LETTER AGREEMENT
Exhibit 10.1
April 4, 2006
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Initial Public Offering
Gentlemen:
The undersigned officer and director and stockholder of Energy Services Acquisition Corp.
(“Company”), in consideration of Xxxxxx, Xxxxx Xxxxx, Incorporated (“FBW”) entering
into a letter of intent (“Letter of Intent”) to underwrite an initial public offering of
the securities of the Company (“IPO”) and embarking on the IPO process, hereby agrees as
follows (certain capitalized terms used herein are defined in paragraph 11 hereof):
1. If the Company solicits approval of its stockholders of a Business Combination, the
undersigned will vote all shares of Common Stock of the Company, including the Insider Shares and
IPO Shares, owned by him in accordance with the majority of the votes cast by the holders of the
IPO Shares.
2. The undersigned will escrow his Insider Shares until six months after the consummation of a
Business Combination subject to the terms of a Stock Escrow Agreement which the Company will enter
into with the undersigned and an escrow agent acceptable to the Company.
3. In the event that the Company fails to consummate a Business Combination within 18 months
from the effective date (“Effective Date”) of the registration statement relating to the
IPO (or 24 months under the circumstances described in the prospectus relating to the IPO), the
undersigned will take all reasonable actions within his power to cause the Company to liquidate as
soon as reasonably practicable. The undersigned hereby waives any and all right, title, interest or
claim of any kind (“Claim”) in or to any distribution of the Trust Fund (as defined in the
Letter of Intent) with respect to his Insider Shares and waives any Claim the undersigned may have
in the future as a result of, or arising out of, any contracts or agreements with the Company and
will not seek recourse against the Trust Fund for any reason whatsoever. The undersigned agrees to
indemnify and hold harmless the Company against any and all loss, liability, claims, damage and
expense whatsoever (including, but not limited to, any and all legal or other expenses reasonably
incurred in investigating, preparing or defending against any litigation, whether pending or
threatened, or any claim whatsoever) which the Company may become subject to as a result of any
claim by any vendor, prospective target business or other entities that is owed money by the
Company for services rendered or products sold but only to the extent necessary to ensure that such
loss, liability, claim, damage or expenses does not reduce the amount in the Trust Fund.
4. In order to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees to present to the Company for its consideration, prior to
presentation to any other person or entity, any suitable opportunity to acquire an operating
business, until the earlier of the consummation by the Company of a Business Combination, the
liquidation of the Company or until such time as the undersigned ceases to be an officer or
director of the Company, subject to any pre-existing fiduciary obligations the undersigned might
have as of the date hereof.
5. The undersigned acknowledges and agrees that the Company will not consummate any Business
Combination which involves a company which is affiliated with any of the Insiders unless the
Company obtains an Energy Services Acquisition Corp. opinion from an independent investment banking firm reasonably acceptable to FBW that the
business combination is fair to the Company’s stockholders from a financial perspective.
6. Neither the undersigned, any member of the family of the undersigned, or any affiliate of
the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in
the event the undersigned, any member of the family of the undersigned or any affiliate of the
undersigned originates a Business Combination.
7. The undersigned agrees to be Chairman of the Board, Chief Executive Officer and Secretary
of the Company until the earlier of the consummation by the Company of a Business Combination or
the liquidation of the Company. The undersigned’s biographical information furnished to the Company
and FBW and attached hereto as Exhibit A is true and accurate in all respects, does not omit any
material information with respect to the undersigned’s background and contains all of the
information required to be disclosed pursuant to Section 401 of Regulation S-K, promulgated under
the Securities Act of 1933. The undersigned’s Questionnaire furnished to the Company and FBW and
annexed as Exhibit B hereto is true and accurate in all respects. The undersigned
represents and warrants that:
(a) he is not subject to or a respondent in any legal action for, any injunction
cease-and-desist order or order or stipulation to desist or refrain from any act or practice
relating to the offering of securities in any jurisdiction;
(b) he has never been convicted of or pleaded guilty to any crime (i) involving any
fraud or (ii) relating to any financial transaction or handling of funds of another person,
or (iii) pertaining to any dealings in any securities and he is not currently a defendant in
any such criminal proceeding; and
(c) he has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or
registration denied, suspended or revoked.
