GSC ACQUISITION COMPANY INITIAL FOUNDER’S SHARES TRANSFER AGREEMENT
Exhibit
99.1
GSC
ACQUISITION COMPANY
INITIAL
FOUNDER’S SHARES
TRANSFER
AGREEMENT
THIS
INITIAL FOUNDER’S SHARES TRANSFER AGREEMENT (this “Agreement”), dated as of June
24, 2008, is entered into by and among GSC Acquisition Company, a Delaware
corporation (the “Company”), GSC Secondary Interest Fund, LLC, a Delaware
limited liability company (the “Transferor”) and Xxxxxxx X. Xxxxxxxxx (the
“Transferee”).
WHEREAS,
on June 29, 2007 the Company consummated an initial public offering of its units
(the “Initial Public Offering”), each unit consisting of one share of the
Company’s common stock, par value $0.001 per share (a “Share”), and one warrant
to purchase one Share at an exercise price of $7.50 per Share, pursuant to a
registration statement on Form S-1 (the “Registration Statement”).
WHEREAS,
the Transferor is the beneficial owner of 4,455,000 Shares.
WHEREAS,
the Transferor desires to grant, subject to the terms and conditions contained
herein, and the Transferee desires to accept, upon the terms and conditions set
forth in this Agreement, the number of Shares set forth on Schedule A hereto
(the “Initial Founder’s Shares”).
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.
Authorization, Transfer; Terms
of the Initial Founder’s Shares.
A. Authority
to Transfer. The Transferor represents that it is authorized to
transfer the Initial Founder’s Shares to the Transferee in accordance with the
terms hereof.
B. Transfer
of the Initial Founder’s Shares. The Transferor hereby agrees to
transfer to the Transferee, upon satisfaction of the conditions contained in
Section 1.D. hereof (the “Transfer Conditions”), and the Transferee agrees to
accept such transfer from the Transferor, the number of Initial Founder’s
Shares
set forth
opposite the name of the Transferee on Schedule A hereto. Upon such
transfer, the Transferor shall cause the Company to deliver a certificate
evidencing the Initial Founder’s Shares to be transferred to the Transferee
hereunder, registered in the Transferee’s name. Alternatively, at the
Transferee’s option, upon written notice from the Transferee to the Transferor,
the Transferor, upon satisfaction of the Transfer Conditions, will sell the
Initial Founder’s Shares and remit to the Transferee the proceeds of such sale,
less certain amounts described in Section 1.E. hereof, within 30 days after
receipt of proceeds in respect of such sale.
C. Terms
of the Initial Founder’s Shares.
i. Initial
Founder’s Shares: The Initial Founder’s Shares shall have the terms set forth in
the Amended and Restated Certificate of Incorporation of the Company and the
Initial Founder’s Share Certificate attached as Exhibit A hereto. Without
limiting the foregoing, the Transferee hereby expressly agrees that (i) in
connection with the stockholder vote required to approve a merger, capital stock
exchange, asset acquisition or other similar business combination with one or
more businesses or assets (a “Business Combination”), the Transferee agrees to
vote any Initial Founder’s Shares held by him in accordance with a majority of
the shares of common stock voted by holders of shares of common stock issued in
the Initial Public Offering and (ii) the Transferee agrees to waive any right to
participate in any liquidation distribution to the extent set forth in Section
2.D of this Agreement.
ii. Transfer
Restrictions: In addition to the restrictions on transfer set forth in Section 5
hereof, the Transferee hereby acknowledges and agrees that he 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 Transferee or any affiliate of the Transferee or any person in
privity with the Transferee or any affiliate of the Transferee), 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, or publicly
announce an intention to effect any such transaction, for a period from the date
hereof until June 29, 2010;
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provided, however, that notwithstanding
anything to the contrary in this paragraph, such Transferee may, at any time,
transfer Initial Founder’s Shares to permitted transferees as contemplated by
this Agreement. The foregoing shall not prohibit transfers of Initial
Founder’s Shares from the Transferee to the Transferor or its affiliates, provided that such transferee
agrees in writing with the Company to be subject to the transfer restrictions
set forth in the Securities Purchase Agreement dated as of November 7, 2006
between the Company and the Transferor, as modified by the Repurchase Agreement
and Amendment to Initial Founder’s Securities Purchase Agreement dated as of May
29, 2007 between the Company and the Transferor.
