CEH UNITHOLDER CONSENT AND RELEASE AGREEMENT
Exhibit
10.6
CEH
Unitholder Consent and Release Agreement (this “Agreement”) dated as of May 9,
2008 among the undersigned holders (collectively, the “Holders”) of units of Complete
Energy Holdings, LLC, Delaware limited liability company (“CEH”), CEH and GSC Acquisition
Company, a Delaware corporation (“GSCAC”).
This
Agreement is being delivered to and for the benefit of GSCAC, GSCAC Holdings I
LLC, GSCAC Holdings II LLC and GSCAC Merger Sub LLC and each of their respective
successors and assigns (together, the “GSCAC Parties” and
individually a “GSCAC
Party”) and the Holders in connection with the Agreement and Plan of
Merger dated as of the date hereof (the “Merger Agreement”) among each
of the GSCAC Parties named therein as parties thereto and
CEH. Capitalized terms that are used but not otherwise defined herein
are used with the meanings set forth in the Merger Agreement.
1. Consent. To the
extent any Holder’s consent or approval is or may be required by Section 7.2 or
any other provision of the CEH LLC Agreement or any other document or agreement
to which such Holder is a party, such Holder hereby irrevocably consents to the
Merger Agreement, the Merger, all other Transactions and any and all actions
reasonably necessary for CEH to perform its obligations under the Merger
Agreement, in each case upon the terms and subject to the conditions set forth
therein.
2. No Transfers or Encumbrances.
Except pursuant to the terms of this Agreement, each Holder agrees that
he or she will not, without the prior written consent of the GSCAC Parties,
directly or indirectly,
(a) grant any
proxies or enter into any voting trust or other agreement or arrangement (other
than the CEH LLC Agreement) with respect to the voting of any CEH Units owned by
such Holder; or
(b) sell,
assign, transfer, pledge, encumber or otherwise dispose of, or enter into any
contract with respect to the direct or indirect sale, assignment, transfer,
encumbrance, pledge or other disposition of, any CEH Units owned by such Holder
other than to a CEH Permitted Transferee (as defined in the La Paloma LLC
Agreement, a “CEH Permitted
Transferee”) of such Holder; provided that with respect
to any such transfer or other disposition to a CEH Permitted Transferee, (i)
such transfer or disposition must be made in accordance with (without waiver,
except with the consent of GSCAC) Section 4.4(g) of the CEH LLC Agreement (other
than in the case of death); (ii) such Holder must promptly deliver to GSCAC
notice of such transfer with such CEH Permitted Transferee’s written agreement
to be bound by this Agreement as a Holder hereunder and to transfer the
applicable CEH Units back to the Holder if it shall cease at any time to be a
CEH Permitted Transferee of such Holder and (iii) any
CEH Units
that are transferred to a CEH Permitted Transferee who ceases to qualify as such
shall be returned to the applicable Holder.
3. Release.
(a) Effective
at the Effective Time, each Holder, on behalf of him/herself and his or her
controlled Affiliates and their respective officers, directors and employees,
hereby irrevocably waives, releases and discharges CEH, each Subsidiary, each of
their respective controlled Affiliates and each of their respective officers,
directors and employees from any and all claims, causes of action, liabilities,
losses, costs, damages, penalties, charges, expenses and all other forms of
liability or obligation whatsoever, in law or equity, whether asserted or
unasserted, known or unknown, foreseen or unforeseen, arising prior to the
Effective Time and relating to CEH, any Subsidiary or any of their respective
controlled Affiliates, any CEH Units, the Merger or any other
Transactions (collectively, the “ Holder Released Claims”),
other than:
(i) the rights
to receive the consideration deliverable to holders of CEH Units in accordance
with Section 3.01(a) of the Merger Agreement;
(ii) any other
rights due such Holder that are expressly set forth in any of the Transaction
Documents;
(iii) any claim
to indemnification under the CEH LLC Agreement as in effect on the date of the
Merger Agreement (which indemnification shall survive the Closing);
and
(iv) ordinary
course compensation and benefits due to such Holder in his or her capacity as a
director, officer, manager or employee of CEH or any Subsidiary.
(b) Effective
at the Effective Time, CEH on behalf of itself and its controlled Affiliates and
their respective officers, directors and employees, hereby irrevocably waives,
releases and discharges each Holder from any and all claims, causes of action,
liabilities, losses, costs, damages, penalties, charges, expenses and all other
forms of liability or obligation whatsoever, in law or equity, whether asserted
or unasserted, known or unknown, foreseen or unforeseen, arising prior to the
Effective Time and relating to CEH, any Subsidiary or any of their respective
controlled Affiliates, any CEH Units, the Merger or any other Transactions
(collectively, the “CEH
Released Claims” and, together with the Holder Released Claims, the
“Released Claims”),
other than:
(i) any claim
for fraud; and
(ii) any
willful, knowing and material breach by such Holder of his or her obligations to
maintain the confidentiality of CEH’s and the Subsidiaries’ non-public
information pursuant to the CEH LLC Agreement
as in
effect on the date hereof or such Holder’s employment agreement with any Project
Company.