8. The undersigned has full right and power, without violating any agreement by which he is
bound, to enter into this letter agreement and to serve as Chairman of the Board, Chief Executive
Officer and Secretary of the Company.
9. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of
the undersigned will be entitled to receive and will not accept any compensation for services
rendered to the Company prior to the consummation of the Business Combination; provided that
commencing on the Effective Date, Xxxxxxx Printing Co. (“Related Party”), shall be allowed
to charge the Company an allocable share of Related Party’s expenses, up to $5,000 per month for
costs incurred for services that it will provide to the Company. Related Party and the undersigned
shall also be entitled to reimbursement from the Company for their out-of-pocket expenses incurred
in connection with seeking and consummating a Business Combination.
10. The undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to FBW and its legal representatives or agents (including any
investigative search firm retained by FBW) any information they may have about the undersigned’s
background and finances (“Information”), purely for the purposes of the Company’s IPO (and
shall thereafter hold such information confidential). Neither FBW nor its agents shall be violating
the undersigned’s right of privacy in any manner in requesting and obtaining the Information and
the undersigned hereby releases them from liability for any damage whatsoever in that connection.
11. As used herein, (i) a “Business Combination” shall mean an acquisition by merger, capital
stock exchange, asset or stock acquisition, reorganization or otherwise, of an operating business
selected by the Company; (ii) “Insiders” shall mean all officers, directors and stockholders of the
Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common
Stock of the Company owned by an Insider prior to the IPO; and (iv) “IPO Shares” shall mean the
shares of Common Stock issued in the Company’s IPO.
| Xxxxxxxx X. Xxxxxxxx | ||||
| Print Name of Insider | ||||
| /s/ Xxxxxxxx X. Xxxxxxxx | ||||
| Signature |
April 4, 2006
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Initial Public Offering
Gentlemen:
The undersigned officer and director and stockholder of Energy Services Acquisition Corp.
(“Company”), in consideration of Xxxxxx, Xxxxx Xxxxx, Incorporated (“FBW”) entering
into a letter of intent (“Letter of Intent”) to underwrite an initial public offering of
the securities of the Company (“IPO”) and embarking on the IPO process, hereby agrees as
follows (certain capitalized terms used herein are defined in paragraph 11 hereof):
1. If the Company solicits approval of its stockholders of a Business Combination, the
undersigned will vote all shares of Common Stock of the Company, including the Insider Shares and
IPO Shares, owned by him in accordance with the majority of the votes cast by the holders of the
IPO Shares.
2. The undersigned will escrow his Insider Shares until six months after the consummation of a
Business Combination subject to the terms of a Stock Escrow Agreement which the Company will enter
into with the undersigned and an escrow agent acceptable to the Company.
3. In the event that the Company fails to consummate a Business Combination within 18 months
from the effective date (“Effective Date”) of the registration statement relating to the
IPO (or 24 months under the circumstances described in the prospectus relating to the IPO), the
undersigned will take all reasonable actions within his power to cause the Company to liquidate as
soon as reasonably practicable. The undersigned hereby waives any and all right, title, interest or
claim of any kind (“Claim”) in or to any distribution of the Trust Fund (as defined in the
Letter of Intent) with respect to his Insider Shares and waives any Claim the undersigned may have
in the future as a result of, or arising out of, any contracts or agreements with the Company and
will not seek recourse against the Trust Fund for any reason whatsoever.
4. In order to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees to present to the Company for its consideration, prior to
presentation to any other person or entity, any suitable opportunity to acquire an operating
business, until the earlier of the consummation by the Company of a Business Combination, the
liquidation of the Company or until such time as the undersigned ceases to be an officer or
director of the Company, subject to any pre-existing fiduciary obligations the undersigned might
have as of the date hereof.
