GSC ACQUISITION COMPANY INITIAL FOUNDER’S SHARES PURCHASE AGREEMENT
EXHIBIT
10.8
GSC
ACQUISITION COMPANY
INITIAL
FOUNDER’S SHARES
PURCHASE
AGREEMENT
THIS
INITIAL FOUNDER’S SHARES PURCHASE AGREEMENT (this “Agreement”), dated as of
December 12, 2006, 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 “Seller”) and Xxxxxx X. Xxxxxxx and
Xxxxx X. Xxxxxxx (each a “Purchaser” and collectively the
“Purchasers”).
WHEREAS,
the Company intends to file a registration statement (the “Registration
Statement”) for the initial public offering of 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 $6.00 per Share.
WHEREAS,
pursuant to the Initial Founder’s Securities Purchase Agreement dated as of
November 7, 2006 between the Company and Seller (the “Securities Purchase
Agreement”), Seller purchased 5,468,750 Shares from the Company.
WHEREAS,
the Purchasers desire to purchase and the Seller desires to sell, upon the
terms
and conditions set forth in this Agreement, the number of Initial Founder’s
Shares set forth on Schedule A hereto (the “Initial Founder’s Shares”) at a
price per Share equal to $.0046 (the “Initial Founder’s Shares Purchase
Price”).
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,
Purchase and Sale; Terms of the Initial Founder’s Shares.
A.
Authority
to Sell. The Seller represents that it is authorized to sell the Initial
Founder’s Shares to the Purchasers in accordance with the terms
hereof.
B. Purchase
and Sale of the Initial Founder’s Shares. On the date hereof, the Seller shall
sell to each Purchaser and each Purchaser shall purchase from the Seller, the
number of Initial Founder’s Shares set forth opposite the
name
of
such Purchaser on Schedule A hereto for the Initial Founder’s Shares Purchase
Price. The Seller shall cause the Company to deliver certificates evidencing
the
Initial Founder’s Shares to be purchased by each Purchaser hereunder, registered
in such Purchaser’s name, upon the payment by such Purchaser of the Initial
Founder’s Shares Purchase Price for each Initial Founder’s Share to be
purchased, by wire transfer of immediately available funds to the Seller in
accordance with the Seller’s wiring instructions.
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 Certificate of Incorporation of the Company and the Initial Founder’s Share
Certificate attached as Exhibit A hereto. Without limiting the foregoing, each
Purchaser hereby expressly agrees that if the Company consummates the Initial
Public Offering, then (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”), such Purchaser agrees to vote the 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)
each Purchaser 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, each Purchaser agrees not sell or transfer the Initial Founder’s Shares
for a period of three years from the consummation of the Initial Public Offering
except to the Seller 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.
iii. Registration
Rights: In connection with the closing of the Initial Public Offering, the
Company, the Seller and each Purchaser shall enter into an agreement (the
“Registration Rights Agreement”) granting the Seller and the Purchasers
registration rights with respect to the Initial Founder’s Shares.
iv. Seller
Repurchase: Each Purchaser agrees that if at any time prior to the consummation
of the Company’s initial business combination such Purchaser resigns from, or is
removed for cause from, the board of directors of the Company then concurrently
therewith such Purchaser shall sell to the Seller all Initial Founder’s Shares
owned by him at a price per Share equal to the Initial Founder’s Shares Purchase
Price.
Section
2.
Representations
and Warranties of the Purchasers.
2
As
a
material inducement to the Company and the Seller to enter into this Agreement
and for the Seller to sell the Initial Founder’s Shares, each Purchaser
severally and not jointly hereby represents and warrants to the Seller and
the
Company that:
A. Capacity
and State Law Compliance. Such Purchaser has engaged in the transactions
contemplated by this Agreement within a state in which the offer and sale of
the
Initial Founder’s Shares is permitted under applicable securities
laws.
B. Authorization.
This Agreement constitutes a valid and binding obligation of such Purchaser,
enforceable in accordance with its terms.
C. Investment
Representations.
(i) Such
Purchaser 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) Such
Purchaser is an “accredited investor” as such term is defined in Rule 501(a)(3)
of Regulation D.
(iii) Such
Purchaser understands that the Initial Founder’s Shares are being offered and
will be sold to him in reliance on specific exemptions from the registration
requirements of the United States federal and state securities laws and that
the
Seller and the Company are relying upon the truth and accuracy of, and such
Purchaser’s compliance with, the representations and warranties of such
Purchaser set forth herein in order to determine the availability of such
exemptions and the eligibility of such Purchaser to acquire such Initial
Founder’s Shares.
(iv) Such
Purchaser 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) Such
Purchaser has been furnished with all materials relating to the business,
finances and operations of the Company and materials relating to the offer
and
sale of the Initial Founder’s Shares which have been requested by such
Purchaser. Such Purchaser has been afforded the opportunity to ask questions
of
the executive officers and directors of the Company. Such Purchaser understands
that his investment in the Initial Founder’s Shares involves a high degree of
risk. Such Purchaser has sought such accounting, legal and tax advice as such
Purchaser has considered necessary to make an informed investment decision
with
respect to such Purchaser’s acquisition of the Initial Founder’s
Shares.
