|
Second
Amendment to Subscription Agreement (1)
|
|
|
|
10.23
|
|
Consulting
Agreement, dated November 17, 2006, by and between the Registrant
and
Sinitus AG (2)
|
|
|
|
10.24
|
|
Amended
and Acquisition Infrastructure Restated Share Purchase Agreement
by and
among Vanship Holdings Limited, Energy Corp., and the Energy
Infrastructure Merger Corporation
|
|
|
|
10.25
|
|
Committed
Term sheet of DVB Merchant Bank (Asia) Ltd., Fortis Bank S.A. /
N.V. and
NIBC Bank Ltd.
|
|
|
|
10.26
|
|
Side
Letter to Committed Term Sheet
|
|
|
|
14
|
|
Code
of Business Conduct and Ethics (1)
|
|
|
|
31.1
|
|
Certification
of Chief Executive Officer
|
|
|
|
31.2
|
|
Certification
of Chief Financial Officer
|
|
|
|
32.1
|
|
Certification
of Chief Executive Officer and Chief Financial Officer pursuant to
Section
906 of the Sarbanes-Oxley Act of
2002
|
(1)
Incorporated by reference to the Registrant’s Registration Statement on Form S-1
(File No. 333-124601).
(2)
Incorporated by reference to the Registrant's
Form 10-K for the year ended December 31, 2006 (File No. 001-32941)
SIGNATURES
Pursuant
to the requirements of Section 13 or 15 (d) of the Securities Exchange Act
of
1934, the Registrant has duly caused this report to be signed on its behalf
by
the undersigned, thereunto duly authorized.
|
|
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
|
|
|
|
|
|
|
April
1, 2008
|
By:
|
/s/
Marios Pantazopolous
|
|
|
Marios
Pantazopolous, Chief Financial
Officer
|
Pursuant
to the requirements of the Securities Exchange Act of 1934, this report has
been
signed below by the following persons on behalf of the Registrant and in the
capacities and on the dates indicated.
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
/s/
Arie Silverberg
|
|
Chief
Executive Officer and Director
|
|
April
1, 2008
|
Arie
Silverberg
|
|
(principal
executive officer)
|
|
|
|
|
|
|
|
/s/
Marios Pantazopoulos
|
|
Chief
Financial Officer and Director
|
|
April 1,
2008
|
Marios
Pantazopoulos
|
|
(principal
financial and accounting officer)
|
|
|
|
|
|
|
|
/s/
George Sagredos
|
|
Chief
Operating Officer,
|
|
April
1, 2008
|
George
Sagredos
|
|
President
and
Director
|
|
|
|
|
|
|
|
/s/
Andreas Theotokis
|
|
Chairman
of the Board of Directors and Director
|
|
April
1, 2008
|
Andreas
Theotokis
|
|
|
|
|
|
|
|
|
|
/s/
Jonathan Kollek
|
|
Director
|
|
April
1, 2008
|
Jonathan
Kollek
|
|
|
|
|
|
|
|
|
|
/s/
David Wong
|
|
Director
|
|
April
1, 2008
|
David
Wong
|
|
|
|
|
|
|
|
|
|
/s/
Maximos Kremos
|
|
Director
|
|
April
1, 2008
|
Maximos
Kremos
|
|
|
|
|
|
|
|
|
|
/s/
Peter Blumen
|
|
Director
|
|
April
1, 2008
|
Peter
Blumen
|
|
|
|
|
|
|
|
|
|
/s/
Philippe Meyer
|
|
Director
|
|
April
1, 2008
|
Philippe
Meyer
|
|
|
|
|
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
(a
corporation in the development stage)
FINANCIAL
STATEMENTS
AND
REPORT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
INDEX
Report
of Independent Registered Public Accounting Firm
|
|
F-2
|
|
|
|
Financial
Statements
|
|
|
|
|
|
Balance
Sheets as of December 31, 2007 and 2006
|
|
F-4
|
|
|
|
Statements
of Operations for the years ended December 31, 2007 and 2006, and
for the
periods from August 11, 2005 (Inception) to December 31, 2005 and
August 11, 2005 (Inception) to December 31, 2007 (Cumulative)
|
|
F-5
|
|
|
|
Statement
of Stockholders’ Equity for the period August 11, 2005 (Inception) to
December 31, 2007
|
|
F-6
|
|
|
|
Statements
of Cash Flows for the years ended December 31, 2007 and 2006, and
for the
periods August 11, 2005 (Inception) to December 31, 2005 and
August 11, 2005 (Inception) to December 31, 2007 (Cumulative)
|
|
F-7
|
|
|
|
Notes
to Financial Statements
|
|
F-8
|
Report
of Independent Registered Public Accounting Firm
To
the Board of Directors and Stockholders
Energy
Infrastructure Acquisition Corp.
We
have audited the balance sheet of Energy Infrastructure Acquisition Corp.
(a
corporation in the development stage) as of December 31, 2007, and the related
statements of operations, stockholders' equity and cash flows for the year
then
ended and the amounts included in the cumulative columns in the statements
of
operations and cash flows for the year then ended. These financial statements
are the responsibility of the Company's management. Our responsibility is
to
express an opinion on these financial statements based on our
audit.
We
conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that
we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining,
on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audit provide a reasonable
basis for our opinion.
In
our opinion, the financial statements referred to above present fairly, in
all
material respects, the financial position of Energy Infrastructure Acquisition
Corp. as of December 31, 2007, and the results of its operations and its
cash
flows for the year then ended in conformity with U.S. generally accepted
accounting principles.
The
accompanying financial statements have been prepared assuming that the Company
will continue as a going concern. As discussed in Note 1 to the financial
statements, the Company may face a mandatory liquidation by July 21, 2008
if a
business combination is not consummated, which raises substantial doubt as
to
its ability continue as a going concern. The financial statements do not
include
any adjustments that might result from the outcome of this uncertainty.
We
also
have audited the adjustments described in Note 12 that were applied to restate
the balance sheet as of December 31, 2006, and the statements of operations,
stockholders’ equity and cash flows for the year then ended, and the amounts
included in the cumulative column for the year then ended, to correct errors.
In
our opinion, such adjustments are appropriate and have been properly applied.
We
were not engaged to audit, review, or apply any procedures to the 2006 financial
statements of the Company other than with respect to the adjustments and,
accordingly, we do not express an opinion or any other form of assurance
on the
2006 financial statements taken as a whole.
We
also have audited, in accordance with the standards of the Public Company
Accounting Oversight Board (United States), Energy Infrastructure Acquisition
Corp.'s internal control over financial reporting as of December 31, 2007,
based
on criteria established in Internal Control—Integrated Framework issued by the
Committee of Sponsoring Organizations of the Treadway Commission (COSO) and
our
report dated March 31, 2008 expressed an opinion that Energy Infrastructure
Acquisition Corp. had not maintained effective internal control over financial
reporting as of December 31, 2007, based on
criteria
established in Internal Control—Integrated Framework issued by the Committee of
Sponsoring Organizations of the Treadway Commission (COSO).
.
/s/
MCGLADREY & PULLEN, LLP
MCGLADREY
& PULLEN, LLP
New
York, NY
March
31, 2008
REPORT
OF
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
To
the
Board of Directors and Stockholders of
Energy
Infrastructure Acquisition Corp.
We
have
audited, before the effects of the adjustments for the correction of the
error
described in Note 12, the accompanying balance sheet of Energy Infrastructure
Acquisition Corp. (a corporation in the development stage) as of December
31,
2006, and the related statements of operations, stockholders’ equity and cash
flows for the year ended December 31, 2006 and for the period from August
11,
2005 (inception) to December 31, 2005, and the amounts included in the
cumulative column for the period from August 11, 2005 (inception) to December
31, 2006 . These financial statements are the responsibility of the Company’s
management. Our responsibility is to express an opinion on these financial
statements based on our audits.
We
conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that
we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining,
on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used
and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In
our
opinion, except for the effects of the error described in Note 12, the financial
statements referred to above present fairly, in all material respects, the
financial position of Energy Infrastructure Acquisition Corp. as of December
31,
2006, and the results of its operations and its cash flows for the year then
ended, and for the period from August 11, 2005 (inception) to December 31,
2005,
and the period included in the cumulative column from August 11, 2005
(inception) to December 31, 2006, in conformity with United States generally
accepted accounting principles.
We
were
not engaged to audit, review, or apply procedures to the adjustments for
the
correction of the error described in Note 12 and, accordingly, we do not
express
an opinion or any other form of assurance about whether such adjustments
are
appropriate and have been properly applied. Those adjustments were audited
by
McGladrey & Pullen, LLP.