5. The undersigned acknowledges and agrees that the Company will not consummate any Business
Combination which involves a company which is affiliated with any of the Insiders unless the
Company obtains an
opinion from an independent investment banking firm reasonably acceptable to FBW that the
business combination is fair to the Company’s stockholders from a financial perspective.
6. Neither the undersigned, any member of the family of the undersigned, or any affiliate of
the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in
the event the undersigned, any member of the family of the undersigned or any affiliate of the
undersigned originates a Business Combination.
7. The undersigned agrees to be Director, President and Chief Financial Officer of the Company
until the earlier of the consummation by the Company of a Business Combination or the liquidation
of the Company. The undersigned’s biographical information furnished to the Company and FBW and
attached hereto as Exhibit A is true and accurate in all respects, does not omit any material
information with respect to the undersigned’s background and contains all of the information
required to be disclosed pursuant to Section 401 of Regulation S-K, promulgated under the
Securities Act of 1933. The undersigned’s Questionnaire furnished to the Company and FBW and
annexed as Exhibit B hereto is true and accurate in all respects. The undersigned
represents and warrants that:
(a) he is not subject to or a respondent in any legal action for, any injunction
cease-and-desist order or order or stipulation to desist or refrain from any act or practice
relating to the offering of securities in any jurisdiction;
(b) he has never been convicted of or pleaded guilty to any crime (i) involving any
fraud or (ii) relating to any financial transaction or handling of funds of another person,
or (iii) pertaining to any dealings in any securities and he is not currently a defendant in
any such criminal proceeding; and
(c) he has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or
registration denied, suspended or revoked.
8. The undersigned has full right and power, without violating any agreement by which he is
bound, to enter into this letter agreement and to serve as Director, President and Chief Financial
Officer of the Company.
9. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of
the undersigned will be entitled to receive and will not accept any compensation for services
rendered to the Company prior to the consummation of the Business Combination; provided that
commencing on the Effective Date, Xxxxxxx Printing Co. (“Related Party”), shall be allowed
to charge the Company an allocable share of Related Party’s expenses, up to $5,000 per month for
costs incurred for services that it will provide to the Company. Related Party and the undersigned
shall also be entitled to reimbursement from the Company for their out-of-pocket expenses incurred
in connection with seeking and consummating a Business Combination.
10. The undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to FBW and its legal representatives or agents (including any
investigative search firm retained by FBW) any information they may have about the undersigned’s
background and finances (“Information”), purely for the purposes of the Company’s IPO (and
shall thereafter hold such information confidential). Neither FBW nor its agents shall be violating
the undersigned’s right of privacy in any manner in requesting and obtaining the Information and
the undersigned hereby releases them from liability for any damage whatsoever in that connection.
11. As used herein, (i) a “Business Combination” shall mean an acquisition by merger, capital
stock exchange, asset or stock acquisition, reorganization or otherwise, of an operating business
selected by the Company; (ii) “Insiders” shall mean all officers, directors and stockholders of the
Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common Stock of the Company owned by an
Insider prior to the IPO; and (iv) “IPO Shares” shall mean the shares of Common Stock issued in the
Company’s IPO.
| Xxxx X. Xxxxxxxx
|
||||
| /s/ Xxxx X. Xxxxxxxx
|
April 4, 2006
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Initial Public Offering
Gentlemen:
The undersigned director and stockholder of Energy Services Acquisition Corp.
(“Company”), in consideration of Xxxxxx, Xxxxx Xxxxx, Incorporated (“FBW”) entering
into a letter of intent (“Letter of Intent”) to underwrite an initial public offering of
the securities of the Company (“IPO”) and embarking on the IPO process, hereby agrees as
follows (certain capitalized terms used herein are defined in paragraph 11 hereof):
1. If the Company solicits approval of its stockholders of a Business Combination, the
undersigned will vote all shares of Common Stock of the Company, including the Insider Shares and
IPO Shares, owned by him in accordance with the majority of the votes cast by the holders of the
IPO Shares.
