GSC ACQUISITION COMPANY REPURCHASE AGREEMENT AND AMENDMENT TO INITIAL FOUNDER’S SECURITIES PURCHASE AGREEMENT
EXHIBIT
10.10
GSC
ACQUISITION COMPANY
REPURCHASE
AGREEMENT AND AMENDMENT TO INITIAL FOUNDER’S SECURITIES PURCHASE
AGREEMENT
THIS
REPURCHASE AGREEMENT AND AMENDMENT TO INITIAL FOUNDER’S SECURITIES PURCHASE
AGREEMENT (this “Agreement”), dated as of May 29, 2007, is
entered into by and between GSC Acquisition Company, a Delaware corporation
(the
“Company”), and GSC Secondary Interest Fund, LLC, a Delaware
limited liability company (the “Seller”).
WITNESSETH
WHEREAS,
the Seller holds 5,386,718 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 (a “Warrant”), and now believes it is in its
best interests to amend the terms of the IPO, among other things, (i) to
decrease the number of units being issued and increase by 25% the offering
price
of such units, and (ii) to increase by 25% the exercise price of the Warrants
(including the 4,000,000 initial founder’s warrants to purchase shares of Common
Stock, with the terms set forth in the form of Warrant Agreement set forth
as
Exhibit A hereto (the “Initial Founder’s
Warrants”));
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 and the Seller still desires to purchase the Initial
Founder’s Warrants with the terms set forth in the form of Warrant Agreement set
forth as Exhibit A hereto upon the terms and conditions set forth in the Initial
Founder’s Securities Purchase Agreement dated as of November 7, 2006 by and
among the Company and the Seller (the “Initial Founder’s Securities
Purchase Agreement”) for an aggregate purchase price of
$4,000,000;
WHEREAS,
in light of the amended IPO terms, the Company has offered to repurchase from
the Seller 1,692,968 Shares (the “Subject
Shares”);
WHEREAS,
the Seller 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 and agreeing to buy the Initial Founder’s Warrants with the
revised terms set forth in the form of Warrant Agreement upon the terms and
conditions set forth herein and in the Initial Founder’s Securities Purchase
Agreement for an aggregate purchase price of $4,000,000;
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.
The
Seller
hereby sells to the Company, and the Company hereby purchases from the Seller,
free and clear of all liens and encumbrances, the Subject Shares, for a purchase
price of one dollar ($1.00), the due receipt of which the Seller hereby
acknowledges. The Seller hereby agrees to surrender the certificates evidencing
the Subject Shares to the Company, and the Company shall duly cancel such
certificates and retire the Subject Shares as promptly as
practicable. Prior to the closing of the IPO, or as such date may be
amended from time to time by mutual agreement of the parties, the Company shall
issue and sell to the Seller and the Seller shall purchase from the Company
the
Initial Founder’s Warrants for an aggregate purchase price of $4,000,000, with
the terms set forth in the form of Warrant Agreement set forth as Exhibit A
hereto. Apart from the increase in the Warrant exercise price from
$6.00 to $7.50 per Share and subject to Section 4 hereof, the provisions of
the
Initial Founder’s Securities Purchase Agreement relating to the Initial
Founder’s Warrants remain in full force and effect.
Section
2. Representations
and Warranties of the Seller. The Seller hereby represents and
warrants that:
(A) Organization
and Corporate Power. The Seller is a limited liability company
duly organized, validly existing and in good standing under the laws of the
State of Delaware. The Seller possesses all requisite corporate power and
authority necessary to carry out the transactions contemplated by this
Agreement.
(B) Authorization;
No Breach.
(i) The
execution, delivery and performance of this Agreement have been duly authorized
by the Seller. This Agreement constitutes a valid and binding obligation of
the
Seller, enforceable in accordance with its terms.
(ii) The
execution and delivery by the Seller of this Agreement, the sale of the Subject
Shares and the fulfillment of and
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compliance
with the respective terms hereof by the Seller, do not and will not as of the
date hereof (i) conflict with or result in a breach of the terms, conditions
or
provisions of, (ii) constitute a default under, (iii) result in a violation
of,
or (iv) require any authorization, consent, approval, exemption or other action
by or notice or declaration to, or filing with, any court or administrative
or
governmental body or agency pursuant to the formative documents of the Seller,
or any material law, statute, rule or regulation to which the Seller is subject,
or any agreement, order, judgment or decree to which the Seller is subject,
except for any filings required after the date hereof under federal or state
securities laws.
(C) Title
to Shares. Seller is the sole record owner of the Subject Shares
and has the power and right to sell, assign, transfer and deliver to the Company
good and valid title to, all of the Subject Shares, free and clear of all
liens.
Section
3. Representations,
Warranties and Covenants of the Company. As a material
inducement to the Seller to enter into this Agreement and sell the Subject
Shares to the Company, the Company hereby represents, warrants and covenants
to
the 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 Seller. The Seller hereby acknowledges
and agrees that in addition to the transfer restrictions set forth in the
Initial Founder’s Securities Purchase Agreement and the form of Warrant
Agreement set forth as Exhibit A hereto, it 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
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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 Initial Founder’s Securities 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 or (ii) any Initial
Founder’s Warrants, or publicly announce an intention to effect any such
transaction, until after the Company has consummated its initial Business
Combination (as defined in the Underwriting Agreement); provided,
however, that notwithstanding anything to the contrary in this Section
4,
the Seller may, at any time, transfer Initial Founder’s Shares and Initial
Founder’s Warrants to Permitted Transferees (as defined in the Warrant
Agreement) as contemplated by the Initial Founder’s Securities Purchase
Agreement and the form of Warrant Agreement, respectively.
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 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 under applicable law, such
provision shall be ineffective only to the extent of such prohibition or
invalidity, without invalidating the remainder of this Agreement.
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(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, agree
to
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:
|
GSC
Secondary Interest Fund, LLC
c/o
GSC Group
000
Xxxxxx Xxxxx, Xxxxx 000
Xxxxxxx
Xxxx, XX 00000
Fax
No.: 000-000-0000
|
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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.
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GSC
ACQUISITION COMPANY
|
|
| ___________________________ | |
|
By:
|
Xxxxxxx
X. Xxxxxxx
President
and Secretary
|
|
GSC
SECONDARY INTEREST FUND, LLC
|
|
|
By:
|
GSCP
(NJ) Holdings, L.P., its sole member
|
|
By:
|
GSCP
(NJ), Inc., its general partner
|
| ___________________________ | |
|
By:
|
Xxxxxxx
X. Xxxxxxx
Managing
Director
|