D. Transfer
Conditions. No transfer or sale described in Section 1.B. hereof
shall be effected prior to satisfaction of the following
conditions:
i. Completion
of Initial Business Combination: The Company shall have consummated a Business
Combination.
ii. Expiration
of Transfer Restrictions: The transfer restrictions described in subsection C.
of this Section 1 shall no longer be in effect.
E. Taxes/Withholding.
i. If
the Transferee elects to receive the proceeds from the sale of the Initial
Founder’s Shares in the form of a cash payment pursuant to Section 1.B. hereof,
the Transferor shall withhold from such cash payment such amounts consistent
with applicable tax laws and regulations of the relevant
jurisdictions.
ii. If
the Transferee elects to receive the Initial Founder’s Shares rather than the
cash payment pursuant to Section 1.B. hereof, then in advance of distribution of
any Initial Founder’s Shares, the Transferee shall pay the Transferor in full
all withholding amounts consistent with applicable tax laws and regulations of
the relevant jurisdictions.
iii. In
the event that changes in tax laws, or tax law determinations or rulings result
in a material adverse change in the tax treatment of these payments by the
Transferor or the Transferee, the Transferor agrees to negotiate in good faith
regarding an appropriate amendment to this Agreement which is reasonably
necessary and appropriate to mitigate any negative or unintended tax
consequences.
iv. If
any questions should arise with respect to the tax treatment of the transfers
and/or payments to be made hereunder, the Transferor will make a final
determination with respect to any such questions in good faith, in consultation
with its tax adviser; and the Transferor shall provide a written notice to the
Transferee setting forth in reasonable detail the basis for its
determination
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and
interpretation. Such determination shall be final and binding on all
parties hereto.
Section
2. Representations
and Warranties of the Transferee.
As a
material inducement to the Company and the Transferor to enter into this
Agreement and for the Transferor to transfer the Initial Founder’s Shares, the
Transferee hereby represents and warrants to the Transferor and the Company
that:
A. Capacity
and State Law Compliance. The Transferee has engaged in the transactions
contemplated by this Agreement within a state in which the transfer of the
Initial Founder’s Shares is permitted under applicable securities
laws.
B. Authorization. This
Agreement constitutes a valid and binding obligation of the Transferee,
enforceable in accordance with its terms.
C. Investment
Representations.
(i) The
Transferee is acquiring the Initial Founder’s Shares for his own account, for
investment only and not with a view towards, or for resale in connection with,
any public sale or distribution thereof.
(ii) The
Transferee is an “accredited investor” as such term is defined in Rule 501(a)(3)
of Regulation D.
(iii) The
Transferee understands that the Initial Founder’s Shares are being offered and
will be transferred to him in reliance on specific exemptions from the
registration requirements of the United States federal and state securities laws
and that the Transferor and the Company are relying upon the truth and accuracy
of, and the Transferee’s compliance with, the representations and warranties of
the Transferee set forth herein in order to determine the availability of such
exemptions and the eligibility of the Transferee to acquire such Initial
Founder’s Shares.
(iv) The
Transferee did not decide to enter into this Agreement as a result of any
general solicitation or general advertising within the meaning of Rule 502(c)
under the Securities Act of 1933, as amended (the “Securities
Act”).
(v) The
Transferee understands that: (a) the Initial Founder’s Shares have not been and
are not being registered under the Securities Act or any state securities laws,
and may not be offered for sale, sold, assigned or transferred unless (A)
subsequently registered thereunder or (B) sold in reliance on an exemption
therefrom; and (b) neither the Company nor any other person is under any
obligation to register the Initial Founder’s Shares under the Securities Act or
any state securities laws or to comply with the terms and conditions of
any
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exemption
thereunder. In this regard, the Transferee understands that the Securities and
Exchange Commission has taken the position, and Rule 144 provides, that the
Initial Founder’s Shares may not be sold pursuant to Rule 144 without
registration until one year after the Company has completed its Business
Combination, subject to satisfaction of certain additional requirements under
such Rule.
D. Waiver
of Right to Amounts in the Trust Account and Indemnification.