2. The undersigned will escrow his Insider Shares until six months after the consummation of a
Business Combination subject to the terms of a Stock Escrow Agreement which the Company will enter
into with the undersigned and an escrow agent acceptable to the Company.
3. In the event that the Company fails to consummate a Business Combination within 18 months
from the effective date (“Effective Date”) of the registration statement relating to the
IPO (or 24 months under the circumstances described in the prospectus relating to the IPO), the
undersigned will take all reasonable actions within his power to cause the Company to liquidate as
soon as reasonably practicable. The undersigned hereby waives any and all right, title, interest or
claim of any kind (“Claim”) in or to any distribution of the Trust Fund (as defined in the
Letter of Intent) with respect to his Insider Shares and waives any Claim the undersigned may have
in the future as a result of, or arising out of, any contracts or agreements with the Company and
will not seek recourse against the Trust Fund for any reason whatsoever.
4. In order to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees to present to the Company for its consideration, prior to
presentation to any other person or entity, any suitable opportunity to acquire an operating
business, until the earlier of the consummation by the Company of a Business Combination, the
liquidation of the Company or until such time as the undersigned ceases to be an officer or
director of the Company, subject to any pre-existing fiduciary obligations the undersigned might
have as of the date hereof.
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 2
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 2
5. The undersigned acknowledges and agrees that the Company will not consummate any Business
Combination which involves a company which is affiliated with any of the Insiders unless the
Company obtains an
opinion from an independent investment banking firm reasonably acceptable to FBW that the
business combination is fair to the Company’s stockholders from a financial perspective.
6. Neither the undersigned, any member of the family of the undersigned, or any affiliate of
the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in
the event the undersigned, any member of the family of the undersigned or any affiliate of the
undersigned originates a Business Combination.
7. The undersigned agrees to be Director of the Company until the earlier of the consummation
by the Company of a Business Combination or the liquidation of the Company. The undersigned’s
biographical information furnished to the Company and FBW and attached hereto as Exhibit A is true
and accurate in all respects, does not omit any material information with respect to the
undersigned’s background and contains all of the information required to be disclosed pursuant to
Section 401 of Regulation S-K, promulgated under the Securities Act of 1933. The undersigned’s
Questionnaire furnished to the Company and FBW and annexed as Exhibit B hereto is true and
accurate in all respects. The undersigned represents and warrants that:
(a) he is not subject to or a respondent in any legal action for, any injunction
cease-and-desist order or order or stipulation to desist or refrain from any act or practice
relating to the offering of securities in any jurisdiction;
(b) he has never been convicted of or pleaded guilty to any crime (i) involving any
fraud or (ii) relating to any financial transaction or handling of funds of another person,
or (iii) pertaining to any dealings in any securities and he is not currently a defendant in
any such criminal proceeding; and
(c) he has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or
registration denied, suspended or revoked.
8. The undersigned has full right and power, without violating any agreement by which he is
bound, to enter into this letter agreement and to serve as Director of the Company.
9. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of
the undersigned will be entitled to receive and will not accept any compensation for services
rendered to the Company prior to the consummation of the Business Combination; provided that
commencing on the Effective Date, Xxxxxxx Printing Co. (“Related Party”), shall be allowed
to charge the Company an allocable share of Related Party’s expenses, up to $5,000 per month for
costs incurred for services that it will provide to the Company. Related Party and the undersigned
shall also be entitled to reimbursement from the Company for their out-of-pocket expenses incurred
in connection with seeking and consummating a Business Combination.
10. The undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to FBW and its legal representatives or agents (including any
investigative search firm retained by FBW) any information they may have about the undersigned’s
background and finances (“Information”), purely for the purposes of the Company’s IPO (and
shall thereafter hold such information confidential). Neither FBW nor its agents shall be violating
the undersigned’s right of privacy in any manner in requesting and obtaining the Information and
the undersigned hereby releases them from liability for any damage whatsoever in that connection.
