exv10w11



 






EXHIBIT 10.11 




UNIT PLACEMENT AGREEMENT








     UNIT
PLACEMENT AGREEMENT (this “Agreement”) made as of this
___day of April 2006 among JK
Acquisition Corp., a Delaware corporation (the “Company”), Ferris, Baker Watts Incorporated (“FBW”)
and the undersigned (the “Purchasers”).







     WHEREAS, the Company has filed with the Securities and Exchange Commission (“SEC”) a
registration statement on Form S-1, as amended (File No. 333-125211) (the “Registration
Statement”), in connection with the Company’s initial public offering (the “IPO”) of up to
9,666,666 units, each unit (“Unit”) consisting of one share of the Company’s common stock, $.0001
par value (the “Common Stock”), and (ii) 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 333,334 units (the “Placement Units”) substantially identical to the
Units being issued in the IPO pursuant to the terms and conditions hereof and as set forth in the
Registration Statement, except that the Placement Units, Common Stock and Warrants to be issued in
the Placement shall not be registered under the Securities Act of 1933, as amended (the “Securities
Act”), in the IPO;



     WHEREAS, each Purchaser desires to acquire the number of Placement Units set forth opposite
his name on Schedule A hereto;



     WHEREAS, the Warrants included in the Placement Units shall be governed by the Warrant
Agreement filed as an exhibit to the Registration Statement; and



     WHEREAS, the Purchasers are entitled to registration rights with respect to the Common Stock
and the Warrants comprising the Placement Units and the Common Stock underlying such Warrants
(collectively, the “Registrable Securities”) on the terms set forth in this Agreement; and




     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 Units. The Purchasers hereby agree, directly or through nominees, to
purchase an aggregate of 333,334 Placement Units at a purchase price of $6.00 per Placement
Unit, or an aggregate of $2,000,004 (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 Units (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 $2,000,004 of the Purchase Price into the
trust account described in the Registration Statement (the “Trust Account”). The
certificates for the Common Stock and Warrants comprising the Placement Units 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 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 Units purchased
pursuant to this Agreement, the Purchasers hereby waive any and all right, title, interest
or claim of any kind in or 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 Common Stock 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 Units, Common Stock and 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 connection with the proposed offer and sale of any of its
securities by it or any of its security holders (other than a registration statement on
Form S-4, S-8 or other limited purpose form), the Company will give written notice of
its determination to the Purchasers or their nominees. Upon the written request from a
majority-in-interest of the Purchasers, within 15 days after receipt of any such notice
from the Company, the Company will, except as herein provided, cause all of the
Registrable Securities covered by such request (the “Requested Stock”) held by the
Purchasers making such request (the “Requesting Holders”) to be included in such
registration statement (each, a “Piggy-Back Registration”), all to the extent requisite
to permit the sale or other disposition by the prospective seller or sellers of the
Requested Stock; provided, further, that nothing herein shall prevent the Company from,
at any time, abandoning or delaying any registration. If any registration pursuant to
this Section 7.2 shall be underwritten in whole or in part, the Company





 









 






	 	 	 	may require that the Requested Stock be included in the underwriting on the same terms
and conditions as the securities otherwise being sold through the underwriters. In such
event, the Requesting Holders shall, if requested by the underwriters, execute an
underwriting agreement containing customary representations and warranties by selling
stockholders and a lock-up on Registrable Securities not being sold. If in the good
faith judgment of the managing underwriter of such public offering the inclusion of all
of the Requested Stock would reduce the number of shares to be offered by the Company or
interfere with the successful marketing of the shares of stock offered by the Company,
the number of shares of Requested Stock otherwise to be included in the underwritten
public offering may be reduced pro rata (by number of shares) among the Requesting
Holders and all other holders of registration rights who have requested inclusion of
their securities or excluded in their entirety if so required by the underwriter. To the
extent only a portion of the Requested Stock is included in the underwritten public
offering, those shares of Requested Stock which are thus excluded from the underwritten
public offering and any other securities of the Company held by such holders shall be
withheld from the market by the Holders thereof for a period, not to exceed 90 days,
which the managing underwriter reasonably determines is necessary in order to effect the
underwritten public offering. At such time as the provisions of the registration rights
agreement filed as an exhibit to the Registration Statement covering the shares of
Common Stock acquired by the Purchasers prior to the IPO may be exercised, the exercise
and procedural provisions of such agreement, rather than the provisions of Sections 7.2,
7.3 and 7.4 hereof, shall govern the Registrable Securities with respect to Piggy-Back
Registrations.
	 
	 	7.3	 	Registration Procedures. To the extent required by Sections 7.1 or 7.2, the
Company will:






	 	(a)	 	prepare and file with the SEC a registration statement with respect to
such securities, and use its best efforts to cause such registration statement to
become and remain effective until the earlier of the date on which all of the
Registrable Securities included in the registration statement have been disposed of
in accordance with the intended method(s) of distribution set forth in such
Registration Statement or three years from the effective date;
	 
	 	(b)	 	prepare and file with the SEC such amendments to such registration
statement and supplements to the prospectus contained therein as may be necessary
to keep such registration statement effective until the earlier of the date on
which all of the Registrable Securities included in the registration statement have
been disposed of in accordance with the intended method(s) of distribution set
forth in such Registration Statement or three years from the effective date;
	 
	 	(c)	 	furnish to the holders participating in such registration and to the
underwriters of the securities being registered such reasonable number of copies of
the registration statement, preliminary prospectus, final prospectus and such other
documents as such underwriters may reasonably request in order to facilitate the
public offering of such securities;
	 
