SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
____________________
FORM
10-K
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Annual
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
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For
the fiscal year ended December 31, 2008
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Transition
Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act
of 1934
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For
the transition period from
to
Commission
File Number 001-33553
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GSC
ACQUISITION COMPANY
(Name
of Issuer in Its Charter)
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Delaware
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20-5779392
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(State
of Incorporation)
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(Issuer
I.R.S.
Employer I.D. Number)
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500
Campus Drive, Suite 220, Florham Park, New Jersey
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07932
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(Address
of principal executive offices)
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(zip
code)
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(973)
437-1000
(Issuer’s
Telephone Number, Including Area Code)
Securities
registered pursuant to Section 12(b) of the Act:
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Name
of Each Exchange on Which Registered
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Units
consisting of one share of Common Stock, par value $.001 per share, and
one Warrant
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NYSE
Alternext US LLC
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Common
Stock, $.001 par value per share
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NYSE
Alternext US LLC
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Warrants
to purchase shares of Common Stock
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NYSE
Alternext US LLC
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Securities
registered pursuant to Section 12(g) of the
Act: None
____________________
Indicate
by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes
¨
No
x
Indicate
by check mark if the registrant is not required to file reports pursuant to
Section 13 or 15(d) of the Exchange Act.
¨
Indicate
by check mark whether the registrant (1) has filed all reports required to
be filed by Section 13 or 15(d) of the Exchange Act of 1934 during the past
12 months (or for such shorter period that the registrant was required to file
such reports), and (2) has been subject to such filing requirement for the
past 90 days. Yes
x
No
¨
Indicate
by check mark if there is no disclosure of delinquent filers in response to
Item 405 of Regulation S-K contained in this form, and no disclosure will
be contained, to the best of the registrant’s knowledge, in definitive proxy or
information statements incorporated by reference in Part III of this Form 10-K
or any amendment to this Form 10-K.
x
Indicate
by check mark whether the Registrant is a large accelerated filer, an
accelerated filer, or a non-accelerated filer. See definition of “accelerated
filer and large accelerated filer” in Rule 12b-2 of the Exchange Act (Check
one).
Large
accelerated filer
¨
Accelerated
filer
x
Non-accelerated
filer
¨
Smaller
reporting company
¨
(Do not check if a smaller reporting
company)
Indicate
by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Exchange Act) Yes
x
No
¨
As of
June 30, 2008 (the last business day of the Registrant’s most recently completed
second fiscal quarter), the aggregate market value of the Registrant’s Common
Stock (based on the closing price on the American Stock Exchange on that date)
held by non-affiliates of the Registrant was approximately $194.6
million.
As of
February 26, 2009, there were 25,200,000 shares of Common Stock, $.001 par value
per share, outstanding.
SAFE
HARBOR STATEMENT
This
Annual Report on Form 10-K contains statements relating to future results of GSC
Acquisition Company (including certain projections and business trends) that are
“forward-looking statements” within the meaning of Section 27A of the Securities
Act of 1933, as amended, and Section 21E of the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), and are subject to the “safe harbor” created by
those sections. Forward-looking statements frequently are identifiable by the
use of words such as “may,” “should,” “could,” “would,” “expect,” “plan,”
“anticipate,” “believe,” “estimate,” “continue,” or the negative of such terms
and other similar expressions. Our actual results may differ materially from
those projected as a result of certain risks and uncertainties. These risks and
uncertainties include, but are not limited to, those set forth in Item 1A. Risk
Factors and elsewhere in this Annual Report on Form 10-K and those detailed from
time to time in our other filings with the Securities and Exchange Commission.
These forward-looking statements are made only as of the date hereof, and we
undertake no obligation to update or revise the forward-looking statements,
whether as a result of new information, future events or otherwise.
PART
I
References
to “we,” “us,” or the Company are to GSC Acquisition Company in this Annual
Report on Form 10-K.
GSC
Acquisition Company is a blank check company formed on October 26, 2006 for the
purpose of acquiring, through a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or other similar business
combination, one or more businesses or assets, which we refer to as our initial
Business Combination. Our efforts in identifying a prospective target
business have not been limited to a particular industry. Instead we
have focused on industries and target businesses in the United States and Europe
that may provide significant opportunity for growth. As discussed
below, on May 9, 2008 we entered into an agreement and plan of merger for a
proposed initial Business Combination; we have not yet consummated our initial
Business Combination and there can be no assurance that we will consummate an
initial Business Combination with Complete Energy or any other target
business.
The
registration statement for our initial public offering (“IPO”) was declared
effective June 25, 2007. On June 28, 2007, we consummated a private placement of
4,000,000 warrants (the “Initial Founder’s Warrants”) to GSC Secondary Interest
Fund, LLC, our founding stockholder (the “Founding Stockholder”), at $1.00 per
Initial Founder’s Warrant generating gross proceeds of $4.0 million (the
“Private Placement”). On June 29, 2007, our IPO of 20,700,000 units (“Units”)
was consummated, including 2,700,000 Units subject to the underwriters’
over-allotment option. Each Unit consists of one share of common stock of
the Company, $0.001 par value per share (“Common Stock”), and one warrant
(“Warrant”) to purchase one share of Common Stock. The Units were
sold at an offering price of $10.00 per Unit, generating gross proceeds of
$207.0 million.
A total
of approximately $201.7 million, including $191.5 million of the IPO proceeds
net of the underwriters’ discount and commission of $14.5 million and offering
costs of $1.0 million, $4.0 million from the sale of warrants to the Founding
Stockholder and $6.2 million of deferred underwriting discounts and commissions,
has been placed in a trust account at JPMorgan Chase Bank, N.A., with the
American Stock Transfer & Trust Company serving as trustee. The $6.2 million
deferred underwriting discounts and commissions are not be payable unless and
until we complete a Business Combination. The underwriters have
waived their right to receive such payment upon our liquidation if we are unable
to complete a Business Combination. Such amount of $6.2 million is
included as deferred underwriting discount on the balance sheet as of December
31, 2008. Except for a portion of the interest income permitted to be released
to us, the proceeds held in trust will not be released from the trust account
until the earlier of the completion of our initial Business Combination or our
liquidation. Under the terms of the investment management trust
agreement, up to a total of $2.4 million of interest income (net of taxes
payable) could be released to us, subject to availability. As of
December 31, 2008, all of the available $2.4 million had been released to us in
accordance with these terms and the balance in the trust account was
approximately $203.5 million.
All
activity through December 31, 2008 relates to the formation of the Company, our
IPO, efforts to identify prospective target businesses and our negotiation and
execution of the Merger Agreement referred to below and our efforts to
consummate the merger thereunder. We are not presently engaged in,
and we will not engage in, any substantive commercial business until we
consummate a Business Combination. We intend to utilize our cash, including the
funds held in the trust account, capital stock, debt or a combination of the
foregoing in effecting a Business Combination.
On May 9,
2008, the Company entered into an agreement and plan of merger (the “Merger
Agreement”) among the Company, Holdings I, Holdings II, Merger Sub and Complete
Energy Holdings, LLC (“Complete Energy”). The Company
owns 100%
of Holdings I, which owns 100% of Holdings II, which owns 100% of Merger
Sub. Complete Energy owns and operates two natural gas-fired combined
cycle power generation facilities, the 1,022 MW La Paloma generating facility
(“La Paloma”) and the 837 MW Batesville generating facility
(“Batesville”). Pursuant to the Merger Agreement, the Company 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 the Company (the “Merger”).
In
connection with the proposed Merger, each outstanding share of common stock of
the Company will be converted into one share of Class A common stock of the
Company (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 the Company, 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 the Company’s stock price reaches $14.50 or $15.50 per share for 10
consecutive trading days, respectively, in each case within five years after the
closing. 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 the Company’s
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 Company’s
board of directors and the holders of all of the membership interests in
Complete Energy that are required for such approval, but are subject to the
approval of the Company’s stockholders, including a majority of the shares of
common stock of the Company issued in its IPO. In addition, the
Merger may not be completed if holders of more than 20% of the shares sold in
the IPO vote against the merger and properly exercise their conversion rights,
as set forth in the Company’s certificate of incorporation. The
Merger Agreement may be terminated by either the Company or Complete Energy by
written notice to the other party. There can be no assurance that the Merger
will be consummated.
For a
more complete discussion of our proposed Business Combination, including the
risks relating to the proposed acquisition of Complete Energy, see our
preliminary proxy statement on Schedule 14A filed with the Securities and
Exchange Commission on July 29, 2008, as amended on October 10, 2008. The proxy
statement filed with the Securities and Exchange Commission is preliminary and
will be amended prior to any mailing of a definitive proxy statement to
stockholders.
We do not
expect that the Merger and related transactions will be consummated without
amending the Merger Agreement and related documents, if at all. We
are exploring alternatives for restructuring the proposed Merger with the goal
of consummating the Merger, after such restructuring, by June 25,
2009. On February 25, 2009, we, our subsidiaries and Complete Energy
executed a waiver agreement under the Merger Agreement, pursuant to which
certain exclusivity provisions of the Merger Agreement were waived, allowing us,
Complete Energy and our respective affiliates and representatives to, among
other things, initiate discussions with third parties concerning a merger, sale
or other business combination, provided that neither we nor Complete Energy, nor
any of our respective affiliates or representatives, will enter into a contract
with respect to such a transaction without the consent of the
other. As a result of the waiver agreement, we may solicit or
initiate discussions with, and enter into negotiations with, other potential
target businesses in an effort to consummate an initial Business
Combination.
Selection
of a target business and structuring of a Business Combination
As noted
above, we have identified Complete Energy as the proposed target business for
our initial Business Combination. If we determine that we are
unlikely to consummate our initial Business Combination with Complete Energy, we
may seek to identify a different target business and to consummate an initial
Business Combination with such target business by June 25, 2009. In
that case, our efforts in identifying prospective target businesses would not be
limited to a particular industry. Instead, we would focus on various
industries and target businesses in the United States and Europe that may
provide significant opportunities for growth. We anticipate that
target business candidates would be brought to our attention from various
unaffiliated sources, including investment bankers, venture capital funds,
private equity funds, leveraged buyout funds, management buyout funds and other
members of the financial community. Our officers and directors as well as their
affiliates might also bring to our attention target business
candidates. In no event will we pay the Founding
Stockholder,
any of our officers, directors or GSC Group or our or their affiliates for any
finder’s fees, reimbursements or cash payments or other compensation for
services rendered to us prior to or in connection with the consummation of a
Business Combination, other than a payment of an aggregate of $7,500 per month
to GSCP (NJ) Holdings, L.P., an affiliate of our Founding Stockholder for office
space, secretarial and administrative services; and reimbursement for any
out-of-pocket expenses related to our IPO or identifying, investigating and
consummating an initial Business Combination. Our audit committee will review
and approve all payments made to our Founding Stockholder, officers, directors
or our or their affiliates, other than the $7,500 per month payment described in
the prior sentence, and any payments made to members of our audit committee will
be reviewed and approved by our board of directors, with any interested director
abstaining from such review and approval.
The
Company’s management has broad discretion with respect to the specific
application of the net proceeds of the IPO, although substantially all of the
net proceeds of the IPO are intended to be generally applied toward consummating
a Business Combination with an existing operating company. As used herein, a
“target business” shall mean one or more businesses or assets that, at the time
of our initial Business Combination, has a fair market value of at least 80% of
the balance in the trust account (excluding deferred underwriting discounts of
$6.2 million) described below and a “Business Combination” shall mean the
acquisition by the Company through a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or other similar Business
Combination, of such target business. As discussed in Note 7, the
Company has identified Complete Energy as its prospective target
business.
Subject
to the requirement that our initial Business Combination must be with a business
that satisfies the criteria of a target business at the time of such initial
Business Combination, our management has virtually unrestricted flexibility in
identifying and selecting a prospective target business (subject to the
exclusivity provisions of the Merger Agreement). However, we will only
consummate a Business Combination in which we become the controlling shareholder
of the target. The key factors that we will rely on in determining controlling
shareholder status would be our acquisition of at least 51% of the voting equity
interests of the target company and control of the majority of any governing
body of the target company. We will not consider any transaction that does not
meet such criteria. In addition, we will not enter into our initial Business
Combination with any entity in which any of our officers, directors or GSC Group
or its affiliates has a financial interest.
In
evaluating any prospective target business if we do not pursue an initial
Business Combination with Complete Energy, our management will consider a
variety of criteria and guidelines, including the following:
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financial
condition and results of
operations;
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brand
recognition and potential;
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experience
and skill of management and availability of additional
personnel;
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stage
of development of the business and its products or
services;
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existing
distribution arrangements and the potential for
expansion;
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degree
of current or potential market acceptance of the products or
services;
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proprietary
aspects of products and the extent of intellectual property or other
protection for products or
formulas;
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impact
of regulation on the business;
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seasonal
sales fluctuations and the ability to offset these fluctuations through
other Business Combinations, introduction of new products, or product line
extensions;
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costs
associated with effecting the Business
Combination;
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industry
leadership, sustainability of market share and attractiveness of market
sectors in which target business
participates;
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degree
to which GSC Group’s investment professionals have investment experience
and have had success in the target business’s
industry;
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ability
for GSC Group to add value post Business Combination;
and
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macro
competitive dynamics in the industry within which each company
competes.
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These
criteria are not intended to be exhaustive. Any evaluation relating to the
merits of a particular initial Business Combination will be based, to the extent
relevant, on the above factors as well as other considerations deemed relevant
by our management to our business objective. In evaluating any additional
prospective target business, we expect to conduct an extensive due diligence
review which will encompass, among other things, meetings with incumbent
management and employees, document reviews, interviews of customers and
suppliers, inspection of facilities, as well as review of financial and other
information which will be made available to us.
The time
required to select and evaluate any additional potential target business and to
structure (or in the case of the Merger Agreement, restructure) and complete an
initial Business Combination, and the costs associated with this process, are
not currently ascertainable with any degree of certainty. We expect that due
diligence of any additional prospective target businesses will be performed by
some or all of our officers, directors and GSC Group investment professionals.
We may engage market research firms or third-party consultants to assist us with
performing due diligence and valuations of any target business. To date, we have
incurred costs in our efforts to identify and evaluate potential target
businesses and in negotiating and executing the Merger Agreement. To
the extent we decide to pursue a target business other than Complete Energy, we
will incur additional costs with respect to the identification and evaluation of
such a prospective target business. The costs incurred, and that we
may incur, in evaluating prospective target businesses with which an initial
Business Combination is not ultimately completed reduce the funds we can use to
complete an initial Business Combination.
Fair
Market Value of Target Business
As noted
above, the initial target business that we acquire must have a fair market value
equal to at least 80% of the balance in the trust account (excluding deferred
underwriting discounts of $6.2 million) at the time of such acquisition. The
fair market value of such business will be determined by our board of directors
based upon one or more standards generally accepted by the financial community
(such as actual and potential sales, earnings, cash flow and/or book value).
Should we decide to pursue another target business, if our board is not able to
independently determine that the target business has a sufficient fair market
value, we will obtain an opinion from an unaffiliated, independent investment
banking firm with respect to the satisfaction of such criteria. We will not be
required to obtain an opinion from an investment banking firm as to the fair
market value if our board of directors independently determines that the target
business has sufficient fair market value.
Lack
of business diversification
While we
may seek to effect Business Combinations with more than one target business if
we do not pursue an initial Business Combination with Complete Energy, our
initial Business Combination must involve one or more target businesses whose
collective fair market value meets the criteria discussed above at the time of
such initial Business Combination. Consequently, we expect to complete only a
single Initial Business Combination, although this could entail a simultaneous
combination with several operating businesses. At the time of our initial
Business Combination, we may not be able to acquire more than one target
business because of various factors, including complex accounting or financial
reporting issues. For example, we may need to present pro forma financial
statements reflecting the operations of several target businesses as if they had
been combined historically.
A
simultaneous combination with several target businesses also presents logistical
issues, such as the need to coordinate the timing of negotiations, proxy
statement disclosure and closings. In addition, if conditions to closings with
respect to one or more of the target businesses are not satisfied, the fair
market value of the businesses could fall below the required fair market value
threshold described above.
Accordingly,
while it is possible that our initial Business Combination may involve more than
one target business, we are more likely to choose a single target business if
all other factors appear equal. This means that for an indefinite period of
time, the prospects for our success may depend entirely on the future
performance of a single target business. Unlike other entities that have the
resources to complete Business Combinations with multiple entities in one or
several industries, it is probable that we will not have the resources to
diversify our operations and mitigate the risks of being in a single line of
business. By consummating our initial Business Combination with only a single
entity, our lack of diversification may subject us to negative economic,
competitive and regulatory developments, in the particular industry in which we
operate after our initial Business Combination.
If we
complete our initial Business Combination structured as a merger in which the
consideration is our stock, we could have a significant amount of cash available
to make subsequent add-on acquisitions.
Limited
ability to evaluate the target business’s management
We will
independently evaluate the quality and experience of the existing management of
any other target business we may choose to consider, and will make an assessment
as to whether or not they should be replaced on a case-by-case basis. As an
example, a company in weak financial condition may be experiencing difficulties
because of its capitalization and not because of its operations, in which case
operating management may not need to be replaced.
Although
we would intend to closely scrutinize the management of any additional
prospective target business when evaluating the desirability of effecting an
initial Business Combination with that business, we cannot assure you that our
assessment of any such target business’s management will prove to be correct. In
addition, we cannot assure you that management of such target business will have
the necessary skills, qualifications or abilities to manage a public company.
Furthermore, the future role of our officers and directors, if any, in such a
target business cannot be stated with any certainty. While it is possible that
one or more of our officers and directors will remain associated in some
capacity with us following our initial Business Combination, we would expect
that a final determination of their continued involvement with the business upon
completion of an initial Business Combination would be made jointly with our
board of directors and based on the facts and circumstances at the time. The
goal of our board of directors will be to ensure that they select the best
management team to pursue our business strategy. If they determine that the
incumbent management of an acquired business should be replaced and that one or
more of our officers and directors is the best available replacement, it is
possible that some of our officers or directors will devote some or all of their
efforts to our affairs subsequent to our initial Business
Combination.
Following
our initial Business Combination, we may seek to recruit additional managers to
supplement the incumbent management of the target business. We cannot assure you
that we will have the ability to recruit additional managers, or that additional
managers will have the requisite skills, knowledge or experience necessary to
enhance the incumbent management.
Opportunity
for stockholder approval of Business Combination
We will
seek stockholder approval before effecting any Business Combination, even if the
proposed Business Combination would not ordinarily require stockholder approval
under applicable state law. In connection with the stockholder vote
required to approve any Business Combination, our Founding Stockholder and two
of our directors have agreed to vote the shares of common stock they owned
immediately before this IPO in accordance with the majority of the shares of
common stock voted by the Public Stockholders. This voting arrangement shall not
apply to any shares purchased by the Founding Stockholder and such directors in
the open market. “Public Stockholders” is defined as the holders of the common
stock sold as part of the Units in the IPO (“IPO Shares”) or in the secondary
market. The Company will proceed with a Business Combination, whether with
Complete Energy or another target business, only if a quorum is constituted and
a majority of the IPO Shares voted by the Public Stockholders, in person or by
proxy, are voted in favor of the proposed Business Combination and Public
Stockholders holding not more than 20% of the IPO Shares (minus one share) vote
against the Business Combination and exercise their conversion rights (as
described below). If a majority of the shares of common stock voted by the
Public Stockholders are not voted in favor of a proposed initial Business
Combination, we may combine with a different target business meeting the fair
market value criterion described above so long as such combination is approved
by public stockholders prior to June 25, 2009.
In
connection with seeking stockholder approval of a proposed Business Combination,
we will furnish our stockholders with proxy solicitation materials prepared in
accordance with the Exchange Act, which, among other matters, will include a
description of the operations of the target business and audited historical
financial statements of the business.
Conversion
rights
At the
time we seek stockholder approval of any Business Combination, we will offer the
holders of IPO Shares (but not any of our Founders to the extent they purchased
IPO Shares) the right to have such shares converted to cash if the stockholder
votes against the Business Combination and the Business Combination is approved
and completed. The actual per-share conversion price will be equal to the amount
in the trust account (before payment of deferred underwriting discounts and
commissions and including interest earned on their pro rata portion of the trust
account, net of income taxes payable on such interest and net of interest income
of $2.4 million on the trust account balance previously released to us to fund
our working capital requirements), as of two business days prior to the
consummation of the Business Combination, divided by the total number of IPO
Shares. As of December 31, 2008, the per-share conversion price was
approximately $9.90. An eligible stockholder may request conversion at any time
after the mailing to our stockholders of the proxy
statement
and prior to the vote taken with respect to a proposed Business Combination at a
meeting held for that purpose, but the request will not be granted unless the
stockholder votes against the Business Combination and the Business Combination
is approved and completed. Any request for conversion, once made, may be
withdrawn at any time up to the date of the meeting. It is anticipated that the
funds to be distributed to stockholders entitled to convert their shares who
elect conversion will be distributed promptly after completion of a Business
Combination. We will not complete any Business Combination if stockholders
owning 20% or more of the IPO Shares both vote against the Business Combination
and exercise their conversion rights. Holders of IPO Shares who convert their
stock into their share of the trust account still have the right to exercise any
warrants they continue to hold.
Liquidation
if no Business Combination
If we do
not effect a Business Combination by June 25, 2009, we will dissolve and
distribute to our Public Stockholders on a pro rata basis the amount in the
trust account at such time (less any income taxes payable on interest income and
$2.4 million of interest income released to us to fund our working capital
requirements as well as interest income of up to $75,000 that may be released to
us should we have no or insufficient working capital remaining to fund the costs
and expenses of liquidation) plus any remaining net assets of the Company not
used for or reserved to pay obligations and claims or such other corporate
expenses relating to or arising from our plan of dissolution and distribution,
including costs of dissolving and liquidating the Company. In the
event of liquidation, it is likely that the per share value of the residual
assets remaining available for distribution (including trust account assets)
will be less than the price per Unit in the IPO (assuming no value is attributed
to the Warrants contained in the Units). Our Founding Stockholder and two of our
directors who owned shares of our common stock immediately prior to our IPO
(“Initial Founder’s Shares”) whom we refer to collectively as our “Founders”,
have waived their rights to participate in any liquidation distribution with
respect to their Initial Founder’s Shares. There will be no distribution from
the trust account with respect to our warrants, which will expire worthless if
we liquidate.
If we
were to expend all of the net proceeds of our IPO, other than the proceeds
deposited in the trust account, and without taking into account interest earned
on the trust account, the initial per-share liquidation price would be $9.74 or
$0.26 less than the public offering per unit price of
$10.00. However, the proceeds deposited in the trust account could
become subject to the claims of our creditors which could be prior to the claims
of our public stockholders. As of December 31, 2008, the per-share
liquidation price was $9.90; however, we cannot assure you that if we liquidate,
the actual per share liquidation price will not be less than $9.90.