The
exceptions to the Released Claims set forth in clauses (i) and (ii) of Section
3(b) shall only apply for a period of two years after the Closing Date and shall
thereafter have no force and effect.
(c) Each
Holder, CEH and GSCAC expressly acknowledges that the releases contained herein
apply to all Released Claims as defined herein, whether such Released Claims are
known or unknown, and include Released Claims which if known by the releasing
party might materially affect its decision to effect the
Transactions. Each Holder, CEH and GSCAC has considered and taken
into account the possible existence of such Released Claims in determining to
execute and deliver this Agreement. Without limiting the generality
of the foregoing, each Holder, CEH and GSCAC expressly waives any and all rights
conferred upon it by any statute or rule of law that provides that a release
does not extend to claims which the releasing party does not know or suspect to
exist in its favor at the time of executing the release, which if known by the
releasing party would have materially affected the releasing party’s decision to
grant such release. This Agreement constitutes a complete defense of
any and all Released Claims.
4. Costs; Attorneys’
Fees. If any suit, action or other proceeding is commenced by
CEH or any of its Subsidiaries or controlled Affiliates against any Holder to
enforce its rights with respect to any matters described in Section 3(b) that do not constitute CEH Released Claims
pursuant to clause (i) or (ii) thereof (a “Permitted Claim”), CEH (or the
applicable Subsidiary or controlled Affiliate) shall be required to reimburse
such Holder on a timely basis for 50% of the reasonable and documented expenses
incurred by such Holder (including reasonable attorneys’ fees and court costs)
in defending such suit, action or other proceeding in advance of the final
disposition thereof, but within five Business Days after such final disposition,
(i) such Holder must repay all such amounts to CEH (or the applicable Subsidiary
or controlled Affiliate) if such Holder is not the prevailing party in such
suit, action or other proceeding and (ii) without duplication, the
non-prevailing party in such suit, action or other proceeding must pay to the
prevailing party, in addition to all other amounts that the prevailing party
shall be entitled to receive from the non-prevailing party, all reasonable and
documented expenses (including reasonable attorneys’ fees and court costs)
incurred by the prevailing party in connection with such suit, action or other
proceeding.
5. Waiver of Claims Against Trust
Account. Each Holder understands that GSCAC is a recently
organized “blank check company” formed for the purpose of acquiring one or more
businesses or assets (an “Initial Business
Combination”). Each Holder further understands that GSCAC’s
sole assets consist of the cash proceeds of the recent initial public offering
(the “IPO”) and private
placement of its securities, and that substantially all of those proceeds have
been deposited in a trust account with a third party (the “Trust Account”) for the
benefit of GSCAC, its public stockholders (as defined in the agreement governing
the Trust Account) and the underwriters of its IPO. The monies in the Trust
Account may be disbursed only (1) to GSCAC in limited
amounts
from time to time (and in no event more than $2,400,000 in total) in order to
permit GSCAC to pay its operating expenses; (2) if GSCAC completes an Initial
Business Combination, to certain dissenting public stockholders, to the
underwriters in the amount of underwriting discounts and commissions they earned
in the IPO but whose payment they have deferred, and then to GSCAC; and (3) if
GSCAC fails to complete an Initial Business Combination within the allotted time
period and liquidates subject to the terms of the agreement governing the Trust
Account, to GSCAC in limited amounts to permit GSCAC to pay the costs and
expenses of its liquidation and dissolution and then to GSCAC’s public
stockholders.
Each
Holder hereby waives any right, title, interest or claim of any kind (each, a
“Claim”) that it has or
may have in the future in or to any monies in the Trust Account and not to seek
recourse against the Trust Account or any funds distributed therefrom (except
amounts released to GSCAC as described in clause (1) of the preceding paragraph
or amounts distributed to GSCAC (excluding amounts described in clause (2) of
the preceding paragraph) after the consummation of its Initial Business
Combination) as a result of, or arising out of, any Claims against GSCAC in
connection with this Agreement or any related transactions.