/s/GOLDSTEIN
GOLUB KESSLER LLP
GOLDSTEIN
GOLUB KESSLER LLP
New
York,
New York
March
28,
2007
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
(a
corporation in the development stage)
BALANCE
SHEETS
|
|
December
31,
|
|
|
|
2007
|
|
2006
|
|
|
|
|
|
(Restated)
|
|
|
|
|
|
|
|
ASSETS
|
|
Current
assets:
|
|
|
|
|
|
Cash
|
|
$
|
13,933
|
|
$
|
553,716
|
|
Money
market funds - held in trust
|
|
|
217,023,161
|
|
|
211,414,806
|
|
Prepaid
expenses
|
|
|
108,341
|
|
|
113,960
|
|
Total
current assets
|
|
|
217,145.435
|
|
|
212,082,482
|
|
Deferred
acquisition costs
|
|
|
1,065,043
|
|
|
—
|
|
Total
assets
|
|
$
|
218,210,478
|
|
$
|
212,082,482
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
Current
liabilities:
|
|
|
|
|
|
|
|
Accounts
payable and accrued expenses
|
|
$
|
1,150,444
|
|
$
|
202,185
|
|
Amounts
due to underwriter
|
|
|
2,531,656
|
|
|
2,757,186
|
|
Deferred
interest on funds held in trust
|
|
|
1,156,315
|
|
|
—
|
|
Accrued
interest payable to stockholder
|
|
|
40,489
|
|
|
58,649
|
|
Due
to stockholder
|
|
|
—
|
|
|
193,188
|
|
Term
loan payable to stockholder
|
|
|
—
|
|
|
475,000
|
|
Convertible
loans payable to stockholder
|
|
|
2,685,000
|
|
|
2,685,000
|
|
Total
current liabilities
|
|
|
7,563,904
|
|
|
6,371,208
|
|
|
|
|
|
|
|
|
|
Common
stock subject to possible redemption - 6,525,118 shares at redemption
value
|
|
|
64,619,129
|
|
|
64,619,129
|
|
|
|
|
|
|
|
|
|
Commitments
and contingencies
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’
equity:
|
|
|
|
|
|
|
|
Preferred
stock, $0.0001 par value; authorized - 1,000,000 shares; issued -
none
|
|
|
—
|
|
|
—
|
|
Common
stock, $0.0001 par value; authorized - 89,000,000 shares; issued
and
outstanding - 27,221,747 shares, inclusive of 6,525,118 shares subject
to
possible redemption
|
|
|
2,722
|
|
|
2,722
|
|
Paid-in
capital in excess of par
|
|
|
155,571,903
|
|
|
143,932,603
|
|
Deficit
accumulated during the development stage
|
|
|
(9,547,180
|
)
|
|
(2,843,180
|
)
|
Total
stockholders’ equity
|
|
|
146,027,445
|
|
|
141,092,145
|
|
Total
liabilities and stockholders’ equity
|
|
$
|
218,210,478
|
|
$
|
212,082,482
|
|
See
accompanying notes to financial statements.
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
(a
corporation in the development stage)
STATEMENTS
OF OPERATIONS
|
|
|
Years
Ended December
31,
|
|
|
Period from
August 11,
2005
|
|
|
Period from
August 11,
2005
|
|
|
|
|
2007
|
|
|
2006
|
|
|
(Inception)
to
December
31,
2005
|
|
|
(Inception)
to
December
31,
2007
(Cumulative)
|
|
|
|
|
|
|
|
(Restated)
|
|
|
|
|
|
|
|
Operating
expenses, including stock-based compensation to management of $11,639,300
and $5,334,679 for the years ended December 31, 2007 and 2006 (Restated),
and $16,973,979 for the period from August 11, 2005 (Inception)
to
December 31, 2007 (Cumulative)
|
|
|
(12,971,706
|
)
|
$
|
(5,924,945
|
)
|
$
|
(910
|
)
|
$
|
(18,897,561
|
)
|
Interest
income
|
|
|
6,369,468
|
|
|
3,139,543
|
|
|
1,781
|
|
|
9,510,792
|
|
Interest
expense - stockholder
|
|
|
(101,762
|
)
|
|
(55,899
|
)
|
|
(2,750
|
)
|
|
(160,411
|
)
|
Net
loss
|
|
$
|
(6,704,000
|
)
|
$
|
(2,841,301
|
)
|
$
|
(1,879
|
)
|
$
|
(9,547,180
|
)
|
Net
loss per common share - basic and diluted
|
|
$
|
(0.25
|
)
|
$
|
(0.18
|
)
|
$
|
(0.00
|
)
|
$
|
(0.51
|
)
|
Weighted
average common shares outstanding -
basic
and diluted
|
|
|
27,221,747
|
|
|
15,366,555
|
|
|
5,831,349
|
|
|
18,761,298
|
|
See
accompanying notes to financial statements.
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
(a
corporation in the development stage)
STATEMENT
OF STOCKHOLDERS’ EQUITY
|
|
Common
Stock
|
|
Paid-in
Capital
in
Excess
|
|
Deficit
Accumulated
During
the
Development
|
|
Total
Stockholders’
|
|
|
|
Shares
|
|
Amount
|
|
of
Par
|
|
Stage
|
|
Equity
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Balance,
August 11, 2005 (Inception)
|
|
|
—
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
Sale
of shares to founding stockholders at $0.0043 per share
|
|
|
5,831,349
|
|
|
583
|
|
|
24,417
|
|
|
—
|
|
|
25,000
|
|
Net
loss for the period ended December 31, 2005
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(1,879
|
)
|
|
(1,879
|
)
|
Balance,
December 31, 2005
|
|
|
5,831,349
|
|
|
583
|
|
|
24,417
|
|
|
(1,879
|
)
|
|
23,121
|
|
Shares
surrendered and cancelled
|
|
|
(562,500
|
)
|
|
(56
|
)
|
|
56
|
|
|
—
|
|
|
—
|
|
Shares
issued in private placement and public offering, net of offering
costs
|
|
|
21,750,398
|
|
|
2,175
|
|
|
203,192,600
|
|
|
—
|
|
|
203,194,775
|
|
Shares
issued to underwriter
|
|
|
202,500
|
|
|
20
|
|
|
(20
|
)
|
|
—
|
|
|
—
|
|
Shares
reclassified to “Common stock subject to possible
redemption”
|
|
|
—
|
|
|
—
|
|
|
(64,619,129
|
)
|
|
—
|
|
|
(64,619,129
|
)
|
Stock-based
compensation
|
|
|
—
|
|
|
—
|
|
|
5,334,679
|
|
|
—
|
|
|
5,334,679
|
|
Net
loss for the year (Restated)
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(2,841,301
|
)
|
|
(2,841,301
|
)
|
Balance,
December 31, 2006 (Restated)
|
|
|
27,221,747
|
|
|
2,722
|
|
|
143,932,603
|
|
|
(2,843,180
|
)
|
|
141,092,145
|
|
Stock-based
compensation
|
|
|
—
|
|
|
—
|
|
|
11,639,300
|
|
|
—
|
|
|
11,639,300
|
|
Net
loss for the year
|
|
|
—
|
|
|
—
|
|
|
—
|
|
|
(6,704,000
|
)
|
|
(6,704,000
|
)
|
Balance,
December 31, 2007
|
|
|
27,221,747
|
|
$
|
2,722
|
|
$
|
155,571,903
|
|
$
|
(9,547,180
|
)
|
$
|
146,027,445
|
|
See
accompanying notes to financial statements
.
