exv10w7



 







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) in the IPO and (ii) 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 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, use its
best efforts to 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 file a registration
statement or deliver securities and shall not incur any penalties for failure to file a
registration statement or failure to deliver securities pursuant to this Section 7.1.



     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 use its best efforts, except as herein provided, to 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



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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. The Company shall not be obligated to file a registration
statement or deliver securities and shall not incur any penalties for failure to file a
registration statement or failure to deliver securities pursuant to this Section 7.2.



     7.3 Registration Procedures. To the extent the Company determines to file a registration
statement under Sections 7.1 or 7.2 above, 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



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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, Ferris, Baker
Watts Incorporated (“FBW”) or the other underwriters in the IPO with respect to their purchase of
the Placement Warrants, and the Purchasers agree 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 Purchasers of the
Placement Warrants or their transferees, heirs, assigns or any subsequent holders of the Placement
Warrants.



     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 West Virginia. 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 West Virginia or the
United States District Court for the District of West Virginia, 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.



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     IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the 5th day
of April, 2006.



	 	 	 	 	 	 	 
	 	 	ENERGY SERVICES ACQUISITION CORP.	 	 
	 
	 	 	 	 	 	 
	 

	 	By:
	 	/s/ Marshall T. Reynolds	 	 
	 

	 	Name:
	 	 

Marshall T. Reynolds
	 	 
	 

	 	Title:
	 	Chairman and Chief Executive Officer
	 	 
	 
	 	 	 	 	 	 
	 	 	PURCHASER:	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Marshall T. Reynolds	 	 
	 	 	 	 	 
	 	 	Name: Marshall T. Reynolds	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Jack Reynolds	 	 
	 	 	 	 	 
	 	 	Name: Jack Reynolds	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Joe Williams	 	 
	 	 	 	 	 
	 	 	Name: Joe Williams	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Ed Burns	 	 
	 	 	 	 	 
	 	 	Name: Ed Burns	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Neal Scaggs	 	 
	 	 	 	 	 
	 	 	Name: Neal Scaggs	 	 
	 
	 	 	 	 	 	 
	 	 	/s/ Douglas Reynolds	 	 
	 	 	 	 	 
	 	 	Name: Douglas Reynolds	 	 






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SCHEDULE A




	 	 	 	 	 	 	 	 	 
	 	 	 	 	 	 	Number of
	 	 	 	 	 	 	Warrants
	Marshall T. Reynolds
	 	$	1,749,997	 	 	 	2,692,303	 
	Jack Reynolds
	 	$	50,001	 	 	 	76,924	 
	Neal Scaggs
	 	$	50,001	 	 	 	76,924	 
	Edsel R. Burns
	 	$	50,001	 	 	 	76,924	 
	Joseph L. Williams
	 	$	50,001	 	 	 	76,924	 
	Douglas Reynolds
	 	$	50,001	 	 	 	76,924