Competition
In
identifying, evaluating and selecting any other target business for our initial
Business Combination, we may encounter intense competition from other entities
having a business objective similar to ours, including other blank check
companies, private equity groups and leveraged buyout funds, as well as
operating businesses seeking acquisitions. Many of these entities are well
established and have extensive experience identifying and effecting Business
Combinations directly or through affiliates. Moreover, many of these competitors
possess greater financial, technical, human and other resources than us. While
we believe there are numerous potential target businesses with which we could
combine if we choose not to pursue an initial Business Combination with Complete
Energy, our ability to acquire larger target businesses will be limited by our
available financial resources. This inherent limitation gives others an
advantage in pursuing the acquisition of a target business.
Furthermore:
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our
obligation to seek stockholder approval of our initial Business
Combination or obtain necessary financial information may delay the
completion of a transaction;
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our
obligation to convert into cash shares of common stock held by our public
stockholders who vote against the initial Business Combination and
exercise their conversion rights may reduce the resources available to us
for an initial Business
Combination;
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our
outstanding warrants and the future dilution they potentially represent
may not be viewed favorably by certain target businesses;
and
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the
requirement to acquire an operating business that has a fair market value
equal to at least 80% of the balance of the trust account at the time of
the acquisition (excluding deferred underwriting discounts and commissions
of $6.2 million) could require us to acquire the assets of several
operating businesses at the same time, all of which sales would be
contingent on the closings of the other sales, which could make it more
difficult to consummate the Business
Combination.
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In
addition, a number of other blank check companies completed initial public
offerings in 2008 and are now seeking to complete an initial Business
Combination. See “Risk Factors – We may face significant competition
from numerous other companies with a business plan similar to ours seeking to
effectuate a Business Combination.” Any of these factors may place us
at a competitive disadvantage in successfully negotiating a Business
Combination.
Employees
We
currently have two officers. These individuals are not obligated to devote any
specific number of hours to our business and intend to devote only as much time
as they deem necessary to our business. We do not expect to have any full-time
employees prior to the consummation of a Business Combination.
Where You Can Find Additional
Information
GSC
Acquisition Company files current, annual and quarterly reports, proxy
statements and other information required by the Securities Exchange Act of
1934, as amended (the ‘‘Exchange Act’’), with the SEC. You may read and copy any
document the company files at the SEC’s public reference room located at 100 F
Street, N.E., Washington, D.C. 20549, U.S.A. Please call the SEC at
1-800-SEC-0330 for further information on the public reference room. Our SEC
filings are also available to the public from the SEC’s internet site at
http://www.sec.gov.
Our
public internet site is http://www.gscac.com. We will make available free of
charge through our internet site, via a link to the SEC’s internet site at
http://www.sec.gov, our annual reports on Form 10-K, quarterly reports on Form
10-Q, current reports on Form 8-K, proxy statements and Forms 3, 4 and 5 filed
on behalf of directors and executive officers and any amendments to those
reports filed or furnished pursuant to the Exchange Act as soon as reasonably
practicable after we electronically file such material with, or furnish it to,
the SEC. Posted on our website in the ‘‘Corporate Governance’’ section, and
available in print upon request of any stockholder to our company, are charters
for the company’s Audit Committee, Governance and Nominating Committee and our
Code of Conduct and Ethics governing our directors, officers and employees. You
will need to have Adobe Acrobat Reader software installed on your computer to
view these documents, which are in PDF format.
You
should consider carefully the risk factors described below. If any of the
following events occur, our business, financial condition and operating results
may be materially adversely affected. In that event, the trading price of our
securities could decline and you could lose all or part of your
investment.
Risks
associated with our business
Our
auditors have expressed substantial doubt about our ability to continue as a
going concern.
Our
audited financial statements for the fiscal year ended December 31, 2008, were
prepared under the assumption that we will continue our operations as a going
concern. Our registered independent accountants in their audit report have
expressed substantial doubt about our ability to continue as a going concern.
Continued operations to consummate an initial Business Combination by June 25,
2008 depend on our ability to meet our existing debt obligations and the
financing or other capital required to do so may not be available or may not be
available on reasonable terms. Our financial statements do not include any
adjustments that may result from the outcome of this uncertainty.
We
are a development stage company with no operating history and no revenues, and
you have no basis on which to evaluate our ability to achieve our business
objective.
We are a
development stage company with limited operating results. Because we lack an
operating history, you have no basis on which to evaluate our ability to achieve
our business objective of completing an initial Business Combination with one or
more target businesses. We have no plans, arrangements or understandings with
any prospective target businesses concerning an initial Business Combination and
may be unable to complete an initial Business Combination. We will not generate
any revenues from operating activities until, at the earliest, after completing
an initial Business Combination. We cannot assure you as to when, or if, an
initial Business Combination will occur. If we expend all of the funds not held
in trust and interest income earned of up to $2.4 million on the balance of the
trust account that may be released to us to fund our working capital
requirements in seeking an initial Business Combination, all of which has been
released as of December 31, 2008, but fail to complete such an initial
combination, we may never generate any operating revenues.
We
may not be able to consummate our initial Business Combination within the
required time frame, in which case we would be forced to dissolve and
liquidate.
We must
complete our initial Business Combination with one or more target businesses
that have a fair market value of at least 80% of the amount held in our trust
account at the time of the initial Business Combination (excluding deferred
underwriting discounts and commissions of $6.2 million) by June 25, 2009. If we
fail to consummate a Business Combination by June 25, 2009, we will be forced to
dissolve and liquidate. While we have signed a Merger Agreement with Complete
Energy Holdings, we do not expect that we will be able to consummate that
Business Combination on the terms and conditions reflected in the Merger
Agreement, and we may not be able to consummate such merger at all. A
number of factors may prevent us from consummating the proposed initial Business
Combination with Complete Energy, or with any other target business, including
the terms of the proposed merger, general economic conditions, the per-share
amount of cash in the trust account, other investment opportunities available to
our stockholders, and the amount of time remaining to make any necessary filings
with the Securities and Exchange Commission and to prepare and mail a definitive
proxy statement to our stockholders.
While we
may decide to pursue other target businesses, we may not be able to find a
suitable target business or businesses within the required time frame. In
addition, our negotiating position and our ability to conduct adequate due
diligence on any potential target business may be reduced as we approach June
25, 2009, the deadline for the consummation of an initial Business
Combination.
GSC
Group, which includes our Founding Stockholder, is a manager of assets in niche
markets and complex areas including distressed investing (predominately
control-oriented), corporate credit and real estate. Because of the nature of
GSC Group’s business, executives associated with GSC Group, including Messrs.
Eckert, Frank and Kaufman, occasionally receive unsolicited inquiries that
identify companies that are potentially for sale, however we will not use
information relating to specific target businesses that was known by GSC Group’s
investment professionals or any other affiliates prior to the completion of the
IPO on June 29, 2007.
If
we liquidate before concluding an initial Business Combination, our public
stockholders will receive less than $10.00 per share on distribution of trust
account funds and our warrants will expire worthless.
If we are
unable to complete an initial Business Combination and must liquidate our
assets, the per-share liquidation distribution will be less than $10.00 because
of the expenses of the IPO, our general and administrative expenses and the
costs of seeking an initial Business Combination. As of December 31, 2008, the
per-share liquidation distribution would have been approximately
$9.90. Furthermore, our outstanding warrants are not entitled to
participate in a liquidation distribution and the warrants will therefore expire
worthless if we liquidate before completing an initial Business Combination. As
a result, the purchasers of our shares and warrants may realize less than $10
for each such share, and may not receive any money for such
warrant.
We may require
stock
holders who wish to convert their shares
to comply with specific requirements for conversion that may make it more
difficult for them to exercise their conversion rights prior to the deadline for
exercising conversion rights.
We may
require public stockholders who wish to convert their shares to tender their
certificates to our transfer agent prior to the shareholder meeting or to
deliver their shares to the transfer agent electronically using the Depository
Trust Company’s DWAC (Deposit/Withdrawal At Custodian) System. In order to
obtain a physical stock certificate, a stockholder’s broker and/or clearing
broker, DTC and our transfer agent will need to act to facilitate this request.
It is our understanding that stockholders should generally allot at least two
weeks to obtain physical certificates from the transfer agent. However, because
we do not have any control over this process or over the brokers or DTC, it may
take significantly longer than two weeks to obtain a physical stock certificate.
If it takes longer than anticipated to obtain a physical certificate,
stockholders who wish to convert may be unable to obtain physical certificates
by the deadline for exercising their conversion rights and thus will be unable
to convert their shares.
An
effective registration statement must be in place in order for a warrant holder
to be able to exercise the warrants, otherwise the warrants will expire
worthless.
No
warrants will be exercisable and we will not be obligated to issue shares of
common stock upon exercise of warrants by a holder unless, at the time of such
exercise, we have an effective registration statement under the Securities Act
covering the shares of common stock issuable upon exercise of the warrants and a
current statutory prospectus relating to them is available. Although we have
undertaken in the warrant agreement, and therefore have a contractual
obligation, to use our best efforts to have an effective registration statement
covering shares of common stock issuable upon exercise of the warrants from the
date the warrants become exercisable and to maintain a current prospectus
relating to that common stock until the warrants expire or are redeemed, and we
intend to comply with our undertaking, we cannot assure you that we will be able
to do so or that we will be able to prevent the warrants from expiring
worthless. Holders of warrants may not be able
to
exercise their warrants, the market for the warrants may be limited and the
warrants may be deprived of any value if there is no effective registration
statement covering the shares of common stock issuable upon exercise of the
warrants or the prospectus relating to the common stock issuable upon the
exercise of the warrants is not current. In such event, the holder of a unit
will have paid the entire unit purchase price for the common stock contained in
the unit as the warrant will be worthless. Holders of warrants will not be
entitled to a cash settlement for their warrants if we fail to have an effective
registration statement or a current prospectus available relating to the common
stock issuable upon exercise of the warrants, and holders’ only remedies in such
event will be those available if we are found by a court of law to have breached
our contractual obligation to them by failing to do so.
You
are not entitled to protections normally afforded to investors in blank check
companies.
Since we
have net tangible assets in excess of $5 million, the SEC has taken the position
that we are exempt from Rule 419 under the Securities Act, which is designed to
protect investors in blank check companies. Accordingly, investors in our
securities do not receive the benefits or protections of Rule 419. Among other
things, this means we will have a longer period of time to complete a Business
Combination in some circumstances than do companies subject to Rule 419.
Moreover, offerings subject to Rule 419 would prohibit the release of any
interest earned on funds held in the trust account to us unless and until the
funds in the trust account were released to us in connection with our
consummation of an initial Business Combination.
Under
Delaware law, a court could invalidate the requirement that certain provisions
of our amended and restated certificate of incorporation be amended only by
unanimous consent of our stockholders; amendment of those provisions could
reduce or eliminate the protections they afford to our
stockholders.
Our
amended and restated certificate of incorporation contains certain requirements
and restrictions that apply to us until the consummation of our initial Business
Combination. Specifically, our amended and restated certificate of incorporation
provides, among other things, that:
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prior
to the consummation of our initial Business Combination, we shall submit
the initial Business Combination to our stockholders for
approval;
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we
may consummate our initial Business Combination if approved by a majority
of the shares of common stock voted by our public stockholders at a duly
held stockholders meeting, and public stockholders owning up to 20% of the
shares (minus one share) sold in our IPO have voted against the Business
Combination and exercise their conversion
rights;
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if
a proposed initial Business Combination is approved and consummated,
public stockholders who exercised their conversion rights and voted
against the initial Business Combination may convert their shares into
cash at the conversion price on the closing date of such initial Business
Combination;
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if
our initial Business Combination is not consummated by June 25, 2009, then
our existence will terminate and we will distribute all amounts in the
trust account (except for such amounts as are paid to creditors or
reserved for payment to creditors in accordance with Delaware law) and any
net assets remaining outside the trust account on a pro rata basis to all
of our public stockholders;
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we
may not consummate any other Business Combination, merger, capital stock
exchange, asset acquisition, stock purchase, reorganization or similar
transaction prior to our initial Business
Combination;
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prior
to our initial Business Combination, we may not issue additional stock
that participates in any manner in the proceeds of the trust account, or
that votes as a class with the common stock sold in our IPO on a Business
Combination;
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our
audit committee shall monitor compliance on a quarterly basis with the
terms of our IPO and, if any noncompliance is identified, the audit
committee is charged with the immediate responsibility to take all action
necessary to rectify such noncompliance or otherwise cause compliance with
the terms of our IPO;
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the
audit committee shall review and approve all payments made to our
officers, directors and our and their affiliates, other than the payment
of an aggregate of $7,500 per month to GSCP (NJ) Holdings, L.P. for office
space, secretarial and administrative services, and any payments made to
members of our audit committee will be reviewed and approved by our board
of directors, with any interested director abstaining from such review and
approval; and
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we
will not enter into our initial Business Combination with any entity in
which any of our officers, directors or GSC Group or its affiliates has a
financial interest.
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Our
amended and restated certificate of incorporation requires that prior to the
consummation of our initial Business Combination we obtain unanimous consent of
our stockholders to amend these provisions. However, the validity of unanimous
consent provisions under Delaware law has not been settled. A court could
conclude that the unanimous consent requirement constitutes a practical
prohibition on amendment in violation of the stockholders’ statutory rights to
amend the corporate charter. In that case, these provisions could be amended
without unanimous consent, and any such amendment could reduce or eliminate the
protection these provisions afford to our stockholders. However, we view all of
the foregoing provisions as obligations to our stockholders. Neither we nor our
board of directors will propose any amendment to these provisions, or support,
endorse or recommend any proposal that stockholders amend any of these
provisions at any time prior to the consummation of our initial Business
Combination (subject to any fiduciary obligations our management or board may
have). In addition, we believe we have an obligation in every case to structure
our initial Business Combination so that not less than 20% of the shares sold in
our IPO (minus one share) have the ability to be converted to cash by public
stockholders exercising their conversion rights and the Business Combination
will still go forward.
If
third parties bring claims against us, or if we go bankrupt, the proceeds held
in trust could be reduced and the per-share liquidation price received by you
could be less than approximately $9.90 per share.
Our
placing of funds in the trust account may not protect those funds from
third-party claims against us. Although prior to completion of our initial
Business Combination, we will seek to have third parties (including any vendors
and any other entities with which we enter into a contractual relationship) or
any prospective target businesses enter into valid and enforceable agreements
with us waiving any right, title, interest or claim of any kind in or to any
assets held in the trust account, not all third parties engaged by us to date
have been willing to sign such waiver agreements, and there is no guarantee that
all third parties will agree to execute such agreements in the future. It is
also possible that such waiver agreements would be held unenforceable and there
is no guarantee that the third parties would not otherwise challenge the
agreements and later bring claims against the trust account for amounts owed
them. In addition, there is no guarantee that such entities will agree to waive
any claims they may have in the future as a result of, or arising out of, any
negotiations, contracts or agreements with us and will not seek recourse against
the trust account for any reason. Further, we could be subject to claims from
parties not in contract with us who have not executed a waiver, such as a third
party claiming tortious interference as a result of our initial Business
Combination. Accordingly, the proceeds held in trust could be subject to claims
that would take priority over the claims of our public stockholders and, as a
result, the per-share liquidation price could be less than the approximately
$9.90 per share in the trust account as of December 31, 2008. Our Founding
Stockholder has agreed that it will be liable to us if and to the extent claims
by third parties reduce the amounts in the trust account available for payment
to our stockholders in the event of a liquidation and the claims are made by a
vendor for services rendered or products sold to us, a third party with which we
entered into a contractual relationship or any prospective target business.
However, the agreement entered into by our Founding Stockholder specifically
provides for two exceptions to the indemnity given: there will be no liability
(1) as to any claimed amounts owed to a third party who executed a valid
and enforceable waiver, or (2) as to any claims under our indemnity of the
underwriters of our IPO against certain liabilities, including liabilities under
the Securities Act. Furthermore, there could be claims from parties other than
vendors, third parties with which we entered into a contractual relationship or
target businesses that would not be covered by the indemnity from our Founding
Stockholder, such as shareholders and other claimants who are not parties in
contract with us who file a claim for damages against us. Based on
representations as to its status as an accredited investor (as such term is
defined in Regulation D under the Securities Act) and that it has sufficient
funds available to it to satisfy its obligations to indemnify us, we currently
believe that our Founding Stockholder is capable of funding its indemnity
obligations, even though we have not asked it to reserve for such an
eventuality. We cannot assure you, however, that it would be able to satisfy
those obligations.
In
addition, if we are forced to file a bankruptcy case or an involuntary
bankruptcy case is filed against us that is not dismissed, the proceeds held in
the trust account could be subject to applicable bankruptcy law, and may be
included in our bankruptcy estate and subject to the claims of third parties
with priority over the claims of our stockholders. To the extent any bankruptcy
claims deplete the trust account, we cannot assure you that we will be able to
return at least approximately $9.90 per share.
Our
stockholders may be held liable for third parties’ claims against us to the
extent of distributions received by them following our dissolution.
Our
amended and restated certificate of incorporation provides that we will continue
in existence only until June 25, 2009. If we consummate our initial Business
Combination prior to that date, we will seek to amend this provision to permit
our continued existence. If we have not completed our initial Business
Combination by that date, our corporate existence will cease except for the
purposes of winding up our affairs and liquidating pursuant to Section 278 of
the Delaware General Corporation Law. Under the Delaware General Corporation
Law, stockholders may be held liable for claims by third parties
against a
corporation to the extent of distributions received by those stockholders in a
dissolution. However, if the corporation complies with certain procedures
intended to ensure that it makes reasonable provision for all claims against it,
the liability of stockholders with respect to any claim against the corporation
is limited to the lesser of such stockholder’s pro rata share of the claim or
the amount distributed to the stockholder. In addition, if the corporation
undertakes additional specified procedures, including a 60-day notice period
during which any third-party claims can be brought against the corporation, a
90-day period during which the corporation may reject any claims brought, and an
additional 150-day waiting period before any liquidation distributions are made
to stockholders, any liability of stockholders would be barred with respect to
any claim on which an action, suit or proceeding is not brought by the third
anniversary of the dissolution (or such longer period directed by the Delaware
Court of Chancery). While we intend to adopt a plan of distribution making
reasonable provision for claims against the company in compliance with the
Delaware General Corporation Law, we do not intend to comply with these
additional procedures, as we instead intend to distribute the balance in the
trust account to our public stockholders as promptly as practicable following
termination of our corporate existence. Accordingly, any liability our
stockholders may have could extend beyond the third anniversary of our
dissolution. We cannot assure you that any reserves for claims and liabilities
that we believe to be reasonably adequate when we adopt our plan of dissolution
and distribution will suffice. If such reserves are insufficient, stockholders
who receive liquidation distributions may subsequently be held liable for claims
by creditors of the company to the extent of such distributions.
We
depend on the limited funds available outside of the trust account to complete
our initial Business Combination.
As of
December 31, 2008, we had cash and cash equivalents of
$18,027. Interest income earned on the proceeds held in the trust
account in the amount of $2.4 million has already been released to us during the
period from the consummation of our initial public offering through December 31,
2008, and we are not entitled to the release of any additional amounts from the
trust account prior to the consummation of initial Business Combination or, in
the case of our liquidation, an additional $75,000 under certain
circumstances. We will depend on the incurrence of indebtedness to
provide us with the additional working capital we will need to complete our
initial Business Combination (and should we decide to pursue target businesses
other than Complete Energy, to identify and evaluate one or more such target
businesses). There can be no assurance that adequate funds will be available to
us to consummate an initial Business Combination. If we have insufficient funds
available, we may be forced to liquidate.
Because
of our limited resources and the significant competition for Business
Combination opportunities we may not be able to consummate an attractive initial
Business Combination.
Should we
decide to pursue an initial Business Combination with a target business other
than Complete Energy, we would expect to encounter intense competition from
other entities having a business objective similar to ours, including venture
capital funds, leveraged buyout funds, private equity funds and public and
private companies (including blank check companies like ours). Many of these
entities are well established and have extensive experience in identifying and
effecting Business Combinations directly or through affiliates. Many of these
competitors possess greater technical, human and other resources than we do and
our financial resources will be relatively limited when contrasted with those of
many of these competitors. While we believe that there are numerous potential
target businesses that we could acquire, our ability to compete in acquiring
certain sizable target businesses would be limited by our available financial
resources. This inherent competitive limitation would give others an advantage
in pursuing the acquisition of certain target businesses. In addition, the fact
that only a limited number of blank check companies have completed a Business
Combination may be an indication that there are only a limited number of
attractive target businesses available to such entities or that many potential
target businesses may not be inclined to enter into Business Combinations with
publicly held blank check companies like ours. Further:
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our
obligation to seek shareholder approval of a Business Combination may
materially delay the consummation of a
transaction;
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our
obligation to convert into cash up to 20% of the shares of common stock
held by public stockholders (minus one share) in certain instances may
materially reduce the resources available for a Business Combination;
and
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our
outstanding warrants, and the future dilution they potentially represent,
may not be viewed favorably by certain target
businesses.
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Any of
these obligations may place us at a competitive disadvantage in successfully
negotiating a Business Combination. We cannot assure you that we will be able to
successfully compete for an attractive Business Combination. Additionally,
because of these factors, we cannot assure you that we will be able to
effectuate a Business Combination within the required time periods. If we are
unable to find a suitable target business within the required time periods, we
will be forced to liquidate.
We
may face significant competition from numerous other companies with a business
plan similar to ours seeking to effectuate a Business Combination.
There are
numerous other blank check companies that completed IPOs. While some of these
blank check companies have specific industries in which they must complete a
Business Combination, others may consummate a Business Combination in any
industry they choose, as in our case. We may therefore be subject to competition
from these companies, which will increase demand for potential target companies
to combine with in an initial Business Combination should we seek any other
target business. Further, the fact that only a limited number of blank check
companies have completed a Business Combination may be an indication that there
are limited attractive targets available to such companies or that many
potential target businesses may not be inclined to enter into Business
Combinations with publicly held blank check companies like us. Numerous blank
check companies have completed IPOs and then dissolved or begun proceedings to
dissolve as a result of being unable to complete an initial Business Combination
within the required time. We cannot assure you that we will be able to
successfully compete for an attractive Business Combination or that we will be
able to effectuate a Business Combination by June 25, 2009. If we are unable to
find a suitable target business within such time period, we will be forced to
liquidate. We also expect to face significant competition from companies other
than blank check companies. See “—Because of our limited resources and the
significant competition for Business Combination opportunities we may not be
able to consummate an attractive initial Business Combination.” immediately
above.