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
(a
corporation in the development stage)
STATEMENTS
OF CASH FLOWS
|
|
Years
Ended December 31,
|
|
Period from
August 11,
2005
|
|
Period from
August 11,
2005(Inception) to
|
|
|
|
2007
|
|
2006
|
|
(Inception)
to
December
31,
2005
|
|
December
31,
2007
(Cumulative)
|
|
|
|
|
|
(Restated)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from operating activities
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
$
|
(6,704,000
|
)
|
$
|
(2,841,301
|
)
|
$
|
(1,879
|
)
|
$
|
(9,547,180
|
)
|
Adjustments
to reconcile net loss to net cash provided by (used in) operating
activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock-based
compensation
|
|
|
11,639,300
|
|
|
5,334,679
|
|
|
—
|
|
|
16,973,979
|
|
Interest
earned on funds held in trust
|
|
|
(7,524,361
|
)
|
|
(3,130,359
|
)
|
|
—
|
|
|
(10,654,720
|
)
|
Changes
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(Increase)
decrease in -
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Prepaid
expenses
|
|
|
5,619
|
|
|
(113,960
|
)
|
|
—
|
|
|
(108,341
|
)
|
Increase
(decrease) in -
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Accounts
payable and accrued expenses
|
|
|
179,487
|
|
|
201,275
|
|
|
910
|
|
|
381,672
|
|
Deferred
interest on funds held in trust
|
|
|
1,156,315
|
|
|
—
|
|
|
—
|
|
|
1,156,315
|
|
Accrued
interest payable to stockholder
|
|
|
(18,160
|
)
|
|
55,899
|
|
|
2,750
|
|
|
40,489
|
|
Net
cash provided by (used in) operating activities
|
|
|
(1,265,800
|
)
|
|
(493,767
|
)
|
|
1,781
|
|
|
(1,757,786
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from investing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Funds
placed in trust account
|
|
|
—
|
|
|
(209,250,000
|
)
|
|
—
|
|
|
(209,250,000
|
)
|
Payment
of deferred acquisition costs
|
|
|
(296,271
|
)
|
|
—
|
|
|
—
|
|
|
(296,271
|
)
|
Withdrawals
from trust account
|
|
|
2,000,000
|
|
|
1,000,000
|
|
|
—
|
|
|
3,000,000
|
|
Net
cash provided by (used in) investing activities
|
|
|
1,703,729
|
|
|
(208,250,000
|
)
|
|
—
|
|
|
(206,546,271
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from financing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Proceeds
from initial sale of common stock
|
|
|
—
|
|
|
—
|
|
|
25,000
|
|
|
25,000
|
|
Gross
proceeds from private placement
|
|
|
—
|
|
|
8,253,980
|
|
|
—
|
|
|
8,253,980
|
|
Gross
proceeds from public offering
|
|
|
—
|
|
|
209,050,000
|
|
|
—
|
|
|
209,050,000
|
|
Payment
of offering costs
|
|
|
(309,524
|
)
|
|
(11,286,466
|
)
|
|
(100,000
|
)
|
|
(11,695,990
|
)
|
Proceeds
from stockholder loans
|
|
|
—
|
|
|
3,160,000
|
|
|
300,000
|
|
|
3,460,000
|
|
Repayment
of stockholder loans
|
|
|
(475,000
|
)
|
|
(300,000
|
)
|
|
—
|
|
|
(775,000
|
)
|
Decrease
in attorney trust account
|
|
|
—
|
|
|
25,000
|
|
|
(25,000
|
)
|
|
—
|
|
Proceeds
from (repayments of) stockholder advances
|
|
|
(193,188
|
)
|
|
193,188
|
|
|
—
|
|
|
—
|
|
Net
cash provided by (used in) financing activities
|
|
|
(977,712
|
)
|
|
209,095,702
|
|
|
200,000
|
|
|
208,317,990
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
increase (decrease) in cash
|
|
|
(539,783
|
)
|
|
351,935
|
|
|
201,781
|
|
|
13,933
|
|
Cash
at beginning of period
|
|
|
553,716
|
|
|
201,781
|
|
|
—
|
|
|
—
|
|
Cash
at end of period
|
|
$
|
13,933
|
|
$
|
553,716
|
|
$
|
201,781
|
|
$
|
13,933
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Supplemental
disclosure of cash flow information:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Non-cash
investing and financing activity:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Increase
in accrued acquisition costs
|
|
$
|
768,772
|
|
$
|
—
|
|
$
|
—
|
|
$
|
768,772
|
|
Increase
in accrued offering costs and placement fees, net
|
|
$
|
—
|
|
$
|
2,674,444
|
|
$
|
48,295
|
|
$
|
2,722,739
|
|
Common
stock subject to possible redemption
|
|
$
|
—
|
|
$
|
64,619,129
|
|
$
|
—
|
|
$
|
64,619,129
|
|
Cash
paid during the periods for:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
|
|
$
|
119,922
|
|
$
|
—
|
|
$
|
—
|
|
$
|
119,922
|
|
Income
taxes
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
$
|
—
|
|
See
accompanying notes to financial statements.
ENERGY
INFRASTRUCTURE ACQUISITION CORP.
(a
corporation in the development stage)
NOTES
TO FINANCIAL STATEMENTS
YEARS
ENDED DECEMBER 31, 2007 AND 2006,
AND
THE PERIOD FROM AUGUST 11, 2005 (INCEPTION) TO DECEMBER 31,
2005
1.
Organization and Proposed Business Operations
Energy
Infrastructure Acquisition Corp. (the “Company”) was incorporated in Delaware on
August 11, 2005 as a blank check company formed to acquire, through a merger,
capital stock exchange, asset acquisition or other similar business combination,
one or more businesses in the energy or energy-related industries.
At
December 31, 2007, the Company had not yet commenced any business operations
and
is therefore considered a “corporation in the development stage”. All activity
through December 31, 2007 relates to the Company’s formation and capital raising
efforts, as described below.
The
Company is subject to the risks associated with development stage companies.
The
Company has selected December 31 as its fiscal year-end.
The
Company’s ability to acquire an operating business was contingent upon obtaining
adequate financial resources through a private placement in accordance with
Regulation S under the Securities Act of 1933, as amended (the “Private
Placement”), a public offering (the “Public Offering”, and together with the
Private Placement, the “Offerings”) and a loan from an off-shore company
controlled by the Company’s President and Chief Operating Officer, all of which
were completed by August 31, 2006. The Company’s management has broad discretion
with respect to the specific application of the net proceeds of the Offerings,
although substantially all of the net proceeds of the Offerings are intended
to
be generally applied toward consummating a business combination with an
operating company. As used herein, a “target business” shall include one or more
operating 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, and a “business combination” shall mean the acquisition by
the Company of such a target business. There can be no assurances that the
Company will be able to successfully effect a business combination.
The
Company restated its 2006 financial statements as described at Note
12.
The
accompanying financial statements have been prepared assuming that the Company
will continue as a going concern. As discussed in Note 3, the Company will
face
mandatory liquidation by July 21, 2008 if a business combination is not
consummated, which raises substantial doubt about the Company’s ability to
continue as a going concern. On December 3, 2007, the Company executed a
definitive agreement, as amended and restated on February 6, 2008, to
acquire certain operating assets (see Note 4). This transaction is
subject
to various closing conditions, including the approval of the Company’s
stockholders, the preparation and execution of definitive transaction documents,
the preparation of audited financial statements of the entities to be acquired,
and compliance with various securities laws and regulations.
The
Company will also require additional capital to fund operating and transaction
costs during 2008 prior to the closing of a business combination. In this
regard, during March 2008, a company controlled by the Company’s President and
Chief Operating Officer made a $500,000 short-term interest-bearing loan to
the
Company for working capital purposes. The financial statements do not include
any adjustments that might result from the outcome of these
uncertainties.
2
.
Summary of Significant Accounting Policies
Cash
Equivalents and Concentrations
The
Company considers all highly liquid investments with an original maturity of
three months or less when purchased to be cash equivalents. Such cash and cash
equivalents, at times, may exceed federally insured limits. The Company
maintains its accounts with financial institutions with high credit
ratings.
Income
Taxes
The
Company accounts for income taxes pursuant to Statement of Financial Accounting
Standards No. 109, “Accounting for Income Taxes” (“SFAS No. 109”), which
establishes financial accounting and reporting standards for the effects of
income taxes that result from an enterprise’s activities during the current and
preceding years. SFAS No. 109 requires an asset and liability approach for
financial accounting and reporting for income taxes.
In
July
2006, the Financial Accounting Standards Board (“FASB”) issued FASB
Interpretation No. 48, “Accounting for Uncertainty in Income Taxes, an
interpretation of FASB Statement No. 109” (“FIN 48”), which provides
criteria for the recognition, measurement, presentation and disclosure of
uncertain tax positions. A tax benefit from an uncertain position may be
recognized only if it is “more likely than not” that the position is sustainable
based on its technical merits. The provisions of FIN 48 are effective for
fiscal years beginning after December 15, 2006. The adoption of FIN 48 on
January 1, 2007 did not have a material effect on the Company’s financial
statements.
The
Company records a valuation allowance to reduce its deferred tax assets to
the
amount that is more likely than not to be realized. In the event the Company
was
to determine that it would be able to realize its deferred tax assets in the
future in excess of its recorded amount, an adjustment to the deferred tax
assets would be credited to operations in the period such determination was
made. Likewise, should the Company determine that it would not be able to
realize all or part of its deferred tax assets in the future, an adjustment
to
the deferred tax assets would be charged to operations in the period such
determination was made.
For
federal income tax purposes, net operating losses can be carried forward for
a
period of 20 years until they are either utilized or until they
expire.
Earnings
Per Share
The
Company computes earnings per share in accordance with SFAS No. 128,
“Earnings per Share” and SEC Staff Accounting Bulletin No. 98. SFAS
No. 128 requires companies with complex capital structures to present basic
and diluted EPS. Basic EPS is measured as the income available to common
shareholders divided by the weighted average common shares outstanding for
the
period. Diluted EPS is similar to basic EPS but presents the dilutive
effect on a per share basis of potential common shares (e.g., convertible
securities, options and warrants) as if they had been converted at the beginning
of the periods presented, or issuance date, if later. Potential common
shares that have an anti-dilutive effect (i.e., those that increase income
per
share or decrease loss per share) are excluded from the calculation of diluted
EPS.
At
December 31, 2007 and 2006, the Company had securities entitling the holder
thereof to acquire shares of common stock as shown below. The effect of all
outstanding warrants, stock options and convertible loans was anti-dilutive
for
all periods presented.
Warrants
|
|
|
21,750,398
|
|
Stock
options
|
|
|
3,585,000
|
|
Convertible
loans
|
|
|
537,000
|
|
Total
|
|
|
25,872,398
|
|
Use
of Estimates
The
preparation of financial statements in conformity with accounting principles
generally accepted in the United States of America requires management to make
estimates and assumptions that affect the reported amounts of assets and
liabilities at the date of the financial statements and the reported amounts
of
expenses during the reporting period. Actual results could differ from those
estimates.
Fair
Value of Financial Instruments
The
carrying amounts of cash, money market funds, prepaid expenses, accounts
payable, accrued expenses, notes, loans and amounts due to stockholder
approximate their respective fair values due to the short-term nature of these
items and/or the current interest rates payable in relation to current market
conditions.
The
Company accounts for share-based payments pursuant to Statement of Financial
Accounting Standards No. 123R, “Share-Based Payments” (“SFAS No. 123R”). SFAS
No. 123R requires all share-based payments, including grants of employee stock
options to employees, to be recognized in the financial statements based on
their fair values.
