Form of Letter Agreement for
Exhibit
10.2
[Form
of
Letter Agreement for
Directors
and Officers of GSC Acquisition Company]
,
2007
GSC
Acquisition Company
000
Xxxxxx
Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, Xxx Xxxxxx 00000
Re:
Initial Public Offering of GSC Acquisition Company
Ladies
and
Gentlemen:
This
letter is being delivered to you in accordance with the Underwriting Agreement
(the “Underwriting Agreement”) entered into by and between GSC Acquisition
Company, a Delaware corporation (the “Company”), and Citigroup Global Markets
Inc., as representative (the “Representative”) of the underwriters named in
Schedule I thereto (the “Underwriters”), relating to an underwritten initial
public offering (the “IPO”) of the Company’s units (the “Units”), each composed
of one share of the Company’s common stock, par value $0.001 per share (the
“Common Stock”), and one warrant, which is exercisable for one share of Common
Stock (the “Warrants”). Certain capitalized terms used herein are defined in
paragraph 9 hereof.
In
order
to induce the Company and the Underwriters to enter into the Underwriting
Agreement and to proceed with the IPO, and in recognition of the benefit that
such IPO will confer upon the undersigned officer and/or director of the
Company, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the undersigned hereby agrees
with
the Company as follows:
1. In
the
event that the Company fails to consummate an Initial Business Combination
within 24 months from the effective date (the “Effective Date”) of the
registration statement on Form S-1 (File No. 333-138832) relating to the IPO
(the “Registration Statement”), the undersigned will take all reasonable actions
within his or her power to (a) cause the Trust Account to be liquidated and
distributed to the holders of the IPO Shares as soon as reasonably practicable
and (b) cause the Company to liquidate as soon as reasonably practicable (the
earliest date on which the conditions in clauses (a) and (b) are both satisfied
being the “Liquidation Date”). The undersigned agrees that in connection with
any cessation of corporate existence of the Company on [_______], 2009, he
or
she will cause the Company to adopt a plan of dissolution and distribution
in
accordance with Section 281(b) of the General Corporation Law of the State
of
Delaware or any successor provision thereto.
2. (a) Neither
the undersigned, nor any member of the family of the undersigned, nor any
affiliate of the undersigned, will be entitled to receive, and no such person
will accept, any finder’s fee reimbursement or cash payment from the Company for
any services rendered to the Company prior to or in connection with the
consummation of an Initial Business Combination, other than (subject to the
following sentence) (i) repayment of advances of up to $700,000 made to the
Company by GSCP (NJ) Holdings, L.P., to cover offering-related and
organizational expenses; (ii) a payment of an aggregate of $7,500 per month
to
GSCP (NJ) Holdings, L.P., for office space, secretarial and administrative
services; and (iii) reimbursement for any out-of-pocket expenses related to
the
IPO and identifying, investigating and consummating an Initial Business
Combination. The undersigned acknowledges that the Company’s Audit Committee (or
the Company’s Board of Directors in the case of a director who is a member of
the Company’s Audit Committee) will review and approve all payments made to the
undersigned, the Company’s other officers and directors and the Company’s or
their affiliates, other than the $7,500 per month payment described in the
immediately preceding sentence.
(b) Neither
the undersigned, nor any member of the family of the undersigned, nor any
affiliate of the undersigned, will accept a finder’s fee, consulting fee or any
other compensation or fees from any person or other entity in connection with
an
Initial Business Combination, other than compensation or fees that may be
received for any services provided following such Initial Business
Combination.
3. The
undersigned agrees not to resign as [Chairman of the Board of
Directors][Director, Chief Executive Officer and Principal Accounting
Officer][Director and President][Director] until the earlier of the consummation
by the Company of an Initial Business Combination or the Liquidation Date.
[(The
undersigned acknowledges that the foregoing does not limit in any way the right
of the Company to terminate the undersigned’s employment at any time, subject to
any other contractual rights the undersigned may have.)]1
The
undersigned’s biographical information furnished to the Company 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, as amended. The undersigned’s NASD
questionnaire furnished to the Company and the Underwriters and attached hereto
as Exhibit
B
is true
and accurate in all respects. The undersigned represents and warrants
that:
1
Applicable only to officers.
2
(a) the
undersigned 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) the
undersigned 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 the undersigned is not currently a defendant in any such criminal
proceeding; and
(c) the
undersigned 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.
4. [The
undersigned agrees that, during the period commencing on the Effective Date
and
extending until the earlier of the closing of the Company’s Initial Business
Combination or the Liquidation Date, he or she will not become affiliated as
an
officer, director, or stockholder of a blank check company or blind pool
company; provided,
however,
that
nothing contained herein shall override a person’s fiduciary obligations to any
entity with which he or she is currently directly or indirectly associated
or
affiliated or by whom he or she is currently employed.
