UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
To Section 13 Or 15(d) of The Securities Exchange Act of 1934
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Date
of report (Date of earliest event reported): May 9,
2008
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GSC
ACQUISITION COMPANY
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(Exact
name of registrant
as
specified in charter)
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DELAWARE
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001-33553
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20-5779392
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(State
or other jurisdiction of incorporation)
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(Commission
File Number)
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(IRS
Employer Identification No.)
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500
Campus Drive, Suite 220 Florham Park, NJ
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(Address
of principal executive offices)
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Registrant’s
telephone number, including area code: (973)
437-1000
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Not
Applicable
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(Former
name or former address, if changed since last report)
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Check the
appropriate box below if the Form 8-K filing is intended to simultaneously
satisfy the filing obligation of the registrant under any of the following
provisions (see General Instruction A.2. below):
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o
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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x
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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o
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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TABLE
OF CONTENTS
WHERE TO
FIND ADDITIONAL INFORMATION
PARTICIPANTS
IN THE SOLICITATION
Item
1.01 Entry into a Material Definitive Agreement
Item
3.02 Unregistered Sales of Equity Securities
Item
5.01 Changes in Control of Registrant
Item
8.01 Other Events
Item
9.01 Financial Statements and Exhibits
SIGNATURES
EXHIBIT
INDEX
EX-2.1: Agreement
and Plan of Merger
EX-2.2: Merger
Consideration Calculation
EX-10.3: Consent,
Exchange and Preemptive Rights Agreement
EX-10.4: Employment
Agreement of Hugh A. Tarpley
EX-10.5: Employment
Agreement of Lori A. Cuervo
EX-10.6: CEH
Unitholder Consent and Release Agreement
EX-10.7: Amendment
to Registration Rights Agreement
EX-10.8: Non-Solicitation
and Confidentiality Agreement of Peter J. Dailey
EX-99.1: Joint
Press Release
EX-99.2: Investors’
Presentation
INFORMATION
TO BE INCLUDED IN THIS REPORT
FOLLOWING
THE FILING OF THIS REPORT, GSC ACQUISITION COMPANY (“GSCAC”) AND COMPLETE ENERGY
HOLDINGS, LLC (“COMPLETE
ENERGY”) WILL BE HOLDING PRESENTATIONS FOR CERTAIN STOCKHOLDERS OF GSCAC
AND EQUITY AND DEBT HOLDERS OF COMPLETE ENERGY, AS WELL AS OTHER PERSONS WHO
MIGHT BE INTERESTED IN INVESTING IN GSCAC'S SECURITIES, REGARDING GSCAC'S
PROPOSED ACQUISITION (THE "ACQUISITION") OF COMPLETE
ENERGY, AS DESCRIBED IN THIS CURRENT REPORT ON FORM 8-K. CERTAIN INFORMATION
CONTAINED IN THIS CURRENT REPORT ON FORM 8-K AND THE EXHIBITS HERETO MAY BE
DISTRIBUTED TO PARTICIPANTS AT SUCH PRESENTATIONS.
WHERE TO
FIND ADDITIONAL INFORMATION
THIS
CURRENT REPORT ON FORM 8-K IS BEING MADE WITH RESPECT TO A PROPOSED MERGER (THE
“MERGER”) AND RELATED
TRANSACTIONS INVOLVING GSCAC AND COMPLETE ENERGY. IN CONNECTION WITH
THESE PROPOSED TRANSACTIONS, GSCAC INTENDS TO FILE WITH THE SECURITIES EXCHANGE
COMMISSION (“SEC”) A
PRELIMINARY PROXY STATEMENT AND TO MAIL A DEFINITIVE PROXY STATEMENT AND OTHER
RELEVANT DOCUMENTS TO GSCAC’S STOCKHOLDERS. THE INFORMATION CONTAINED
IN THIS CURRENT REPORT ON FORM 8-K IS NOT COMPLETE AND MAY BE
CHANGED. BEFORE MAKING ANY VOTING OR INVESTMENT DECISIONS, GSCAC’S
STOCKHOLDERS AND OTHER INTERESTED PERSONS ARE URGED TO READ, WHEN IT BECOMES
AVAILABLE, GSCAC’S PRELIMINARY PROXY STATEMENT, AND ANY AMENDMENTS THERETO, AND
THE DEFINITIVE PROXY STATEMENT IN CONNECTION WITH GSCAC’S SOLICITATION OF
PROXIES FOR THE SPECIAL MEETING TO BE HELD TO APPROVE THE MERGER AND RELATED
TRANSACTIONS ANY OTHER RELEVANT DOCUMENTS FILED WITH THE SEC BECAUSE THEY WILL
CONTAIN IMPORTANT INFORMATION ABOUT GSCAC, COMPLETE ENERGY AND THE PROPOSED
TRANSACTIONS. THE DEFINITIVE PROXY STATEMENT WILL BE MAILED TO GSCAC
STOCKHOLDERS AS OF A RECORD DATE TO BE ESTABLISHED FOR VOTING ON THE PROPOSED
MERGER AND RELATED TRANSACTIONS. STOCKHOLDERS AND OTHER INTERESTED
PERSONS WILL ALSO BE ABLE TO OBTAIN A COPY OF THE PRELIMINARY AND DEFINITIVE
PROXY STATEMENTS ONCE THEY ARE AVAILABLE, WITHOUT CHARGE, AT THE SEC’S WEB SITE
AT HTTP://WWW.SEC.GOV OR BY DIRECTING A REQUEST TO: GSC ACQUISITION
COMPANY, 500 CAMPUS DRIVE, SUITE 220, FLORHAM PARK, NEW JERSEY 07932, FACSIMILE:
(212) 884-6184.