We
may be unable to obtain additional financing if necessary to complete our
initial Business Combination or to fund the operations and growth of a target
business, which could compel us to restructure or abandon a particular Business
Combination.
We cannot
assure you that we will be able to complete our initial Business Combination or
that we will have sufficient capital with which to complete a combination with a
particular target business. If amounts held in trust are not sufficient to
facilitate a particular Business Combination because:
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of
the size of the target business;
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the
offering proceeds not in trust and funds available to us from interest
earned on the trust account balance are insufficient to fund our search
for and negotiations with a target business;
or
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we
must convert into cash a significant number of shares of common stock
owned by public stockholders who elect to exercise their conversion
rights,
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we would
be required to seek additional financing. We cannot assure you that such
financing will be available on acceptable terms, if at all. If additional
financing is unavailable to consummate a particular Business Combination, we
would be compelled to restructure or abandon the combination and seek an
alternative target business.
In
addition, it is possible that we could use a portion of the funds not in the
trust account (including amounts we borrowed, if any) to make a deposit, down
payment or fund a “no-shop” provision with respect to a particular proposed
Business Combination, although we do not have any current intention to do so. In
the event that we were ultimately required to forfeit such funds, and we had
already used up the funds allocated to due diligence and related expenses in
connection with the aborted transaction, we could be left with insufficient
funds to continue searching for, or conduct due diligence with respect to, other
potential target businesses.
In
addition,
we may require
additional capital – in the form of debt, equity, or a combination of both – to
operate or grow any potential business we may acquire
.
There can be no assurance that we will
be able to obtain such additional capital if it is required.
If we fail
to secure such financing, this failure could have a material adverse effect on
the operations or growth of the combined business. None of our officers or
directors or any other party is required to provide any financing to us in
connection with, or following, our initial Business Combination.
If
we issue capital stock or convertible debt securities to complete our initial
Business Combination, your equity interest in us could be reduced or there may
be a change in control of our company.
Our
amended and restated certificate of incorporation authorizes the issuance of up
to 200,000,000 shares of common stock, par value $0.001 per share, and 1,000,000
shares of preferred stock, par value $0.0001 per share, and there are
150,100,000 authorized but unissued shares of our common stock available for
issuance (after appropriate reservation for the issuance of shares upon full
exercise of our outstanding warrants, including the Initial Founder’s Warrants),
and all of the shares of preferred stock available for issuance. We currently
have no commitments to issue any additional securities. We may issue a
substantial number of additional shares of our common stock or may issue
preferred stock, or a combination of
both,
including through convertible debt securities, to complete a Business
Combination. Our issuance of additional shares of common stock or any preferred
stock:
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may
significantly reduce your equity interest in
us;
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will
likely cause a change in control if a substantial number of our shares of
common stock are issued, which may among other things limit our ability to
use any net operating loss carry forwards we have, and may result in the
resignation or removal of our officers and directors;
and
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may
adversely affect the then-prevailing market price for our common
stock.
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The value
of an investment in us may decline if any of these events occur.
If
we issue debt securities to acquire or finance a target business, our liquidity
may be adversely affected and the combined business may face significant
interest expense.
We may
elect to enter into a Business Combination that requires us to issue debt
securities as part of the purchase price for a target business. If we issue debt
securities, such issuances may result in an increase in interest expense for the
post-combination business and may adversely affect our liquidity in the event
of:
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a
default and foreclosure on our assets if our operating cash flow after a
Business Combination were insufficient to pay principal and interest
obligations on our debt;
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an
acceleration, which could occur even if we are then current in our debt
service obligations if the debt securities have covenants that require us
to meet certain financial ratios or maintain designated reserves, and such
covenants are breached without waiver or
renegotiation;
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a
required immediate payment of all principal and accrued interest, if any,
if the debt securities are payable on demand;
or
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our
inability to obtain any additional financing, if necessary, if the debt
securities contain covenants restricting our ability to incur
indebtedness.
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Our
Founding Stockholder owns approximately 20% of our shares of common stock and
may influence certain actions requiring a stockholder vote.
Our
Founding Stockholder owns approximately 20% of our issued and outstanding shares
of common stock. Our Founding Stockholder and Messrs. Goodwin, Sebastian,
Detweiler and McKinnon have agreed, in connection with the stockholder vote
required to approve our initial Business Combination, to vote any Initial
Founder’s Shares they directly or indirectly own in accordance with the majority
of the shares of common stock voted by the public stockholders, and our Founding
Stockholder and each of our officers and directors has also agreed that if it,
he or she acquires shares of common stock, it, he or she, as applicable, will
vote all such acquired shares in favor of our initial Business Combination.
Accordingly, shares of common stock owned by our Founding Stockholder will not
have the same voting or conversion rights as our public stockholders with
respect to a potential Business Combination, and neither our Founding
Stockholder, nor any of our officers or directors will be able to exercise the
conversion rights with respect to any of our shares that it, he or she holds or
may acquire.
Our board
of directors is divided into three classes, each of which will generally serve
for a term of three years, with only one class of directors being elected in
each year. We may consummate an initial Business Combination before there is an
annual meeting of stockholders to elect new directors, in which case all of the
current directors will continue in office at least until the consummation of our
initial Business Combination. If there is an annual meeting of stockholders, as
a consequence of our “staggered” board of directors, only a minority of the
board of directors will be considered for election and our Founding Stockholder
will have considerable influence on the outcome of that election. Accordingly,
our Founding Stockholder will continue to exert control at least until the
consummation of the initial Business Combination. Neither our Founding
Stockholder nor any of its affiliates are prohibited from purchasing units or
shares of our common stock. If they choose do so, our Founding Stockholder and
its affiliates will have an even greater influence on the vote to be taken in
connection with our initial Business Combination.
If
our current directors remain after our initial Business Combination they may
have conflicts of interest.
Our
ability to effect our initial Business Combination successfully will be largely
dependent upon the efforts of our officers and directors. While Messrs. Frank
and Kaufman will resign as officers following consummation of our initial
Business Combination, Messrs. Eckert, Frank, Goodwin, Kaufman, Sebastian,
Detweiler and McKinnon may remain as directors of the combined entity. Since it
is possible that a director may remain after a Business Combination, a director
may have a conflict of interest if such director is more likely to remain as a
director or receive an attractive compensation arrangement in connection with a
combination with one potential target business versus another. Such interests,
if any, may influence the selection of the ultimate target for our initial
Business Combination.
We
may have only limited ability to evaluate the management of the target
business.
If we
decide to pursue an initial Business Combination with a target business other
than Complete Energy, we may have only limited ability to evaluate the
management of the target business, in particular given the June 25, 2009
liquidation date. Although we intend to closely scrutinize the management of a
prospective target business in connection with evaluating the desirability of
effecting a Business Combination, we cannot assure you that our assessment of
management will prove to be correct. These individuals may be unfamiliar with
the requirements of operating a public company and the securities laws, which
could increase the time and resources we must expend to assist them in becoming
familiar with the complex disclosure and financial reporting requirements
imposed on U.S. public companies. This could be expensive and time-consuming and
could lead to various regulatory issues that may adversely affect the price of
our stock.
We
may seek to effect our initial Business Combination with one or more privately
held companies, which may present certain challenges to us, including the lack
of available information about these companies.
In
pursuing our acquisition strategy, we may seek to effect our initial Business
Combination with one or more privately held companies. By definition, very
little public information exists about these companies, and we could be required
to make our decision on whether to pursue a potential initial Business
Combination on the basis of limited information.
We
may compete with investment vehicles of GSC Group for access to GSC
Group.
GSC Group
has sponsored and currently manages various investment vehicles, and may in the
future sponsor or manage additional investment vehicles which, in each case,
could result in us competing for access to the benefits that we expect our
relationship with GSC Group to provide to us.
Upon
completion of our initial Business Combination we may compete with one or more
businesses in which GSC Group, its affiliates and/or our management have an
interest, which could result in a conflict of interest that may adversely affect
us.
GSC Group
entities, including our Founding Stockholder, acquire, hold and sell investments
in businesses across a broad range of industries on behalf of managed funds and
other investment vehicles. Upon completion of our initial Business Combination,
if consummated, we may compete with one or more of these businesses in which GSC
Group or its affiliates have an investment or other pecuniary interest,
resulting in conflicts of interest. Conflicts of interest may also arise where
our directors or other members of our management have affiliations with our
competitors. In the case of any such conflicts, your interests may differ from
those of the GSC Group entity or individual with the conflict, as such entity or
individual may have a greater economic interest in our competitor than in us, or
may believe that our competitor has better prospects than us. In such event,
that entity or individual may devote more resources, including time and
attention, to our competitor than to us, which may adversely affect our
operations and financial condition and, ultimately, the value of an investment
in us.
We
expect to rely upon our access to GSC Group investment professionals in
completing an initial Business Combination.
We expect
that we will depend, to a significant extent, on our access to the investment
professionals of GSC Group and the information and deal flow generated by GSC
Group’s investment professionals in the course of their investment and portfolio
management activities to identify and complete our initial Business
Combination.
Members
of our management team and our directors are and may in the future become
affiliated with entities engaged in business activities similar to those
intended to be conducted by us, and may have conflicts of interest in allocating
their time and business opportunities.
Although
GSC Group and Mr. Eckert, our Chairman, have entered into non-compete agreements
with us providing that until the earlier of our initial Business Combination or
our liquidation, neither GSC Group nor Mr. Eckert will become affiliated with
any other blank check company, other members of our management and our directors
may in the future become affiliated with other entities engaged in business
activities similar to those intended to be conducted by us. As a result, members
of our management team may become aware of business opportunities that may be
appropriate for
presentation
to us as well as the other entities with which they are or may be affiliated.
While we have entered into a business opportunity right of first review
agreement with GSC Group which provides that until the earlier of the
consummation of our initial Business Combination or our liquidation in the event
we do not consummate an initial Business Combination, we will have a right of
first review with respect to Business Combination opportunities of GSC Group
with an enterprise value of $150 million or more that GSC Group becomes aware of
(other than any investment opportunities in respect of companies in bankruptcy,
or financially or operationally distressed companies; companies targeted for
acquisition by any company in which an investment vehicle managed by GSC Group
has an equity investment; and any entity in which any of our officers, directors
or GSC Group or its affiliates has a financial interest), due to those existing
and future affiliations, members of our management team and our directors may
have fiduciary obligations to present potential business opportunities to those
entities prior to presenting them to us which could cause additional conflicts
of interest. Accordingly, members of our management team may have conflicts of
interest in determining to which entity a particular business opportunity should
be presented.
Moreover,
members of our management team are not obligated to expend a specific number of
hours per week or month on our affairs. We cannot assure you that
these conflicts will be resolved in our favor.
We
may use resources in researching acquisitions that are not consummated, which
could materially and adversely affect subsequent attempts to effect our initial
Business Combination.
The
investigation of each specific target business (including those we decided not
to pursue) and the negotiation, drafting, and execution of relevant agreements,
disclosure documents, and other instruments with Complete Energy has required
substantial management time and attention and we have incurred substantial costs
for accountants, attorneys, and others. If we decide not to seek to complete a
Business Combination with Complete Energy, the costs incurred will not be
recoverable. Furthermore, we may fail to consummate an initial Business
Combination with Complete Energy, or any other target business, for any number
of reasons, including reasons beyond our control, such as that 20% or more of
our public stockholders vote against the transaction and opt to convert their
stock into a pro rata share of the trust account even if a majority of our
stockholders approve the transaction. Any such event will result in a loss to us
of the related costs incurred, which could materially and adversely affect
subsequent attempts to consummate an initial Business Combination.
Interest
income from the trust account may not be sufficient to pay for dissolution and
liquidation of the trust.
We may
not have funds sufficient to cover the costs and expenses associated with
implementing any plan of distribution. To the extent that there is
any interest accrued in the trust account not required to pay income taxes on
interest income earned on the trust account balance, we could request that the
trustee release to us an additional amount of up to $75,000 of such accrued
interest to pay those costs and expenses, beyond the $2.4 million already
released to us. There can be no assurance that any such additional interest will
be available, or if available, will be sufficient to cover the costs of our
dissolution. While our Founding Stockholder has agreed to reimburse us for
certain costs in such a case, such reimbursement excludes special, indirect or
consequential costs, such as litigation, pertaining to the dissolution and
liquidation.
Because
the Initial Founder’s Shares will not participate in liquidation distributions
by us, our Founding Stockholder, directors and our management team may have a
conflict of interest in deciding if a particular target business is a good
candidate for a Business Combination.
Holders
of the Initial Founder’s Shares have waived their right to receive distributions
with respect to the Initial Founder’s Shares if we liquidate because we fail to
complete a Business Combination. Those shares of common stock and all of the
warrants owned by our Founding Stockholder will be worthless if we do not
consummate our initial Business Combination. Since Messrs. Eckert, Frank and
Kaufman have an ownership interest in GSC Group and consequently an indirect
ownership interest in us and Messrs. Goodwin and McKinnon have a direct
ownership interest in us, they may have a conflict of interest in determining
whether a particular target business is appropriate for us and our stockholders.
These ownership interests may influence their motivation in identifying and
selecting a target business and timely completing an initial Business
Combination. The exercise of discretion by our officers and directors in
identifying and selecting one or more suitable target businesses may result in a
conflict of interest when determining whether the terms, conditions and timing
of a particular Business Combination are appropriate and in our stockholders’
best interest.
Our
officers’ and directors’ interests in obtaining reimbursement for any
out-of-pocket expenses incurred by them may lead to a conflict of interest in
determining whether a particular target business is appropriate for an initial
Business Combination and in the public stockholders’ best interest.
Unless we
consummate our initial Business Combination, our officers and directors and GSC
Group and its employees will not receive reimbursement for any out-of-pocket
expenses incurred by them to the extent that such expenses exceed the amount of
available proceeds not deposited in the trust account and the amount of interest
income from the trust account up
to a
maximum of $2.4 million that may be released to us as working capital. These
amounts are based on management’s estimates of the funds needed to finance our
operations until June 25, 2009 and to pay expenses in identifying and
consummating our initial Business Combination. Those estimates may prove to be
inaccurate, especially if a portion of the available proceeds is used to make a
down payment in connection with our initial Business Combination or pay
exclusivity or similar fees or if we expend a significant portion in pursuit of
an initial Business Combination that is not consummated. Our officers and
directors may, as part of any Business Combination, negotiate the repayment of
some or all of any such expenses. If the target business’s owners do not agree
to such repayment, this could cause our management to view such potential
Business Combination unfavorably, thereby resulting in a conflict of interest.
The financial interest of our officers, directors or GSC Group or its affiliates
could influence our officers’ and directors’ motivation in selecting a target
business and therefore there may be a conflict of interest when determining
whether a particular Business Combination is in the stockholders’ best
interest.
We
will probably complete only one Business Combination and the private placement
of the Initial Founder’s Warrants, meaning our operations will depend on a
single business.
The net
proceeds from our IPO and the sale of warrants to our Founding Stockholder
provided us with approximately $195.5 million that we may use to complete a
Business Combination. Our initial Business Combination must involve a target
business or businesses with a fair market value of at least 80% of the amount
held in our trust account at the time of such Business Combination (excluding
deferred underwriting discounts and commissions of $6.2 million). We may not be
able to acquire more than one target business because of various factors,
including the existence of complex accounting issues and the requirement that we
prepare and file pro forma financial statements with the SEC that present
operating results and the financial condition of several target businesses as if
they had been operated on a combined basis. Additionally, we may encounter
numerous logistical issues if we pursue multiple target businesses, including
the difficulty of coordinating the timing of negotiations, proxy statement
disclosure and closings. We may also be exposed to the risk that our inability
to satisfy conditions to closing with one or more target businesses would reduce
the fair market value of the remaining target businesses in the combination
below the required threshold of 80% of the amount held in our trust account
(excluding deferred underwriting discounts and commissions of $6.2 million). Due
to these added risks, we are more likely to choose a single target business with
which to pursue a Business Combination than multiple target businesses. Unless
we combine with a target business in a transaction in which the purchase price
consists substantially of common stock and/or preferred stock or obtain debt
financing, it is likely we will complete only our initial Business Combination
with the funds invested in our trust account. Accordingly, the prospects for our
success may depend solely on the performance of a single business. If this
occurs, our operations will be highly concentrated and we will be exposed to
higher risk than other entities that have the resources to complete several
Business Combinations, or that operate in diversified industries or industry
segments.
If
we do not conduct an adequate due diligence investigation of a target business
with which we combine, we may be required subsequently to take write downs or
write-offs, restructuring, and impairment or other charges that could have a
significant negative effect on our financial condition, results of operations
and our stock price, which could cause you to lose some or all of your
investment.
In order
to meet our disclosure and financial reporting obligations under the federal
securities laws, and in order to develop and seek to execute strategic plans for
how we can increase the profitability of a target business, realize operating
synergies or capitalize on market opportunities, we must conduct a due diligence
investigation of one or more target businesses. Intensive due diligence is time
consuming and expensive due to the operations, accounting, finance and legal
professionals who must be involved in the due diligence process. We may have
limited time to conduct such due diligence due to the requirement that we
complete our initial Business Combination by June 25, 2009. Even if we conduct
extensive due diligence on a target business with which we combine, we cannot
assure you that this diligence will uncover all material issues relating to a
particular target business, or that factors outside of the target business and
outside of our control will not later arise. If our diligence fails to identify
issues specific to a target business or the environment in which the target
business operates, we may be forced to write-down or write-off assets,
restructure our operations, or incur impairment or other charges that could
result in our reporting losses. Even though these charges may be non-cash items
and not have an immediate impact on our liquidity, the fact that we report
charges of this nature could contribute to negative market perceptions about us
or our common stock. In addition, charges of this nature may cause us to violate
net worth or other covenants to which we may be subject as a result of assuming
pre-existing debt held by a target business or by virtue of our obtaining
post-combination debt financing.
Our
outstanding warrants may adversely affect the market price of our common stock
and make it more difficult to effect our initial Business
Combination.
There are
outstanding warrants to purchase 24,700,000 shares of common. If we issue common
stock to complete our initial Business Combination, the potential issuance of
additional shares of common stock on exercise of these warrants could make us a
less attractive acquisition vehicle to some target businesses. This is because
exercise of warrants will increase the
number of
issued and outstanding shares of our common stock and may reduce the value of
the shares issued to complete our initial Business Combination. Our warrants may
make it more difficult to complete our initial Business Combination or increase
the purchase price sought by one or more target businesses. Additionally, the
sale or possibility of the sale of the shares underlying the warrants could have
an adverse effect on the market price for our common stock or our units, or on
our ability to obtain other financing. If and to the extent these warrants are
exercised, you may experience dilution to your investment in us.
The
grant of registration rights to our Founding Stockholder and Messrs. Goodwin and
McKinnon may make it more difficult to complete our initial Business
Combination, and the future exercise of such rights may adversely affect the
market price of our common stock.
Pursuant
to a registration rights agreement entered into concurrently with our IPO, our
Founding Stockholder and Messrs. Goodwin and McKinnon can demand that we
register the resale of the Initial Founder’s Shares and our Founding Stockholder
can demand that we register the Initial Founder’s Warrants and the shares of
common stock issuable upon exercise of the Initial Founder’s Warrants. The
registration rights will be exercisable with respect to the Initial Founder’s
Shares at any time after the date on which the relevant securities are no longer
subject to transfer restrictions, and with respect to the warrants and the
underlying shares of common stock after the warrants become exercisable by their
terms. We will bear the cost of registering these securities. If our Founding
Stockholder and Messrs. Goodwin and McKinnon exercise their registration rights
in full, there will be an additional 4,500,000 shares of common stock and up to
4,000,000 shares of common stock issuable on exercise of the warrants eligible
for trading in the public market. The registration and availability of such a
significant number of securities for trading in the public market may have an
adverse effect on the market price of our common stock. In addition, the
existence of the registration rights may make our initial Business Combination
more costly or difficult to conclude. This is because the stockholders of the
target business may increase the equity stake they seek in the combined entity
or ask for more cash consideration to offset the negative impact on the market
price of our common stock that is expected when the securities owned by our
Founding Stockholder or Messrs. Goodwin and McKinnon are
registered.
If
adjustments are made to the warrants, you may be deemed to receive a taxable
distribution without the receipt of any cash.
As
discussed under “Market for Common Equity and Related Stockholder Matters and
Issuer Purchases of Equity Securities — Dividends,” we do not anticipate that
any dividends will be paid in the foreseeable future. If at any time
during the period you hold warrants, however, we were to pay a taxable dividend
to our stockholders and, in accordance with the anti-dilution provisions of the
warrants, the conversion rate of the warrants were increased, that increase
would be deemed to be the payment of a taxable dividend to you to the extent of
our earnings and profits, notwithstanding the fact that you will not receive a
cash payment. If the conversion rate is adjusted in certain other
circumstances (or in certain circumstances, there is a failure to make
adjustments), that adjustment or failure could also result in the deemed payment
of a taxable dividend to you. If you are a non-U.S. holder of a
warrant, any resulting withholding tax attributable to deemed dividends could be
collected from other amounts payable or distributable to you. You
should consult your tax adviser regarding the proper treatment of any
adjustments to the warrants.
A
trading market for our securities may not be sustained, which would adversely
affect the liquidity and price of our securities.
Prior to
our IPO, there was no market for our securities. You may be unable to sell your
securities unless a market can be sustained. Furthermore, the trading
price and volume of our securities may vary significantly due to our reports of
operating losses, one or more potential Business Combinations, the filing of
periodic reports with the SEC, and general market or economic
conditions.
If
we are deemed to be an investment company, we must meet burdensome compliance
requirements and restrictions on our activities, which may increase the
difficulty of completing a Business Combination.
If we are
deemed to be an investment company under the Investment Company Act of 1940 (the
“Investment Company Act”), the nature of our investments and the issuance of our
securities may be subject to various restrictions. These restrictions may make
it difficult for us to complete our initial Business Combination. In addition,
we may be subject to burdensome compliance requirements and may have
to:
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register
as an investment company;
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adopt
a specific form of corporate structure;
and
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report,
maintain records and adhere to voting, proxy, disclosure and other
requirements.
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We do not
believe that our planned principal activities will subject us to the Investment
Company Act. In this regard, our agreement with the trustee states that proceeds
in the trust account will be invested only in “government securities” and one or
more money market funds, selected by us, which invest principally in either
short-term securities issued or guaranteed by the United States having a rating
in the highest investment category granted thereby by a recognized credit rating
agency at the time of acquisition or tax exempt municipal bonds issued by
governmental entities located within the United States or otherwise meeting
certain requirements of the Investment Company Act. This investment restriction
is intended to facilitate our not being considered an investment company under
the Investment Company Act. If we are deemed to be subject to the Investment
Company Act, compliance with these additional regulatory burdens would increase
our operating expenses and could make our initial Business Combination more
difficult to complete.