The
Company adopted SFAS No. 123R effective January 1, 2006, and is using the
modified prospective method in which compensation cost is recognized beginning
with the effective date (a) based on the requirements of SFAS No. 123R for
all
share-based payments granted after the effective date and (b) based on the
requirements of SFAS No. 123R for all awards granted to employees prior to
the
effective date of SFAS No. 123R that remained unvested on the effective
date.
Accordingly,
the Company recognizes compensation cost for equity-based compensation for
all
new or modified grants issued after December 31, 2005. The Company did not
have
any modified grants during 2006 or 2007.
In
addition, commencing January 1, 2006, the Company was required to recognize
the
unvested portion of the grant date fair value of awards issued prior to the
adoption of SFAS No. 123R based on the fair values previously calculated for
disclosure purposes over the remaining vesting period of the outstanding stock
options and warrants. The Company did not have any unvested outstanding stock
options and warrants at December 31, 2005.
Pro
forma
information regarding net income (loss) per share is required by SFAS No. 123
as
if the Company had accounted for its employee stock options and warrants under
the fair value method of such statement. However, during the period from
August 11 (Inception) to December 31, 2005, the Company had no stock options
or
warrants outstanding. Accordingly, no pro forma financial disclosure has been
presented for the period from August 11, 2005 (Inception) to December 31,
2005.
Deferred
Interest on Funds Held in Trust
Deferred
interest on funds held in trust consists of the 30% less one share portion
of
the interest earned on the funds held in trust, which is the maximum amount,
net
of permitted withdrawals by the Company, that the Company would be obligated
to
pay to stockholders who elect to have their stock redeemed by the Company
without resulting in a rejection of a business combination.
Recent
Accounting Pronouncements
In
September 2006, the FASB issued Statement of Financial Accounting Standards
No. 157, “Fair Value Measurements” (“SFAS No. 157”), which establishes a
formal framework for measuring fair value under Generally Accepted Accounting
Principles (“GAAP”). SFAS No. 157 defines and codifies the many definitions of
fair value included among various other authoritative literature, clarifies
and,
in some instances, expands on the guidance for implementing fair value
measurements, and increases the level of disclosure required for fair value
measurements. Although SFAS No. 157 applies to and amends the provisions of
existing FASB and American Institute of Certified Public Accountants (“AICPA”)
pronouncements, it does not, of itself, require any new fair value measurements,
nor does it establish valuation standards. SFAS No. 157 applies to all other
accounting pronouncements requiring or permitting fair value measurements,
except for: SFAS No. 123R, share-based payment and related pronouncements,
the
practicability exceptions to fair value determinations allowed by various other
authoritative pronouncements, and AICPA Statements of Position 97-2 and 98-9
that deal with software revenue recognition. SFAS No. 157 is effective for
financial statements issued for fiscal years beginning after November 15,
2007, and interim periods within those fiscal years. The Company is currently
assessing the potential effect of SFAS No. 157 on its financial statements.
In
February 2007, the FASB issued Statement of Financial Accounting Standards
No. 159, “The Fair Value Option for Financial Assets and Financial
Liabilities” (“SFAS No. 159”), which provides companies with an option to report
selected financial assets and liabilities at fair value. SFAS No. 159’s
objective is to reduce both complexity in accounting for financial instruments
and the volatility in earnings caused by measuring related assets and
liabilities differently. Generally accepted accounting principles have required
different measurement attributes for different assets and liabilities that
can
create artificial volatility in earnings. SFAS No. 159 helps to mitigate this
type of accounting-induced volatility by enabling companies to report related
assets and liabilities at fair value, which would likely reduce the need for
companies to comply with detailed rules for hedge accounting. SFAS No. 159
also establishes presentation and disclosure requirements designed to facilitate
comparisons between companies that choose different measurement attributes
for
similar types of assets and liabilities. SFAS No. 159 requires companies to
provide additional information that will help investors and other users of
financial statements to more easily understand the effect of the company’s
choice to use fair value on its earnings. SFAS No. 159 also requires companies
to display the fair value of those assets and liabilities for which the company
has chosen to use fair value on the face of the balance sheet. SFAS No. 159
does
not eliminate disclosure requirements included in other accounting standards,
including requirements for disclosures about fair value measurements included
in
SFAS No. 157 and SFAS No. 107. SFAS No. 159 is effective as of the
beginning of a company’s first fiscal year beginning after November 15,
2007. Early adoption is permitted as of the beginning of the previous fiscal
year provided the company makes that choice in the first 120 days of that
fiscal year and also elects to apply the provisions of SFAS No. 157. The Company
is currently assessing the potential effect of SFAS No. 159 on its financial
statements.
In
December 2007, the FASB issued SFAS No. 141(R), “Business Combinations” (“SFAS
No. 141(R)”), which requires an acquirer to recognize in its financial
statements as of the acquisition date (i) the identifiable assets acquired,
the
liabilities assumed, and any noncontrolling interest in the acquiree, measured
at their fair values on the acquisition date, and (ii) goodwill as the excess
of
the consideration transferred plus the fair value of any noncontrolling interest
in the acquiree at the acquisition date over the fair values of the identifiable
net assets acquired. Acquisition-related costs, which are the costs an acquirer
incurs to effect a business combination, will be accounted for as expenses
in
the periods in which the costs are incurred and the services are received,
except that costs to issue debt or equity securities will be recognized in
accordance with other applicable GAAP. SFAS No. 141(R) makes significant
amendments to other pronouncements and other authoritative guidance to provide
additional guidance or to conform the guidance in that literature to that
provided in SFAS No. 141(R). SFAS No. 141(R) also provides guidance as to
what
information is to be disclosed to enable users of financial statements to
evaluate the nature and financial effects of a business combination. SFAS
No.
141(R) is effective for financial statements issued for fiscal years beginning
on or after December 15, 2008. Early adoption is prohibited.
In
December 2007, the FASB issued SFAS No. 160, “Noncontrolling Interests in
Consolidated Financial Statements - an amendment of ARB No. 51” (“SFAS No.
160”), which revises the relevance, comparability, and transparency of the
financial information that a reporting entity provides in its consolidated
financial statements by establishing accounting and reporting standards that
require (i) the ownership interests in subsidiaries held by parties other than
the parent be clearly identified, labeled, and presented in the consolidated
statement of financial position within equity, but separate from the parent’s
equity, (ii) the amount of consolidated net income attributable to the parent
and to the noncontrolling interest be clearly identified and presented on the
face of the consolidated statement of income, (iii) changes in a parent’s
ownership interest while the parent retains its controlling financial interest
in its subsidiary be accounted for consistently as equity transactions, (iv)
when a subsidiary is deconsolidated, any retained noncontrolling equity
investment in the former subsidiary be initially measured at fair value, with
the gain or loss on the deconsolidation of the subsidiary being measured using
the fair value of any noncontrolling equity investment rather than the carrying
amount of that retained investment, and (v) entities provide sufficient
disclosures that clearly identify and distinguish between the interests of
the
parent and the interests of the noncontrolling owners. SFAS No. 160 amends
FASB
No. 128 to provide that the calculation of earnings per share amounts in the
consolidated financial statements will continue to be based on the amounts
attributable to the parent. SFAS No. 160 is effective for financial statements
issued for fiscal years, and interim periods within those fiscal years,
beginning on or after December 15, 2008. Early adoption is prohibited. SFAS
No. 160 shall be applied prospectively as of the beginning of the fiscal year
in
which it is initially applied, except for the presentation and disclosure
requirements, which shall be applied retrospectively for all periods presented.
The Company has not yet determined the effect on its consolidated financial
statements, if any, upon adoption of SFAS No. 160.
3.
Private Placement and Public Offering
Private
Placement
On
January 2, 2006, George Sagredos, the Company’s President and Chief Operating
Officer, entered into a binding firm commitment subscription agreement to
purchase 825,398 units of the Company’s securities at $10.00 per unit pursuant
to Regulation S under the Securities Act of 1933, as amended. In June 2006,
George Sagredos assigned such subscription agreement to Energy Corp., a
corporation organized under the laws of the Cayman Islands, which is
wholly-owned by Energy Star Trust, a Cayman Islands trust, to purchase such
securities on the same terms. George Sagredos and Andreas Theotokis, as
co-enforcers and beneficiaries of Energy Star Trust, have voting and dispositive
control over such shares owned by Energy Corp. On July 17, 2006, the
subscription of $8,253,980 was funded.
Public
Offering
On
July
21, 2006, the Company, pursuant to its Public Offering, sold 20,250,000 units
at
a price of $10.00 per unit. Each unit consisted of one share of the Company’s
common stock, $0.0001 par value, and one redeemable common stock purchase
warrant (“warrant”). Each warrant entitles the holder to purchase from the
Company one share of common stock at an exercise price of $8.00 commencing
on
the later of the completion of a business combination with a target business
or
July 17, 2007, one year from the effective date of the Public Offering, and
expires on July 17, 2010, four years from the date of the prospectus. The
warrants will be redeemable at a price of $0.01 per warrant upon 30 days notice
after the warrants become exercisable, only in the event that the last sale
price of the common stock is at least $14.25 per share for any 20 trading days
within a 30 trading day period ending on the third day prior to the date on
which a notice of redemption is given. The common stock and warrants included
in
the units began to trade separately on October 4, 2006, and trading in the
units
ceased on such date.