PARTICIPANTS
IN THE SOLICITATION
GSCAC AND
ITS DIRECTORS AND OFFICERS MAY BE DEEMED TO BE PARTICIPANTS IN THE SOLICITATION
OF PROXIES TO GSCAC’S STOCKHOLDERS IN CONNECTION WITH THE MERGER. A
LIST OF THE NAMES OF THOSE DIRECTORS AND OFFICERS AND A DESCRIPTION OF THEIR
INTERESTS IN GSCAC IS CONTAINED IN GSCAC’S ANNUAL REPORT ON FORM 10-K FOR THE
FISCAL YEAR ENDED DECEMBER 31, 2007, WHICH IS FILED WITH THE SEC, AND WILL ALSO
BE CONTAINED IN GSCAC’S PROXY STATEMENT WHEN IT BECOMES
AVAILABLE. GSCAC’S STOCKHOLDERS MAY OBTAIN ADDITIONAL INFORMATION
ABOUT THE DIRECT AND INDIRECT INTERESTS OF THE PARTICIPANTS IN THE ACQUISITION,
BY SECURITY HOLDINGS OR OTHERWISE, BY READING GSCAC’S PROXY STATEMENT AND OTHER
MATERIALS TO BE FILED WITH THE SEC WHEN SUCH INFORMATION BECOMES
AVAILABLE.
NOTHING IN
THIS CURRENT REPORT ON FORM 8-K SHOULD BE CONSTRUED AS, OR IS INTENDED TO BE, A
SOLICITATION FOR OR AN OFFER TO PROVIDE INVESTMENT ADVISORY
SERVICES.
Item
1.01 Entry into a Material Definitive Agreement
Merger
Agreement
On May 9,
2008, GSC Acquisition Company (“GSCAC”) entered into an
agreement and plan of merger (the “Merger Agreement”) among GSCAC, GSCAC
Holdings I LLC (“Holdings
I”), GSCAC Holdings II LLC (“Holdings II”), GSCAC Merger
Sub LLC (“Merger Sub”)
and Complete Energy Holdings LLC (“Complete
Energy”). GSCAC owns 100% of Holdings I, which owns 100% of
Holdings II, which owns 100% of Merger Sub. The Merger Agreement is
attached as Exhibit 2.1 and is incorporated herein by reference.
Pursuant
to the Merger Agreement, subject to the terms and conditions set forth therein,
GSCAC will indirectly acquire Complete Energy by way of a merger of Merger Sub
into Complete Energy, with Complete Energy being the surviving entity and
thereby becoming an indirect subsidiary of GSCAC (the “Merger”).
In
connection with the Merger, each outstanding share of common stock of GSCAC will
be converted into one share of Class A common stock of GSCAC (collectively, the
“Class A
Shares”). Upon consummation of the Merger, the current owners
of Complete Energy would generally receive Class B units in Holdings I, which
have economic rights similar to the Class A Shares but no voting rights (the
“Class B Units”), and an
equal number of shares of Class B common stock in GSCAC, which have voting
rights but no economic rights (the “Class B
Shares”). In addition, the current owners of Complete Energy
would receive Class C units and Class D units in Holdings I, which would entitle
the holders to receive additional Class B Units and Class B Shares if GSCAC’s
stock price reaches $14.50 or $15.50 per share within five
years. Each Class B Unit plus one Class B Share would be exchangeable
into one newly issued Class A Share. Certain of the owners of Complete
Energy shares may receive the non-contingent portion of their merger
consideration in the form of Class A Shares in lieu of Class B Units and Class B
Shares.