The
loss of Mr. Eckert could adversely affect our ability to complete our initial
Business Combination.
Our
ability to consummate a Business Combination is dependent to a large degree upon
Mr. Eckert. We believe that our success depends on his continued service to us,
at least until we have consummated a Business Combination. As Chairman and Chief
Executive Officer of GSC Group, Mr. Eckert has incentives to remain with us.
Nevertheless, we do not have an employment agreement with him, or key-man
insurance on his life. He may choose to devote his time to other affairs, or may
become unavailable to us for reasons beyond his control, such as death or
disability. The unexpected loss of his services for any reason could have a
detrimental effect on us.
An
investor will only be able to exercise a warrant if the issuance of common stock
upon such exercise has been registered or qualified or is deemed exempt under
the securities laws of the state of residence of the holder of the
warrants.
No
warrants will be exercisable and we will not be obligated to issue shares of
common stock unless the common stock issuable upon such exercise has been
registered or qualified or deemed to be exempt under the securities laws of the
state of residence of the holder of the warrants. Because the
exemptions from qualification in certain states for resales of warrants and for
issuances of common stock by the issuer upon exercise of a warrant may be
different, a warrant may be held by a holder in a state where an exemption is
not available for issuance of common stock upon an exercise and the holder will
be precluded from exercise of the warrant. At the time that the
warrants become exercisable (following our completion of an initial Business
Combination), we expect to either continue to be listed on a national securities
exchange, which would provide an exemption from registration in every state, or
we would register the warrants in every state (or seek another exemption from
registration in such states). Accordingly, we believe holders in
every state will be able to exercise their warrants as long as our prospectus
relating to the common stock issuable upon exercise of the warrants is
current. However, we cannot assure you of this fact. As a
result, the warrants may be deprived of any value, the market for the warrants
may be limited and the holders of warrants may not be able to exercise their
warrants and they may expire worthless if the common stock issuable upon such
exercise is not qualified or exempt from qualification in the jurisdictions in
which the holders of the warrants reside.
The
NYSE Alternext US may delist our securities, which could limit investors’
ability to transact in our securities and subject us to additional trading
restrictions.
On
February 10, 2009, we received notice from the staff of the NYSE Alternext US
(the “Exchange”) that, based on their review of publicly available information,
we are not considered to be in compliance with Section 704 of the Exchange’s
Company Guide in that we did not hold an annual meeting of its stockholders
during 2008. In order to maintain the listing of our common stock on
Exchange, we must submit a plan by March 10, 2009, advising the Exchange of the
actions we have taken, or will take, that will bring us into compliance by
August 11, 2009. While we currently intend to submit such a plan,
there can be no assurance that we will submit a plan. Assuming a plan is
submitted, if the Exchange accepts the Plan, then the Company may be able to
continue its listing during the time up to August 11, 2009, but during that time
we will be subject to periodic review by the Exchange to determine whether we
are making progress consistent with our plan. If we do not submit a plan or we
submit a plan that is not accepted by the Exchange, then we expect that we will
become subject to delisting proceedings by the Exchange. Furthermore,
if we submit a Plan that is accepted but we are not in compliance with the
continued listing standards at August 11, 2009, or we do not make progress
consistent with our plan during the time up to August 11, 2009, then we expect
that the Exchange would initiate delisting proceedings.
In
addition, should we consummate an initial Business Combination, it is likely
that the Exchange would require us to file a new initial listing application and
meet its initial listing requirements, as opposed to its more lenient continued
listing requirements, at the time of our initial Business Combination. We cannot
assure you that we will be able to meet those initial listing requirements at
that time, or that we would qualify for listing on either the NYSE or the
NASDAQ.
If the
Exchange subsequently delists our securities from trading, we could face
significant consequences, including:
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a
limited availability for market quotations for our
securities;
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reduced
liquidity with respect to our
securities;
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a
determination that our common stock is a “penny stock,” which will require
brokers trading in our common stock to adhere to more stringent rules and
possibly result in a reduced level of trading activity in the secondary
trading market for our common
stock;
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limited
amount of news and analyst coverage for our company;
and
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a
decreased ability to issue additional securities or obtain additional
financing in the future.
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In
addition, we would no longer be subject to Exchange rules, including rules
requiring us to have a certain number of independent directors and to meet other
corporate governance standards, which investors may consider
material.
If
we acquire a target business with operations located outside the United States,
we may encounter risks specific to other countries in which such target business
operates.
If we
decide to pursue an initial business combination with a target business other
than Complete Energy and acquire a company that has operations outside the
United States, we will be exposed to risks that could negatively impact our
future results of operations following our initial Business Combination. The
additional risks we may be exposed to in these cases include, but are not
limited to:
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tariffs
and trade barriers;
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regulations
related to customs and import/export
matters;
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tax
issues, such as tax law changes and variations in tax laws as compared to
the U.S.;
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cultural
and language differences;
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foreign
exchange controls;
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crime,
strikes, riots, civil disturbances, terrorist attacks and
wars;
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deterioration
of political relations with the United States;
and
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new
or more extensive environmental
regulation.
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Foreign
currency fluctuations could adversely affect our business and financial
results.
In
addition, a target business with which we combine may do business and generate
sales within other countries. Foreign currency fluctuations may affect the costs
that we incur in such international operations. It is also possible that some or
all of our operating expenses may be incurred in non-U.S. dollar currencies. The
appreciation of non-U.S. dollar currencies in those countries where we have
operations against the U.S. dollar would increase our costs and could harm our
results of operations and financial condition.
Because
we must furnish our stockholders with target business financial statements
prepared in accordance with and reconciled to U.S. generally accepted accounting
principles or prepared in accordance with International Financial Reporting
Standards, we will not be able to complete an initial Business Combination with
some prospective target businesses unless their financial statements are first
reconciled to U.S. generally accepted accounting principles or prepared in
accordance with International Financial Reporting Standards.
The
federal securities laws require that a Business Combination meeting certain
financial significance tests include historical and/or pro forma financial
statement disclosure in periodic reports and proxy materials submitted to
stockholders. Our initial Business Combination must be with a target business
that has a fair market value of at least 80% of the balance in the trust account
(excluding deferred underwriting discounts and commissions) at the time of our
initial Business Combination. We will be required to provide historical and/or
pro forma financial information to our stockholders when seeking approval of a
Business Combination with one or more target businesses. These financial
statements must be prepared
in
accordance with, or be reconciled to, U.S. generally accepted accounting
principles, or GAAP, or prepared in accordance with International Financial
Reporting Standards, or IFRS, as approved by the International Accounting
Standards Board, or IASB, and the historical financial statements must be
audited in accordance with the standards of the Public Company Accounting
Oversight Board (U.S.), or PCAOB. If a proposed target business, including one
located outside of the U.S., does not have or is unable within in a reasonable
period of time to provide financial statements that have been prepared in
accordance with, or reconciled to, U.S. GAAP or in accordance with IFRS as
issued by the IASB, and audited in accordance with the standards of the PCAOB,
we will not be able to acquire that proposed target business. These financial
statement requirements may limit the pool of potential target businesses with
which we may combine.
|
ITEM 1B.
|
UNRESOLVED
STAFF COMMENTS
|
None
We do not
own any real estate or other physical properties materially important to our
operation. Our executive offices are currently located at 500 Campus Drive,
Suite 220, Florham Park, New Jersey 07932. The cost for this space is included
in the $7,500 per-month fee described above that GSCP (NJ) Holdings, L.P., an
affiliate of our Founding Stockholder, charges us for general and administrative
services. We believe, based on rents and fees for similar services in the New
Jersey area that the fee charged by GSCP (NJ) Holdings, L.P. is at least as
favorable as we could have obtained from an unaffiliated person. We consider our
current office space adequate for our current operations.
|
ITEM 3.
|
LEGAL
PROCEEDINGS
|
None
|
ITEM 4.
|
SUBMISSION
OF MATTERS TO A VOTE OF SECURITY
HOLDERS
|
None.
PART
II
|
ITEM 5.
|
MARKET
FOR COMMON EQUITY AND RELATED STOCKHOLDER MATTERS AND ISSUER PURCHASES OF
EQUITY SECURITIES
|
Market
Information
Our
units, common stock and warrants are listed on the NYSE Alternext US under the
symbols GGA.U, GGA and GGA.WS, respectively. The following table sets forth the
range of high and low sales prices for the units, common stock and warrants for
the periods indicated since the units commenced public trading on June 25, 2007,
and since the common stock and warrants commenced public trading on July 9,
2007.
|
|
|
Units
|
|
|
Common
Stock
|
|
|
Warrants
|
|
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
High
|
|
|
Low
|
|
|
2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
First
Quarter*
|
|
|
9.52
|
|
|
|
9.22
|
|
|
|
9.64
|
|
|
|
9.33
|
|
|
|
.07
|
|
|
|
.02
|
|
|
2008:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
Quarter
|
|
|
9.15
|
|
|
|
8.76
|
|
|
|
9.40
|
|
|
|
8.80
|
|
|
|
.18
|
|
|
|
.15
|
|
|
Third
Quarter
|
|
|
9.96
|
|
|
|
9.27
|
|
|
|
9.50
|
|
|
|
9.30
|
|
|
|
.79
|
|
|
|
.20
|
|
|
Second
Quarter
|
|
|
10.23
|
|
|
|
9.55
|
|
|
|
9.50
|
|
|
|
9.15
|
|
|
|
.98
|
|
|
|
.36
|
|
|
First
Quarter
|
|
|
10.41
|
|
|
|
9.65
|
|
|
|
9.45
|
|
|
|
9.16
|
|
|
|
1.20
|
|
|
|
.45
|
|
|
2007:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
Quarter
|
|
|
10.56
|
|
|
|
10.11
|
|
|
|
9.45
|
|
|
|
9.10
|
|
|
|
1.40
|
|
|
|
1.02
|
|
|
Third
Quarter
|
|
|
10.71
|
|
|
|
9.95
|
|
|
|
9.30
|
|
|
|
9.01
|
|
|
|
1.45
|
|
|
|
.95
|
|
|
Second
Quarter**
|
|
|
10.34
|
|
|
|
10.00
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
* Through
February 25, 2009
**
Commenced public trading on June 25, 2007
Holders
As of
January 27, 2009, there was one holder of record of our units, four holders of
record of our common stock and three holders of record of our
warrants.
Dividends
We have
not paid any dividends on our common stock to date and will not pay cash
dividends prior to the completion of our initial Business Combination. After we
complete our initial Business Combination, the payment of dividends will depend
on our revenues and earnings, if any, our capital requirements and our general
financial condition. The payment of dividends after our initial Business
Combination will be within the discretion of our board of directors at that
time. Our board of directors currently intends to retain any earnings for use in
our business operations and, accordingly, we do not anticipate that our board
will declare any dividends in the foreseeable future.
Stock
Price Performance Graph
The graph
below compares the cumulative total return of our common stock from July 9,
2007
, the date that our common
stock first became separately tradable,
through December 31, 2008 with
the comparable cumulative return of two indices, the S&P 500 Index and the
Dow Jones Industrial Average Index. The graph plots the growth in value of an
initial investment of $100 in each of our common stock, the Dow Jones Industrial
Average Index and the S&P 500 Index over the indicated time periods, and
assuming reinvestment of all dividends, if any, paid on our securities. We have
not paid any cash dividends and, therefore, the cumulative total return
calculation for us is based solely upon stock price appreciation and not upon
reinvestment of cash dividends. The stock price performance shown on the graph
is not necessarily indicative of future price performance.
|
ITEM 6.
|
SELECTED
FINANCIAL DATA
|
The
selected financial data set forth below is derived from our audited financial
statements. This selected financial data should be read in conjunction with the
section under the caption “Management’s Discussion and Analysis of Financial
Condition and Results of Operations” and the Financial Statements included
elsewhere in this Annual Report on Form 10-K:
|
|
|
Year
Ended
December 31,
2008
|
|
|
Year
Ended
December 31,
2007
|
|
|
For the Period from
October
26, 2006 (inception) to
December 31,
2008
|
|
|
Total
Revenues
|
|
$
|
—
|
|
|
$
|
—
|
|
|
$
|
—
|
|
|
Operating
loss
|
|
|
(1,831,635
|
)
|
|
|
(394,252
|
)
|
|
|
(2,364,306
|
)
|
|
Dividend
income
|
|
|
2,903,080
|
|
|
|
4,188,213
|
|
|
|
7,091,293
|
|
|
Net
income
|
|
|
274,453
|
|
|
|
2,317,041
|
|
|
|
2,453,075
|
|
|
Earnings
per share diluted
|
|
|
0.01
|
|
|
|
0.11
|
|
|
|
0.10
|
|
|
Weighted
average shares outstanding diluted
|
|
|
29,941,796
|
|
|
|
20,340,577
|
|
|
|
24,239,876
|
|
|
Working
capital *
|
|
|
657,937
|
|
|
|
576,383
|
|
|
|
657,937
|
|
|
Total
assets *
|
|
|
208,684,432
|
|
|
|
204,256,112
|
|
|
|
208,684,432
|
|
|
Stockholders’
equity *
|
|
|
156,953,018
|
|
|
|
156,829,624
|
|
|
|
156,953,018
|
|
* As of
December 31, 2008 and December 31, 2007
|
ITEM 7.
|
MANAGEMENT’S
DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND RESULTS OF
OPERATIONS
|
You
should read the following discussion and analysis of our financial condition and
results of operations together with “Selected Financial Data” and our financial
statements and notes thereto that appear elsewhere in this Annual Report on Form
10-K. This discussion and analysis contains forward-looking statements that
involve risks, uncertainties, and assumptions. Actual results may differ
materially from those anticipated in these forward-looking statements as a
result of various factors, including, but not limited to, those presented under
“Risks Associated With Our Business” included in Item 1A and elsewhere in this
Annual Report on Form 10-K.
Overview
GSC
Acquisition Company is a blank check company formed on October 26, 2006 for the
purpose of acquiring, through a merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or other similar business
combination, one or more businesses or assets, which we refer to as our initial
Business Combination. We consummated our initial public offering on June 29,
2007.
We have
neither engaged in any operations nor generated any revenues from operations to
date. Our entire activity since inception has been to prepare for and consummate
our IPO, to identify and investigate potential targets for a Business
Combination and to negotiate the Merger Agreement and seek to consummate the
proposed Merger. We will not generate any operating revenues until consummation
of a Business Combination. We generate non-operating income in the form of
interest and dividend income on cash and cash equivalents.
Net
income for the period from October 26, 2006 (date of inception) to December 31,
2008 was approximately $2.5 million, which consisted of $7.1 million of dividend
income primarily from the trust account offset by $2.4 million of formation,
general and administrative costs and $2.3 million of provision for income
taxes.
Net
income for the period from January 1, 2008 to December 31, 2008 was
approximately $0.3 million, which consisted of $2.9 million of dividend income
primarily from the trust account offset by $1.8 million of formation, general
and administrative costs and $0.8 million of provision for income
taxes. Net income for the period from January 1, 2007 to December 31,
2007 was approximately $2.3 million, which consisted of $4.2 million of dividend
income primarily from the trust account offset by $0.4 million of formation,
general and administrative costs and $1.5 million of provision for income
taxes.
The primary factors that contributed to the $2.0 million decline in net income
for the year ended December 31, 2008 as compared to the year ended December 31,
2007 were (1) the dividends earned on the cash held in trust were significantly
lower for the year ended December 31, 2008 due to a substantial decline in
interest rates, (2) we expensed significant costs for the year ended December
31, 2008 relating to due diligence activities in connection with potential
targets for our initial Business Combination and (3) the provision for income
tax represented a greater percentage of income due to the calculation of state
income taxes based on weighted capital which was significantly higher for the
year ended December 31, 2008 as compared to prior year.
We have
incurred substantial costs related to our proposed merger with Complete
Energy. Through December 31, 2008, we recorded approximately $4.6
million of deferred acquisition costs. As indicated in the
accompanying financial statements, at December 31, 2008 the Company had
unrestricted cash of $18,027 and $3.4 million in accrued expenses. These costs
mainly relate to the pursuit of the Company’s acquisition plans and specifically
the proposed merger with Complete Energy. There is no assurance that
the Company will successfully complete a Business Combination with Complete
Energy or any other target business by June 25, 2009. No additional
funds may be released from the trust account prior to the consummation of our
initial Business Combination or the liquidation of the Company. As a result, the
Company cannot assure that the cash available will be sufficient to cover
expenses.
Business
Combination with Complete Energy Holdings, LLC
On May 9,
2008, GSC Acquisition Company (“Company”) entered into an agreement and plan of
merger (the “Merger Agreement”) with, 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”). Complete Energy,
an independent power producer, owns and operates two natural gas-fired combined
cycle power generation facilities. The 1,022 MW La Paloma generating facility
(“La Paloma”), located 110 miles northwest of Los Angeles, serves
energy-constrained California. The 837 MW Batesville generating facility
(“Batesville”), located in northern Mississippi, serves the Southeast region of
the U.S. The Company owns 100% of Holdings I, which owns 100% of Holdings II,
which owns 100% of Merger Sub. Pursuant to the Merger Agreement the
Company 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 the Company (the “Merger”). In
connection with the proposed merger, the Company filed a preliminary proxy
statement on Schedule 14A with the Securities and Exchange Commission on July
29, 2008, which was amended on October 10, 2008. We do not expect that the
Merger and related transactions will be consummated without amending the Merger
Agreement and related documents. We are exploring alternatives for
restructuring the proposed Merger with the goal of consummating the Merger,
after such restructuring, by June 25, 2009. In addition, we may
solicit or initiate discussions with, and enter into negotiations or, with the
consent of Complete Energy or the termination of the Merger Agreement,
agreements with, other potential target businesses in an effort to consummate an
initial Business Combination.
In
connection with the Merger, each outstanding share of common stock of the
Company will be converted into one share of Class A common stock of the Company
(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 the Company, 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 the Company’s stock price reaches $14.50 or $15.50 per share for 10
consecutive trading days, respectively, in each case within five years after the
closing. 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 the Company’s
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
Company intends to account for the Merger under the purchase method of
accounting in accordance with the provisions of Statement of Financial
Accounting No. 141, “Business Combination.” The Merger will be
accounted for as a reverse merger. As such, Complete Energy is deemed
to be the acquirer in the merger for accounting purposes and, consequently, the
assets and liabilities and the historical operations that will be reflected in
the financial statements will be those of Complete Energy, recorded at its
historical cost basis.
The
Merger and related transactions have been unanimously approved by the Company’s
board of directors and the holders of all of the membership interests in
Complete Energy that are required for such approval, but are subject the
approval of the Company’s stockholders, including a majority of the shares of
common stock of the Company issued in its IPO. In addition, the
Merger may not be completed if holders of more than 20% of the shares sold in
the IPO vote against the merger and properly exercise their conversion rights,
as set forth in the Company’s certificate of incorporation. There can
be no assurance that the Merger will be consummated
.
Off-Balance
Sheet Arrangements
We have
not entered into any off-balance sheet financing arrangements and have not
established any special purpose entities. We have not guaranteed any debt or
commitments of other entities or entered into any options on non-financial
assets.
Liquidity
and Capital Resources
A total
of approximately $201.7 million, including $191.5 million of the net proceeds
from the IPO, $4.0 million from the sale of warrants to the Founding Stockholder
and $6.2 million of deferred underwriting discounts and commissions, was placed
in trust, except for $50,000 that was made available to us for working capital
needs. We expect that most of the proceeds held in the trust account
will be used as consideration to pay the sellers of a target business or
businesses with which we ultimately complete our initial Business Combination or
to fund operations upon consummation of our initial Business
Combination. We have used substantially all of the net proceeds of
this IPO not held in the trust account to pay expenses in locating and acquiring
a target business, including identifying and evaluating prospective acquisition
candidates, selecting Complete Energy as the target business, and structuring,
negotiating and consummating our initial Business Combination. To the extent
that shares of our capital stock or debt financing is used in whole or in part
as consideration to effect our initial Business Combination, any proceeds
remaining held in the trust account as well as any other net proceeds not
expended will be made available for general corporate purposes, including to
finance the operations of the combined business. Should we decide to
pursue a target business other than Complete Energy, we would expect to focus on
potential target businesses with valuations greater than or equal to 80% of the
amount held in the trust account (excluding deferred underwriting discounts and
commissions of $6.2 million). We believe that the funds placed in
trust, together with other available funds, including from the issuance of
additional equity and/or the issuance of debt, would support the acquisition of
such a target business. Such debt securities may include a long term debt
facility, a high-yield notes offering or mezzanine debt financing, and depending
upon the business of the target company, inventory, receivable or other secured
asset-based financing. The need for and mix of additional equity and/or debt
would depend on many factors. The proposed funding for any such Business
Combination would be disclosed in the proxy statement relating to the required
shareholder approval.
As of
December 31, 2008, approximately $203.5 million was held in
trust.
|
Net
proceeds from our initial public offering and private placement of
warrants placed in trust
|
|
$
|
195,485,000
|
|
|
Deferred
underwriters’ discounts and commissions
|
|
|
6,210,000
|
|
|
Total
interest received to date for investments held in trust
account
|
|
|
7,054,691
|
|
|
Less
total interest disbursed to us for working capital through
December 31, 2008
|
|
|
(2,400,000
|
)
|
|
Less
total taxes paid through December 31, 2008
|
|
|
(2,878,224
|
)
|
|
|
|
|
|
|
|
Total
funds held in trust account at December 31, 2008
|
|
$
|
203,471,467
|
|
We have
incurred, and expect to continue to incur, substantial costs related to our
proposed merger with Complete Energy. As of December 31, 2008,
we had $18,027 of unrestricted cash available for completing our merger with
Complete Energy, for payment of approximately $4.5 million of current
liabilities, and for general corporate purposes. As a result, we cannot assure
you that the cash we have available will be sufficient to cover our expenses.
Deferred acquisition costs associated with the proposed merger were
approximately $4.6 million as of December 31, 2008.