On
July
21, 2006, the closing date of the Public Offering, $202,500,000 was placed
in a
trust account at Lehman Brothers Inc. maintained by Continental Stock Transfer
& Trust Company, New York, New York, as trustee (“Trust Account”). This
amount includes the net proceeds of the Offerings, a convertible loan in the
principal amount of $2,550,000 made prior to the consummation of the Public
Offering by Robert Ventures Limited, an off-shore company controlled by the
Company’s President and Chief Operating Officer, a term loan in the principal
amount of $475,000 made prior to the consummation of the Public Offering by
the
Company’s President and Chief Operating Officer, $2,107,540 of contingent
underwriting compensation and placement fees (the “Discount”), to be paid to the
Maxim Group LLC (“Maxim”) and the other underwriters, respectively, if and only
if, a business combination is consummated. The funds in the Trust Account will
be invested until the earlier of (i) the consummation of the Company’s first
business combination or (ii) the liquidation of the Trust Account as part of
a
plan of dissolution and liquidation approved by the Company’s
stockholders.
In
addition to the contingent and/or deferred underwriting compensation and
placement fees of $2,107,540 held in trust as described above, the Company
was
obligated to pay $412,699 in deferred placement fees to Maxim in connection
with
the Regulation S private placement and an additional underwriting fee of
$500,000 deferred until the consummation of a business combination. Pursuant
to
amendments to the Underwriting Agreement, the underwriters subsequently agreed
to waive the Company’s obligation to pay the underwriters such additional
deferred underwriting fees of $500,000. On February 28, 2007, June 4, 2007
and
September 5, 2007, the Company paid the first three of four quarterly
installments of $103,175 due on the deferred placement fees of $412,699.
On
August
31, 2006, the underwriters of the Company’s Public Offering exercised their
option to purchase an additional 675,000 units to cover over-allotments. An
additional $6,750,000 was placed in the Trust Account, bringing the total amount
placed into the Trust Account to $209,250,000. This additional amount includes
the net proceeds of the over-allotment of $6,615,000, and an additional
convertible loan made to the Company by Robert Ventures Limited of $135,000.
The
Company incurred an underwriting fee of $337,500 relating to this exercise,
of
which $202,500 is deferred and contingent upon the consummation of a business
combination.
At
December 31, 2007, amounts due to underwriter in the accompanying balance sheet
consisted of deferred fees and discounts of $2,310,040, that are contingently
payable upon the consummation of a business combination, the fourth and final
installment of the deferred placement fee of $103,174 described above, and
accrued interest of $118,441 on contingently payable deferred fees and discounts
included in the Trust Account. At December 31, 2006 (Restated), amounts due
to
underwriter consisted of deferred fees and discounts of $2,310,040, that are
contingently payable upon the consummation of a business combination, the above
described deferred placement fee of $412,699, and accrued interest of $34,447
on
contingently payable deferred fees and discounts included in the Trust Account
.
The
Company will use its best efforts to cause a registration statement to become
effective on or prior to the commencement of the warrant exercise period and
to
maintain the effectiveness of such registration statement until the expiration
of the warrants. If the Company is unable to maintain the effectiveness of
such
registration statement until the expiration of the warrants, and therefore
is
unable to deliver registered shares, the warrants may become
worthless.
During
the year ended December 31, 2006, the Company reimbursed certain of its officers
and directors for $286,102 of travel and other similar reimbursable expenses
incurred through July 2006 that related directly to the Company’s Public
Offering, and which were therefore recorded as offering costs and charged
directly to stockholders’ equity.
The
Company will use substantially all of the net proceeds to acquire a target
business, including identifying and evaluating prospective acquisition
candidates, selecting the target business, and structuring, negotiating and
consummating the business combination. To the extent that the Company’s capital
stock is used in whole or in part as consideration to effect a business
combination, the proceeds held in the Trust Account, as well as any other net
proceeds not expended, will be used to finance the operations of the target
business.
The
Company is required to submit the acquisition of a target business to its
stockholders for approval. In the event that public stockholders owning 30%
or
more of the outstanding stock sold in the Offerings vote against the business
combination and elect to have the Company redeem their shares for cash, the
business combination will not be consummated. All of the Company’s stockholders
prior to the Offerings, including all of the officers and directors of the
Company (the “Initial Stockholders”), have agreed to vote their 5,268,849
founding shares of common stock in accordance with the vote of the majority
of
shares purchased in the Offerings with respect to any business combination
and
to vote any shares they acquire in the Offerings, or in the aftermarket, in
favor of the business combination. After consummation of the Company’s first
business combination, all of these voting safeguards will no longer be
applicable.
With
respect to the first business combination that is approved and consummated,
any
holder of shares sold in the Public Offering (the “Public Stockholders”) that
votes against the business combination, may require that the Company redeem
their shares. The per share redemption price will equal $10.00 per share
(inclusive of a pro rata portion of the Discount ($0.10 per share)) and interest
earned thereon, subject to certain reductions. Accordingly, Public Stockholders
holding one share less than 30% of the aggregate number of shares sold in the
Offerings may seek redemption of their shares in the event of a business
combination.
The
Company’s Amended and Restated Certificate of Incorporation provides for
mandatory liquidation of the Company, without stockholder approval, in the
event
that the Company does not consummate a business combination by July 21, 2008.
An
off-shore company controlled by George Sagredos, the Company’s President and
Chief Operating Officer, purchased an aggregate of 825,398 units in the Private
Placement, but has waived its right to liquidation distributions with respect
to
the shares of common stock included in such units. Accordingly, in the event
of
such a liquidation, the amount in the Trust Account will be distributed to
the
holders of the shares sold in the Public Offering.
4.
Proposed Business Combination
On
December 3, 2007, the Company entered into a definitive agreement, as amended
and restated on February 6, 2008 (the “Share Purchase Agreement”),
pursuant to which it has agreed to purchase, through a newly-formed,
wholly-owned subsidiary, Energy Infrastructure Merger Corporation, a Marshall
Islands corporation (“EIMC”), the outstanding shares of nine companies from
Vanship Holdings Limited, a Liberian corporation (“Vanship”), a global shipping
company carrying on business from Hong Kong, for aggregate consideration of
$778,000,000, consisting of $643,000,000 payable in cash from the Company’s
trust fund and borrowings under a credit facility to be negotiated and
$135,000,000 payable in the form of 13,500,000 shares of common stock of EIMC
(the “Acquisition”). Each of the nine companies is a special purpose vehicle
(“SPV”) that owns one very large crude carrier (“VLCC”), which is a tanker
vessel used to transport crude oil. Additionally, Vanship will be eligible
to
earn an additional 3,000,000 shares of common stock of EIMC in each of the
first
and second 12-month periods following the merger (up to a total of 6,000,000
shares in the aggregate) based on the achievement of certain EBITDA milestones
associated with the purchased vessels. The $643,000,000 cash payment will be
reduced by the aggregate amount of net indebtedness of the SPVs at the time
of
the completion of the business combination and is subject to other closing
adjustments.
Concurrently
with the Acquisition, it is intended that the Company will consummate a merger
with EIMC in which EIMC will be the surviving entity (the “Redomiciliation
Merger”, and together with the Acquisition, the “Business Combination”).
Concurrently with and contingent on the closing of the Business
Combination:
Vanship
has agreed to purchase up to 5,000,000 units of EIMC to the extent necessary
for
EIMC to secure financing for the Acquisition at a purchase price of $10.00
per
unit. Each unit will consist of one share of common stock and one common stock
purchase warrant. The units will be identical to those that were issued in
the
Company’s July 2006 IPO except that they will be subject to a lock-up period of
six months post-closing.
George
Sagredos, the Company's President and COO and a Director, will convert
convertible debt in the aggregate principal amount of $2,685,000 into 268,500
units, at a conversion price of $10.00 per unit. Each unit will consist of
one
share of common stock and one common stock purchase warrant. The units will
be
identical to those that were issued in the Company’s July 2006 IPO except that
they will be subject to a lock-up period of six months
post-closing.
George
Sagredos will transfer to Vanship, at no additional cost to Vanship, 425,000
warrants purchased by a company controlled by him in a private placement of
units in the Company made prior to the Company’s July 2006 IPO.
As
a
condition to the closing of the Business Combination, George Sagredos and
Andreas Theotokis, the Company’s Chairman of the Board of Directors shall have
agreed to the termination of stock options to purchase an aggregate of 3,585,000
shares of common stock (exercisable at $0.01 per share) that were issued to
them
prior to the Company’s July 2006 IPO.
George
Sagredos (and any permitted assignee and/or transferee as permitted by the
Share
Purchase Agreement) will be issued 1,000,000 units of EIMC, consisting of one
share of common stock and one common stock purchase warrant. These units will
be
identical to the units issued in the Company’s July 2006 IPO except that they
will be subject to a lock-up period of six months post-closing.
Under
the
Share Purchase Agreement and subject to its ability to do so under applicable
law, EIMC will pay a dividend of $1.54 per share to EIMC's public shareholders
on the first anniversary of the consummation of the Business Combination.