The
aggregate consideration to be paid in the Merger and related transactions is
based upon a total enterprise value for Complete Energy of $1.3 billion,
comprised of $900 million for Complete Energy’s La Paloma facility and $400
million for its Batesville facility, in each case adjusted for its cash and debt
balances at closing and certain minority interests. The number of
Class B Units and Class B Shares (or Class A Shares) to be issued pursuant to
the Merger Agreement will be calculated using a price per share of GSCAC common
stock equal to the lesser of $10.00 and the average closing price per share for
the 20 trading days ending three business days before the closing of the
Merger.
The Merger
and related transactions have been unanimously approved by the board of
directors of GSCAC and the holders of all of the membership interests in
Complete Energy that are required for such approval, but are subject to
customary closing conditions including the expiration or termination of the
waiting period under the Hart-Scott-Rodino Act, other regulatory approvals and
the approval of GSCAC’s stockholders, including a majority of the shares of
common stock of GSCAC issued in its initial public offering. In
addition, the closing is conditioned on the requirement that stockholders owning
not more than 20% of the shares (minus one share) of common stock of GSCAC
issued in its initial public offering vote against the Merger and exercise their
rights to convert those shares into cash, as permitted by GSCAC's certificate of
incorporation. The Merger is anticipated to close late in the third
calendar quarter of 2008.
Copies of
the Merger Agreement and Exhibit F to the Merger Agreement, which describes the
calculation of the merger consideration payable thereunder, are filed herewith
as Exhibits 2.1 and 2.2, respectively, and are incorporated by reference
herein. The foregoing description does not purport to be complete and
is qualified in its entirety by reference to the full text of such
Exhibits.
Lender
Consent
On May 9,
2008, in connection with the Merger Agreement, GSCAC, Complete Energy and
certain of their respective subsidiaries entered into a Consent, Exchange and
Preemptive Rights Agreement (the “Lender Consent”) with certain
lenders to a subsidiary of Complete Energy including investment funds managed by
TCW Asset Management Company and certain of its affiliates (“TCW”), pursuant to which such
lenders have agreed, subject to the terms and conditions set forth therein, to
exchange their debt upon the closing of the Merger for approximately $50 million
in cash, a $50 million mezzanine note and approximately $170 million of the same
equity
securities
received by the current owners of Complete Energy (or in certain cases, Class A
Shares and warrants to purchase Class A Shares that are exercisable if GSCAC’s
stock price reaches $14.50 or $15.50 per share within five
years). The number of Class B Units and Class B Shares (or Class A
Shares) to be issued pursuant to the Lender Consent will be calculated using a
price per share of GSCAC common stock equal to the lesser of $10.00 and the
average closing price per share for the 20 trading days ending three business
days before the closing of the Merger.
A copy of
the Lender Consent is filed herewith as Exhibit 10.3 and is incorporated by
reference herein. The foregoing description does not purport to be
complete and is qualified in its entirety by reference to the full text of such
Exhibit.
Employment
Agreements
On May 9,
2008, in connection with the Merger Agreement, GSCAC entered into employment
agreements with Hugh A. Tarpley and Lori A. Cuervo (together, the “Employment
Agreements”). The Employment Agreements provide that, upon the
closing of the Merger, Mr. Tarpley would become GSCAC’s Chief Executive Officer,
and Ms. Cuervo would become GSCAC’s President and Chief Operating
Officer.
Copies of
the Employment Agreements are filed herewith as Exhibits 10.4 and 10.5,
respectively, and are incorporated by reference herein. The foregoing
description does not purport to be complete and is qualified in its entirety by
reference to the full text of such Exhibits.
Other
Agreements
On May 9,
2008, in connection with the Merger Agreement, GSCAC entered into the CEH
Unitholder Consent and Release Agreement (the “CEH Unitholder Consent”) with
Mr. Tarpley, Ms. Cuervo and Peter J. Dailey; a Non-Solicitation and
Confidentiality Agreement (the “Non-Solicitation Agreement”)
with Mr. Dailey; and an Amendment to Registration Rights Agreement (the “RRA Amendment”) with GSC
Secondary Interest Fund, LLC and the other parties thereto.