We may
need to obtain additional financing either to consummate our initial Business
Combination or because we become obligated to convert into cash a significant
number of shares of public stockholders voting against our initial Business
Combination, in which case we may issue additional securities or incur debt in
connection with such Business Combination. Following our initial Business
Combination, if cash on hand is insufficient, we may need to obtain additional
financing in order to meet our working capital needs and satisfy our other
obligations. While we have entered into discussions with GSC Group regarding its
willingness to lend us money for working capital purposes, we have not entered
into any agreement with the GSC Group, or anyone else, to provide loans to us,
and before we may incur any indebtedness, Complete Energy’s consent is required
under the terms of the Merger Agreement (or the Merger Agreement must be
terminated). There can be no assurance that we will be able to
arrange any loans, or if we do, that any such loans will be sufficient to meet
our working capital needs. Our audited financial statements for the
fiscal year ended December 31, 2008,
were
prepared under the assumption that we will continue our operations as a going
concern. Our registered independent accountants in their audit report have
expressed substantial doubt about our ability to continue as a going concern.
Continued operations to consummate an initial Business Combination are dependent
on our ability to meet our existing debt obligations and the financing or other
capital required to do so may not be available or may not be available on
reasonable terms. Our financial statements do not include any adjustments that
may result from the outcome of this uncertainty.
Recently
Issued Accounting Pronouncements
On July
13, 2006, the Financial Accounting Standards Board (“FASB”) released FASB
Interpretation No. 48 “Accounting for Uncertainty in Income Taxes” (“FIN 48”).
FIN 48 provides guidance for how uncertain tax positions should be recognized,
measured, presented and disclosed in the financial statements. FIN 48 requires
the evaluation of tax positions taken or expected to be taken in the course of
preparing the Company’s tax returns to determine whether the tax positions are
“more-likely-than-not” of being sustained by the applicable tax authority. Tax
positions not deemed to meet the more-likely-than-not threshold would be
recorded as a tax benefit or expense in the current year. The Company adopted
FIN 48 as of January 1, 2007 and there was no impact on the financial statements
upon adoption.
On
September 20, 2006, the FASB released Statement of Financial Accounting
Standards No. 157 “Fair Value Measurements” (“FAS 157”). FAS 157 establishes an
authoritative definition of fair value, sets out a framework for measuring fair
value, and requires additional disclosures about fair-value measurements. The
application of FAS 157 is required for fiscal years beginning after November 15,
2007 and interim periods within those fiscal years. The adoption of FAS 157 by
the Company on January 1, 2008 had no material impact to its financial
statements given the development stage nature of the Company. The Company has no
investment assets or liabilities that would be classified in Level II or
III.
In
December 2007, the FASB released Statement of Financial Accounting Standards No.
141(R), “Business Combinations” (“FAS 141R”), replacing Statement of Financial
Accounting Standards No. 141, “Business Combinations” (“FAS No.
141”). This Statement retains the fundamental requirements in FAS 141
that the acquisition method of accounting (which Statement 141 called the
purchase method) be used for all business combinations and for an acquirer to be
identified for each business combination. This Statement also
establishes principles and requirements for how the acquirer: a) recognizes and
measures in its financial statements the identifiable assets acquired, the
liabilities assumed, and any noncontrolling interest in the acquiree; b)
recognizes and measures the goodwill acquired in the business combination or a
gain from a bargain purchase and c) determines what information to disclose to
enable users of the financial statements to evaluate the nature and financial
effects of the business combination. This Statement clarifies that
acquirers will be required to expense costs related to any
acquisitions. FAS 141(R) will apply prospectively to business
combinations for which the acquisition date is on or after fiscal years
beginning December 15, 2008. Early adoption is
prohibited.
The
Company will adopt FAS 141R as of January 1, 2009. In accordance with
the requirements of FAS 141R, the Company will expense acquisition costs related
to the proposed Business Combination discussed in Note 7. As of
December 31, 2008 acquisition cost total $4.6 million and is presented on
balance sheet as deferred acquisition costs.
|
ITEM 7A.
|
QUANTITATIVE
AND QUALITATIVE DISCLOSURES ABOUT MARKET
RISK
|
Market
risk is a broad term for the risk of economic loss due to adverse changes in the
fair value of a financial instrument. These changes may be the result of various
factors, including interest rates, foreign exchange rates, commodity prices
and/or equity prices. $197.7 million of the net IPO proceeds (which
includes $6.2 million of the proceeds attributable to the underwriters’ deferred
discount from the IPO) has been placed in a trust account at JPMorgan Chase
Bank, N.A., with the American Stock Transfer & Trust Company as trustee. As
of December 31, 2008, the balance of the trust account was $203.5 million. The
proceeds held in trust will only be invested in U.S. government securities
having a maturity of 180 days or less or in money market funds which invest
principally in either short-term securities issued or guaranteed by the United
States having the highest rating from a recognized credit rating agency or tax
exempt municipal bonds issued by governmental entities located within the United
States or otherwise meeting the conditions under Rule 2a-7 under the Investment
Company Act.
Thus, we
are currently subject to market risk primarily through the effect of changes in
interest rates on short-term government securities and other highly rated
money-market instruments. We do not believe that the effect of other changes,
such as foreign exchange rates, commodity prices and/or equity prices currently
pose significant market risk for us. We have not engaged in any hedging
activities since our inception. We do not currently expect to engage in any
hedging activities.
|
ITEM 8.
|
FINANCIAL
STATEMENTS AND SUPPLEMENTARY DATA
|
This
information appears following Item 15 of this Report and is incorporated
herein by reference.
|
ITEM 9.
|
CHANGES
IN AND DISAGREEMENTS WITH ACCOUNTANTS ON ACCOUNTING AND FINANCIAL
DISCLOSURE.
|
None.
|
ITEM 9A.
|
CONTROLS
AND PROCEDURES
|
Evaluation
of Disclosure Controls and Procedures
Based
upon his evaluation of the firm’s disclosure controls and procedures pursuant to
Exchange Act Rule 13a-15 as of the end of the year covered by this 2008 Form
10-K, the firm’s Chief Executive Officer and Principal Financial Officer has
concluded that such controls and procedures are effective. There were no changes
in the firm’s internal controls or in other factors that have materially
affected, or are reasonably likely to materially affect, our internal controls
over financial reporting.
Management’s
Report on Internal Control Over Financial Reporting
Management’s
report on the firm’s internal control over financial reporting (as defined in
Rules 13a-15(f) and 15d-15(f) of the Exchange Act), and the related report of
our independent public accounting firm, are set forth under Item 8 of this
Annual Report on Form 10-K.
We have
filed as an exhibit to this Form 10-K the certification of our Chief Executive
Officer and Principal Accounting Officer and Principal Financial Officer
pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934
(as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of
2002).
|
ITEM 9B.
|
OTHER
INFORMATION
|
On
February 25, 2009, we, our subsidiaries and Complete Energy executed a waiver
agreement under the Merger Agreement, pursuant to which certain exclusivity
provisions of the Merger Agreement were waived, allowing us, Complete Energy and
our respective affiliates and representatives to, among other things, initiate
discussions with third parties concerning a merger, sale or other business
combination, provided that neither we nor Complete Energy, nor any of our
respective affiliates or representatives, will enter into a contract with
respect to such a transaction without the consent of the other. As a
result of the waiver agreement, we may solicit or initiate discussions with, and
enter into negotiations with, other potential target businesses in an effort to
consummate an initial Business Combination. A copy of the waiver
agreement is attached as Exhibit 10.20 to this Annual Report on Form
10-K.
PART
III
|
ITEM 10.
|
DIRECTORS,
EXECUTIVE OFFICERS AND CORPORATE
GOVERNANCE.
|
Directors
and Executive Officers
Our
current directors and executive officers are as follows:
|
Name
|
Age
|
Position
|
|
Alfred
C. Eckert III
|
60
|
Chairman
of the Board of Directors
|
|
Peter
R. Frank
|
61
|
Chief
Executive Officer and Director
|
|
Matthew
C. Kaufman
|
38
|
President
and Director
|
|
James
K. Goodwin
|
62
|
Director
|
|
Richard
A. McKinnon
|
68
|
Director
|
|
Richard
W. Detweiler
|
67
|
Director
|
|
Daniel
R. Sebastian
|
62
|
Director
|
Alfred C. Eckert III
,
Chairman
. Mr. Eckert founded
GSC Group in 1999. Prior to that, he was Chairman and CEO of
Greenwich Street Capital Partners which he co-founded in 1994. Mr.
Eckert was previously with Goldman, Sachs & Co. from 1973 to 1991, where he
was elected as a Partner in 1984. Mr. Eckert founded the firm’s
Leveraged Buyout Department in 1983 and had senior management responsibility for
it until 1991. He was Chairman of the Commitments and Credit
Committees from 1990 to 1991 and co-head of the Merchant Bank from 1989 to
1991. He was also the Chairman of the
Firm’s
Investment Committee from its inception in 1986 until 1991. Mr.
Eckert is Vice Chairman of the Kennedy Center Corporate Fund
Board. Mr. Eckert graduated from Northwestern University with a B.S.
degree in Engineering and graduated with Highest Distinction as a Baker Scholar
from the Harvard Graduate School of Business Administration with a M.B.A.
degree.
Peter R. Frank
,
Chief Executive Officer
. Mr.
Frank joined GSC Group in 2001 and since 2005 has served as a Senior Operating
Executive. Mr. Frank was appointed Chairman of Atlantic Express, Inc.
in 2003 and served as their Chief Restructuring Officer from 2002 to
2003. Prior to that, Mr. Frank was the CEO of Ten Hoeve Bros., Inc.
and was an investment banker at Goldman, Sachs & Co. He is
Chairman of the Board of Atlantic Express Transportation Group, Scovill
Fasteners, Inc., Worldtex, Inc., and a director of K-R Automation and North Star
Media LLC. Mr. Frank graduated from the University of Michigan with a
B.S.E.E. degree and from the Harvard Graduate School of Business Administration,
with a M.B.A. degree.
Matthew C. Kaufman
,
President
. Mr. Kaufman joined
GSC Group at its inception in 1999. Mr. Kaufman currently has
day-to-day responsibility for the management of GSC’s portfolio of controlled
companies and selected equity investments. Additionally, he
structures and oversees the provision of cross portfolio initiatives and
services. Prior to that, he was with Greenwich Street Capital
Partners from 1997 to 1999. Mr. Kaufman was previously Director of
Corporate Finance with NextWave Telecom, Inc. From 1994 to 1996, Mr.
Kaufman was with The Blackstone Group, in the Merchant Banking and Mergers and
Acquisitions Department, and from 1993 to 1994 was with Bear Stearns working
primarily in the Mergers & Acquisitions department. He graduated
from the University of Michigan, with a B.B.A. degree and a M.A.C.C.
degree.
James K. Goodwin
,
Director
. Mr. Goodwin has
served as a member of our Board of Directors since November 2006. Mr. Goodwin is
currently a private investor and consultant. He was the Chief Executive Officer
of eWayDirect from 2003 to 2006. From 1995 to 1998, he was the President of
North American Consumer Products for Fort James Corporation. From 1993 to 1995,
Mr. Goodwin was Executive Vice President for Consumer Products for the James
River Corporation. Prior to joining James River, Mr. Goodwin spent 23 years with
Procter & Gamble holding numerous executive positions before becoming Vice
President Corporate Sales. Mr. Goodwin graduated from Kansas University with a
B.S. degree.
Richard A. McKinnon
,
Director
. Mr. McKinnon is
currently the President of Management Recruiters International, Inc., or MRI, a
subsidiary of CDI Corporation. He joined MRI in October 2008. Prior
to MRI Mr. McKinnon was a private investor and consultant. He was
President and Chief Executive officer of Amadeus North America from 2000 to
2004. Prior to joining Amadeus, Mr. McKinnon held senior executive positions
with various companies in the leisure industry. Mr. McKinnon graduated from the
United States Military Academy with a B.S. degree and from Emory University
School of Law with a J.D. degree.
Richard W. Detweiler
, Director.
Mr.
Detweiler is a managing director and owner of Carlisle Enterprises, LLC, a
private equity investment firm. Mr. Detweiler joined Carlisle
Enterprises, LLC in 1996. Mr. Detweiler is a member of the board of
directors of Aeromet Holding, Inc., Hyco International, Inc. and UVP,
Inc.
Daniel R. Sebastian
,
Director.
Mr.
Sebastian assumed his current position of President and Chief Executive Officer
of MW Industries, Inc., a manufacturer of springs and specialty fasteners in
July 1995. Mr. Sebastian is a member of the board of directors of
Scovill Inc. and the Spring Manufacturers Institute. Mr. Sebastian
graduated from Waterbury State Technical Institute and Lehigh University with a
degree in metallurgical engineering and is also a graduate of the University of
Michigan Manufacturing Executive Program.
Number
and Terms of Office of Directors
Our board
of directors is divided into three classes with only one class of directors
being elected in each year and each class serving a three-year term. The term of
office of the first class of directors, consisting of Messrs. Goodwin and
Kaufman, will expire at our first annual meeting of stockholders following the
IPO. The term of office of the second class of directors, consisting of Messrs.
Detweiler, Frank and McKinnon, will expire at the second annual meeting of
stockholders following the IPO. The term of office of the third class of
directors, consisting of Messrs. Eckert and Sebastian, will expire at the third
annual meeting of stockholders following the IPO.
These
individuals will play a key role in identifying and evaluating prospective
acquisition candidates, selecting the target business, and structuring,
negotiating and consummating our initial Business Combination. However, none of
these individuals has been a principal of or affiliated with a blank check
company that executed a business plan similar to our business plan and none of
these individuals is currently affiliated with any such entity. Nevertheless, we
believe that the skills
and
expertise of these individuals, their collective access to potential target
businesses, and their ideas, contacts, and acquisition expertise should enable
them to successfully identify and assist us in completing our initial Business
Combination. However, there is no assurance such individuals will, in fact, be
successful in doing so.
Although
all members of the board of directors will be invited and encouraged to attend
annual meetings of security holders, we do not have a policy with respect to
such attendance. We will seek to schedule our annual meeting of
stockholders at a time and date to accommodate attendance by members of our
board of directors.
Director
Independence
Our
securities are listed on the NYSE Alternext US (formerly the American Stock
Exchange) and we intend to seek to have our securities approved for listing on
the NYSE or NASDAQ following completion of the proposed Merger. The NYSE
Alternext US, the NYSE and NASDAQ require that a majority of our board must be
composed of “independent directors.” In addition, Rule 10A-3 of the
Exchange Act and the listing requirements of the NYSE Alternext US, the NYSE and
NASDAQ require that the members of our audit committee satisfy independence
standards.
Our board
of directors has determined that Messrs. Goodwin, McKinnon, Detweiler and
Sebastian are “independent directors” as such term is defined in the rules of
the NYSE Alternext US and Rule 10A-3 of the Exchange Act.
In
addition, our board of directors has determined that Messrs. Goodwin, McKinnon
and Sebastian, the current members of our audit committee, are “independent”
within the meaning of Rule 10A-3 and the listing requirements of the NYSE
Alternext US.
Code
of Ethics
We have
adopted a code of ethics that applies to our directors, officers and employees.
Requests for copies of our code of ethics should be sent in writing to GSC
Acquisition Company, 500 Campus Drive, Suite 220, Florham Park, New Jersey
07932. We intend to disclose any amendments to or waivers of certain
provisions of our code of ethics in a current report on Form 8-K.
Corporate
Governance
Nominating
Committee
Guidelines for Selecting
Director Nominees
Our board
of directors has established a governance and nominating committee which
currently consists of Messrs. Goodwin, McKinnon and Detweiler, with Mr. Goodwin
serving as chair. The governance and nominating committee held committee
meetings on May 5, 2008, June 24, 2008 and August 8, 2008. Our governance and
nominating committee’s charter can be obtained at http://ir.gscac.com/. The
responsibilities of our governance and nominating committee include, among other
things:
|
|
·
|
recommending
qualified candidates for election to our board of
directors;
|
|
|
·
|
evaluating
and reviewing the performance of existing
directors;
|
|
|
·
|
making
recommendations to our board of directors regarding governance matters,
including our certificate of incorporation, bylaws and charters of our
committees; and
|
|
|
·
|
developing
and recommending to our board of directors governance and nominating
guidelines and principles applicable to us.
|
|
|
|
|
The
guidelines for selecting nominees, which are specified in the Governance and
Nominating Committee Charter, generally provide that persons to be nominated
should be actively engaged in business endeavors, have an understanding of
financial statements, corporate budgeting and capital structure, be familiar
with the requirements of a publicly traded company, be familiar with industries
relevant to our business endeavors, be willing to devote significant time to the
oversight duties of the board of directors of a public company, and be able to
promote a diversity of views based on the person’s education, experience and
professional employment. The governance and nominating committee evaluates each
individual in the context of the board as a whole, with the objective of
recommending a group of persons that can best implement our business plan,
perpetuate our business and represent stockholder interests. The governance and
nominating committee may require certain skills or attributes, such as financial
or accounting experience, to meet specific board needs that arise from
time to
time. The governance and nominating committee does not distinguish among
nominees recommended by stockholders and other persons.
There
have been no material changes to the procedures by which security holders may
recommend nominees to our board of directors.
Audit
Committee
Our board
of directors has established an audit committee which currently consists of
Messrs. Goodwin, McKinnon and Sebastian with Mr. Sebastian serving as
chair. Our audit committee charter can be obtained at
http://ir.gscac.com/. The audit committee has held committee meetings on each of
August 8, 2007, November 8, 2007, February 27, 2008, May 5, 2008, August 8, 2008
and November 6, 2008. As required by the rules of the American Stock Exchange,
each of the members of our audit committee is able to read and understand
fundamental financial statements, and we consider Mr. Sebastian to qualify as an
“audit committee financial expert” and as “financially sophisticated” as defined
under SEC and American Stock Exchange rules, respectively. The responsibilities
of our audit committee will include:
|
·
|
meeting
with our management periodically to consider the adequacy of our internal
control over financial reporting and the objectivity of our financial
reporting;
|
|
·
|
appointing
the independent registered public accounting firm, determining the
compensation of the independent registered public accounting firm and
pre-approving the engagement of the independent registered public
accounting firm for audit and non-audit
services;
|
|
·
|
overseeing
the independent registered public accounting firm, including reviewing
independence and quality control procedures and experience and
qualifications of audit personnel that are providing us audit
services;
|
|
·
|
meeting
with the independent registered public accounting firm and reviewing the
scope and significant findings of the audits performed by them, and
meeting with management and internal financial personnel regarding these
matters;
|
|
·
|
reviewing
our financing plans, the adequacy and sufficiency of our financial and
accounting controls, practices and procedures, the activities and
recommendations of the auditors and our reporting policies and practices,
and reporting recommendations to our full board of directors for
approval;
|
|
·
|
establishing
procedures for the receipt, retention and treatment of complaints
regarding internal accounting controls or auditing matters and the
confidential, anonymous submissions by employees of concerns regarding
questionable accounting or auditing
matters;
|
|
·
|
preparing
the report required by the rules of the SEC to be included in our annual
proxy statement;
|
|
·
|
monitoring
compliance on a quarterly basis with the terms of our IPO and amended and
restated certificate of incorporation and, if any noncompliance is
identified, immediately taking all action necessary to rectify such
noncompliance or otherwise causing such noncompliance with such terms;
and
|
|
·
|
reviewing
and approving all payments made to our officers, directors and affiliates,
including GSC Group, other than the payment of an aggregate of $7,500 per
month to GSCP (NJ) Holdings, L.P. for office space, secretarial and
administrative services. Any payments made to members of our audit
committee will be reviewed and approved by our board of directors, with
the interested director or directors abstaining from such review and
approval.
|
|
ITEM 11.
|
EXECUTIVE
COMPENSATION
|
None of
our executive officers or directors has received any compensation for service
rendered. Since our formation we have not granted any stock options
or stock appreciation rights and have not adopted any long-term incentive
plans.
|
ITEM 12.
|
SECURITY
OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND MANAGEMENT AND RELATED
STOCKHOLDER MATTERS
|
The
following table sets forth information regarding the beneficial ownership of our
common stock as of February 25, 2009 by:
|
|
•
|
|
each
person known by us to be the beneficial owner of more than 5% of our
outstanding shares of common stock;
|
|
|
•
|
|
each
of our officers and directors; and
|
|
|
•
|
|
all
our officers and directors as a
group.
|
Unless
otherwise indicated, we believe that all persons named in the table have sole
voting and investment power with respect to all shares of common stock
beneficially owned by them.
Name
and Address of Beneficial Owner
(1)
|
|
|
Amount
and Nature of Beneficial Ownership
|
|
|
Approximate
Percentage of
Outstanding
Common Stock
|
|
|
Mr.
Eckert
|
|
|
|
–
|
|
|
|
–
|
|
|
Mr.
Frank
|
|
|
|
–
|
|
|
|
–
|
|
|
Mr.
Kaufman
|
|
|
|
–
|
|
|
|
–
|
|
|
Mr.
Detweiler
|
|
|
|
–
|
|
|
|
–
|
|
|
Mr.
Sebastian
|
|
|
|
–
|
|
|
|
–
|
|
|
Mr.
Goodwin
|
|
|
|
22,500
|
|
|
|
*
|
|
|
Mr.
McKinnon
|
|
|
|
22,500
|
|
|
|
*
|
|
|
GSC
Secondary Interest Fund, LLC
|
|
|
|
4,455,000
|
(2)
|
|
|
17.7
|
%
|
|
Fir
Tree, Inc.
(3)
|
|
|
|
2,500,000
|
(4)
|
|
|
9.9
|
%
|
|
HBK
Investments L.P.
(5)
|
|
|
|
2,465,625
|
(6)
|
|
|
9.8
|
%
|
|
Azimuth
Opportunity, Ltd.
(7)
|
|
|
|
1,763,063
|
(8)
|
|
|
7.0
|
%
|
|
Basso
Capital Management, L.P.