	 	(d)	 	use its best efforts to register or qualify the securities covered by
such registration statement under such state securities or blue sky laws of such
jurisdictions as the





 









 






	 	 	 	holders may reasonably request in writing within 20 days following the original
filing of such registration statement, except that the Company shall not for any
purpose be required to execute a general consent to service of process or to qualify
to do business as a foreign corporation in any jurisdiction wherein it is not so
qualified;
	 
	 	(e)	 	notify the holders, promptly after it shall receive notice thereof, of
the time when such registration statement has become effective or a supplement to
any prospectus forming a part of such registration statement has been filed;
	 
	 	(f)	 	notify the holders promptly of any request by the SEC for the amending
or supplementing of such registration statement or prospectus or for additional
information;
	 
	 	(g)	 	prepare and promptly file with the SEC and promptly notify such holders
of the filing of such amendment or supplement to such registration statement or
prospectus as may be necessary to correct any statements or omissions if, at the
time when a prospectus relating to such securities is required to be delivered
under the Securities Act, any event shall have occurred as the result of which any
such prospectus or any other prospectus as then in effect would include an untrue
statement of a material fact or omit to state any material fact necessary to make
the statements therein, in the light of the circumstances in which they were made,
not misleading; and
	 
	 	(h)	 	advise the holders, promptly after it shall receive notice or obtain
knowledge thereof, of the issuance of any stop order by the SEC suspending the
effectiveness of such registration statement or the initiation or threatening of
any proceeding for that purpose and promptly use its best efforts to prevent the
issuance of any stop order or to obtain its withdrawal if such stop order should be
issued.




The Purchasers shall cooperate with the Company in providing the information necessary to effect
the registration of the Registrable Securities, including completion of customary questionnaires.





	 	7.4	 	Expenses. The Company shall bear all costs and expenses incurred in connection
with any Demand Registration pursuant to Section 7.1, any Piggy-Back Registration
pursuant to Section 7.2, and all expenses incurred in performing or complying with its
other obligations under this Agreement, whether or not the Registration Statement
becomes effective, including, without limitation: (i) all registration and filing fees;
(ii) fees and expenses of compliance with securities or “blue sky” laws (including fees
and disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities); (iii) printing expenses; (iv) the Company’s internal expenses
(including, without limitation, all salaries and expenses of its officers and
employees); (v) the fees and expenses incurred in connection with the exchange listing
of the Registrable Securities; (vi) National Association of Securities Dealers, Inc.
fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for
independent certified public accountants retained by the Company (including the
expenses or costs associated with the delivery of any opinions or comfort letters);
(viii) the fees and expenses of any special experts retained by the Company in
connection with such registration and (ix) the fees and expenses of one





 









 






	 	 	 	legal counsel selected by the holders of a majority-in-interest of the Registrable
Securities included in such registration. The Company shall have no obligation to pay
any underwriting discounts or selling commissions attributable to the Registrable
Securities being sold by the holders thereof, which underwriting discounts or selling
commissions shall be borne by such holders. Additionally, in an underwritten offering,
all selling shareholders and the Company shall bear the expenses of the underwriter pro
rata in proportion to the respective amount of shares each is selling in such offering.






	 	8.	 	Waiver of Claims; Indemnification The Purchasers hereby waive any and all rights to
assert any present or future claims, including any right of rescission, against the
Company, FBW or the other underwriters in the IPO with respect to their purchase of the
Placement Units, and each Purchaser agrees jointly and severally to indemnify and hold the
Company, FBW and the other underwriters in the IPO harmless from all losses, damages or
expenses that relate to claims or proceedings brought against the Company, FBW or such
other underwriters by any Purchaser of the Placement Units or their transferees, heirs,
assigns or any subsequent holders of the Placement Units.
	 
	 	9.	 	Counterparts; Facsimile. This Agreement may be executed in any number of counterparts,
each of which when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same instrument. This Agreement or any counterpart
may be executed via facsimile transmission, and any such executed facsimile copy shall be
treated as an original.
	 
	 	10.	 	Governing Law. This Agreement shall for all purposes be deemed to be made under and
shall be construed in accordance with the laws of the State of Texas. Each of the
parties hereby agrees that any action, proceeding or claim against it arising out of or
relating in any way to this Agreement shall be brought and enforced in the courts of the
State of Texas or the United States District Court for the District of Texas, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of
the parties hereby waives any objection to such exclusive jurisdiction and that such courts
represent an inconvenient forum.





[Remainder of this page intentionally left blank; signature page follows.]




 









 









     IN
WITNESS WHEREOF, the undersigned have executed this Agreement as of
the ___day of April
2006.



	 	 	 	 	 
	 	 	JK ACQUISITION CORP.
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	James P. Wilson
	 

	 	 	 	 
	 

	 	Title:
	 	Chairman and Chief Executive Officer
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	FERRIS, BAKER WATTS INCORPORATED
	 
	 	 	 	 
	 

	 	By:
	 	 
	 

	 	 	 	 
	 

	 	Name:
	 	 
	 

	 	 	 	 
	 

	 	Title:
	 	 
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	PURCHASERS:
	 
	 	 	 	 
	 	 	 
	 

	 	Name:	 	Keith D. Spickelmier
	 

	 	 	 	 
	 
	 	 	 	 
	 
	 	 	 	 
	 	 	 
	 

	 	Name:	 	James P. Wilson
	 

	 	 	 	 









 









 





SCHEDULE A



	 	 	 	 	 
	Purchaser	 	Units	 
	 	 	 	 
	James P. Wilson	 	 	183,334	 
	Keith D. Spickelmier	 	 	150,000	 
	 	 	 	 
	 	 	 	333,334