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 3
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 3
11. As used herein, (i) a “Business Combination” shall mean an acquisition by merger, capital
stock exchange, asset or stock acquisition, reorganization or otherwise, of an operating business
selected by the Company; (ii) “Insiders” shall mean all officers, directors and stockholders of the
Company immediately prior to the IPO; (iii)
“Insider Shares” shall mean all of the shares of Common Stock of the Company owned by an
Insider prior to the IPO; and (iv) “IPO Shares” shall mean the shares of Common Stock issued in the
Company’s IPO.
| Xxxxx X. Xxxxx | ||
| Print Name of Insider | ||
| /s/ Xxxxx X. Xxxxx | ||
| Signature |
April 4, 2006
Energy Services Acquisition Corp.
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Initial Public Offering
Gentlemen:
The undersigned director and stockholder of Energy Services Acquisition Corp.
(“Company”), in consideration of Xxxxxx, Xxxxx Xxxxx, Incorporated (“FBW”) entering
into a letter of intent (“Letter of Intent”) to underwrite an initial public offering of
the securities of the Company (“IPO”) and embarking on the IPO process, hereby agrees as
follows (certain capitalized terms used herein are defined in paragraph 11 hereof):
1. If the Company solicits approval of its stockholders of a Business Combination, the
undersigned will vote all shares of Common Stock of the Company, including the Insider Shares and
IPO Shares, owned by him in accordance with the majority of the votes cast by the holders of the
IPO Shares.
2. The undersigned will escrow his Insider Shares until six months after the consummation of a
Business Combination subject to the terms of a Stock Escrow Agreement which the Company will enter
into with the undersigned and an escrow agent acceptable to the Company.
3. In the event that the Company fails to consummate a Business Combination within 18 months
from the effective date (“Effective Date”) of the registration statement relating to the
IPO (or 24 months under the circumstances described in the prospectus relating to the IPO), the
undersigned will take all reasonable actions within his power to cause the Company to liquidate as
soon as reasonably practicable. The undersigned hereby waives any and all right, title, interest or
claim of any kind (“Claim”) in or to any distribution of the Trust Fund (as defined in the
Letter of Intent) with respect to his Insider Shares and waives any Claim the undersigned may have
in the future as a result of, or arising out of, any contracts or agreements with the Company and
will not seek recourse against the Trust Fund for any reason whatsoever.
4. In order to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees to present to the Company for its consideration, prior to
presentation to any other person or entity, any suitable opportunity to acquire an operating
business, until the earlier of the consummation by the Company of a Business Combination, the
liquidation of the Company or until such time as the undersigned ceases to be an officer or
director of the Company, subject to any pre-existing fiduciary obligations the undersigned might
have as of the date hereof.
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 2
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 2
5. The undersigned acknowledges and agrees that the Company will not consummate any Business
Combination which involves a company which is affiliated with any of the Insiders unless the
Company obtains an opinion from an independent investment banking firm reasonably acceptable to FBW
that the business combination is fair to the Company’s stockholders from a financial perspective.
6. Neither the undersigned, any member of the family of the undersigned, or any affiliate of
the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in
the event the undersigned, any member of the family of the undersigned or any affiliate of the
undersigned originates a Business Combination.
7. The undersigned agrees to be Director of the Company until the earlier of the consummation
by the Company of a Business Combination or the liquidation of the Company. The undersigned’s
biographical information furnished to the Company and FBW and attached hereto as Exhibit A is true
and accurate in all respects, does not omit any material information with respect to the
undersigned’s background and contains all of the information required to be disclosed pursuant to
Section 401 of Regulation S-K, promulgated under the Securities Act of 1933. The undersigned’s
Questionnaire furnished to the Company and FBW and annexed as Exhibit B hereto is true and
accurate in all respects. The undersigned represents and warrants that:
(a) he is not subject to or a respondent in any legal action for, any injunction
cease-and-desist order or order or stipulation to desist or refrain from any act or practice
relating to the offering of securities in any jurisdiction;
(b) he has never been convicted of or pleaded guilty to any crime (i) involving any
fraud or (ii) relating to any financial transaction or handling of funds of another person,
or (iii) pertaining to any dealings in any securities and he is not currently a defendant in
any such criminal proceeding; and
(c) he has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or
registration denied, suspended or revoked.