Vanship has agreed, and it is a condition to the closing that EIMC insiders
shall have agreed, to waive any right to receive dividend payments in respect
of
the one-year period immediately following the consummation of the Business
Combination in order to facilitate the payment of this one-time dividend to
the
public shareholders.
Each
of
the Acquisition and the Redomiciliation Merger are conditioned upon the
consummation of the other, and are each subject to customary closing conditions,
including the approval of the Company’s stockholders, the preparation and
execution of definitive transaction documents, the preparation of audited
financial statements of the SPVs, and compliance with various securities laws
and regulations.
Pursuant
to the Company’s certificate of incorporation, holders of shares purchased in
the Company’s initial public offering (other than the Company’s initial
stockholders) may vote against the Business Combination and demand that the
Company redeem their shares for a cash payment of $10.00 per share, plus a
portion of the interest earned not previously released to it (net of taxes
payable), as of the record date. The Company will not consummate the Business
Combination if holders of 6,525,119 or more shares exercise these redemption
rights. If holders of the maximum permissible number of shares elect redemption
without the Company being required to abandon the Business Combination, the
Company may not have funds available to proceed with the Business Combination
unless it is able to obtain additional capital. Assuming that the Company’s
stockholders approve the Business Combination, EIMC intends to sell such number
of shares of its common stock equal to the number of shares of the Company’s
common stock that are redeemed upon completion of the Business Combination.
The
proceeds of such sale would be used to fund redemptions of common stock by
the
Company’s stockholders. There can be no assurance that EIMC will be able to
successfully complete such sale. To the extent such sale is not completed and
the Company has insufficient funds to complete the Business Combination, the
Business Combination will not occur, and it is likely that the Company will
be
required to dissolve and liquidate.
The
transaction is expected to be accounted for as a “reverse merger” since,
immediately following completion of the transaction, the stockholder of the
SPVs
immediately prior to the transaction will have effective control of the Company
through its approximately 39% stockholder interest in the combined entity,
assuming no stockholder redemptions (46% in the event of maximum stockholder
redemptions) and control of a majority of the board of directors and all of
the
senior executive positions. For accounting purposes, the SPVs (through EIMC,
a
newly-formed holding company) will be deemed to be the accounting acquirer
in
the transaction and, consequently, the transaction will be treated as a
recapitalization of the SPVs, i.e., the issuance of stock by the SPVs (through
EIMC) for the stock of the Company. Accordingly, the combined assets,
liabilities and results of operations of the SPVs will become the historical
financial statements of the Company, and the Company’s assets, liabilities and
results of operations will be consolidated with the SPVs beginning on the
acquisition date. No step-up in basis or intangible assets or goodwill will
be
recorded in this transaction, except that the concurrent acquisition of the
50% equity interest in the three of the SPVs currently held by a third party
will result in the step-up of the proportionate share of assets and liabilities
acquired to reflect consideration paid.
At
December 31, 2007, $1,065,043 of deferred acquisition costs included on the
Company’s balance sheet consisted principally of legal fees, accounting fees,
consulting and advisory fees, and other outside costs incurred by the Company
during 2007 that are related to the Business Combination, and will be charged
to
additional paid-in capital upon the consummation of the Business Combination,
or
charged to the operations in the event that the Business Combination does not
occur. The Company is responsible for paying certain of Vanship’s accounting
fees incurred in conjunction with the Business Combination, which have been
accrued and included in deferred acquisition costs at December 31, 2007. The
Company is also responsible for reimbursing Vanship for its legal and accounting
fees in the event that the Share Purchase Agreement is terminated.
5.
Money Market Funds - Held in Trust
Money
market funds - held in trust at December 31, 2007 consist of Lehman Brothers
Municipal Money Fund Tax Free Money Fund of $73,172,089, including accrued
interest of $185,418, and Money Market Obligations Trust Tax Free Obligations
of
$143,851,072, including accrued interest of $575,292, with coupon rates of
3.587% and 3.332%, respectively.
Money
market funds - held in trust at December 31, 2006 consist of Lehman Brothers
Municipal Money Fund Tax Free Money Fund of $70,671,722, including accrued
interest of $206,244, and Money Market Obligations Trust Tax Free Obligations
of
$140,743,084, including accrued interest of $410,958, with coupon rates of
3.675% and 3.679%, respectively.
Certain
portions of these investment funds may not be covered by insurance.
6.
Notes and Advances Payable to Stockholder
On
July
17, 2006, Robert Ventures Limited, an off-shore company controlled by George
Sagredos, loaned $2,550,000 to the Company in the form of a convertible note.
Such loan bears interest at a per annum rate equivalent to the per annum
interest rate applied to funds held in the Trust Account during the quarterly
period covered by such interest payment (average 3.503% from inception to
December 31, 2007). The Company is obligated to make quarterly interest payments
on such loan following the expiration of the first full quarter after the date
that it has drawn down at least $1,000,000 from accrued interest on the Trust
Account to fund its working capital requirements. During the quarter ended
December 31, 2006, the Company had met this requirement. Accordingly, on March
12, 2007, the Company made its first quarterly interest payment of interest
accrued on this loan through February 28, 2007. Principal on the loan is due
the
earlier of the Company’s liquidation or the consummation of a business
combination. The holder of the loan has the option to convert all of the
principal of such indebtedness into units that are identical to the units
offered in the Public Offering, at a conversion price of $10.00 a unit,
commencing two days following the date the Company files a preliminary proxy
statement with respect to a proposed business combination. In the event that
the
holder of the convertible loan elects to convert the full amount of the loan,
it
will receive 255,000 units which, upon separation of the units would result
in
the holder having an additional 255,000 shares of common stock and 255,000
warrants.
On
August
31, 2006, in connection with the underwriters’ exercise of their option to
purchase an additional 675,000 units to cover over-allotments, Roberts Ventures
Limited loaned an additional $135,000 to the Company in the form of a
convertible loan under the same terms and conditions as described above. On
March 12, 2007, the Company made its first quarterly interest payment of
interest accrued on this loan through February 28, 2007. In the event that
the
holder of the additional convertible loan elects to convert the full amount
of
the loan, it will receive an additional 13,500 units which, upon separation
of
the units, would result in the holder having an additional 13,500 shares of
common stock and 13,500 warrants.
On
July
17, 2006, George Sagredos also loaned $475,000 to the Company. Such loan bears
interest at a per annum interest rate equivalent to the per annum interest
rate
applied to the funds held in the Trust Account during the same period that
such
loan is outstanding (average 3.503% from inception to December 31, 2007). The
Company is obligated to repay the principal and accrued interest on such loan
following the earlier of (i) the expiration of the second full quarter after
the
date that it has drawn down at least $1,000,000 from accrued interest on the
Trust Account to fund its working capital requirements, (ii) the consummation
of
a business combination by the Company, or (iii) the Company’s dissolution and
liquidation. During the quarter ended December 31, 2006, the Company had met
this requirement. Accordingly, the Company repaid the principal of $475,000
and
accrued interest of $14,437 on this loan on June 4, 2007.
In
addition to the above, the Company was indebted to George Sagredos for
non-interest bearing advances totaling $193,188 as of December 31, 2006. On
May
7, 2007, such non-interest bearing advances were repaid in full.
7.
Common Stock
The
Company is authorized to issue 89,000,000 shares of common stock. On December
30, 2005, the Company issued 3,956,349 shares of common stock to its founders.
As of April 21, 2006, the Company effected a 0.4739219-for-1 stock dividend,
which resulted in the issuance of an additional 1,875,000 shares to its
founders. The Company’s financial statements give retroactive effect to such
stock dividend.
On
July
18, 2006, certain of the Company’s stockholders surrendered for cancellation an
aggregate 562,500 shares of common stock in order to maintain the percentage
ownership of its stockholders prior to the Public Offering.
On
July
18, 2006, the Company agreed to issue to Maxim, as representative of the
underwriters, 202,500 shares of its common stock to be deposited into escrow,
subject to forfeiture, and released to the representative only upon consummation
of a business combination.
On
July
18, 2006, the founders agreed to surrender, without consideration, up to an
aggregate of 270,000 of their shares of common stock to the Company for
cancellation upon consummation of a business combination in the event Public
Stockholders exercise their right to have the Company redeem their shares for
cash. Accordingly, for every 23 shares redeemed by Public Stockholders, the
founders have agreed to surrender one share for cancellation.
8.
Preferred Stock
The
Company is authorized to issue 1,000,000 shares of preferred stock with such
designations, voting and other rights and preferences, as may be determined
from
time to time by the Board of Directors.
9.
Stock Options
On
July
18, 2006, the Company rescinded all prior agreements to grant stock options
to
George Sagredos and to Andreas Theotokis. Such agreements were to be effective
on the closing date of the Public Offering. Also on July 18, 2006, the Company
authorized the grant to George Sagredos on the closing date of the Public
Offering of an option to purchase an aggregate of 2,688,750 shares of common
stock at an exercise price of $0.01 per share, with the option exercisable
in
four quarterly installments of 672,187 options on each of the first three
quarterly installment dates and 672,189 options on the fourth quarterly
installment date, with the first installment vesting on the date of expiration
of the three-month period immediately following the consummation of a business
combination, and with the vesting of such options contingent upon George
Sagredos being an officer of the Company on each respective vesting date. The
Company also approved the grant to Andreas Theotokis on the closing date of
the
Public Offering of an option to purchase an aggregate of 896,250 shares of
Common Stock at an exercise price of $0.01 per share, with such option
exercisable in four quarterly installments of 224,062 options on each of the
first three quarterly installment dates and 224,064 options on the fourth
quarterly installment date, with the first installment vesting on the date
of
expiration of the three-month period immediately following the consummation
of a
business combination, subject to Andreas Theotokis being an officer the Company
on each respective vesting date. The options granted to George Sagredos and
to
Andreas Theotokis are exercisable for a term of five years after the vesting
date.