(9)
|
|
|
|
633,100
|
(10)
|
|
|
2.5
|
%
|
|
QVT
Financial LP
(11)
|
|
|
|
1,339,025
|
(12)
|
|
|
5.3
|
%
|
|
Millennium
Management LLC
(13)
|
|
|
|
1,164,600
|
(14)
|
|
|
4.6
|
%
|
|
All executive officers and
directors as a group
(
7
individuals)
|
|
|
|
45,000
|
|
|
|
0.2
|
%
|
|
|
______________________________________
|
|
(1)
|
Unless
otherwise indicated, the business address of each of the individuals is
500 Campus Drive, Suite 220, Florham Park, New Jersey
07932.
|
|
(2)
|
Represents
shares of common stock held by GSC Secondary Interest Fund, LLC. GSC
Secondary Interest Fund, LLC, is a single member Delaware limited
liability company (“GSC Secondary”). The single member of GSC
Secondary is GSC Group, Inc., a Delaware corporation (“GSC
Group”). Through the ownership of 100% of the Class A Common
Stock of GSC Group, GSC Active Partners Holdings, L.P., a Delaware limited
partnership (“GSC Active Holdings”) holds a majority of the dividend
interest and the voting interest in GSC Group. GSC Active
Partners, Inc., a Delaware corporation (“GSC Active”) is the general
partner of GSC Active Holdings. The foregoing information was
derived from Amendment No. 1 to a Schedule 13G filed with the SEC on
February 13, 2009.
|
|
(3)
|
The
business address of Fir Tree Inc. is 505 Fifth Avenue 23rd Floor New York,
New York 10017.
|
|
(4)
|
Represents
(i) 1,260,000 shares of Common Stock held by Fir Tree SPAC Holdings 1, LLC
(“SPAC Holdings 1”) and 1,240,000 shares of Common Stock held by Fir Tree
SPAC Holdings 2, LLC (“SPAC Holdings 2”). Fir Tree SPAC Master
Fund, LP, a Cayman Islands exempted limited partnership, is the sole
member of SPAC Holdings 1 and SPAC Holdings 2, and Fir Tree, Inc. (“Fir
Tree”) is the investment manager of SPAC Holdings 1 and SPAC Holdings
2. Fir Tree has been granted investment discretion over the
Common Stock held by SPAC Holdings 1 and SPAC Holdings 2. The foregoing
information was derived from Amendment No. 1 to a Schedule 13G filed with
the SEC on February 10, 2009.
|
|
(5)
|
The
business address of HBK Investments L.P. is 2101 Cedar Springs Road, Suite
700, Dallas, Texas 75201.
|
|
(6)
|
Represents
shares of common stock held by HBK Investments L.P. HBK Investments L.P.
has delegated discretion to vote and dispose of the shares of common stock
to HBK Services LLC (“Services”); Services may delegate discretion to vote
and dispose of certain of the shares of common stock to HBK New York LLC,
a Delaware limited liability company, HBK Virginia LLC, a Delaware limited
liability company, and/or HBK Europe Management LLP, a limited liability
partnership organized under the laws of the United Kingdom (collectively,
the “Subadvisors”). Each of Services and the Subadvisors is
under common control with HBK Investments L.P. The foregoing information
was derived from Amendment No. 2 to a Schedule 13G filed with the SEC on
January 28, 2009.
|
|
(7)
|
The
business address of Azimuth Opportunity, Ltd. and Commerce Court Value,
Ltd. is c/o Ogier Qwomar Complex, 4th Floor P.O. Box 3170 Road Town,
Tortola, British Virgin Islands. The business address of Peter
W. Poole is 4th Floor, Rodus Building, Road Reef, PO Box 765, Road Town,
Tortola, British Virgin Islands.
|
|
(8)
|
Represents
(i) 1,087,524 shares of common stock held by Azimuth Opportunity, Ltd. and
(ii) 675,539 shares of common stock held by Commerce Court Value,
Ltd. Peter W. Poole is the Director of Commerce Court Value,
Ltd. and Azimuth Opportunity, Ltd. The foregoing information
was derived from Amendment No. 3 to a Schedule 13G filed with the SEC on
February 13, 2009.
|
|
(9)
|
The
business address of Basso Capital Management, L.P. is 1266 East Main
Street, 4th Floor, Stamford, Connecticut
06902.
|
|
(10)
|
Represents
633,100 shares of common stock held by Basso Multi-Strategy Holding Fund
Ltd. Basso Capital Management, L.P. (“BCM”) is the investment
manager of Basso Multi-Strategy Holding Fund Ltd. Basso GP, LLC
is the general partner of BCM. The controlling persons of Basso
GP are Howard Fischer, Philip Platek, John Lepore and Dwight Nelson. The
foregoing information was derived from Amendment No. 1 to a Schedule 13G
filed with the SEC on February 17,
2009.
|
|
(11)
|
The
business address of QVT Financial LP and QVT Financial GP LLC is 1177
Avenue of the Americas, 9th Floor New York, New York
10036.
|
|
(12)
|
Represents
(i) 1,092,167 shares of common stock held by QVT Fund LP (“QVT Fund”),
(ii) 120,211 shares of Common Stock held by Quintessence Fund L.P.
(“Quintessence”) and (iii) 126,647 shares of Common Stock held by a
separate discretionary account managed for a third party (the “Separate
Account”). QVT Financial LP (“QVT Financial”) is the investment
manager for QVT Fund, Quintessence and the Separate
Account. QVT Financial GP LLC is the General Partner of QVT
Financial. The foregoing information was derived from Amendment No. 1 to a
Schedule 13G filed with the SEC on January 30,
2009.
|
|
(13)
|
The
business address of Millenco LLC, Millennium Management LLC and Israel A.
Englander is 666 Fifth Avenue, New York, New York
10103.
|
|
(14)
|
Represents 1,164,600
shares of common stock held by Millenco LLC. Millennium Management LLC is
the investment manager of Millenco LLC and Israel A. Englander is the
managing member of Millennium Management LLC. The foregoing information
was derived from Amendment No. 2 to a Schedule 13G filed with the SEC on
June 23, 2008.
|
|
ITEM 13.
|
CERTAIN
RELATIONSHIPS AND RELATED TRANSACTIONS, AND DIRECTOR
INDEPENDENCE
|
On
November 7, 2006, in connection with our formation, our Founding Stockholder
purchased 4,500,000 Initial Founder’s Shares (after giving effect to a
recapitalization and stock dividend referred to below) for a purchase price of
$25,000 and entered into an agreement with us, as amended on May 29, 2007, to
purchase 4,000,000 warrants at a price of $1.00 per warrant, prior to the
consummation of the IPO. A total of 67,500 (after giving effect to the
recapitalization and stock dividend) of the 4,500,000 Initial Founder’s Shares
were subsequently sold by our Founding Stockholder to certain of our directors,
including Messrs. Goodwin and McKinnon, in private transactions. Pursuant to the
terms of the purchase agreements for such private transactions, GSC Secondary
Interest Fund, LLC may repurchase the Initial Founder’s Shares owned by Messrs.
Goodwin and McKinnon in the event of their resignation or removal for cause from
the Company’s board of directors. The information above and throughout this
section has been adjusted to reflect (i) a recapitalization that was effected on
May 29, 2007, in which we acquired (for retirement) 1,692,968 of our outstanding
shares of common stock from our Founding Stockholder and a total of 25,782 of
our outstanding shares of common stock from certain of our directors, including
Messrs. Goodwin and McKinnon, in each case for nominal consideration of $1.00
and (ii) a 1-for-5 stock dividend that was effected on June 25, 2007 for holders
of record as of June 24, 2007. This recapitalization and stock dividend were
effected to ensure that the shares included in the units sold to the public in
the IPO represented approximately 80% of our outstanding share capital following
the IPO. The Initial Founder’s Shares are identical to the shares included in
the units sold in the IPO, except that our Founding Stockholder and each
transferee has agreed (i) in connection with the stockholder vote required to
approve our initial Business Combination, to vote the Initial Founder’s Shares
in accordance with the majority of the shares of common stock voted by the
Public Stockholders, and (ii) to waive their right to participate in any
liquidation distribution with respect to the Initial Founder’s Shares if we fail
to consummate our initial Business Combination. The Initial Founder’s Warrants
are identical to the warrants sold in the IPO, except that they will be
non-redeemable so long as they are held by our Founding Stockholder or its
permitted transferees and the shares of common stock issued upon exercise of
such Initial Founder’s Warrants by our Founding Stockholder or its permitted
transferees will not be registered under the Securities Act. However our
Founding Stockholder and its permitted transferees will have the right to demand
registration of the resale of such shares.
Our
Founding Stockholder and Messrs. Goodwin and McKinnon have agreed not to sell or
transfer the Initial Founder’s Shares until June 29, 2010 and not to sell or
transfer the Initial Founder’s Warrants until after we complete our initial
Business Combination, except in each case to permitted transferees who agree to
be subject to the same transfer restrictions and vote in accordance with the
majority of shares of common stock voted by the Public Stockholders in
connection with our initial Business Combination. We refer to these agreements
with our Founding Stockholder and Messrs. Goodwin and McKinnon and their
permitted transferees as a “lock-up agreement.” The permitted
transferees under the lock-up agreements are our officers, directors and
employees, and other persons or entities associated with GSC
Group. During the lock-up period, our Founding Stockholder and
Messrs. Goodwin and McKinnon and any permitted transferees to whom they transfer
shares of common stock will retain all other rights of holders of our common
stock, including, without limitation, the right to vote their shares of common
stock (except that our Founding Stockholder and Messrs. Goodwin and McKinnon
have agreed to vote the Initial Founder’s Shares in accordance with the majority
of the shares of common stock voted by our Public Stockholders in connection
with the vote on any initial Business Combination) and the right to receive cash
dividends, if declared. If dividends are declared and payable in shares of
common stock, such dividends will also be subject to the lock-up agreement. If
we are unable to affect our initial Business Combination and liquidate, our
Founding Stockholder and Messrs. Goodwin and McKinnon have waived the right to
receive any portion of the liquidation proceeds
with
respect to the Initial Founder’s Shares. Any permitted transferees to whom the
Initial Founder’s Shares are transferred will also agree to waive that
right.
We
entered into a registration rights agreement with holders of the Initial
Founder’s Shares, the Initial Founder’s Warrants and the shares of common stock
underlying the Initial Founder’s Warrants granting them the right to demand that
we register the resale of the Initial Founder’s Shares, the Initial Founder’s
Warrants and the shares of common stock underlying the Initial Founder’s
Warrants, with respect to the Initial Founder’s Shares, at any time after the
date on which they are no longer subject to transfer restrictions, and with
respect to all of the warrants and the underlying shares of common stock, after
the relevant warrants become exercisable by their terms. We will bear the
expenses incurred in connection with the filing of any such registration
statements.
GSCP (NJ)
Holdings, L.P., made advances on our behalf used to pay a portion of the
expenses of the IPO and our organization. These advances were non-interest
bearing and unsecured and were repaid at the time of the consummation of the
IPO.
We have
agreed to pay GSCP (NJ) Holdings, L.P., an affiliate of our Founding Stockholder
a monthly fee of $7,500 for office space and administrative services, including
secretarial support. We believe that such fees are at least as favorable as we
could have obtained from an unaffiliated third party.
We will
reimburse our officers, directors and affiliates, including GSC Group and its
employees, for any reasonable out-of-pocket business expenses incurred by them
in connection with certain activities on our behalf such as identifying and
investigating possible target businesses and Business Combinations. Subject to
availability of proceeds not placed in the trust account and the interest income
of $2.4 million on the balance in the trust account released to us, there is no
limit on the amount of out-of-pocket expenses that could be incurred. Our audit
committee will review and approve all payments made to our officers, directors
and affiliates, including GSC Group, other than the payment of an aggregate of
$7,500 per month to GSCP (NJ) Holdings, L.P. for office space, secretarial and
administrative services, and any payments made to members of our audit committee
will be reviewed and approved by our board of directors, with the interested
director or directors abstaining from such review and approval. To the extent
such out-of-pocket expenses exceed the available proceeds not deposited in the
trust account and the interest income of $2.4 million on the balance in the
trust account released to us, such out-of-pocket expenses would not be
reimbursed by us unless we consummate an initial Business
Combination.
Although
GSC Group, Inc. (“GSCG”) and Mr. Eckert, our Chairman, have entered into
non-compete agreements with us providing that until the earlier of our initial
Business Combination or our liquidation, neither GSCG nor Mr. Eckert will become
affiliated with any other blank check company, the other members of our
management team may in the future become affiliated with entities, including
other blank check companies, engaged in business activities similar to those we
intend to conduct. Members of our management team may become aware of business
opportunities that may be appropriate for presentation to us as well as the
other entities with which they are or may be affiliated. While we have entered
into a business opportunity right of first review agreement with GSCG which
provides that from the date of the prospectus relating to our IPO until the
earlier of the consummation of our initial Business Combination or our
liquidation in the event we do not consummate an initial Business Combination,
we will have a right of first review with respect to Business Combination
opportunities of GSC Group with an enterprise value of $150 million or more that
GSC Group first becomes aware of after the date of the prospectus relating to
our IPO (other than any investment opportunities in respect of companies in
bankruptcy, or financially or operationally distressed companies; companies
targeted for acquisition by any company in which an investment vehicle managed
by GSC Group has an equity investment; and any entity in which any of our
officers, directors or GSC Group or its affiliates has a financial interest),
due to those existing and future affiliations, members of our management team
may have fiduciary obligations to present potential business opportunities to
those entities prior to presenting them to us which could cause conflicts of
interest. Accordingly, members of our management team and our directors may have
conflicts of interest in determining to which entity a particular business
opportunity should be presented.
Other
than reimbursable out-of-pocket expenses payable to our officers and directors
and GSC Group and an aggregate of $7,500 per month paid to GSCP (NJ) Holdings,
L.P. for office space, secretarial and administrative services, no compensation
or fees of any kind, including finder’s and consulting fees, will be paid to any
of our officers or directors or their affiliates.
|
ITEM 14.
|
PRINCIPAL
ACCOUNTING FEES AND SERVICES.
|
The firm
of Ernst & Young LLP acts as our independent registered public accounting
firm. The following is a summary of fees paid to Ernst & Young LLP for
services rendered.
Audit
Fees
During
the fiscal year ended December 31, 2008, audit fees for our independent
registered public accounting firm were $105,000.
During
the period from October 26, 2006 (inception) to December 31, 2008, fees for our
independent registered public accounting firm were $35,820 for the services they
performed in connection with our initial public offering, including the
financial statements included in the Form 8-K filed with the Securities and
Exchange Commission on June 29, 2007.
Tax
Fees
During
the fiscal year ended December 31, 2008, our independent registered public
accounting firm rendered services to us for tax compliance, tax advice and tax
planning in the amount of $26,000.
Advisory
Fees
During
the fiscal year ended December 31, 2008, our independent registered public
accounting firm provided due diligence services in connection with our efforts
in identifying a prospective target business in the amount of
$500,000.
Audit
Committee Approval
The audit
committee is responsible for appointing, setting compensation, and overseeing
the work of the independent auditor. In recognition of this
responsibility, the audit committee has established a policy to pre-approve all
audit and permissible non-audit services provided by the independent
auditor.
PART
IV
|
ITEM 15.
|
EXHIBITS
AND FINANCIAL STATEMENT SCHEDULES
|
(a) The
following documents are filed as part of this Annual Report on Form
10-K.
|
(1)
|
Consolidated
Financial Statements
|
|
|
|
|
|
Reference
is made to the Index to consolidated financial statements of the Company
under Item 8 of Part II.
|
|
|
|
|
(2)
|
Financial
Statement Schedule
|
|
|
|
|
|
All
other schedules are omitted because they are not applicable or the amounts
are immaterial or the required information is presented in the financial
statements and the notes thereto in Item 8 above.
|
|
|
|
|
(3)
|
Exhibits
|
EXHIBIT INDEX
|
Exhibit
Number
|
|
Description
|
|
1.1
|
|
Form
of Underwriting Agreement
1
|
|
2.1
|
|
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
2
|
|
2.1
|
|
Merger
Consideration Calculation
3
|
|
3.1
|
|
Certificate
of Amended and Restated Certificate of Incorporation
4
|
|
3.2
|
|
Form
of Bylaws
1
|
|
4.1
|
|
Specimen
Unit Certificate
1
|
|
4.2
|
|
Specimen
Common Stock Certificate
1
|
|
4.3
|
|
Form
of Warrant Agreement between the Company and American Stock Transfer &
Trust Company
1
|
|
4.4
|
|
Form
of Warrant Certificate
1
|
|
10.1
|
|
Form
of Letter Agreement among the Company and GSC Secondary Interest Fund,
LLC
1
|
|
10.2
|
|
Form
of Letter Agreement between the Company and each of the directors and
officers of the Company
1
|
|
10.3
|
|
Initial
Founder’s Securities Purchase Agreement, dated as of November 7, 2006,
between the Company and GSC Secondary Interest Fund, LLC
1
|
|
10.4
|
|
Form
of Registration Rights Agreement between the Company, certain directors of
the Company and GSC Secondary Interest Fund, LLC
1
|
|
10.5
|
|
Form
of Indemnity Agreement between the Company and each of its directors and
officers
1
|
|
10.6
|
|
Investment
Management Trust Agreement by and between the Registrant and American
Stock Transfer & Trust Company
|
|
10.7
|
|
Amended
Form of Right of First Review Agreement between the Company and GSC Group,
Inc.
1
|
|
10.8
|
|
Initial
Founder’s Securities Purchase Agreement, dated as of December 21, 2006,
between the Company, GSC Secondary Interest Fund, LLC, James K. Goodwin
and Edward A. Mueller
1
|
|
10.9
|
|
Initial
Founder’s Securities Purchase Agreement, dated as of December 21, 2006,
between the Company, GSC Secondary Interest Fund, LLC and Richard A.
McKinnon
1
|
|
10.10
|
|
Repurchase
Agreement and Amendment to Initial Founder’s Securities Purchase
Agreement, dated as of May 29, 2007, between the Company and GSC Secondary
Interest Fund, LLC
1
|
|
10.11
|
|
Repurchase
Agreement, dated as of May 29, 2007, between the Company, James K.
Goodwin, Richard A. McKinnon and Edward A. Mueller
1
|
|
10.12
|
|
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
5
|
|
10.13
|
|
Employment
Agreement, dated as of May 9, 2008, by and among CEP Operating Company
LLC, GSC Acquisition Company and Hugh A. Tarpley
6
|
1
Incorporated by reference to the
Company’s Registration Statement on Form S-1 (Registration No. 333-138832),
which was declared effective on June 25, 2007.
2
Incorporated by reference to exhibit 2.1 of the Company’s current report on Form
8-K filed on May 12, 2008.
3
Incorporated by reference to exhibit 2.2 of the Company’s current report on Form
8-K filed on May 12, 2008.
4
Incorporated by reference to exhibit 1.1 of the Company’s current report on Form
8-K filed on July 2, 2007.
5
Incorporated by reference to exhibit 10.3 to the Company’s current report on
Form 8-K filed on May 12, 2008
|
10.14
|
|
Employment
Agreement, dated as of May 9, 2008, by and among CEP Operating Company
LLC, GSC Acquisition Company and Lori A. Cuervo
7
|
|
10.15
|
|
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
8
|
|
10.16
|
|
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
9
|
|
10.17
|
|
Non-Solicitation
and Confidentiality Agreement dated as of May 9, 2008 between GSC
Acquisition Company and Peter J. Dailey
10
|
|
10.18
|
|
Initial
Founder’s Shares Transfer Agreement June 24, 2008 among GSC Acquisition
Company, GSC Secondary Interest Fund, LLC and Richard W. Detweiler
11
|
|
10.19
|
|
Initial
Founder’s Shares Transfer Agreement dated June 24, 2008 among GSC
Acquisition Company, GSC Secondary Interest Fund, LLC and Daniel R.
Sebastian
12
|
|
10.20
|
|
Waiver
Agreement dated as of February 25, 2009 among the registrant, GSCAC
Holdings I LLC, GSCAC Holdings II LLC, GSCAC Merger Sub LLC and Complete
Energy Holdings, LLC.
|
|
21.1
|
|
Subsidiaries
of GSC Acquisition Company
|
|
31.1
|
|
Certification
of Chief Executive Officer and Chief Financial Officer Pursuant to Rule
13a-14(a) or 15d-14(a) of the Securities Exchange Act of 1934, as Adopted
Pursuant to Section 302 of the Sarbanes- Oxley Act of
2002
|
|
31.2
|
|
Certification
of President Pursuant to Rule 13a-14(a) or 15d-14(a) of the Securities
Exchange Act of 1934, as Adopted Pursuant to Section 302 of the
Sarbanes-Oxley Act of 2002
|
|
|
|
|
6
Incorporated by reference to exhibit 10.4 to the Company’s current report on
Form 8-K filed on May 12, 2008.
7
Incorporated by reference to exhibit 10.5 to the Company’s current report on
Form 8-K filed on May 12, 2008.
8
Incorporated by reference to exhibit 10.6 to the Company’s current report on
Form 8-K filed on May 12, 2008.
9
Incorporated by reference to exhibit 10.7 to the Company’s current report on
Form 8-K filed on May 12, 2008
10
Incorporated by reference to exhibit 10.8 to the Company’s current report on
Form 8-K filed on May 12, 2008
11
Incorporated by reference to exhibit 99.1 to the Company’s current report on
Form 8-K filed on June 25, 2008
12
Incorporated by reference to exhibit 99.2 to the Company’s current report
on Form 8-K filed on June 25, 2008
Index
to Financial Statements
|
|
|
|
|
|
|
Page
|
|
|
|
|
Management’s
Report on Internal Control over Financial Reporting
|
|
39
|
|
|
|
|
|
Reports
of Independent Registered Public Accounting Firm
|
|
40
|
|
|
|
|
Consolidated
Balance Sheets
|
|
42
|
|
|
|
|
Consolidated
Statement of Operations
|
|
43
|
|
|
|
|
Consolidated
Statement of Stockholders’ Equity
|
|
44
|
|
|
|
|
Consolidated
Statement of Cash Flows
|
|
45
|
|
|
|
|
Notes
to Consolidated Financial Statements
|
|
47
|
Management’s Report on Internal Control
over Financial Reporting
Management of GSC Acquisition Company
and subsidiaries (the ‘‘Company’’), is responsible for establishing and
maintaining adequate internal control over financial reporting. The Company’s
internal control over financial reporting is a process designed under the
supervision of the Company’s principal executive and principal financial officer
to provide reasonable assurance regarding the reliability of financial reporting
and the preparation of the Company’s financial statements for external reporting
purposes in accordance with generally accepted accounting principles in the
United States of
America
.
Because of its inherent limitations,
internal control over financial reporting may not prevent or detect
misstatements. Also, projections of any evaluation of effectiveness to future
periods are subject to the risk that controls may become inadequate because of
changes in conditions, or that the degree of compliance with the policies or
procedures may de
teriorate.
As of December 31, 2008, management
conducted an assessment of the effectiveness of the Company’s internal control
over financial reporting based on the framework established in
Internal Control –
Integrated Framework
issued
by the Committee of Sponsoring Organizations of the Treadway Commission (COSO).
Based upon this assessment, management has determined that the Company’s
internal control over financial reporting as of December 31, 2008 was
effective.
The Company’s internal control over
financial reporting includes those policies and procedures that (i) pertain to
the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the Company; (ii)
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the Company are
being made only in accordance with authorizations of management and directors of
the Company; and (iii) provide reasonable assurance regarding prevention or
timely detection of unauthorized acquisition, use or disposition of the
Company’s assets that could have a material effect on the financial
statements.
The Company’s
internal control over financial
reporting as of December 31, 2008 has been audited by Ernst & Young LLP,
the Company’s
independent registered public accounting
firm, as stated in their attestation report included in this Annual Report on
Form 10-K.