6. Representations. Each
Holder, severally and not jointly, represents for the benefit of the GSCAC
Parties, that as of the date hereof:
(a) this
Agreement constitutes a valid and binding agreement of such Holder, enforceable
in accordance with its terms, except as the same may be limited by bankruptcy,
insolvency, reorganization, fraudulent conveyance, arrangement, moratorium or
other similar Laws relating to or affecting the rights of creditors generally,
or by general equitable principles;
(b) the
execution, delivery and performance by such Holder of this Agreement requires no
material action by or in respect of, or material filing with, any Governmental
Authority, other than any such actions and filings that have been taken or
made;
(c) the
execution, delivery and performance by such Holder of this Agreement do not and
will not violate any provision of any agreement or other instrument binding upon
such Holder;
(d) such
Holder is the registered and beneficial owner of the CEH Units set forth
opposite its name in the letter delivered by CEH to GSCAC and TCW Asset
Management Company pursuant to Section 4.04(a) of the Merger Agreement, and owns
such CEH Units free and clear of any Liens or any other limitations or
restrictions (including any restriction on the right to vote, sell or otherwise
dispose of any such CEH Units), other than the limitations or restrictions
contained in the CEH LLC Agreement or arising under applicable law;
and
(e) such
Holder (i) is not a resident of a state that grants a spouse community property
rights, (ii) does not have a spouse to whom community property rights would be
available or (iii) has a spouse who has executed a consent in the form attached
as Exhibit A hereto.
7. Lock-Up. Each
Holder agrees that he or she will not, until after the date that is 180 days
after the Closing Date, (i) offer, pledge, announce any intention to sell, sell,
contract to sell, sell any option or contract to purchase, purchase any option
or contract to sell, grant any option, right or warrant to purchase, or
otherwise transfer or dispose of, directly or indirectly, any GSCAC Class A
Common Stock, GSCAC Class B Common Stock, any Holdco Class B Common Units, any
Holdco Class C Common Units or any Holdco Class D Common Units issued to such
Holder pursuant to Section 3.01(a) of the Merger Agreement (other than any
exchange of GSCAC Class B Common Stock and any such units for GSCAC Class A
Common Stock in accordance with the Exchange Rights) or (ii) enter into any swap
or other agreement that transfers, in whole or in part, any of the economic
consequences of ownership of any such securities, whether any such transaction
described in clause (i) or (ii) above is to be settled by delivery of such
securities, cash or otherwise, other than any such transfer or disposition to a
Permitted Transferee (as defined in the Holdco Sub LLC Agreement); provided that (x) such
transfer or disposition must be made in accordance with the Holdco Sub LLC
Agreement; (y) such Holder must promptly deliver to GSCAC notice of such
transfer with such Permitted Transferee’s written agreement to be bound by this
Section 6 as a Holder hereunder and to transfer the applicable securities back
to the Holder if it shall cease at any time prior to such 180th day to
be a Permitted Transferee of such Holder and (z) any such securities that are
transferred to a Permitted Transferee who ceases to qualify as such shall be
returned to the applicable Holder. Notwithstanding the foregoing and
anything to the contrary contained in this Agreement or in the Transaction
Documents (as defined in the Merger Agreement), if any “lock-ups” applicable to
GSC Secondary Interest Fund, LLC, any Holder, any other holder of CEH Units, any
holder of equity interests in Holdco Sub or any holder of Equity Securities
issued pursuant to an issuance of Equity Securities of GSCAC at or prior to the
Closing with gross proceeds not to exceed $75 million, shall be amended or
waived to reduce the term of the lock-up period to a date that is earlier than
180 days after the Closing Date, then the lock-up period applicable to each
Holder (or its Permitted Transferee) shall be similarly reduced or waived, as
the case may be.
8. Termination. This
Agreement shall terminate in its entirety upon the termination of the Merger
Agreement in accordance with Article IX of the Merger Agreement; provided that Sections 5, 9 and 10 shall survive any termination of this Agreement
indefinitely. Section 6 shall terminate
for all purposes as of Closing.
9. Governing Law; Submission to
Jurisdiction. This Agreement shall be governed and construed
in accordance with the Laws of the State of New York, without regard to any
applicable conflicts of law. The parties hereto agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any matter
arising out of or in connection with, this Agreement or any transactions
contemplated hereby shall be brought in the United States District Court for the
Southern District of New York or any
New York
State court sitting in New York City, so long as one of such courts shall have
subject matter jurisdiction over such suit, action or proceeding, and that any
cause of action arising out of this Agreement shall be deemed to have arisen
from a transaction of business in the State of New York, and each of the parties
hereby irrevocably consents to the jurisdiction of such courts (and of the
appropriate appellate courts therefrom) in any such suit, action or proceeding
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees
that service of process on such party at the address set forth on the signature
pages hereto shall be deemed effective service of process on such
party.
10. WAIVER OF JURY
TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES
ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR
RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
11. Effectiveness; Amendments;
Counterparts; Facsimile. This Agreement shall become effective
when each party hereto shall have received a counterpart hereof signed by all of
the other parties hereto. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument. Any
facsimile or pdf copies hereof or signature hereon shall, for all purposes, be
deemed originals. This Agreement may not be amended except by a
writing signed by each Holder and GSCAC.
IN WITNESS WHEREOF, the undersigned
have executed this Agreement as of the date
first above
written.
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GSC ACQUISITION
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Title: President
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Address
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COMPLETE ENERGY HOLDINGS,
LLC
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Title: Managing
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