8. The undersigned has full right and power, without violating any agreement by which he is
bound, to enter into this letter agreement and to serve as Director of the Company.
9. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of
the undersigned will be entitled to receive and will not accept any compensation for services
rendered to the Company prior to the consummation of the Business Combination; provided that
commencing on the Effective Date, Xxxxxxx Printing Co. (“Related Party”), shall be allowed
to charge the Company an allocable share of Related Party’s expenses, up to $5,000 per month for
costs incurred for services that it will provide to the Company. Related Party and the undersigned
shall also be entitled to reimbursement from the Company for their out-of-pocket expenses incurred
in connection with seeking and consummating a Business Combination.
10. The undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to FBW and its legal representatives or agents (including any
investigative search firm retained by FBW) any information they may have about the undersigned’s
background and finances (“Information”), purely for the purposes of the Company’s IPO (and
shall thereafter hold such information confidential). Neither FBW nor its agents shall be violating
the undersigned’s right of privacy in any manner in requesting and obtaining the Information and
the undersigned hereby releases them from liability for any damage whatsoever in that connection.
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 3
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 3
11. As used herein, (i) a “Business Combination” shall mean an acquisition by merger, capital
stock exchange, asset or stock acquisition, reorganization or otherwise, of an operating business
selected by the Company;
(ii) “Insiders” shall mean all officers, directors and stockholders of the Company immediately
prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common Stock of the
Company owned by an Insider prior to the IPO; and (iv) “IPO Shares” shall mean the shares of Common
Stock issued in the Company’s IPO.
| Xxxx X. Xxxxxx | ||
| Print Name of Insider | ||
| /s/ Xxxx X. Xxxxxx | ||
| Signature |
April 4, 2006
Energy Services Acquisition Corp.
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Xxxxxx, Xxxxx Xxxxx, Incorporated
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
000 Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Re: Initial Public Offering
Gentlemen:
The undersigned director and stockholder of Energy Services Acquisition Corp.
(“Company”), in consideration of Xxxxxx, Xxxxx Xxxxx, Incorporated (“FBW”) entering
into a letter of intent (“Letter of Intent”) to underwrite an initial public offering of
the securities of the Company (“IPO”) and embarking on the IPO process, hereby agrees as
follows (certain capitalized terms used herein are defined in paragraph 11 hereof):
1. If the Company solicits approval of its stockholders of a Business Combination, the
undersigned will vote all shares of Common Stock of the Company, including the Insider Shares and
IPO Shares, owned by him in accordance with the majority of the votes cast by the holders of the
IPO Shares.
2. The undersigned will escrow his Insider Shares until six months after the consummation of a
Business Combination subject to the terms of a Stock Escrow Agreement which the Company will enter
into with the undersigned and an escrow agent acceptable to the Company.
3. In the event that the Company fails to consummate a Business Combination within 18 months
from the effective date (“Effective Date”) of the registration statement relating to the
IPO (or 24 months under the circumstances described in the prospectus relating to the IPO), the
undersigned will take all reasonable actions within his power to cause the Company to liquidate as
soon as reasonably practicable. The undersigned hereby waives any and all right, title, interest or
claim of any kind (“Claim”) in or to any distribution of the Trust Fund (as defined in the
Letter of Intent) with respect to his Insider Shares and waives any Claim the undersigned may have
in the future as a result of, or arising out of, any contracts or agreements with the Company and
will not seek recourse against the Trust Fund for any reason whatsoever.
