CEH UNITHOLDER CONSENT AND RELEASE AGREEMENTRelease Agreement |
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Exhibit 10.6
CEH UNITHOLDER CONSENT AND RELEASE AGREEMENT
CEH
Unitholder Consent and Release Agreement (this “
Agreement ”)
dated as of May 9, 2008 among the undersigned holders
(collectively, the “ Holders ”)
of units of Complete Energy Holdings, LLC, Delaware limited
liability company (“ CEH ”), CEH
and GSC Acquisition Company, a Delaware corporation (“
GSCAC
”).
This
Agreement is being delivered to and for the benefit of GSCAC,
GSCAC Holdings I LLC, GSCAC Holdings II LLC and GSCAC Merger
Sub LLC and each of their respective successors and assigns
(together, the “ GSCAC Parties
” and individually a “ GSCAC Party
”) and the Holders in connection with the Agreement and
Plan of Merger dated as of the date hereof (the “
Merger
Agreement ”) among each of the GSCAC Parties
named therein as parties thereto and
CEH. Capitalized terms that are used but not
otherwise defined herein are used with the meanings set forth
in the Merger Agreement.
1.
Consent . To the extent any Holder’s
consent or approval is or may be required by Section 7.2 or any
other provision of the CEH LLC Agreement or any other document or
agreement to which such Holder is a party, such Holder hereby
irrevocably consents to the Merger Agreement, the Merger, all other
Transactions and any and all actions reasonably necessary for CEH
to perform its obligations under the Merger Agreement, in each case
upon the terms and subject to the conditions set forth
therein.
2.
No Transfers or Encumbrances. Except pursuant to the terms
of this Agreement, each Holder agrees that he or she will not,
without the prior written consent of the GSCAC Parties, directly or
indirectly,
(a)
grant
any proxies or enter into any voting trust or other agreement or
arrangement (other than the CEH LLC Agreement) with respect to the
voting of any CEH Units owned by such Holder; or
(b)
sell,
assign, transfer, pledge, encumber or otherwise dispose of, or
enter into any contract with respect to the direct or indirect
sale, assignment, transfer, encumbrance, pledge or other
disposition of, any CEH Units owned by such Holder other than to a
CEH Permitted Transferee (as defined in the La Paloma LLC
Agreement, a “ CEH Permitted
Transferee ”) of such Holder; provided that with
respect to any such transfer or other disposition to a CEH
Permitted Transferee, (i) such transfer or disposition must be made
in accordance with (without waiver, except with the consent of
GSCAC) Section 4.4(g) of the CEH LLC Agreement (other than in the
case of death); (ii) such Holder must promptly deliver to GSCAC
notice of such transfer with such CEH Permitted Transferee’s
written agreement to be bound by this Agreement as a Holder
hereunder and to transfer the applicable CEH Units back to the
Holder if it shall cease at any time to be a CEH Permitted
Transferee of such Holder and (iii) any
CEH
Units that are transferred to a CEH Permitted Transferee who ceases
to qualify as such shall be returned to the applicable
Holder.
3.
Release.
(a)
Effective
at the Effective Time, each Holder, on behalf of him/herself and
his or her controlled Affiliates and their respective officers,
directors and employees, hereby irrevocably waives, releases and
discharges CEH, each Subsidiary, each of their respective
controlled Affiliates and each of their respective officers,
directors and employees from any and all claims, causes of action,
liabilities, losses, costs, damages, penalties, charges, expenses
and all other forms of liability or obligation whatsoever, in law
or equity, whether asserted or unasserted, known or unknown,
foreseen or unforeseen, arising prior to the Effective Time and
relating to CEH, any Subsidiary or any of their respective
controlled Affiliates, any CEH Units, the Merger or
any other Transactions (collectively, the “ Holder Released Claims
”), other than:
(i)
the
rights to receive the consideration deliverable to holders of CEH
Units in accordance with Section 3.01(a) of the Merger
Agreement;
(ii)
any
other rights due such Holder that are expressly set forth in any of
the Transaction Documents;
(iii)
any
claim to indemnification under the CEH LLC Agreement as in effect
on the date of the Merger Agreement (which indemnification shall
survive the Closing); and
(iv)
ordinary
course compensation and benefits due to such Holder in his or her
capacity as a director, officer, manager or employee of CEH or any
Subsidiary.
(b)
Effective
at the Effective Time, CEH on behalf of itself and its controlled
Affiliates and their respective officers, directors and employees,
hereby irrevocably waives, releases and discharges each Holder from
any and all claims, causes of action, liabilities, losses, costs,
damages, penalties, charges, expenses and all other forms of
liability or obligation whatsoever, in law or equity, whether
asserted or unasserted, known or unknown, foreseen or unforeseen,
arising prior to the Effective Time and relating to CEH, any
Subsidiary or any of their respective controlled Affiliates, any
CEH Units, the Merger or any other Transactions (collectively, the
“ CEH
Released Claims ” and, together with the Holder
Released Claims, the “ Released Claims
”), other than:
(i)
any
claim for fraud; and
(ii)
any
willful, knowing and material breach by such Holder of his or her
obligations to maintain the confidentiality of CEH’s and the
Subsidiaries’ non-public information pursuant to the CEH LLC
Agreement
as
in effect on the date hereof or such Holder’s employment
agreement with any Project Company.
The
exceptions to the Released Claims set forth in clauses (i) and
(ii) of Section 3(b) shall only apply for a period of two
years after the Closing Date and shall thereafter have no
force and effect.
(c)
Each
Holder, CEH and GSCAC expressly acknowledges that the releases
contained herein apply to all Released Claims as defined herein,
whether such Released Claims are known or unknown, and include
Released Claims which if known by the releasing party might
materially affect its decision to effect the
Transactions. Each Holder, CEH and GSCAC has considered
and taken into account the possible existence of such Released
Claims in determining to execute and deliver this
Agreement. Without limiting the generality of the
foregoing, each Holder, CEH and GSCAC expressly waives any and all
rights conferred upon it by any statute or rule of law that
provides that a release does not extend to claims which the
releasing party does not know or suspect to exist in its favor at
the time of executing the release, which if known by the releasing
party would have materially affected the releasing party’s
decision to grant such release. This Agreement
constitutes a complete defense of any and all Released
Claims.
4.
Costs; Attorneys’ Fees. If any suit,
action or other proceeding is commenced by CEH or any of its
Subsidiaries or controlled Affiliates against any Holder to enforce
its rights with respect to any matters described in Section
3(b) that do not constitute CEH
Released Claims pursuant to clause (i) or (ii) thereof (a “
Permitted
Claim ”), CEH (or the applicable Subsidiary or
controlled Affiliate) shall be required to reimburse such Holder on
a timely basis for 50% of the reasonable and documented expenses
incurred by such Holder (including reasonable attorneys’ fees
and court costs) in defending such
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