Report
of Independent Registered Public Accounting Firm
To the
Board of Directors and Shareholders of GSC Acquisition Company:
We have
audited GSC Acquisition Company’s internal control over financial reporting as
of December 31, 2008, based on criteria established in Internal Control
Integrated Framework issued by the Committee of Sponsoring Organizations of the
Treadway Commission (the COSO criteria). GSC Acquisition Company’s management is
responsible for maintaining effective internal control over financial reporting,
and for its assessment of the effectiveness of internal control over financial
reporting included in the accompanying financial statements. Our responsibility
is to express an opinion on the company’s internal control over financial
reporting based on our audit.
We
conducted our audit in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether effective
internal control over financial reporting was maintained in all material
respects. Our audit included obtaining an understanding of internal control over
financial reporting, assessing the risk that a material weakness exists, testing
and evaluating the design and operating effectiveness of internal control based
on the assessed risk, and performing such other procedures as we considered
necessary in the circumstances. We believe that our audit provides a reasonable
basis for our opinion.
A
company’s internal control over financial reporting is a process designed to
provide reasonable assurance regarding the reliability of financial reporting
and the preparation of financial statements for external purposes in accordance
with generally accepted accounting principles. A company’s internal control over
financial reporting includes those policies and procedures that (1) pertain to
the maintenance of records that, in reasonable detail, accurately and fairly
reflect the transactions and dispositions of the assets of the company; (2)
provide reasonable assurance that transactions are recorded as necessary to
permit preparation of financial statements in accordance with generally accepted
accounting principles, and that receipts and expenditures of the company are
being made only in accordance with authorizations of management and directors of
the company; and (3) provide reasonable assurance regarding prevention or timely
detection of unauthorized acquisition, use, or disposition of the company’s
assets that could have a material effect on the financial
statements.
Because
of its inherent limitations, internal control over financial reporting may not
prevent or detect misstatements. Also, projections of any evaluation
of effectiveness to future periods are subject to the risk that controls may
become inadequate because of changes in conditions, or that the degree of
compliance with the policies or procedures may deteriorate.
In our
opinion, GSC Acquisition Company maintained, in all material respects, effective
internal control over financial reporting as of December 31, 2008, based on the
COSO criteria.
We also
have audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), the consolidated balance sheets of GSC
Acquisition Company (a development stage company) (the “Company”) as of December
31, 2007 and 2008, and the related consolidated statements of operations, cash
flows and Stockholders’ equity for the years ended December 31, 2007 and 2008
and for the period from October 26, 2006 (date of inception) to December 31,
2008 of GSC Acquisition Company and our report dated February 26, 2009 expressed
an unqualified opinion thereon.
The
accompanying financial statements have been prepared assuming that the Company
will continue as a going concern. As more fully described in Note 2,
the Company has a working capital deficiency. This condition raises
substantial doubt about the Company’s ability to continue as a going
concern. The December 31, 2008 financial statements do not include
any adjustments to reflect the possible future effects on the recoverability and
classification of assets or the amounts and classifications of liabilities that
may result from the outcome of this uncertainty.
/s/
Ernst & Young LLP
New York,
NY
February
26, 2008
Report
of Independent Registered Public Accounting Firm
To the
Board of Directors and Shareholders of GSC Acquisition Company:
We have
audited the accompanying consolidated balance sheets of GSC Acquisition Company
(a development stage company) (the “Company”) as of December 31, 2007 and 2008,
and the related consolidated statements of operations, cash flows and
Stockholders’ equity for the years ended December 31, 2007 and 2008 and for the
period from October 26, 2006 (date of inception) to December 31,
2008. These financial statements are the responsibility of the
Company’s management. Our responsibility is to express an opinion on
these financial statements based on our audits.
We
conducted our audits in accordance with the standards of the Public Company
Accounting Oversight Board (United States). Those standards require that we plan
and perform the audit to obtain reasonable assurance about whether the financial
statements are free of material misstatement. An audit includes examining, on a
test basis, evidence supporting the amounts and disclosures in the financial
statements. An audit also includes assessing the accounting principles used and
significant estimates made by management, as well as evaluating the overall
financial statement presentation. We believe that our audits provide a
reasonable basis for our opinion.
In our
opinion, the financial statements referred to above present fairly, in all
material respects, the consolidated financial position of GSC Acquisition
Company at December 31, 2007 and 2008, and the consolidated results of its
operations, its cash flows and changes in Stockholders’ equity for years ended
December 31, 2007 and 2008 and for the period from October 26, 2006 to December
31, 2008, in conformity with U.S. generally accepted accounting
principles.
We also
have audited, in accordance with the standards of the Public Company Accounting
Oversight Board (United States), GSC Acquisition Company's internal control over
financial reporting as of December 31, 2008, based on criteria established in
Internal Control-Integrated Framework issued by the Committee of Sponsoring
Organizations of the Treadway Commission and our report dated February 26, 2009
expressed an unqualified opinion thereon.
The
accompanying financial statements have been prepared assuming that the Company
will continue as a going concern. As more fully described in Note 2,
the Company has a working capital deficiency. This condition raises
substantial doubt about the Company’s ability to continue as a going
concern. The December 31, 2008 financial statements do not include
any adjustments to reflect the possible future effects on the recoverability and
classification of assets or the amounts and classifications of liabilities that
may result from the outcome of this uncertainty.
New York,
NY
February
26, 2009
GSC
ACQUISITION COMPANY
(a
development stage company)
CONSOLIDATED
BALANCE SHEETS
|
|
|
December
31, 2008
|
|
|
December
31, 2007
|
|
|
Current
assets:
|
|
|
|
|
|
|
|
|
|
Cash
and cash equivalents
|
|
$
|
18,027
|
|
|
$
|
852,852
|
|
|
Prepaid
expense
|
|
|
16,785
|
|
|
|
99,568
|
|
|
Account
receivable
|
|
|
95
|
|
|
|
3,448
|
|
|
Income
tax receivable
|
|
|
582,636
|
|
|
|
—
|
|
|
Deferred
acquisition cost
|
|
|
4,573,746
|
|
|
|
—
|
|
|
Total
current assets
|
|
|
5,191,289
|
|
|
|
955,868
|
|
|
Cash
and cash equivalents held in trust
|
|
|
203,471,467
|
|
|
|
203,276,868
|
|
|
Deferred
tax asset
|
|
|
21,676
|
|
|
|
23,376
|
|
|
Total
assets
|
|
$
|
208,684,432
|
|
|
$
|
204,256,112
|
|
|
|
|
|
|
|
|
|
|
|
|
LIABILITIES
AND STOCKHOLDERS’ EQUITY
|
|
|
Current
liabilities:
|
|
|
|
|
|
|
|
|
|
Accrued
expenses
|
|
$
|
3,368,275
|
|
|
$
|
26,650
|
|
|
Income
tax payable
|
|
|
—
|
|
|
|
283,296
|
|
|
Due
to affiliate
|
|
|
559,230
|
|
|
|
69,539
|
|
|
Account
Payable
|
|
|
605,847
|
|
|
|
—
|
|
|
Total
current liabilities
|
|
|
4,533,352
|
|
|
|
379,485
|
|
|
Deferred
underwriting discount
|
|
|
6,210,000
|
|
|
|
6,210,000
|
|
|
Total
liabilities
|
|
|
10,743,352
|
|
|
|
6,589,485
|
|
|
Common
stock, subject to possible conversion, 4,139,999 shares at $9.74 per
share
|
|
|
40,338,990
|
|
|
|
40,338,990
|
|
|
Dividend
income attributable to common stock subject to possible conversion
(net of income taxes
of $761,865 and $335,761 at December 31, 2008 and December 31, 2007,
respectively)
|
|
|
649,072
|
|
|
|
498,013
|
|
|
|
|
|
|
|
|
|
|
|
|
Stockholders’
equity (1)
|
|
|
|
|
|
|
|
|
|
Preferred
stock, $0.0001 par value; 1,000,000 shares authorized; none issued or
outstanding
|
|
|
—
|
|
|
|
—
|
|
|
Common
stock, $0.001 par value, 200,000,000 shares authorized; 25,200,000 shares
issued and outstanding
|
|
|
25,200
|
|
|
|
25,200
|
|
|
Additional
paid-in capital
|
|
|
155,123,815
|
|
|
|
155,123,815
|
|
|
Retained
earnings
|
|
|
1,804,003
|
|
|
|
1,680,609
|
|
|
Total
stockholders’ equity
|
|
|
156,953,018
|
|
|
|
156,829,624
|
|
|
|
|
|
|
|
|
|
|
|
|
Total
liabilities and stockholders’ equity
|
|
$
|
208,684,432
|
|
|
$
|
204,256,112
|
|
(1) –
Share amounts have been retroactively restated from the date of inception to
reflect the effect of a stock dividend of one share for each five outstanding
shares of common stock (see note 6).
See
accompanying notes.
GSC
ACQUISITION COMPANY
(a
development stage company)
CONSOLIDATED
STATEMENT OF OPERATIONS
For
the year ended December 31, 2008
And
for the year ended December 31, 2007
And
for the period from October 26, 2006 (date of inception) to December 31,
2008
|
|
|
For
the year ended
December
31, 2008
|
|
|
For
the year ended
December
31, 2007
|
|
|
For
the period from
October
26, 2006
(date
of inception) to
December
31, 2008
|
|
|
Formation,
general and administrative expenses
|
|
$
|
1,741,635
|
|
|
$
|
349,252
|
|
|
$
|
2,229,306
|
|
|
Administrative
fee
|
|
|
90,000
|
|
|
|
45,000
|
|
|
|
135,000
|
|
|
Operating
loss
|
|
|
(1,831,635
|
)
|
|
|
(394,252
|
)
|
|
|
(2,364,306
|
)
|
|
Dividend
income
|
|
|
2,903,080
|
|
|
|
4,188,213
|
|
|
|
7,091,293
|
|
|
Income
before provision for income tax
|
|
|
1,071,445
|
|
|
|
3,793,961
|
|
|
|
4,726,987
|
|
|
Provision
for income tax
|
|
|
796,992
|
|
|
|
1,476,920
|
|
|
|
2,273,912
|
|
|
Net
income
|
|
$
|
274,453
|
|
|
$
|
2,317,041
|
|
|
$
|
2,453,075
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Less:
Dividend income attributable to common stock subject to possible
conversion (net of income taxes of $426,105, $335,761, and $761,865
respectively)
|
|
|
(151,059
|
)
|
|
|
(498,013
|
)
|
|
|
(649,072
|
)
|
|
Pro
forma net income attributable to common stock not subject to possible
conversion
|
|
$
|
123,394
|
|
|
$
|
1,819,028
|
|
|
$
|
1,804,003
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
income per share (1):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
$
|
0.01
|
|
|
$
|
0.15
|
|
|
$
|
0.13
|
|
|
Diluted
|
|
$
|
0.01
|
|
|
$
|
0.11
|
|
|
$
|
0.10
|
|
|
Weighted
average shares outstanding (1):
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Basic
|
|
|
25,200,000
|
|
|
|
15,776,446
|
|
|
|
19,553,093
|
|
|
Diluted
|
|
|
29,941,796
|
|
|
|
20,340,577
|
|
|
|
24,239,876
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
(1) –
Share amounts have been retroactively restated from the date of inception to
reflect the effect of a stock dividend of one share for each five outstanding
shares of common stock (see note 6).
See
accompanying notes.
GSC
ACQUISITION COMPANY
(a
development stage company)
CONSOLIDATED
STATEMENT OF STOCKHOLDERS’ EQUITY
For
the year ended December 31, 2008
And
for the year ended December 31, 2007
And
for the period from October 26, 2006 (date of inception) to December 31,
2006
|
|
|
Common
Stock
(1)
|
|
|
Additional
Paid-in
|
|
|
Earnings
Accumulated
During
the
Development
|
|
|
Total
Stockholders’
|
|
|
|
|
Shares
|
|
|
Amount
|
|
|
Capital
|
|
|
Stage
|
|
|
Equity
|
|
|
Common
shares issued
|
|
|
6,562,500
|
|
|
$
|
6,563
|
|
|
$
|
18,437
|
|
|
$
|
—
|
|
|
$
|
25,000
|
|
|
Net
loss
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(138,419
|
)
|
|
|
(138,419
|
)
|
|
Balances,
at December 31, 2006
|
|
|
6,562,500
|
|
|
|
6,563
|
|
|
|
18,437
|
|
|
|
(138,419
|
)
|
|
|
(113,419
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Common
stock repurchased from founding stockholder and directors for
$4.00
|
|
|
(2,062,500
|
)
|
|
|
(2,063
|
)
|
|
|
2,059
|
|
|
|
—
|
|
|
|
(4
|
)
|
|
Sale
of 20,700,000 units, net of underwriting discounts and offering
costs
|
|
|
20,700,000
|
|
|
|
20,700
|
|
|
|
191,442,309
|
|
|
|
—
|
|
|
|
191,463,009
|
|
|
Net
proceeds subject to possible conversion of 4,139,999
shares
|
|
|
—
|
|
|
|
—
|
|
|
|
(40,338,990
|
)
|
|
|
—
|
|
|
|
(40,338,990
|
)
|
|
Proceeds
from sale of warrants to founding stockholder
|
|
|
—
|
|
|
|
—
|
|
|
|
4,000,000
|
|
|
|
—
|
|
|
|
4,000,000
|
|
|
Dividend
income attributable to common stock subject to possible
conversion
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(498,013
|
)
|
|
|
(498,013
|
)
|
|
Net
income
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
2,317,041
|
|
|
|
2,317,041
|
|
|
Balances,
at December 31, 2007
|
|
|
25,200,000
|
|
|
|
25,200
|
|
|
|
155,123,815
|
|
|
|
1,680,609
|
|
|
|
156,829,624
|
|
|
Dividend
income attributable to common stock subject to possible
conversion
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
(151,059
|
)
|
|
|
(151,059
|
)
|
|
Net
income
|
|
|
—
|
|
|
|
—
|
|
|
|
—
|
|
|
|
274,453
|
|
|
|
274,453
|
|
|
Balances,
at December 31, 2008
|
|
|
25,200,000
|
|
|
$
|
25,200
|
|
|
$
|
155,123,815
|
|
|
$
|
1,804,003
|
|
|
$
|
156,953,018
|
|
(1) –
Share amounts have been retroactively restated from the date of inception to
reflect the effect of a stock dividend of one share for each five outstanding
shares of common stock (see note 6).
See
accompanying notes.
GSC
ACQUISITION COMPANY
(a
development stage company)
CONSOLIDATED
STATEMENT OF CASH FLOWS
For
the year ended December 31, 2008
And
for the year ended December 31, 2007
And
for the period from October 26, 2006 (date of inception) to December 31,
2008
|
Cash
flows from operating activities
|
|
For
the year ended
December
31, 2008
|
|
|
For
the year ended
December
31, 2007
|
|
|
For
the period from
October
26, 2006
(date
of inception) to
December
31, 2008
|
|
|
|
Net
income
|
|
$
|
274,453
|
|
|
$
|
2,317,041
|
|
|
$
|
2,453,075
|
|
|
|
Adjustments
to reconcile net income to net cash and cash equivalents provided by (used
in) operating activities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Change
in operating assets and liabilities:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
offering costs
|
|
|
—
|
|
|
|
190,122
|
|
|
|
—
|
|
|
|
Deferred
tax asset
|
|
|
1,700
|
|
|
|
(23,376
|
)
|
|
|
(21,676
|
)
|
|
|
Prepaid
expense
|
|
|
82,783
|
|
|
|
(99,568
|
)
|
|
|
(16,785
|
)
|
|
|
Account
receivable
|
|
|
3,353
|
|
|
|
(3,448
|
)
|
|
|
(95
|
)
|
|
|
Income
tax payable
|
|
|
(283,296
|
)
|
|
|
283,296
|
|
|
|
—
|
|
|
|
Accrued
expenses
|
|
|
3,341,625
|
|
|
|
(78,350
|
)
|
|
|
3,368,275
|
|
|
|
Accrued
offering costs
|
|
|
—
|
|
|
|
(147,963
|
)
|
|
|
—
|
|
|
|
Account
payable
|
|
|
605,847
|
|
|
|
—
|
|
|
|
605,847
|
|
|
|
Income
tax receivable
|
|
|
(582,636
|
)
|
|
|
—
|
|
|
|
(582,636
|
)
|
|
|
Deferred
acquisition cost
|
|
|
(4,573,746
|
)
|
|
|
—
|
|
|
|
(4,573,746
|
)
|
|
|
Due
to affiliate
|
|
|
489,691
|
|
|
|
(5,957
|
)
|
|
|
559,230
|
|
|
|
Net
cash and cash equivalents provided by (used in) operating
activities
|
|
|
(640,226
|
)
|
|
|
2,431,797
|
|
|
|
1,791,489
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from investing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
deposited in trust account
|
|
|
—
|
|
|
|
(201,695,000
|
)
|
|
|
(201,695,000
|
)
|
|
|
Cash
withdrawn from trust account
|
|
|
2,691,224
|
|
|
|
2,587,000
|
|
|
|
5,278,224
|
|
|
|
Dividends
reinvested in trust account
|
|
|
(2,885,823
|
)
|
|
|
(4,168,868
|
)
|
|
|
(7,054,691
|
)
|
|
|
Net
cash and cash equivalents used in investing activities
|
|
|
(194,599
|
)
|
|
|
(203,276,868
|
)
|
|
|
(203,471,467
|
)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Cash
flows from financing activities
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Gross
proceeds from initial public offering
|
|
|
—
|
|
|
|
207,000,000
|
|
|
|
207,000,000
|
|
|
|
Proceeds
from sale of common stock to founding stockholder
|
|
|
—
|
|
|
|
—
|
|
|
|
25,000
|
|
|
|
Proceeds
from sale of warrants
|
|
|
—
|
|
|
|
4,000,000
|
|
|
|
4,000,000
|
|
|
|
Repurchase
of common stock
|
|
|
—
|
|
|
|
(4
|
)
|
|
|
(4
|
)
|
|
|
Payment
of underwriter’s discount and offering expenses
|
|
|
—
|
|
|
|
(9,326,991
|
)
|
|
|
(9,326,991
|
)
|
|
|
Net
cash and cash equivalents provided by financing activities
|
|
|
—
|
|
|
|
201,673,005
|
|
|
|
201,698,005
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Net
increase (decrease) in cash
|
|
|
(834,825
|
)
|
|
|
827,934
|
|
|
|
18,027
|
|
|
|
Cash
and cash equivalents, beginning of period
|
|
|
852,852
|
|
|
|
24,918
|
|
|
|
―
|
|
|
|
Cash
and cash equivalents, end of period
|
|
$
|
18,027
|
|
|
$
|
852,852
|
|
|
$
|
18,027
|
|
|
|
Common
stock, subject to possible conversion, 4,139,999 shares at $9.74 per
share
|
|
$
|
—
|
|
|
$
|
40,338,990
|
|
|
$
|
40,338,990
|
|
|
|
Dividend
income attributable to common stock subject to possible conversion (net
of income taxes
$426,105,
$335,761, and $761,865
respectively)
|
|
$
|
151,059
|
|
|
$
|
498,013
|
|
|
$
|
649,072
|
|
|
|
Income
taxes paid
|
|
$
|
1,661,224
|
|
|
$
|
1,217,000
|
|
|
$
|
2,878,224
|
|
|
See
accompanying notes.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Consolidated Financial Statements
Note
1 — Organization and Nature of Business Operations
GSC
ACQUISITION COMPANY (a development stage company) (the “Company”) was
incorporated in Delaware on October 26, 2006. The Company was formed to acquire
through merger, capital stock exchange, asset acquisition, stock purchase,
reorganization or other similar Business Combination, one or more businesses or
assets. The Company has neither engaged in any operations nor generated any
revenue from operations to date. All activity through December 31, 2008 relates
to the formation of the Company, its initial public offering, negotiation,
efforts to identify prospective target businesses and the negotiation and
execution of the Merger Agreement and the Company’s efforts to consummate the
merger thereunder, as described below and in Notes 3 and 7. The Company will not
generate any operating revenues until after completion of its initial Business
Combination. The Company generates non-operating income in the form of dividend
income on cash and cash equivalents. The Company is considered
to be in the development stage as defined in Statement of Financial Accounting
Standards (“SFAS”) No. 7, “Accounting and Reporting By Development Stage
Enterprises,” and is subject to the risks associated with activities of
development stage companies.
The
registration statement for the Company’s initial public offering (“IPO”) was
declared effective June 25, 2007. The Company consummated the IPO on June 29,
2007 and recorded proceeds of approximately $191.5 million, net of the
underwriters’ discount and commission of $14.5 million and offering costs of
$1.0 million.
GSCAC
Holdings I LLC (“Holdings I”), GSCAC Holdings II LLC (“Holdings II”) and GSCAC
Merger Sub LLC (“Merger Sub”) (collectively, the “Subsidiaries”) are Delaware
limited liability companies that were formed in April 2008. The
Company owns 100% of Holdings I, which owns 100% of Holdings II, which owns 100%
of Merger Sub. As of December 31, 2008, there were no assets or
liabilities and there were no activities in any of the
subsidiaries.
A total
of approximately $201.7 million, including $191.5 million of the net proceeds
from the IPO, $4.0 million from the sale of warrants to the Company’s first
stockholder (the “Founding Stockholder”) (see Note 4) and $6.2 million of
deferred underwriting discounts and commissions, has been placed in a trust
account at JPMorgan Chase Bank, N.A., with the American Stock Transfer &
Trust Company serving as trustee. Except for a portion of the
dividend income permitted to be released to the Company, the proceeds held in
trust will not be released from the trust account until the earlier of the
completion of the Company’s initial Business Combination or the liquidation of
the Company. Under the terms of the investment management trust
agreement, up to a total of $2.4 million of dividend income earned (net of taxes
payable) may be released to the Company, subject to availability. As
of December 31, 2008, the full $2.4 million had been released to the Company in
accordance with those terms and the balance in the trust account was
approximately $203.5 million.
The
Company’s management has broad discretion with respect to the specific
application of the net proceeds of the IPO, although substantially all of the
net proceeds of the IPO are intended to be generally applied toward consummating
a Business Combination with an existing operating company. As used herein, a
“target business” shall mean one or more businesses or assets that, at the time
of the Company’s initial Business Combination, has a fair market value of at
least 80% of the balance in the trust account (excluding deferred underwriting
discounts of $6.2 million) described below and a “Business Combination” shall
mean the acquisition by the Company of such target business.