Copies of
the CEH Unitholder Consent, Non-Solicitation Agreement and RRA Amendment are
filed herewith as Exhibits 10.6, 10.7 and 10.8, respectively, and are
incorporated by reference herein. The foregoing description does not
purport to be complete and is qualified in its entirety by reference to the full
text of such Exhibits.
The Merger
Agreement, the Lender Consent, the Employment Agreements, the CEH Unitholder
Consent, the Non-Solicitation Agreement and the RRA Amendment govern the
contractual rights among the parties thereto in relation to the
Merger. The Merger Agreement and other exhibits filed with this Form
8-K do not modify or supplement any factual disclosures about GSCAC in our
public reports filed with the SEC. Investors and security holders are
not third party beneficiaries under the Merger Agreement or other such
exhibits. In particular, these agreements are not intended to be, and
should not be relied upon as, disclosures regarding any facts and circumstances
relating to GSCAC or Complete Energy. The representations, warranties
and covenants contained in the Merger Agreement and other agreements were made
as of the specific dates set forth therein with the principal purpose of
establishing the circumstances in which a party may have the right not to close
the Merger if the representations and warranties of the other party prove to be
untrue due to a change in circumstance or otherwise, and allocating risk between
the parties, rather than establishing matters as facts. The
representations and warranties may also be subject to a contractual standard of
materiality different from those generally applicable to
shareholders. Moreover, information concerning the subject matter of
the representations and warranties may change after the date of the Merger
Agreement, which subsequent information may or may not be fully reflected in
GSCAC’s public disclosure. For the foregoing reasons, no person
should rely on any of the representations, warranties or covenants contained in
the Merger Agreement or any other exhibits hereto as statements of factual
information. Moreover, information concerning the subject matter of
the representations, warranties and covenants may change after the date of the
Merger Agreement or other exhibits hereto, which subsequent information may or
may not be fully reflected in GSCAC’s public disclosures.
Item
3.02 Unregistered Sales of Equity Securities
At closing
under the Merger Agreement and the Lender Consent, GSCAC will issue, subject to
adjustments provided in the Merger Agreement and the Lender Consent, Class A
Shares and Class B shares that will not be registered under the Securities Act
of 1933, as amended (the “Securities Act”), in reliance
upon the exemption from the registration requirements as provided in Section
4(2) of the Securities Act.
Item
5.01 Changes in Control of Registrant
Immediately
after the closing of the Merger Agreement, subject to the adjustments provided
in the Merger Agreement, investment funds affiliated with TCW are expected to
become GSCAC’s largest shareholders, with approximately 19% ownership; GSCAC’s
existing shareholders are expected to collectively own approximately 42% of
GSCAC; and the current owners of Complete Energy are expected to own
approximately 10% of GSCAC, in each case on a fully-diluted basis and assuming
that all of the current minority interest owners in Complete Energy's
subsidiaries participate in the transaction and assuming no conversion of shares
by GSCAC’s public stockholders.
In
addition, the composition of GSCAC’s board of directors will be changed such
that its members will include two individuals designated by the current Complete
Energy owners and one individual designated by TCW. Immediately after
the closing of the Merger Agreement, GSCAC’s management will include two of the
founders of Complete Energy: Hugh A. Tarpley, who will serve as
GSCAC’s Chief Executive Officer, and Lori A. Cuervo, who will serve as President
and Chief Operating Officer.
Item
8.01 Other Events
Press
Release
On May 12, 2008, GSCAC and Complete
Energy issued a joint press release announcing the execution of the Merger
Agreement, a copy of which press release is attached hereto as Exhibit 99.1 and
is incorporated by reference.
Investors’
Presentation
Attached
as Exhibit 99.2 to this Current Report on Form 8−K and incorporated into this
Item 8.01 by reference is the form of investors’ presentation to be used by
GSCAC and Complete Energy in presentations to GSCAC’s stockholders and other
persons.
Item
9.01 Financial Statements and Exhibits
(d)
Exhibits.