The
undersigned hereby agrees and acknowledges that (i) each of the Underwriters
and
the Company would be irreparably injured in the event of a breach by the
undersigned of any of his or her obligations under this paragraph 4, (ii)
monetary damages would not be an adequate remedy for any such breach, and (iii)
the non-breaching party shall be entitled to injunctive relief, in addition
to
any other remedy such party may have, in the event of such breach.]2
5. [The
undersigned agrees that, prior to the consummation of the Initial Business
Combination, he or she will not propose any amendment to Article Sixth of the
Company’s Amended and Restated Certificate of Incorporation or support, endorse
or recommend any proposal that stockholders amend any of these
provisions.]3
6. The
undersigned has full right and power, without violating any agreement by which
he or she is bound (including, without limitation, any non-competition or
non-solicitation agreement with any employer or former employer),
2 This
section applies only to Xx. Xxxxxx.
3
This
section applies only to directors of the Company.
3
to
enter
into this letter agreement and serve as [Chairman of the Board of
Directors][Director, Chief Executive Officer and Principal Accounting
Officer][Director and President][Director], and hereby consents to being named
in the Registration Statement as a[n] [officer] [director] of the
Company.
7. If
the
Company seeks approval of its stockholders of an Initial Business Combination,
the undersigned will:
(a) [vote
any
Initial Founder’s Shares owned directly or indirectly by it in accordance with
the majority of the shares of Common Stock voted by the Company’s Public
Stockholders in connection with the vote on any Initial Business Combination;
and]4
(b) vote
all
shares of Common Stock that he or she may acquire in or following the IPO in
favor of the Initial Business Combination.
8. [The
undersigned hereby waives any and all right, title, interest or claim of any
kind in or to any distributions of the Trust Account, or to any other amounts
distributed in connection with a liquidating distribution of the Company, with
respect to its Initial Founder’s Shares (any “Claim”), and hereby 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 Account for any reason whatsoever; provided
that the
foregoing shall not apply to any IPO Shares acquired by the undersigned. The
undersigned hereby agrees that the Company shall be entitled to reimbursement
from the undersigned for any distribution of the Trust Account or any other
amounts distributed by the Company in connection with a liquidating distribution
received by the undersigned with respect to its Initial Founder’s
Shares.]5
9. As
used
herein, (i) “Initial Business Combination” shall mean the acquisition through a
merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or other similar business combination, of one or more businesses
or assets in connection with which the Company will require that a majority
of
the shares of Common Stock voted by the Public Stockholders are voted in favor
of such acquisition and stockholders owning less than 20% of the IPO Shares
exercise their conversion rights; (ii) [“Initial Founder’s Shares” shall mean
21,875 shares of Common Stock owned by the undersigned and acquired prior to
the
IPO;]6
(iii)
“IPO Shares” shall mean the shares of Common Stock
4 Applicable
only to Messrs. Xxxxxxx, XxXxxxxx and Xxxxxxx.
5 Applicable
only to Messrs. Xxxxxxx, XxXxxxxx and Xxxxxxx.
6 Applies
only to Messrs. Xxxxxxx, XxXxxxxx and Xxxxxxx.
4
underlying
the Units issued in the Company’s IPO; (iv) “Public Stockholders” shall mean
purchasers of Common Stock in the IPO or in the secondary market, including
any
of the Company’s officers or directors or their affiliates, including the
undersigned, to the extent that they purchase or acquire Common Stock in the
IPO
or the secondary market; and (v) “Trust Account” shall mean the trust account
established under the Investment Management Trust Agreement, dated as of the
date hereof, by and between the Company and American Stock Transfer & Trust
Company.
The
undersigned acknowledges and understands that the Company and the Underwriters
will rely upon the agreements, representations and warranties set forth herein
in proceeding with the IPO. Nothing contained herein shall be deemed to render
the Underwriters a representative of, or a fiduciary with respect to, the
Company, its stockholders, or any creditor or vendor of the Company with respect
to the subject matter hereof.
This
letter agreement shall be binding on the undersigned and such person’s
respective successors, heirs, personal representatives and assigns. This letter
agreement shall terminate on the earlier of (i) the consummation of an Initial
Business Combination and (ii) the Liquidation Date; provided
that such
termination shall not relieve the undersigned from liability for any breach
of
this agreement prior to its termination.
This
letter agreement shall be governed by and interpreted and construed in
accordance with the laws of the State of New York applicable to contracts formed
and to be performed entirely within the State of New York, without regard to
the
conflicts of law provisions thereof to the extent such principles or rules
would
require or permit the application of the laws of another jurisdiction.
No
term or
provision of this letter agreement may be amended, changed, waived, altered
or
modified except by written instrument executed and delivered by the party
against whom such amendment, change, waiver, alteration or modification is
to be
enforced.
[Signature
Page Follows]
5
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By:
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___________________________
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Name:
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Title:
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Accepted
and agreed:
GSC
ACQUISITION COMPANY
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By:
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___________________________
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Name:
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Title:
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Exhibit
A
[Biographical
Information Furnished to the Company]
A-1
Exhibit
B
[NASD
Questionnaires Furnished to the Company and the Underwriters]
B-1