Because
the grant of the options is deemed to be stock-based compensation, commencing
on
the date of grant (which occurred at the closing of the Public Offering),
pursuant to SFAS No. 123R, the Company is required to record a charge to
operations in an amount equal to the fair value of such options, which the
Company has estimated using the Black-Scholes option-pricing model, to be an
aggregate of approximately $34,920,000. In valuing the options, the Company
did
not consider it necessary to evaluate possible variations in volatility or
other
input metrics, since, due to the very large spread between the exercise price
of
the options ($0.01 per share) and the fair value of the underlying common stock
($9.75 per share), the Black-Scholes formula yields a consistent fair value
capped at $9.74 per share ($9.75 minus $0.01). In accounting for the options,
the Company considers the consummation of a business combination to be a
performance condition that is expected to be met. As a result of including
the
two-year period that the Company has to effect a business combination and the
one-year vesting period of the options, the Company expects that the charge
to
earnings with respect to each quarterly installment will be amortized over
a
maximum period of 36 months, which is the implicit service period. Accordingly,
on an aggregate basis, as a result of the grant of such options, at December
31,
2007, the Company is scheduled to recognize stock-based compensation expense
during the remaining term of such options of approximately $11,640,000 and
$6,310,000, during the years ending December 31, 2008 and 2009,
respectively.
In
the
event that the Company consummates a business combination in less than two
years
from the closing date of the Public Offering, the above amortization schedule
would be accelerated and the Company therefore would record an increased charge
to operations through such date based on the revised estimate of the implicit
service period.
A
summary
of stock option activity for the years ended December 31, 2007 and 2006 is
shown
below.
|
|
Number
of
Shares
|
|
Weighted
Average
Exercise
Price
|
|
Weighted
Average
Remaining
Contractual
Life
(in
Years)
|
|
Options
outstanding at December 31, 2005
|
|
|
—
|
|
$
|
—
|
|
|
—
|
|
Granted
|
|
|
3,585,000
|
|
|
0.01
|
|
|
7.63
|
|
Exercised
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Cancelled
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Options
outstanding at December 31, 2006
|
|
|
3,585,000
|
|
|
0.01
|
|
|
7.19
|
|
Granted
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Exercised
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Cancelled
|
|
|
—
|
|
|
—
|
|
|
—
|
|
Options
outstanding at December 31, 2007
|
|
|
3,585,000
|
|
$
|
0.01
|
|
|
6.19
|
|
|
|
|
|
|
|
|
|
|
|
|
Options
exercisable at December 31, 2007
|
|
|
—
|
|
$
|
—
|
|
|
—
|
|
The
aggregate intrinsic value of stock options outstanding was approximately
$36,316,000 at December 31, 2007.
10.
Income Taxes
Deferred
income taxes reflect the net tax effects of temporary differences between the
carrying amounts of assets and liabilities for financial reporting purposes
and
the amounts used for income tax purposes. Significant components of the
Company's deferred tax assets as of December 31, 2007 and 2006 are as
follows:
|
|
December
31,
|
|
|
|
2007
|
|
2006
|
|
|
|
|
|
(Restated)
|
|
|
|
|
|
|
|
Expenses
deferred for income tax purposes
|
|
$
|
541,000
|
|
$
|
144,000
|
|
Interest
expense to related party
|
|
|
14,000
|
|
|
20,000
|
|
Net
operating loss carryforwards
|
|
|
149,000
|
|
|
54,000
|
|
Total
deferred tax assets
|
|
|
704,000
|
|
|
218,000
|
|
Valuation
allowance
|
|
|
(704,000
|
)
|
|
(218,000
|
)
|
Net
deferred tax assets
|
|
$
|
—
|
|
$
|
—
|
|
No
federal tax provision has been provided for the years ended December 31, 2007
and 2006, and the period from August 11, 2005 (Inception) to December 31, 2005,
due to the losses incurred to date. The reconciliation between the income tax
rate computed by applying the U.S. federal statutory rate and the effective
rate
for the years ended December 31, 2007, and 2006, and the period from August
11,
2005 (Inception) to December 31, 2005, is as follows:
|
|
Years
Ended December 31,
|
|
Period from
August 11,
2005
|
|
|
|
2007
|
|
2006
|
|
(Inception)
to
December
31,
2005
|
|
|
|
|
|
(Restated)
|
|
|
|
|
|
|
|
|
|
|
|
U.S.
federal statutory tax rate
|
|
|
(34.0
|
%)
|
|
(34.0
|
%)
|
|
(34.0
|
%)
|
Tax-exempt
interest income
|
|
|
(32.3
|
%)
|
|
(19.5
|
%)
|
|
—
|
|
Non-deductible
stock-based compensation
|
|
|
59.0
|
%
|
|
47.8
|
%
|
|
—
|
|
Change
in valuation allowance
|
|
|
7.3
|
%
|
|
5.7
|
%
|
|
34.0
|
%
|
Effective
tax rate
|
|
|
0.0
|
%
|
|
0.0
|
%
|
|
0.0
|
%
|
At
December 31, 2007, the Company has available net operating loss carryforwards
for federal income tax purposes of approximately $320,000 which, if not utilized
earlier, expire beginning in 2027.
11.
Commitments and Contingencies
The
Company will not proceed with a business combination if Public Stockholders
owning 30% or more of the shares sold in the Private Placement and Public
Offering vote against the business combination and exercise their redemption
rights. Accordingly, the Company may effect a business combination if Public
Stockholders owning up to one share less than 30% of the aggregate shares sold
in the Private Placement and Public Offering exercise their redemption rights.
If this occurred, the Company would be required to redeem for cash up to one
share less than 30% of the 21,750,398 shares of common stock included in the
units, or 6,525,118 shares of common stock, at an expected initial per-share
redemption price of $10.00, plus a pro rata share of the accrued interest earned
on the trust account (net of (i) taxes payable on interest earned, (ii) up
to
$3,430,111 of interest income released to the Company to fund its working
capital, (iii) payment of quarterly interest payments on the convertible loan
and repayment of the convertible loan upon the earlier to occur of the Company’s
dissolution and liquidation or a business combination, if not converted, and
(iv) repayment of the term loan, plus accrued interest), including a pro rata
share of the accrued interest earned on the underwriters’ contingent
compensation. However, the ability of stockholders to receive $10.00 per unit
is
subject to any valid claims by the Company’s creditors which are not covered by
amounts held in the trust account or the indemnities provided by the Company’s
officers and directors. The expected redemption price per share is greater
than
each stockholder’s initial pro rata share of the trust account of approximately
$9.90. Of the excess redemption price, approximately $0.10 per share represents
a portion of the underwriters’ contingent fee, which they have agreed to forego
for each share that is redeemed. Accordingly, the total contingent underwriting
compensation payable to the underwriters in the event of a business combination
will be reduced by approximately $0.10 for each share that is redeemed. The
balance will be paid from proceeds held in the trust account, which are payable
to the Company upon consummation of a business combination. In order to
partially offset the resulting dilution to non-redeeming stockholders,
management has agreed to surrender shares to the Company (at an assumed value
of
$10.00 per share) for cancellation, up to a maximum of 270,000 shares. Even
if
less than 30% of the stockholders exercise their redemption rights, the Company
may be unable to consummate a business combination if such redemption leaves
the
Company with funds representing less than a fair market value at least equal
to
80% of the amount in the trust account (excluding any funds held for the benefit
of Maxim and the other underwriters) at the time of such acquisition, which
amount is required as a condition to the consummation of the Company’s initial
business combination, and the Company may therefore be required to raise
additional capital to consummate a business combination or to liquidate if
it is
unable to do so.
On
July
24, 2006, the Company entered into a two-year agreement for investor relations
and financial media support services for a minimum monthly fee of $3,500 before
a business combination, or $6,500 after a business combination.
The
Company has engaged Maxim, the representative of the underwriters of its Public
Offering, on a non-exclusive basis, as its agent for the solicitation of the
exercise of the warrants. To the extent not inconsistent with the guidelines
of
the NASD and the rules and regulations of the Securities and Exchange
Commission, the Company has agreed to pay the representative for bona fide
services rendered a commission equal to 5% of the exercise price for each
warrant exercised more than one year after the date of the prospectus if the
exercise was solicited by the underwriters. In addition to soliciting, either
orally or in writing, the exercise of the warrants, the representative’s
services may also include disseminating information, either orally or in
writing, to warrant holders about the Company or the market for the Company’s
securities, and assisting in the processing of the exercise of the warrants.
