Form of Letter Agreement for GSC Secondary Interest Fund, LLC]
EXHIBIT
10.1
[Form
of
Letter Agreement for
GSC
Secondary Interest Fund, LLC]
,
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 8 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 as a stockholder 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. 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
(b) vote
any IPO Shares owned directly or indirectly by it in favor of the Initial
Business Combination.
2.
(a) 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.
(b) In
the case of the Company’s dissolution and liquidation, the undersigned
understands that the Company expects that all costs and expenses associated
with
implementing the Company’s plan of distribution, as well as payments to any
creditors, will be funded from amounts remaining out of the $50,000 of proceeds
from the IPO held outside the Trust Account and from the $2.0 million in
interest income on the balance of the Trust Account that will be released to
the
Company to fund its working capital requirements. The undersigned further
understands that if those funds are not sufficient to cover the costs and
expenses associated with implementing the Company’s plan of distribution, to the
extent that there is any interest accrued in the Trust Account not required
to
pay income taxes on interest income earned on the Trust Account balance, the
Company may request that the Trustee release to it an additional amount of
up to
$75,000 of such accrued interest to pay those costs and expenses. Should there
be no such accrued interest available or should the aforementioned funds still
not be sufficient, the undersigned hereby agrees to reimburse the Company for
its out-of-pocket costs associated with its dissolution and liquidation,
excluding any special, indirect or consequential costs, such as litigation,
pertaining to the dissolution and liquidation. The undersigned hereby
represents and warrants to the Company that it has sufficient funds available
to
it to satisfy its obligations under this agreement.
3. The
undersigned agrees to indemnify and hold harmless the Company against any and
all losses, liabilities, claims, damages and expenses 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) (collectively, “Damages”) to which the
Company may become subject, but only if, and to the extent (i) the claims reduce
the amounts in the Trust Account available for payment to holders of the IPO
Shares in the event of a liquidation of the Trust Account and (ii) the claims
are made by (A) a vendor for services rendered, or products sold, to the
Company, (B) by a third party with which the Company enters into a contractual
relationship following consummation of the IPO, or (C) by a prospective target
business arising out of any negotiations, contracts or agreements with the
Company, provided that such indemnity shall not apply to
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any
amounts claimed owed to a third party who executed a valid and enforceable
waiver of any right, title, interest or claim of any kind in or to the Trust
Account, or as to any claims under the Company’s obligation to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933, as amended.
4. (a) Neither
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 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 $975,000 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 will review and approve all payments made to the undersigned, the
Company’s 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 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.
5. The
undersigned’s NASD questionnaire furnished to the Company and the Underwriters
and attached hereto as Exhibit A is true and accurate in all respects.
The undersigned represents and warrants that:
(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
3
had
a
securities or commodities license or registration denied, suspended or
revoked.
6. The
undersigned has full right and power, without violating any agreement by which
it is bound, to enter into this letter agreement, and hereby consents to being
named in the registration statement of the Company on Form S-1 (File No.
333-138832) relating to the IPO (the “Registration Statement”) as a shareholder
of the Company.
7. 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 the
3,693,750 shares of Common Stock acquired by GSC Secondary Interest Fund, LLC
prior to the IPO; (iii) “IPO Shares” shall mean the shares of Common Stock
underlying the Units issued in the 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, as trustee (the “Trustee”).
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 its successors and
assigns. This letter agreement shall terminate on the earlier of (i) the
consummation of an Initial Business Combination and (ii) the distribution to
the
holders of the IPO Shares of the proceeds in the Trust Account and the
liquidation of the Company; provided that such termination shall not
relieve the undersigned from liability for any breach of this agreement prior
to
its termination, and provided further that paragraph 3 of this
agreement shall survive a 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
4
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.
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GSC
SECONDARY INTEREST FUND, LLC
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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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6
Exhibit
A
[NASD
Questionnaire Furnished to the Company and the Underwriters]
A-1
