GSC ACQUISITION COMPANY REPURCHASE AGREEMENT
EXHIBIT
10.11
GSC
ACQUISITION COMPANY
THIS
REPURCHASE AGREEMENT (this “Agreement”), dated as of May 29,
2007, is entered into by and between GSC Acquisition Company, a Delaware
corporation (the “Company”), Xxxxx X. Xxxxxxx, Xxxxxx X.
Xxxxxxx, and Xxxxxxx X. XxXxxxxx (each a “Seller” and
collectively the “Sellers”).
WITNESSETH
WHEREAS,
each Seller holds 27,344 shares of the Company’s common stock, par value $0.001
per share (a “Share”);
WHEREAS,
the Company has filed a registration statement (the “Registration
Statement”) for its initial public offering of units (the
“IPO”), each unit consisting of one Share and one warrant
to
purchase one Share, and now believes it is in its best interests to amend the
terms of the IPO, among other things, to decrease the number of units being
issued and increase by 25% the offering price of such units;
WHEREAS,
the Company still wishes the shares being sold to the public as part of the
units to represent approximately 80% of its outstanding share capital following
consummation of the IPO;
WHEREAS,
in light of the amended IPO terms, the Company has offered to repurchase from
each Seller the number of Shares set forth opposite the name of such Seller
on
Schedule A hereto (the “Subject Shares”);
WHEREAS,
the Sellers believes it is in the best interest of the Company and its
shareholders to proceed with the IPO on the amended terms, and wishes to
facilitate this by selling the Subject Shares back to the Company on the terms
and conditions set forth herein;
NOW
THEREFORE, in consideration of the mutual promises contained in this Agreement
and other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
Section
1. Purchase
and Sale.
Each
Seller hereby sells to the Company, and the Company hereby purchases from each
Seller, free and clear of all liens and encumbrances, the Subject Shares set
forth opposite the name of such Seller on Schedule A hereto,
for
a
purchase price of one dollar ($1.00) to each Seller, the due receipt of which
each Seller hereby acknowledges. The Sellers hereby agree to surrender the
certificates evidencing the Subject Shares set forth opposite the name of such
Seller on Schedule A hereto to the Company, and the Company shall duly cancel
such certificates and retire the Subject Shares as promptly as
practicable.
Section
2. Representations
and Warranties of the Sellers. Each Seller severally and not
jointly hereby represents and warrants that:
(A) State
Law Compliance. Such Seller has engaged in the transactions
contemplated by this Agreement within a state in which the offer and sale of
the
Subject Shares is permitted under applicable securities laws.
(B) Authorization. This
Agreement constitutes a valid and binding obligation of such Seller, enforceable
in accordance with its terms.
(C) Title
to Shares. Such Seller is the sole record owner of the Subject
Shares set forth opposite the name of such Seller on Schedule A hereto and
has
the power and right to sell, assign, transfer and deliver to the Company good
and valid title to, all such Subject Shares, free and clear of all
liens.
Section
3. Representations,
Warranties and Covenants of the Company. As a material
inducement to each Seller to enter into this Agreement and sell the Subject
Shares set forth opposite the name of such Seller on Schedule A hereto to the
Company, the Company hereby represents, warrants and covenants to each Seller
that:
(A) Organization
and Corporate Power. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State
of
Delaware. The Company possesses all requisite corporate power and authority
necessary to carry out the transactions contemplated by this
Agreement.
(B) Authorization;
No Breach.
(i) This
Agreement constitutes a valid and binding obligation of the Company, enforceable
in accordance with its terms.
(ii) The
execution and delivery by the Company of this Agreement and the fulfillment
of
and compliance with the respective terms hereof by the Company do not and shall
not as of the date hereof conflict with or result in a breach of the terms,
conditions or provisions of any agreement, instrument, order, judgment or decree
to which the Company is subject.
Section
4.
Further Agreements of the Sellers. Each Seller severally and not
jointly hereby acknowledges and agrees that in addition to the transfer
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restrictions
set forth in the Purchase Agreement by and among the Company, GSC Secondary
Interest Fund, LLC, a Delaware limited liability company, and such Seller,
dated
as of December 12, 2006 (in the case of Messrs. Xxxxxxx and Xxxxxxx) or December
21, 2006 (in the case of Xx. XxXxxxxx), as the case may be (each, an
“Initial Founder’s Shares Purchase Agreement”), such Seller
will not (A) offer, sell, contract to sell, pledge, hypothecate, grant any
option to purchase or otherwise dispose of (or enter into any transaction which
is designed to, or might reasonably be expected to, result in the disposition
(whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the Seller or any affiliate of the Seller or any
person in privity with the Seller or any affiliate of the Seller), directly
or
indirectly, including the participation in the filing of a registration
statement with the Securities and Exchange Commission in respect of, (B)
establish or increase a put equivalent position or liquidate or decrease a
call
equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and
Exchange Commission promulgated thereunder, with respect to or (C) enter into
any swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of, or any securities convertible
into or exercisable or exchangeable for, or other rights to purchase, whether
any such transaction is to be settled by delivery of Common Stock or such other
securities, in cash or otherwise, (i) any Initial Founder’s Shares (as defined
in the applicable Initial Founder’s Shares Purchase Agreement), or publicly
announce an intention to effect any such transaction, for a period of three
years after the date on which the IPO is consummated; provided,
however, that notwithstanding anything to the contrary in this Section
4,
such Seller may, at any time, transfer Initial Founder’s Shares to permitted transferees as contemplated
by
the Initial Founder’s
Shares Purchase
Agreement.
