FORM OF LETTER AGREEMENT
April [__], 2006
Energy Services Acquisition Corp.
0000 Xxxxx Xxxxxx
Xxxxxxxxxx, Xxxx Xxxxxxxx 00000
Xxxxxx, Xxxxx Xxxxx, Incorporated
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, including, but not limited to, the undersigned's
obligation to present business opportunities to________.
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April __, 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 _________________ and _________________ 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 _________________ and _________________ 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;
Energy Services Acquisition Corp.
Xxxxxx, Xxxxx Xxxxx, Incorporated
April __, 2006
Page 3
(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.
____________________________________
Print Name of Insider
/s/
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Signature