No
compensation will be paid to the representative upon the exercise of the
warrants if:
|
—
|
the
market price of the underlying shares of common stock is lower than
the
exercise price;
|
|
—
|
the
holder of the warrants has not confirmed in writing that the
representative solicited the
exercise;
|
|
—
|
the
warrants are held in a discretionary account;
|
|
—
|
the
warrants are exercised in an unsolicited transaction;
or
|
|
—
|
the
arrangement to pay the commission is not disclosed in the prospectus
provided to warrant holders at the time of
exercise.
|
As
of
October 1, 2006, the Company terminated its Administrative Services Agreement
with an unaffiliated third party, in connection with which the Company paid
$7,500 per month commencing July 21, 2006, the closing date of the Public
Offering, for office space and general and administrative expenses, and entered
into a Consulting Agreement with the same party providing for the same monthly
fee of $7,500, for a term concluding on the consummation of a business
combination.
In
October 2006, the Company contracted with an unrelated party for the use of
administrative services, including shared facilities and personnel, for a term
of one year at a minimum cost of $10,000. This agreement automatically renewed
for an additional one year in October 2007.
On
December 18, 2006, the Company entered into an agreement with Maxim for
professional services to be rendered in connection with the acquisition of
a
target company. The agreement terminates on July 18, 2008 and requires the
Company to pay Maxim a financial advisor fee equal to 0.75%, not to exceed
$2,750,000, of the total consideration, as defined in the agreement, paid in
such acquisition, plus a finder’s fee equal to 0.5% of the consideration for any
target introduced to the Company.
During
2007, the Company entered into various agreements for assistance in identifying,
evaluating, negotiating and arranging funding for potential acquisition
opportunities. Generally, the agreements are terminable upon short notice by
either party and provide for a success fee of 1% of the transaction value in
the
event such adviser’s efforts lead to a successful business
combination.
Included
in accounts payable and accrued expenses at December 31, 2007 is $545,240 owed
by the Company to its law firm. The payment of 50% of such law firm’s billings
since October 1, 2007 has been deferred until July 18, 2008 and is payable,
plus
a 20% bonus, contingent on the Company completing a business combination. If
the
Company does not complete a business combination by such date, the law firm
has
agreed to permanently waive its right to receive such deferred
amount.
In
conjunction with the pending business combination described at Note 4, the
Company is responsible for reimbursing Vanship for its legal and accounting
fees
in the event that the Share Purchase Agreement is terminated. As of February
29,
2008, the aggregate fees with respect to such contingency were approximately
$1,600,000.
12.
Restatement
During
the year ended December 31, 2007, the Company determined that interest
potentially distributable to redeeming stockholders was incorrectly calculated
and the related liability was therefore overstated at September 30, 2006,
December 31, 2006, March 31, 2007 and June 30, 2007. At no time did this matter
affect the funds held in the trust account or the rights of the Public
Stockholders with respect to their redemption rights.
The
Company initially corrected such overstatement by recording a credit to results
of operations for the three months and nine months ended September 30, 2007.
The
Company has subsequently elected to restate its financial statements at
September 30, 2006, December 31, 2006, March 31, 2007, June 30, 2007 and
September 30, 2007 for this adjustment, as well as for two additional minor
adjustments as further described below.
The
impact of the restatement on the Company’s 2006 balance sheet and statement of
operations is summarized as shown below. The restatement did not have any effect
on the Company’s 2006 statement of cash flows.
|
|
As
Originally
Filed
|
|
Adjustments
-
Increase
(Decrease)
|
|
As
Restated
|
|
Balance
Sheet - December 31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
current assets
|
|
$
|
212,082,482
|
|
$
|
---
|
|
$
|
212,082,482
|
|
Total
assets
|
|
|
212,082,482
|
|
|
---
|
|
|
212,082,482
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
current liabilities
|
|
|
7,327,955
|
|
|
(991,194)
(1
|
)
|
|
6,371,208
|
|
|
|
|
|
|
|
34,447
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
stock subject to possible redemption
|
|
|
64,597,399
|
|
|
21,730
(3
|
)
|
|
64,619,129
|
|
Paid-in
capital in excess of par
|
|
|
143,954,333
|
|
|
(21,730)
(3
|
)
|
|
143,932,603
|
|
Deficit
accumulated during the development stage
|
|
|
(3,799,927
|
)
|
|
(956,747
|
)
|
|
(2,843,180
|
)
|
Total
stockholders’ equity
|
|
|
140,157,128
|
|
|
935,017
|
|
|
141,092,145
|
|
|
|
|
|
|
|
|
|
|
|
|
Statement
of Operations - Year Ended
December
31, 2006:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Interest
income
|
|
|
2,182,796
|
|
|
991,194
(1
|
)
|
|
3,139,543
|
|
|
|
|
|
|
|
(34,447)
(2
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss
|
|
|
(3,798,048
|
)
|
|
(956,747
|
)
|
|
(2,841,301
|
)
|
Net
loss per common share - basic and diluted
|
|
$
|
(0.25
|
)
|
$
|
(0.07
|
)
|
$
|
(0.18
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Description
of adjustments:
(1)
To
reduce the liability for deferred interest on funds held in trust.
(2)
To
accrue for interest due to the underwriter for the portion of the underwriter’s
fees held in trust.
(3)
To
increase common shares subject to redemption from 29.99% (6,522,945 shares)
to
one share less than 30%
(6,525,118
shares), an increase of 2,173 shares, recorded at $10.00 per share.
13.
Quarterly Results of Operations (Unaudited)
The
following table sets forth unaudited quarterly results of operations for the
years ended December 31, 2007 and 2006 (Restated). This unaudited quarterly
information has been derived from the Company’s unaudited financial statements
and, in the Company’s opinion, includes all adjustments, including normal
recurring adjustments, necessary for a fair presentation of the information
for
the periods covered. The operating results for any quarter are not necessarily
indicative of the operating results for any future period.
|
|
Three
Months Ended
|
|
|
|
|
|
March
31,
2007
|
|
June
30,
2007
|
|
September
30,
2007
|
|
December
31,
2007
|
|
Year
Ended
December
31, 2007
|
|
|
|
(Restated)
|
|
(Restated)
|
|
(Restated)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
expenses
|
|
$
|
(3,316,275
|
)
|
$
|
(3,329,129
|
)
|
$
|
(3,257,857
|
)
|
$
|
(3,068,445
|
)
|
$
|
(12,971,706
|
)
|
Interest
income
|
|
|
1,777,221
|
|
|
1,885,132
|
|
|
1,326,669
|
|
|
1,380,446
|
|
|
6,369,468
|
|
Interest
expense - stockholder
|
|
|
(26,943
|
)
|
|
(27.177
|
)
|
|
(24,736
|
)
|
|
(22,906
|
)
|
|
(101,762
|
)
|
Net
loss
|
|
$
|
(1,565,997
|
)
|
$
|
(1,471,174
|
)
|
$
|
(1,955,924
|
)
|
$
|
(1,710,905
|
)
|
$
|
(6,704,000
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss per common share - basic and diluted
|
|
$
|
(0.06
|
)
|
$
|
(0.05
|
)
|
$
|
(0.07
|
)
|
$
|
(0.06
|
)
|
$
|
(0.25
|
)
|
Weighted
average common shares outstanding -
basic
and diluted
|
|
|
27,221,747
|
|
|
27,221,747
|
|
|
27,221,747
|
|
|
27,221,747
|
|
|
27,221,747
|
|
|
|
|
Three
Months Ended
|
|
|
|
|
|
|
|
March
31,
2006
|
|
|
June
30,
2006
|
|
|
September
30, 2006
|
|
|
December
31, 2006
|
|
|
Year
Ended December 31, 2006
|
|
|
|
|
|
|
|
|
|
|
(Restated)
|
|
|
(Restated)
|
|
|
(Restated)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Operating
expenses
|
|
$
|
(2,250
|
)
|
$
|
(10,837
|
)
|
$
|
(2,617,413
|
)
|
$
|
(3,294,445
|
)
|
$
|
(5,924,945
|
)
|
Interest
income
|
|
|
1,049
|
|
|
17
|
|
|
1,353,304
|
|
|
1,785,173
|
|
|
3,139,543
|
|
Interest
expense - stockholder
|
|
|
(2,959
|
)
|
|
(2.992
|
)
|
|
(22,291
|
)
|
|
(27,657
|
)
|
|
(55,899
|
)
|
Net
loss
|
|
$
|
(4,160
|
)
|
$
|
(13,812
|
)
|
$
|
(1,286,400
|
)
|
$
|
(1,536,929
|
)
|
$
|
(2,841,301
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
loss per common share - basic and diluted
|
|
$
|
(0.00
|
)
|
$
|
(0.00
|
)
|
$
|
(0.06
|
)
|
$
|
(0.06
|
)
|
$
|
(0.18
|
)
|
Weighted
average common shares outstanding -
basic
and diluted
|
|
|
5,831,349
|
|
|
5,831,349
|
|
|
22,270,845
|
|
|
27,221,747
|
|
|
15,366,555
|
|
Energy Infrastructure Acquisition Corp. (AMEX:EII)
Graphique Historique de l'Action
De Mai 2024 à Juin 2024
Energy Infrastructure Acquisition Corp. (AMEX:EII)
Graphique Historique de l'Action
De Juin 2023 à Juin 2024