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Exhibit 10.7
WARRANT PLACEMENT AGREEMENT
WARRANT PLACEMENT AGREEMENT (this "Agreement") made as of this 5th
day of
April 2006 among Energy Services Acquisition Corp., a Delaware
corporation (the
"Company") and the persons set forth at Schedule A (the
"Purchasers").
WHEREAS, the Company intends to file with the Securities and
Exchange
Commission ("SEC") a registration statement on Form S-1, (the
"Registration
Statement"), in connection with the Company's initial public
offering (the
"IPO") of up to 10,000,000 units, each unit ("Unit") consisting of
one share of
the Company's common stock, $.0001 par value (the "Common Stock"),
and two
warrants (the "Warrants"), each Warrant to purchase one share of
Common Stock;
and
WHEREAS, the Company desires to sell in a private placement to
the
Purchasers (the "Placement") an aggregate of 3,076,923 Warrants
(the "Placement
Warrants") substantially identical to the Warrants being issued in
the IPO
pursuant to the terms and conditions hereof and as set forth in the
Registration
Statement, except that the Placement Warrants to be issued in the
Placement
shall not be registered under the Securities Act of 1933, as
amended (the
"Securities Act");
WHEREAS, the Purchasers desires to acquire the number of Placement
Warrants
set forth opposite their name on Schedule A hereto;
WHEREAS, the Warrants included in the Placement Warrants shall be
governed
by the Warrant Agreement filed as an exhibit to the Registration
Statement.
WHEREAS, the Purchasers are entitled to registration rights with
respect to
the Warrants comprising the Placement Warrants and the Common Stock
underlying
such Warrants (collectively, the "Registrable Securities") on the
terms set
forth in this Agreement.
NOW,
THEREFORE, for and in consideration of the premises and the
mutual
covenants hereinafter set forth, the parties hereto do hereby agree
as follows:
1.
Purchase of Placement Warrants. The Purchasers hereby agree,
directly or
through nominees, to purchase an aggregate of 3,076,923 Placement
Warrants at a
purchase price of $0.65 per Placement Warrant, or an aggregate of
$2,000,000
(the "Purchase Price"). Such purchases shall be in the names and
amounts set
forth on Schedule A hereto.
2.
Closing. The closing of the purchase and sale of the Placement
Warrants
(the "Closing") will take place at such time and place as the
parties may agree
(the "Closing Date"), but in no event later than the date on which
the SEC
declares the Registration Statement effective (the "Effective
Date"). On the
Effective Date, the Purchasers shall pay the Purchase Price by wire
transfer of
funds to an account maintained by the Company. Immediately prior to
the closing
of the IPO, the Company shall deposit $2,000,000 of the Purchase
Price into the
trust account described in the Registration Statement (the "Trust
Account"). The
certificates for the Warrants comprising the Placement Warrants
shall be delivered to the Purchasers promptly after the closing of
the IPO.
3.
Voting of Shares. If the Company solicits approval of its
stockholders
of a Business Combination, the Purchasers shall vote all of the
shares of the
Common Stock acquired by the Purchasers (i) pursuant to this
Agreement, (ii) in
the IPO and (iii) in the aftermarket in accordance with a majority
of the shares
voted by the public shareholders in the IPO and therefore waive any
redemption
rights they might have with respect to certain of such shares. As
used herein, a
"Business Combination" shall mean an acquisition by merger, capital
stock
exchange, asset or stock acquisition of, or similar business
combination with,
one or more entities with agreements to acquire an operating
business selected
by the Company.
4.
Waiver of Liquidation Distributions. In connection with the
Placement
Warrants purchased pursuant to this Agreement, the Purchasers
hereby waives any
and all right, title, interest or claim of any kind in or
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2.2
Piggy-Back Registration.
to any liquidating distributions by the Company in the event of a
liquidation of
the Company upon the Company's failure to timely complete a
Business
Combination. For purposes of clarity, any shares of Common Stock
purchased in
the IPO or the aftermarket by the Purchasers shall be eligible to
receive any
liquidating distributions by the Company.
5.
Lock-Up Agreement. The Purchasers shall not sell, assign,
hypothecate,
or transfer any of the Warrants purchased pursuant to this
Agreement until
the consummation of a Business Combination.
6.
Representations and Warranties of the Purchasers. Each Purchaser
hereby
represents and warrants to the Company that:
6.1
The Purchaser is an "accredited investor" as that term is defined
in
Rule 501 of Regulation D promulgated under the Securities Act.
6.2
The Placement Warrants are being acquired for the Purchaser's
own
account, only for investment purposes and not with a view to, or
for resale in
connection with, any distribution or public offering thereof within
the meaning
of the Securities Act.
6.3
The Purchaser has the full right, power and authority to enter
into
this Agreement and this Agreement is a valid and legally binding
obligation of
the Purchaser enforceable against the Purchaser in accordance with
its terms.
7.
Registration Rights.
7.1
Demand Registration. At any time and from time to time on or after
the
date on which the Company has publicly announced that it has
entered into a
letter of intent or made a comparable announcement with respect to
a Business
Combination, the Purchasers or their transferees holding a
majority-in-interest
of the Registrable Securities may make a written demand for
registration under
the Securities Act of all or part of their Registrable Securities
(a "Demand
Registration"). Any demand for a Demand Registration shall specify
the number of
Registrable Securities proposed to be sold and the intended
method(s) of
distribution thereof. The Company will notify all holders of
Registrable
Securities of the demand, and each holder of Registrable Securities
who wishes
to include all or a portion of such holder's Registrable Securities
in the
Demand Registration (each such holder including shares of
Registrable Securities
in such registration, a "Demanding Holder") shall so notify the
Company within
fifteen (15) days after the receipt by the holder of the notice
from the
Company. Upon any such request, the Demanding Holders shall be
entitled to have
their Registrable Securities included in the Demand Registration.
The Company
shall, as expeditiously as possible and in any event within sixty
(60) days
after receipt of a request for a Demand, prepare and file with the
SEC a
Registration Statement on any form for which the Company then
qualifies or which
counsel for the Company shall deem appropriate and which form shall
be available
for the sale of all Registrable Securities to be registered
thereunder in
accordance with the intended method(s) of distribution thereof, and
shall use
its best efforts to cause such Registration Statement to become
effective as
promptly as practicable, but in no event prior to the consummation
of the
Business Combination. The Company shall not be obligated to effect
more than two
Demand Registrations in respect of Registrable Securities.
7.2
"Piggyback" Registration Rights. Subject to the last sentence of
this
Section 7.2, at any time after a Business Combination, if the
Company shall
determine to proceed with the actual preparation and filing of a
new
registration statement under the Securities Act in co