4. In order to minimize potential conflicts of interest which may arise from multiple
affiliations, the undersigned agrees to present to the Company for its consideration, prior to
presentation to any other person or entity, any suitable opportunity to acquire an operating
business, until the earlier of the consummation by the Company of a Business Combination, the
liquidation of the Company or until such time as the undersigned ceases to be an officer or
director of the Company, subject to any pre-existing fiduciary obligations the undersigned might
have as of the date hereof.
Energy
Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 2
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 2
5. The undersigned acknowledges and agrees that the Company will not consummate any Business
Combination which involves a company which is affiliated with any of the Insiders unless the
Company obtains an Energy Services Acquisition Corp.
opinion from an independent investment banking firm reasonably acceptable to FBW that the
business combination is fair to the Company’s stockholders from a financial perspective.
6. Neither the undersigned, any member of the family of the undersigned, or any affiliate of
the undersigned will be entitled to receive or accept a finder’s fee or any other compensation in
the event the undersigned, any member of the family of the undersigned or any affiliate of the
undersigned originates a Business Combination.
7. The undersigned agrees to be Director of the Company until the earlier of the consummation
by the Company of a Business Combination or the liquidation of the Company. The undersigned’s
biographical information furnished to the Company and FBW and attached hereto as Exhibit A is true
and accurate in all respects, does not omit any material information with respect to the
undersigned’s background and contains all of the information required to be disclosed pursuant to
Section 401 of Regulation S-K, promulgated under the Securities Act of 1933. The undersigned’s
Questionnaire furnished to the Company and FBW and annexed as Exhibit B hereto is true and
accurate in all respects. The undersigned represents and warrants that:
(a) he is not subject to or a respondent in any legal action for, any injunction
cease-and-desist order or order or stipulation to desist or refrain from any act or practice
relating to the offering of securities in any jurisdiction;
(b) he has never been convicted of or pleaded guilty to any crime (i) involving any
fraud or (ii) relating to any financial transaction or handling of funds of another person,
or (iii) pertaining to any dealings in any securities and he is not currently a defendant in
any such criminal proceeding; and
(c) he has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or
registration denied, suspended or revoked.
8. The undersigned has full right and power, without violating any agreement by which he is
bound, to enter into this letter agreement and to serve as Director of the Company.
9. Neither the undersigned, any member of the family of the undersigned, nor any affiliate of
the undersigned will be entitled to receive and will not accept any compensation for services
rendered to the Company prior to the consummation of the Business Combination; provided that
commencing on the Effective Date, Xxxxxxx Printing Co. (“Related Party”), shall be allowed
to charge the Company an allocable share of Related Party’s expenses, up to $5,000 per month for
costs incurred for services that it will provide to the Company. Related Party and the undersigned
shall also be entitled to reimbursement from the Company for their out-of-pocket expenses incurred
in connection with seeking and consummating a Business Combination.
10. The undersigned authorizes any employer, financial institution, or consumer credit
reporting agency to release to FBW and its legal representatives or agents (including any
investigative search firm retained by FBW) any information they may have about the undersigned’s
background and finances (“Information”), purely for the purposes of the Company’s IPO (and
shall thereafter hold such information confidential). Neither FBW nor its agents shall be violating
the undersigned’s right of privacy in any manner in requesting and obtaining the Information and
the undersigned hereby releases them from liability for any damage whatsoever in that connection.
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 3
Xxxxxx, Xxxxx Xxxxx, Incorporated
April 4, 2006
Page 3
11. As used herein, (i) a “Business Combination” shall mean an acquisition by merger, capital
stock exchange, asset or stock acquisition, reorganization or otherwise, of an operating business
selected by the Company; (ii) “Insiders” shall mean all officers, directors and stockholders of the
Company immediately prior to the IPO; (iii) “Insider Shares” shall mean all of the shares of Common
Stock of the Company owned by an Insider prior to the IPO; and (iv) “IPO Shares” shall mean the
shares of Common Stock issued in the Company’s IPO.
| Xxxxxx X. Xxxxxxxx | ||||
| Print Name of Insider | ||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Signature |