3
(vi) Such
Purchaser understands that no United States federal or state agency or any
other
government or governmental agency has passed on or made any recommendation
or
endorsement of the Initial Founder’s Shares or the fairness or suitability of
the investment in the Initial Founder’s Shares by such Purchaser nor have such
authorities passed upon or endorsed the merits of the offering of the Initial
Founder’s Shares.
(vii) Such
Purchaser 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) except as specifically set forth in the Registration Rights
Agreement, 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 exemption
thereunder. In this regard, such Purchaser understands that the Securities
and
Exchange Commission has taken the position that promoters or affiliates of
a
blank check company and their transferees, both before and after a Business
Combination, are deemed to be “underwriters” under the Securities Act when
reselling the securities of a blank check company. Based on that position,
Rule
144 adopted pursuant to the Securities Act would not be available for resale
transactions of the Initial Founder’s Shares despite technical compliance with
the requirements of such Rule, and the Initial Founder’s Shares can be resold
only through a registered offering or in reliance upon another exemption from
the registration requirements of the Securities Act. Such Purchaser is able
to
bear the economic risk of his investment in the Initial Founder’s Shares for an
indefinite period of time.
(viii) Such
Purchaser has such knowledge and expertise in financial and business matters,
knows of the high degree of risk associated with investments generally and
particularly investments in the securities of companies in the development
stage
such as the Company, is capable of evaluating the merits and risks of an
investment in the Initial Founder’s Shares and is able to bear the economic risk
of an investment in the Initial Founder’s Shares in the amount contemplated
hereunder. Such Purchaser has adequate means of providing for his current
financial needs and contingencies and will have no current or anticipated future
needs for liquidity which would be jeopardized by the investment in the Initial
Founder’s Shares. Such Purchaser can afford a complete loss of his investment in
the Initial Founder’s Shares.
D. Waiver
of
Right to Amounts in the Trust Account and Indemnification.
(i) Such
Purchaser hereby waives any and all right, title, interest or claim of any
kind
in or to any distribution of the trust account
4
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 such Purchaser’s ownership of Shares
other than the Initial Founder’s Shares.
(ii) Such
Purchaser acknowledges and agrees that the stockholders of the Company,
including those who purchase the units in the Initial Public Offering, are
and
shall be third-party beneficiaries of the foregoing provisions of Section 2.D.
of this Agreement.
(iii) Such
Purchaser agrees that to the extent any waiver of rights under this Section
2.D.
is ineffective as a matter of law, such Purchaser has offered such waiver for
the benefit of the Seller and the Company as an equitable right that shall
survive any statutory disqualification or bar that applies to a legal right.
Such Purchaser acknowledges the receipt and sufficiency of consideration
received from the Seller 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.
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 each Purchaser has read and
understands.
(ii) By
accepting the Initial Founder’s Shares, each Purchaser 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 each Purchaser agrees not to make any disposition
of
all or any portion of the Initial Founder’s Shares unless and
until:
5
(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) each Purchaser 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, each Purchaser 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 each Purchaser
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 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.
6
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
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
If
to the
Purchasers:
To
the
address set forth under the name
of
such
Purchaser in Schedule A hereto
7
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]
8
IN
WITNESS
WHEREOF, the parties hereto have executed this Purchase Agreement on the date
first written above.
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GSC
ACQUISITION COMPANY
/s/ Xxxxxxx X. Xxxxxxx
|
|
|
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
/s/
Xxxxxxx X. Xxxxxxx
|
|
By:
|
Xxxxxxx
X. Xxxxxxx
Managing
Director
|
|
XXXXXX
X. XXXXXXX
/s/
Xxxxxx X. Xxxxxxx
|
|
XXXXX
X. XXXXXXX
/s/
Xxxxx X. Xxxxxxx
|
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 FORCERTAIN
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
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.
| Dated: | ||
|
GSC
Acquisition Company
CORPORATE DELAWARE |
||
|
SEAL
|
||
|
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:
| TEN COM | as tenants in common |
UNIF
GIFT MIN
ACT –
|
|
Custodian |
|
|
| TEN ENT | as tenants by the entireties | (Cust) | (Minor) | |||
| JT TEN | as joint tenants with right of survivorship and | |||||
| not as tenants in common |
under
Uniform Gifts to Minors
Act
|
|||||
| (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.
|
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 PURCHASER’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.
|
A-2
For
value
received, __________________________________________________________ hereby
sell, assign and transfer unto
PLEASE
INSERT SOCIAL
SECURITY OR OTHER
IDENTIFYING
NUMBER
OF
ASSIGNEE
______________________________________________________________________________
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE OF
ASSIGNEE)
______________________________________________________________________________
______________________________________________________________________________
__________________________________________________________________________________________________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__________________
______________________________
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.
Signature(s)
Guaranteed:
_____________________________________________________________________________________
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).
A-3
SCHEDULE
A
|
Xxxxxx
X. Xxxxxxx
|
27,344
|
|
0000
Xxxxxxxx Xxxxx
|
|
|
Xxxxxxx,
XX 00000
|
|
|
Xxxxx
X. Xxxxxxx
|
27,344
|
|
0
Xxxxx Xxxxx Xxxx
|
|
|
Xxxxxxxx,
XX 00000
|
|
|
Fax:
000-000-0000
|