(i) The
Transferee hereby waives any and all right, title, interest or claim of any kind
in or to any distribution of the trust account established by the Company for
the deposit of proceeds from the Initial Public Offering and the sale of the
Initial Founder’s Warrants as defined in the Securities Purchase Agreement, as a
result of any liquidation of the trust account, with respect to the Initial
Founder’s Shares (“Claim”) and hereby waives any Claim he 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
except for any amounts to which he may be entitled upon liquidation of the
Company in respect of the Transferee’s ownership of Shares other than the
Initial Founder’s Shares.
(ii) The
Transferee acknowledges and agrees that the stockholders of the Company,
including those who purchased or purchase the units offered in the Initial
Public Offering, are and shall be third-party beneficiaries of the foregoing
provisions of Section 2.D. of this Agreement.
(iii)
The Transferee agrees that to the extent any waiver of rights under this Section
2.D. is ineffective as a matter of law, the Transferee has offered such waiver
for the benefit of the Transferor and the Company as an equitable right that
shall survive any statutory disqualification or bar that applies to a legal
right. The Transferee acknowledges the receipt and sufficiency of consideration
received from the Transferor and the Company hereunder in this
regard.
Section
3. Survival of
Representations and Warranties.
All of the
representations and warranties contained herein shall survive the purchase of
the Initial Founder’s Shares hereunder.
Section
4. Definitions.
Terms used
but not otherwise defined in this Agreement shall have the meaning assigned such
terms in the Registration Statement.
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Section 5.
Miscellaneous.
A. Legends.
(i) The
certificates evidencing the Initial Founder’s Shares will include the legend set
forth on Exhibit A hereto, which the Transferee has read and
understands.
(ii) By
accepting the Initial Founder’s Shares, the Transferee agrees, prior to any
transfer of the Initial Founder’s Shares, to give written notice to the Company
expressing his desire to effect such transfer and describing briefly the
proposed transfer. Upon receiving such notice, the Company shall present copies
thereof to its counsel and the Transferee agrees not to make any disposition of
all or any portion of the Initial Founder’s Shares unless and
until:
(a) there
is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such
registration statement, in which case the legends set forth above with respect
to the Initial Founder’s Shares sold pursuant to such registration statement
shall be removed; or
(b) if
reasonably requested by the Company, (A) the Transferee shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that
such disposition will not require registration of such Initial Founder’s Shares
under the Securities Act, (B) the Company shall have received customary
representations and warranties regarding the transferee that are reasonably
satisfactory to the Company signed by the proposed transferee and (C) the
Company shall have received an agreement by such transferee to the restrictions
contained in the legend referred to in (i) hereof.
Notwithstanding
the foregoing, the Transferee also understands and acknowledges that the
transfer of the Initial Founder’s Shares are subject to additional specific
conditions to such transfer as outlined herein as to which the Transferee
specifically assents by his execution hereof.
(iii) The
Company may, from time to time, make stop transfer notations in its records and
deliver stop transfer instructions to its transfer agent to the extent its
counsel considers it necessary to ensure compliance with federal and state
securities laws and the transfer restrictions contained elsewhere in this
Agreement.
B. 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 of the
parties hereto whether so expressed or not. Notwithstanding the
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foregoing
or anything to the contrary herein, the parties may not assign this
Agreement.
C. 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 under applicable law,
such provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
D. Counterparts.
This Agreement may be executed simultaneously in two or more counterparts, none
of which need contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same
agreement.
E. 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.
F. 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.
G. 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
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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
Transferor: GSC Secondary Interest Fund, LLC
c/o GSC
Group
000 Xxxxxx
Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, XX 00000
Fax No.:
000-000-0000
If to the
Transferee:
To the
address set forth under the name
of the
Transferee in Schedule A hereto
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.
H. 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.
[signature
page follows]
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IN WITNESS
WHEREOF, the parties hereto have executed this Purchase Agreement on the date
first written above.