Section
5. Survival
of Representations and Warranties. All of the representations
and warranties contained herein shall survive the date of this
Agreement.
Section
6. Miscellaneous.
(A) Successors
and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any
of
the parties hereto shall bind and inure to the benefit of the respective
successors and assigns of the parties hereto whether so expressed or not.
Notwithstanding the foregoing or anything to the contrary herein, the parties
may not assign this Agreement.
(B) Severability. Whenever
possible, each provision of this Agreement shall be interpreted in such manner
as to be effective and valid under applicable law, but if any provision of
this
Agreement is held to be prohibited by or invalid
3
under
applicable law, such provision shall be ineffective only to the extent of such
prohibition or invalidity, without invalidating the remainder of this
Agreement.
(C) Counterparts. This
Agreement may be executed in counterparts, all of which taken together shall
constitute one and the same Agreement.
(D) Descriptive
Headings; Interpretation. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a substantive
part of this Agreement. The use of the word “including” in this Agreement shall
be by way of example rather than by limitation.
(E) Governing
Law. This Agreement shall be deemed to be a contract made under
the laws of the State of New York and for all purposes shall be construed in
accordance with the internal laws of said State. The parties agree that, all
actions and proceedings arising out of this Agreement or any of the transactions
contemplated hereby, shall be brought in the United States District Court for
the Southern District of New York or in a New York State Court in the County
of
New York and that, in connection with any such action or proceeding, submit
to
the jurisdiction of, and venue in, such court. Each of the parties hereto also
irrevocably waives all right to trial by jury in any action, proceeding or
counterclaim arising out of this Agreement or the transactions contemplated
hereby.
(F) Notices. All
notices, demands or other communications to be given or delivered under or
by
reason of the provisions of this Agreement shall be in writing and shall be
deemed to have been given when delivered personally to the recipient, sent
to
the recipient by reputable overnight courier service (charges prepaid) or mailed
to the recipient by certified or registered mail, return receipt requested
and
postage prepaid. Such notices, demands and other communications shall be
sent:
|
If
to the Company:
|
GSC
Acquisition Company
000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, XX 00000
Fax
No.: 000-000-0000
|
|
With
a copy to:
|
Xxxxxx
X. Xxxxxxxxxxx
Xxxxx
Xxxx & Xxxxxxxx
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx, XX 00000
Fax
No.: 000-000-0000
|
|
If
to the Seller:
|
To
the address set forth under the name
of
such Purchaser in Schedule A hereto
|
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or
to such
other address or to the attention of such other person as the recipient party
has specified by prior written notice to the sending party.
(G) No
Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Agreement. In the event an
ambiguity or question of intent or interpretation arises, this Agreement shall
be construed as if drafted jointly by the parties hereto, and no presumption
or
burden of proof shall arise favoring or disfavoring any party by virtue of
the
authorship of any of the provisions of this Agreement.
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IN
WITNESS
WHEREOF, the parties hereto have executed this Repurchase Agreement on the
date
first written above.
|
GSC
ACQUISITION COMPANY
|
|
| /s/ Xxxxxxx X. Xxxxxxx | |
|
By:
|
Xxxxxxx
X. Xxxxxxx
President
and Secretary
|
|
XXXXX
X. XXXXXXX
|
|
| /s/ Xxxxx X. Xxxxxxx | |
|
XXXXXXX
XXXXXXX XXXXXXXX
|
|
| /s/ Xxxxxxx Xxxxxxx XxXxxxxx | |
|
XXXXXX
X. XXXXXXX
|
|
| /s/ Xxxxxx X. Xxxxxxx | |
SCHEDULE
A
|
Xxxxx
X. Xxxxxxx
0
Xxxxx Xxxxx Xxxx
Xxxxxxxx,
XX 00000
Fax:
000-000-0000
|
8,594 |
|
Xxxxxxx
Xxxxxxx XxXxxxxx
0000
Xxxxx Xxxx
Xxxxxx,
Xxxxx 00000
|
8,594 |
|
Xxxxxx
X. Xxxxxxx
0000
Xxxxxxxx Xxxxx
Xxxxxxx,
XX 00000
|
8,594 |