The
Company’s efforts in identifying prospective target businesses have not been
limited to a particular industry. As discussed in Note 7, the Company has
identified Complete Energy as its prospective target business.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note
1 — Organization and Nature of Business Operations (continued)
The
Company will seek stockholder approval before it will effect any Business
Combination, even if the Business Combination would not ordinarily require
stockholder approval under applicable state law. In connection with the
stockholder vote required to approve any Business Combination, including the
proposed acquisition of Complete Energy, the Company’s Founding Stockholder and
four of its directors have agreed to vote any shares of common stock they own
that were issued prior to the IPO in accordance with the majority of the shares
of common stock voted by the Public Stockholders. “Public Stockholders” is
defined as the holders of common stock sold as part of the Units in the IPO or
in the aftermarket. The Company will proceed with a Business Combination only if
a majority of the shares of common stock voted by the Public Stockholders are
voted in favor of the Business Combination and Public Stockholders holding not
more than 20% of the shares (minus one share) sold in the IPO vote against the
Business Combination and exercise their conversion rights. If a majority of the
shares of common stock voted by the Public Stockholders are not voted in favor
of a proposed initial Business Combination, the Company may combine with a
different target business meeting the fair market value criterion described
above so long as such combination is approved by public stockholders prior to
June 25, 2009.
If a
Business Combination is approved and completed, any Public Stockholder voting
against a Business Combination will be entitled to convert their stock into a
pro rata share of the aggregate amount then on deposit in the trust account,
before payment of deferred underwriting discounts and commissions and including
any interest earned on their pro rata portion of the trust account, net of
income taxes payable by the Company thereon, and net of the dividend income
earned of $2.4 million on the balance of the trust account previously released
to the Company to fund its working capital requirements. Public Stockholders who
convert their stock into their share of the trust account will continue to have
the right to exercise any Warrants they may hold. As of December 31,
2008, 4,139,999 shares of common stock may be subject to conversion for cash
payments of approximately $9.74 per share totaling approximately $40.3
million.
During
the period from July 1, 2007 to December 31, 2008, the Company earned enough
dividends to begin accreting dividend income to the common stock subject to
possible conversion. Accordingly, the Company accreted approximately
$0.6 million of dividend income, net of $0.8 million of income taxes as of
December 31, 2008.
The
Company will dissolve and promptly distribute only to its Public Stockholders
the amount in the trust account, less any income taxes payable on dividend
income earned and the dividend income earned of $2.4 million on the balance of
the trust account previously released to the Company to fund its working capital
requirements, plus any remaining net assets if the Company does not effect a
Business Combination by June 25, 2009. In the event of liquidation,
it is likely that the per share value of the residual assets remaining available
for distribution (including trust account assets) will be less than the IPO
price per Unit in the IPO (assuming no value is attributed to the Warrants
contained in the Units).
Note
2 — Summary of Significant Accounting Policies
Basis
of Presentation
The
accompanying consolidated financial statements have been prepared in accordance
with U.S. generally accepted accounting principals and all values are stated in
United States dollars. The consolidated financial statements include
the accounts of the Company and its Subsidiaries. All intercompany
accounts have been eliminated in consolidation.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note
2 — Summary of Significant Accounting Policies (continued)
Basis
of presentation (continued):
Going
concern consideration –As indicated in the accompanying financial statements, at
December 31, 2008 the Company had unrestricted cash of $18,027 and $3.4 million
in accrued expenses. These costs mainly relate to the pursuit of the Company’s
acquisition plans and specifically the proposed merger with Complete
Energy. There is no assurance that the Company will successfully
complete a Business Combination with Complete Energy (or any other entity) by
June 25, 2009. As a result, the Company cannot assure that the cash available
will be sufficient to cover expenses. These factors, among others, raise
substantial doubt about the Company’s ability to satisfy its outstanding
obligations and to continue operations as a going concern. The accompanying
financial statements do not include any adjustments that may result from the
outcome of this uncertainty.
The
significant accounting policies followed in the preparation of the accompanying
financial statements are as follows:
Cash
and cash equivalents:
The
Company and its Subsidiaries consider all highly liquid investments with
original maturities of three months or less to be cash equivalents.
Cash
and cash equivalents held in trust:
A total
of approximately $201.7 million was originally placed in a trust account at
JPMorgan Chase Bank, N.A., with the American Stock Transfer & Trust Company
serving as trustee. The trust proceeds are invested in the “JPMorgan
100% U.S. Treasury Securities Money Market Fund.” The money market
fund invests exclusively in direct short-term obligations of the US
Treasury. As of December 31, 2008, the balance in the trust account
was approximately $203.5 million, which includes approximately $4.2 million of
dividend income earned since the inception of the trust net of approximately
$2.9 million of taxes paid and $2.4 million released to the Company as of
December 31, 2008.
Fair
Value Measurements:
The fair values of the Company’s
financial instruments reflect the estimates of amounts that would be received
from selling an asset in an orderly transaction between market participants at
the measurement date. The fair value estimates presented in this report are
based on information available to the Company as of
December 31
, 2008 and December 31,
2007.
In accordance with Statement of
Financial Accounting Standards No. 157,
Fair Value
Measurements
(“SFAS 157”),
the Company applies a fair value hierarchy based on three levels of inputs, of
which the first two are considered observable and the last unobservable, that
may be used to measure fair value. The three levels are the
following:
|
|
•
|
|
Level 1 – Quoted prices in active
markets for identical assets or
liabilities.
|
|
|
•
|
|
Level 2 – Inputs other than Level
1 that are observable, either directly or indirectly, such as quoted
prices for similar assets or liabilities, quoted prices in markets that
are not active, or other inputs that are observable or can be corroborated
by observable market data for substantially the full term of the assets or
liabilities.
|
|
|
•
|
|
Level 3 – Unobservable inputs that
are supported by little or no market activity and that are significant to
the fair value of the assets or
liabilities.
|
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note
2 — Summary of Significant Accounting Policies (continued)
Fair
Value Measurements (continued):
The fair value of cash and cash
equivalents held in the trust account were estimated using Level 1 inputs and
the carrying value approximates the fair value because of their nature and
respective duration. No investments were included as Level 2 or Level 3
investments during 2008.
Deferred
acquisition costs:
Deferred
acquisition costs consist principally of legal, consulting and other
professional fees incurred through the consolidated balance sheet date that are
directly related to the proposed acquisition discussed in Note 7. Deferred
acquisition costs related to the proposed acquisition will be charged to expense
if the acquisition is not consummated or included as an element of the purchase
price should the transaction be consummated.
Accounts
payable:
Accounts
payable are outstanding amounts owed to third parties principally for services
rendered in connection with the Company’s effort to identify a target
business.
Accrued
expenses:
Accrued
expenses are estimated costs incurred but not yet paid. At December
31, 2008 accrued expenses consist primarily of legal fees incurred in connection
with the Company’s proposed acquisition discussed in Note 7.
Income
taxes:
The
Company is taxed as a corporation for U.S. federal and state and local income
tax purposes. It accounts for income taxes in accordance with the
provisions of FASB Statement No. 109 “Accounting for Income Taxes”.
Net
income per share:
Basic net
income per share is computed by dividing net income applicable to common
stockholders by the weighted average number of common shares outstanding for the
period. Diluted net income per share is computed similar to basic net
income per share, but includes the dilutive effect of shares issued pursuant to
the Company’s outstanding warrants which are exercisable on the later of (i) the
completion of a Business Combination or (ii) 13 months after the consummation of
the Company’s IPO.
Use
of estimates:
The
preparation of financial statements in conformity with U.S. generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Organization
costs:
Organization
costs consist principally of professional fees incurred in connection with the
organization of the Company and have been expensed as incurred.
Note
3 — Initial Public Offering
On June
29, 2007, the Company sold to the public 20,700,000 units (“Units”) at a price
of $10.00. Each unit consists of one share of our common stock,
$0.001 par value, and one redeemable common stock purchase warrant
(“Warrant”).
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note 3 — Initial Public
Offering
(continued)
Each
Warrant entitles the holder to purchase from the Company one share of common
stock at an exercise price of $7.50 commencing the later of the completion of a
Business Combination with a target business or 13 months from June 29, 2007 and
expiring June 25, 2011, or earlier upon redemption or liquidation of the trust
account. Holders of the Warrants must pay the exercise price in full upon
exercise of the Warrants. The Warrants will be redeemable at a price of $0.01
per Warrant upon 30 days notice after the Warrants become exercisable, only in
the event that the last sale price of the common stock is at least $14.25 per
share for any 20 trading days within a 30 trading day period ending on the third
business day prior to the date on which notice of redemption is given. The terms
of the Warrants include, among other things, that (i) in no event will a Warrant
holder be entitled to receive a net cash settlement of the Warrant, and (ii) the
Warrants may expire unexercised and worthless if a prospectus relating to the
common stock to be issued upon the exercise of the warrants is not current and
an applicable registration statement is not effective prior to the expiration
date of the Warrant, and as a result purchasers of our Units will have paid the
full Unit purchase price solely for the share of common stock included in each
Unit.
The
Company agreed to pay the underwriters in the IPO an underwriter discount of
7.0% of the gross proceeds of the IPO. However, the underwriters have
agreed that a portion of the underwriter discount equal to 3.0% of the gross
proceeds will not be payable unless and until the Company completes a Business
Combination and have waived their right to receive such payment upon the
Company’s liquidation if it is unable to complete a Business
Combination. As of December 31, 2008, such amount is $6.2 million
which is included as deferred underwriting discount on the balance
sheet.
Note
4 — Related Party Transactions
On
November 7, 2006, the Founding Stockholder purchased 5,468,750 shares of the
Company’s common stock (“Initial Founder’s Shares”) for an aggregate purchase of
$25,000. Subsequent to the purchase of the Initial Founder’s Shares, our
Founding Stockholder sold an aggregate of 82,032 of the Initial Founder’s Shares
to three of our directors. The Initial Founder’s Shares are identical to those
included in the Units except that our Founding Stockholder and each transferee
has agreed 1) that in connection with the stockholder vote required to approve
the Company’s initial Business Combination, to vote the Initial Founder’s Shares
in accordance with a majority of the shares of common stock voted by the Public
Stockholders and 2) to waive its right to participate in any liquidation
distribution with respect to the Initial Founder’s Shares if a Business
Combination is not consummated by June 25, 2009.
On
November 7, 2006, the Founding Stockholder entered into a binding agreement to
purchase an aggregate of 4,000,000 Warrants at a price of $1.00 per Warrant from
the Company. The purchase was consummated on June 28, 2007. The Warrants are
identical to the Warrants contained in the Units except that they are not
redeemable for cash while held by the Founding Stockholder or its permitted
transferees and the shares of common stock issued upon exercise of such Warrants
by the Founding Stockholder or its permitted transferees will not be registered
under the Securities Act but will be subject to certain resale registration
rights. The Founding Stockholder has further agreed that it will not sell or
transfer these Warrants until completion of a Business Combination, except in
certain limited circumstances.
The
Company has agreed to pay to GSCP (NJ) Holdings, L.P., an affiliate of the
Founding Stockholder, a total of $7,500 per month for office space and general
and administrative services. Services commenced on June 25, 2007, the effective
date of the IPO, and will terminate upon the earlier of (i) the consummation of
a Business Combination, or (ii) the liquidation of the Company. For the year
ended December 31, 2008, administrative fees totaled $90,000 of which $22,500 is
payable at December 31, 2008 and included in due to affiliate on the balance
sheet.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note
4 — Related Party Transactions (continued)
A
recapitalization was effected on May 29, 2007, in which the Company purchased
from the Founding Stockholder 1,692,968 of outstanding shares of common stock
for retirement and a total of 25,782 of outstanding shares of common stock from
three directors, in each case for the nominal consideration of $1.00. A 1-for-5
stock dividend was effected on June 25, 2007 for holders of record as of
June 24, 2007, as described in Note 6.
As of
December 31, 2008, the Company had reimbursed GSCP (NJ) Holdings, L.P., a total
of $833,847 of which $386,943 was for IPO related expenses paid on the Company’s
behalf and $446,904 was for out-of-pocket expenses incurred in connection with
the Company’s efforts in identifying prospective target businesses and
consummating an initial business combination.
Note
5 — Preferred Stock
The
Company is authorized to issue 1,000,000 shares of preferred stock with such
designations, voting and other rights and preferences as may be determined from
time to time by the Board of Directors.
Note
6 — Common Stock
As
described in Note 4, a recapitalization was effected on May 29, 2007, in which
the Company purchased for retirement from the Founding Stockholder 1,692,968 of
outstanding shares of common stock and a total of 25,782 of outstanding shares
of common stock from three directors, in each case for nominal consideration of
$1.00.
On June
25, 2007 the Board of Directors declared a stock dividend to stockholders of
record on June 24, 2007. The stock dividend was paid on June 29,
2007. One share of Common stock was issued for each five outstanding
shares of Common Stock. All references in the accompanying financial
statements as of December 31, 2006 and for the period from October 26, 2006
(date of inception) to December 31, 2008 to the number of shares of common stock
have been retroactively restated to reflect this transaction. These transactions
were effected to ensure that the shares included in the Units sold in the IPO
represented approximately 80% of the Company’s outstanding share
capital.
Note
7 — Proposed Business Combination
On May 9,
2008, the Company entered into an agreement and plan of merger (the “Merger
Agreement”) among the Company, Holdings I, Holdings II, Merger Sub and Complete
Energy Holdings, LLC (“Complete Energy”). The Company owns 100% of
Holdings I, which owns 100% of Holdings II, which owns 100% of Merger Sub.
Complete Energy owns and operates two natural gas-fired combined cycle power
generation facilities, the 1,022 MW La Paloma generating facility (“La Paloma”)
and the 837 MW Batesville generating facility
(“Batesville”). Pursuant to the Merger Agreement, the Company 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 the Company (the “Merger”).
In
connection with the Merger, each outstanding share of common stock of the
Company will be converted into one share of Class A common stock of the Company
(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 the Company, 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 the Company’s stock price reaches $14.50 or $15.50 per share for 10
consecutive trading days, respectively, in each case within five years after the
closing. Each Class B Unit plus one Class B Share would be
exchangeable into one newly issued Class A Share.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note
7 — Proposed Business Combination (continued)
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 the Company’s
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
Company intends to account for the Merger under the purchase method of
accounting in accordance with the provisions of Statement of Financial
Accounting No. 141, “Business Combination.” The Merger will be
accounted for as a reverse merger.
The
Merger and related transactions have been unanimously approved by the Company’s
board of directors and the holders of all of the membership interests in
Complete Energy that are required for such approval, but are subject to the
approval of the Company’s stockholders, including a majority of the shares of
common stock of the Company issued in its IPO. In addition, the
Merger may not be completed if holders of more than 20% of the shares sold in
the IPO vote against the merger and properly exercise their conversion rights,
as set forth in the Company’s certificate of incorporation. There can
be no assurance that the Merger will be consummated or that any other proposed
initial Business Combination will be consummated.
Note
8 — Provision for Income Taxes
The
Company is subject to U.S. Federal, state and local income and capital taxes.
The components of the Company’s income tax provision by taxing jurisdiction for
the years ended December 31, 2008 and December 31, 2007 are as
follows:
|
|
2008
|
|
2007
|
|
|
Current
|
|
|
|
|
|
|
|
Federal
|
|
$
|
142,381
|
|
|
$
|
1,146,541
|
|
|
State
& Local
|
|
|
652,911
|
|
|
|
353,755
|
|
|
Current
provision (benefit) for income taxes
|
|
$
|
795,292
|
|
|
$
|
1,500,296
|
|
|
|
|
|
|
|
|
|
|
|
|
Deferred
|
|
|
|
|
|
|
|
|
|
Federal
|
|
$
|
1,700
|
|
|
$
|
(23,376
|
)
|
|
State
& Local
|
|
|
—
|
|
|
|
—
|
|
|
Deferred
provision (benefit) for income taxes
|
|
$
|
1,700
|
|
|
$
|
(23,376
|
)
|
|
|
|
|
|
|
|
|
|
|
|
Total
provision (benefit) for income taxes
|
|
$
|
796,992
|
|
|
$
|
1,476,920
|
|
The
Company’s effective tax rate of 74.38% and 38.92% for the years ended December
31, 2008 and December 31, 2007, respectively, differs from the federal statutory
rate of 34.0% mainly due to certain differences including state and local income
taxes.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note 8 — Provision for Income
Taxes
(continued)
The
Company is subject to state and local taxes based on capital as opposed to
income. Such state and local taxes based on capital are included as part
of the Company’s income tax provision and account for 40.22% and 6.56% of the
Company’s effective rate of 74.38% and 38.92% for the years ended December 31,
2008 and December 31, 2007 respectively.
The
following is a reconciliation of the difference between the actual provision for
income taxes and the provision computed by applying the federal statutory
rate:
|
|
|
|
2008
|
|
2007
|
|
U.S.
Federal Statutory Rate
|
|
|
34.00%
|
|
34.00%
|
|
Increase
resulting from:
|
|
|
|
|
|
|
State
and Local Income Taxes, net of Federal Benefits
|
|
|
40.22%
|
|
6.56%
|
|
|
|
|
|
|
|
|
Meals
and Entertainment
|
|
|
0.16%
|
|
0.01%
|
|
Other
|
|
|
-
|
|
-1.65%
|
|
|
|
|
|
|
|
|
Effective
Tax Rate
|
|
|
74.38%
|
|
38.92%
|
FASB
Statement No. 10 (“FAS 109”), “Accounting for Income Taxes” prescribes an asset
and liability approach to accounting for income taxes that requires the
recognition of deferred tax assets and deferred tax liabilities for the expected
future tax consequences of events that have been recognized in different periods
for income tax purposes than for financial statement reporting purposes.
Deferred taxes reflect the temporary differences between the tax basis and
financial statement carrying value of assets and liabilities. Provisions for
deferred taxes are made in recognition of these temporary differences in
accordance with the provisions of FAS 109.
The
Company has a net deferred tax asset of $21,676 at December 31, 2008 related to
book/tax differences with respect to amortization of organizational costs.
Management believes that it is more likely than not that the results of
future operations will generate sufficient taxable income to realize a future
benefit with respect to the deferred tax asset.
The
Company has a state deferred tax asset of $7,033 related to book/tax differences
with respect to amortization of organizational costs. As the Company
is currently subject to and expects to continue to be subject to taxes based on
capital as opposed to income, it does not expect to be able to utilize this
asset. Accordingly a full valuation allowance of $7,033 has been
recorded against the state deferred tax asset.
Note
9 — Recent Accounting Pronouncements
On July
13, 2006, the Financial Accounting Standards Board (“FASB”) released FASB
Interpretation No. 48 “Accounting for Uncertainty in Income Taxes” (“FIN 48”).
FIN 48 provides guidance for how uncertain tax positions should be recognized,
measured, presented and disclosed in the financial statements. FIN 48 requires
the evaluation of tax positions taken or expected to be taken in the course of
preparing the Company’s tax returns to determine whether the tax positions are
“more-likely-than-not” of being sustained by the applicable tax authority. Tax
positions not deemed to meet the more-likely-than-not threshold would be
recorded as a tax benefit or expense in the current year. The Company adopted
FIN 48 as of January 1, 2007 and there was no impact on the financial statements
upon adoption.
GSC
ACQUISITION COMPANY
(a
development stage company)
Notes
to Financial Statements — (Continued)
Note
9 — Recent Accounting Pronouncements (continued)
On
September 20, 2006, the FASB released Statement of Financial Accounting
Standards No. 157 “Fair Value Measurements” (“FAS 157”). FAS 157 establishes an
authoritative definition of fair value, sets out a framework for measuring fair
value, and requires additional disclosures about fair-value measurements. The
application of FAS 157 is required for fiscal years beginning after November 15,
2007 and interim periods within those fiscal years. The adoption of FAS 157 by
the Company on January 1, 2008 had no material impact to its financial
statements given the development stage nature of the Company. The Company has no
investment assets or liabilities that would be classified in Level II or
III.
In
December 2007, the FASB released Statement of Financial Accounting Standards No.
141(R), “Business Combinations” (“FAS 141R”), replacing Statement of Financial
Accounting Standards No. 141, “Business Combinations” (“FAS No.
141”). This Statement retains the fundamental requirements in FAS 141
that the acquisition method of accounting (which Statement 141 called the
purchase method) be used for all Business Combinations and for an acquirer to be
identified for each Business Combination. This Statement also
establishes principles and requirements for how the acquirer: a) recognizes and
measures in its financial statements the identifiable assets acquired, the
liabilities assumed, and any noncontrolling interest in the acquiree; b)
recognizes and measures the goodwill acquired in the Business Combination or a
gain from a bargain purchase and c) determines what information to disclose to
enable users of the financial statements to evaluate the nature and financial
effects of the Business Combination. This Statement clarifies that
acquirers will be required to expense costs related to any
acquisitions. FAS 141R will apply prospectively to Business
Combinations for which the acquisition date is on or after fiscal years
beginning December 15, 2008. Early adoption is
prohibited.
The
Company will adopt FAS 141R as of January 1, 2009. In accordance with
the requirements of FAS 141R, the Company will expense acquisition costs related
to the proposed Business Combination discussed in Note 7. As of
December 31, 2008 acquisition costs total $4.6 million and is presented on
balance sheet as deferred acquisition costs.
SIGNATURES
Pursuant
to the requirements of the Section 13 or 15 or 15(d) of the Securities
Exchange Act of 1934, the registrant has duly caused this report to be signed on
its behalf by the undersigned, thereunto duly authorized on the 26
th
day of February 2009
.
|
|
|
|
|
|
GSC
ACQUISITION COMPANY
|
|
|
|
|
|
|
By:
|
|
/s/ Peter R. Frank
|
|
|
|
|
Name: Peter
R. Frank
|
|
|
|
|
Title: Chief
Executive Officer and
|
|
|
|
|
Principal
Accounting and
Financial
Officer
|
|
In
accordance with the Securities Exchange Act of 1934, this report has been signed
below by the following persons on behalf of the registrant and in the capacities
and on the dates indicated.
|
|
|
|
|
|
|
|
|
Title
|
|
Date
|
|
|
|
|
|
|
|
Chairman
of the Board of Directors
|
|
February
26, 2009
|
|
Alfred
C. Eckert III
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Chief
Executive Officer, Principal Accounting and Financial Officer and
Director
|
|
February
26, 2009
|
|
Peter
R. Frank
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
President
and Director
|
|
February
26, 2009
|
|
Matthew
C. Kaufman
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February
26, 2009
|
|
Richard
W. Detweiler
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Director
|
|
February
26, 2009
|
|
James
K. Goodwin
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Richard A. McKinnon
|
|
Director
|
|
February
26, 2009
|
|
Richard
A. McKinnon
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/
Daniel R. Sebastian
|
|
Director
|
|
February
26, 2009
|
|
Daniel
R. Sebastian
|
|
|
|
|
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