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GSC
ACQUISITION COMPANY
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| /s/ Xxxxxxx X. Xxxxxxx | ||
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By:
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Xxxxxxx
X. Xxxxxxx
President
and Secretary
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GSC
SECONDARY INTEREST FUND, LLC
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| By: |
GSC
GROUP, INC., its sole member
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/s/
Xxxxx X. Xxxxx
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By:
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Xxxxx
X. Xxxxx
Senior
Managing Director and Secretary
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XXXXXXX
X. XXXXXXXXX
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/s/
Xxxxxxx X. Xxxxxxxxx
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Exhibit
A
[SPECIMEN
INITIAL FOUNDER’S COMMON STOCK CERTIFICATE]
| NUMBER | SHARES |
CUSIP
GSC
ACQUISITION COMPANY
INCORPORATED
UNDER THE LAWS OF THE STATE OF DELAWARE
COMMON
STOCK
SEE
REVERSE FOR
CERTAIN
DEFINITIONS
This
Certifies that
is
the owner of
FULLY
PAID AND NON-ASSESSABLE SHARES OF THE PAR VALUE OF $0.001
EACH
OF THE COMMON STOCK OF
GSC
ACQUISITION COMPANY
transferable
on the books of the Corporation in person or by duly authorized attorney upon
surrender of this certificate properly endorsed. This Certificate is
not valid unless countersigned by the Transfer Agent and registered by the
Registrar. Witness the seal of the Corporation and the facsimile
signatures of its duly authorized officers.
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PRESIDENT
|
SECRETARY
|
DELAWARE
A-1
The
following abbreviations, when used in the inscription on the face of this
certificate, shall be construed as though they were written out in full
according to applicable laws or regulations:
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TEN
COM
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as
tenants in common
|
UNIF
GIFT MIN ACT -
|
Custodian
|
|||
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TEN
ENT
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as
tenants by the entireties
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(Cust)
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(Minor)
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|||
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JT
TEN
|
as joint tenants with right of survivorship and not as tenants in common |
under
Uniform Gifts to Minors Act
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||||
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(State)
|
||||||
Additional
Abbreviations may also be used though not in the above list.
GSC
Acquisition Company
The
Corporation will furnish without charge to each stockholder who so requests the
powers, designations, preferences and relative participating, optional or other
special rights of each class of stock or series thereof of the Corporation and
the qualifications, limitations, or restrictions of such preferences and/or
rights. This certificate and the shares represented hereby are issued
and shall be held subject to all the provisions of the Certificate of
Incorporation and all amendments thereto and resolutions of the Board of
Directors providing for the issue of shares of Preferred Stock (copies of which
may be obtained from the secretary of the Corporation), to all of which the
holder of this certificate by acceptance hereof assents.
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THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY
NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY
APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM SUCH REGISTRATION IS
AVAILABLE. THESE SECURITIES ARE ALSO SUBJECT TO (i) ADDITIONAL
RESTRICTIONS ON TRANSFER OR SALE AND (ii) VOTING REQUIREMENTS AND HOLDERS
OF THE SECURITIES WAIVE ANY RIGHT TO PARTICIPATE IN A LIQUIDATION
DISTRIBUTION IN CERTAIN CIRCUMSTANCES, IN EACH CASE PURSUANT TO AN INITIAL
TRANSFEREE’S SECURITIES PURCHASE AGREEMENT DATED NOVEMBER 7, 2006, A COPY
OF WHICH CAN BE OBTAINED FROM THE COMPANY AT ITS EXECUTIVE
OFFICES.
SECURITIES
EVIDENCED BY THIS CERTIFICATE WILL BE ENTITLED TO REGISTRATION RIGHTS
UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE
CORPORATION.
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A-2
| For value received, | hereby sell, assign and transfer unto |
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PLEASE
INSERT SOCIAL
SECURITY
OR OTHER
IDENTIFYING
NUMBER
OF ASSIGNEE
|
|
(PLEASE
PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE)
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| shares |
of the capital stock
represented by the within Certificate, and do hereby irrevocably constitute and
appoint
| Attorney |
to transfer the said
stock on the books of the within named Corporation will full power of
substitution in the
premises.
Dated__________________
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Notice: The
signature to this assignment must correspond with the name as written upon
the face of the certificate in every particular, without alteration or
enlargement or any change whatever.
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Signature(s)
Guaranteed:
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THE
SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT
UNIONS
WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
PURSUANT TO S.E.C. RULE 17Ad-15).
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A-3
SCHEDULE
A
| Xxxxxxx X. Xxxxxxxxx | 5,000 |
0000
Xxxxxx Xxxxx
Xxx Xxx,
XX 00000
