Unassociated Document


    


    


    


    EXHIBIT
      10.9

     

    GSC
      ACQUISITION COMPANY

    


    INITIAL
      FOUNDER’S SHARES

    


    PURCHASE
      AGREEMENT

    


    THIS
      INITIAL FOUNDER’S SHARES PURCHASE AGREEMENT (this “Agreement”), dated as of
      December 21, 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 Richard Anthony McKinnon
      (the “Purchaser”).

     

    WHEREAS,
      the Company has filed 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 Purchaser desires 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 Purchaser 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 the Purchaser and the Purchaser shall purchase from the Seller, the
      number of Initial Founder’s Shares set forth opposite the name of the Purchaser
      on Schedule A hereto for the Initial Founder’s Shares Purchase 

     

     

    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

       

    

    Price.
      The
      Seller shall cause the Company to deliver a certificate evidencing the Initial
      Founder’s Shares to be purchased by the Purchaser hereunder, registered in the
      Purchaser’s name, upon the payment by the Purchaser in accordance with the
      Seller’s instructions of the Initial Founder’s Shares Purchase Price for each
      Initial Founder’s Share to be purchased.

     

    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, the
      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”), the 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) the
      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, the 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 the Purchaser shall enter into an agreement (the
“Registration Rights Agreement”) granting the Seller and the Purchaser
      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 the Purchaser resigns from, or is
      removed for cause from, the board of directors of the Company then concurrently
      therewith the 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.

     

     

    
      
        
        

      

      
        2

        
          

        

      

      
        
        

      

    

     

    Section
      2.
Representations
      and Warranties of the Purchaser.

     

    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, the Purchaser hereby
      represents and warrants to the Seller and the Company that:

     

    A. Capacity
      and State Law Compliance. The 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 the Purchaser,
      enforceable in accordance with its terms.

     

    C. Investment
      Representations.

     

    (i) The
      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) The
      Purchaser is an “accredited investor” as such term is defined in Rule 501(a)(3)
      of Regulation D.

     

    (iii) The
      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 the
      Purchaser’s compliance with, the representations and warranties of the Purchaser
      set forth herein in order to determine the availability of such exemptions
      and
      the eligibility of the Purchaser to acquire such Initial Founder’s
      Shares.

     

    (iv) The
      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) The
      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 the Purchaser.
      The Purchaser has been afforded the opportunity to ask questions of the
      executive officers and directors of the Company. The Purchaser understands
      that
      his investment in the Initial Founder’s Shares involves a high degree of risk.
      The Purchaser has sought such accounting, legal and tax advice as the Purchaser
      has considered necessary to make an informed investment decision with respect
      to
      the Purchaser’s acquisition of the Initial Founder’s Shares.

     

     

    
      
        
        

      

      
        3

        
          

        

      

      
        
        

      

    

     

    (vi) The
      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 the Purchaser nor have such
      authorities passed upon or endorsed the merits of the offering of the Initial
      Founder’s Shares.

     

    (vii) The
      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, the 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. The Purchaser is able
      to
      bear the economic risk of his investment in the Initial Founder’s Shares for an
      indefinite period of time.

     

    (viii) The
      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. The 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. The 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) The
      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 the Purchaser’s ownership of Shares
      other than the Initial Founder’s Shares.

     

    (ii) The
      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) The
      Purchaser agrees that to the extent any waiver of rights under this Section
      2.D.
      is ineffective as a matter of law, the 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. The
      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 the Purchaser has read and
      understands.

     

    (ii) By
      accepting the Initial Founder’s Shares, the 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 the 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) the 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, the 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 the 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

    500
      Campus
      Drive, Suite 220

    Florham
      Park, NJ 07932

    Fax
      No.:
      973-437-1037

    


    With
      a
      copy to: Deanna L. Kirkpatrick

    Davis
      Polk
& Wardwell

    450
      Lexington Avenue

    New
      York,
      NY 10017

    Fax
      No.:
      212-450-3135

    


    If
      to the
      Seller: GSC Secondary Interest Fund, LLC

    c/o
      GSC
      Group

    300
      Campus
      Drive, Suite 110

    Florham
      Park, NJ 07932

    Fax
      No.:
      973-593-5454

    


    If
      to the
      Purchaser:

    To
      the
      address set forth under the name

    of
      the
      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.

     

    


    
      	
              GSC
                ACQUISITION COMPANY

                  /s/
                Matthew C. Kaufman    

            
	
              By:

            	
              Matthew
                C. Kaufman

              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/
                Matthew C. Kaufman    

            
	
              By:

            	
              Matthew
                C. Kaufman

              Managing
                Director

            


    

    


     

    
      	
              RICHARD
                ANTHONY MCKINNON

                  /s/
                Richard Anthony McKinnon    

            


    

    


    


    


    
      
        
        

      

      
        
        

        
          

        

      

      
        
        

      

    

    


    

      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

      

       

      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

     

    


    
      	
              Richard
                Anthony McKinnon

            	
              27,344

            
	
              4044
                Druid Lane

            	 
	
              Dallas,
                Texas 75205