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2.1*
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Agreement
and Plan of Merger, dated as of May 9, 2008, by and among GSC Acquisition
Company, GSCAC Holdings I LLC, GSCAC Holdings II LLC, GSCAC Merger Sub LLC
and Complete Energy Holdings, LLC
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2.2
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Merger
Consideration Calculation
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10.3
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Consent,
Exchange and Preemptive Rights Agreement, dated as of May 9, 2008, by and
among CEH/La Paloma Holding Company, LLC, Complete Energy Holdings, LLC,
Lori A. Cuervo, Hugh A. Tarpley and Peter J. Dailey, GSC Acquisition Company, GSCAC
Holdings I LLC, GSCAC Holdings II LLC, GSCAC Merger Sub LLC, TCW Asset Management
Company and the Note Holders and Option Holders party
thereto
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10.4
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Employment
Agreement, dated as of May 9, 2008, by and among CEP Operating Company
LLC, GSC Acquisition Company and Hugh A. Tarpley
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10.5
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Employment
Agreement, dated as of May 9, 2008, by and among CEP Operating Company
LLC, GSC Acquisition Company and Lori A. Cuervo
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10.6
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CEH
Unitholder Consent and Release Agreement, dated as of May 9, 2008, by and
among Lori A. Cuervo, Hugh A. Tarpley and Peter J. Dailey, Complete Energy
Holdings LLC and GSC Acquisition
Company
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10.7
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Amendment
to Registration Rights Agreement, dated as of May 9, 2008, by and among
GSC Acquisition Company, GSC Secondary Interest Fund, LLC, James K.
Goodwin and Richard A. McKinnon
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10.8
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Non-Solicitation
and Confidentiality Agreement dated as of May 9, 2008 between GSC
Acquisition Company and Peter J. Dailey.
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99.1
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Joint
Press Release dated May 12, 2008
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99.2
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Investors’
Presentation dated May 12, 2008
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*
Schedules and exhibits to the Agreement and Plan of Merger have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. GSCAC hereby undertakes to furnish
supplementally a copy of any omitted schedules and exhibits to the Securities
and Exchange Commission upon request.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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GSC
Acquisition Company
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Date:
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May
12, 2008
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By:
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/s/
Matthew C. Kaufman
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Name:
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Matthew
C. Kaufman
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Title:
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President
and Director
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EXHIBIT
INDEX
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Exhibit
Number
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Description
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EX-2.1*
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Agreement
and Plan of Merger, dated as of May 9, 2008, by and among GSC Acquisition
Company, GSCAC Holdings I LLC, GSCAC Holdings II LLC, GSCAC Merger Sub LLC
and Complete Energy Holdings, LLC
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EX-2.2
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Merger
Consideration Calculation
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EX-10.3
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Consent,
Exchange and Preemptive Rights Agreement, dated as of May 9, 2008, by and
among CEH/La Paloma Holding Company, LLC, Complete Energy Holdings, LLC,
Lori A. Cuervo, Hugh A. Tarpley and Peter J. Dailey, GSC Acquisition Company, GSCAC
Holdings I LLC, GSCAC Holdings II LLC, GSCAC Merger Sub LLC, TCW Asset Management
Company and the Note Holders and Option Holders party
thereto
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EX-10.4
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Employment
Agreement, dated as of May 9, 2008, by and among CEP Operating Company
LLC, GSC Acquisition Company and Hugh A. Tarpley
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EX-10.5
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Employment
Agreement, dated as of May 9, 2008, by and among CEP Operating Company
LLC, GSC Acquisition Company and Lori A. Cuervo
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EX-10.6
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CEH
Unitholder Consent and Release Agreement, dated as of May 9, 2008, by and
among Lori A. Cuervo, Hugh A. Tarpley and Peter J. Dailey, Complete Energy
Holdings LLC and GSC Acquisition Company
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EX-10.7
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Amendment
to Registration Rights Agreement, dated as of May 9, 2008, by and among
GSC Acquisition Company, GSC Secondary Interest Fund, LLC, James K.
Goodwin and Richard A. McKinnon
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EX-10.8
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Non-Solicitation
and Confidentiality Agreement dated as of May 9, 2008 between GSC
Acquisition Company and Peter J. Dailey.
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EX-99.1
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Joint
Press Release dated May 12, 2008
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EX-99.2
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Investors’
Presentation dated May 12, 2008
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*
Schedules and exhibits to the Agreement and Plan of Merger have been omitted
pursuant to Item 601(b)(2) of Regulation S-K. GSCAC hereby undertakes to furnish
supplementally a copy of any omitted schedules and exhibits to the Securities
and Exchange Commission upon request.
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