GLOBAL CONSUMER LETTERHEAD] December ___, 2008
Exhibit 10.12
[GLOBAL CONSUMER LETTERHEAD]
December ___, 2008
Re: Agreement Relating to the Board of Directors of Global Consumer Acquisition Corp.
Mr. :
This letter agreement (the “Letter Agreement”) is being delivered to you in connection with
your agreement hereby to serve as a member of the board of directors (the “Board”) of Global
Consumer Acquisition Corp., a Delaware corporation (the “Company”). In connection with and in
consideration of your appointment to the Board, and in consideration of the representations,
warranties and mutual covenants made in this Letter Agreement and other good and valuable
consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto
agree as follows:
1. Acknowledgement of Appointment. You hereby acknowledge that Xxxxx X. Xxxx, in his
capacity as sole member of the Board, will appoint you to the Board to serve as a director of the
Company until the earlier of (i) your resignation, removal or death or (ii) the due election and
qualification of your successor. You further acknowledge that you will be appointed to the Audit
Committee of the Company and any other committees of the Board as the Board may determine from time
to time.
2. Equity Compensation.
a. In consideration of your participation on the Board and any committee thereof, the
Company agrees to grant you 50,000 restricted stock units (the “Restricted Stock Units”)
with respect to shares of the Company’s common stock (“Common Stock”), subject to approval
of the Company’s stockholders of the issuance of the Restricted Stock Units in connection
with the solicitation of proxies for approval of a Business Combination (as defined below).
The Company hereby agrees that it will not solicit proxies or consents from its stockholders
for approval of a Business Combination unless the Company solicits proxies or consents from
its stockholders to approve the issuance of the Restricted Stock Units concurrently
therewith.
For purposes of this Letter Agreement, “Business Combination” shall mean the initial
acquisition by the Company of one or more assets or operating businesses with a fair market
value of at least 80% of the Company’s net assets held in trust (net of taxes and amounts
disbursed for working capital purposes and excluding the amount held in the trust account
representing a portion of the underwriters’ discount) at the time of the acquisition through
a merger, capital stock exchange, asset or stock acquisition, exchangeable share
transaction
or other similar business combination, pursuant to which the Company will
require that a majority of the shares of common stock voted by the public stockholders are
voted in favor of the acquisition and less than 30% of the public stockholders both vote
against the proposed acquisition and exercise their conversion rights.
b. The Restricted Stock Units shall be fully vested on the closing date of a Business
Combination (the “Vesting Date”); provided, however, that you have been performing services
for the Company from the date hereof up to and including the Vesting Date. Delivery and
settlement of Restricted Stock Units will occur on the date that is 180 calendar days after
the closing date of the Business Combination. Restricted Stock Units granted hereunder will
be settled by delivery of one share of Common Stock for each Restricted Stock Unit settled.
c. If you resign from the Board for any reason or are terminated from the Board for
cause (as determined by a majority of the members of the Board excluding you) prior to the
consummation of a Business Combination, you acknowledge and agree that the Company shall
have no obligation hereunder to solicit proxies or consents from its stockholders to approve
the issuance of the Restricted Stock Units and you forfeit any rights, powers or privileges
to receive Restricted Stock Units or shares of Common Stock in connection therewith.
3. Lock-Up. You agree that during the Lock-up Period (as defined below), you will not
offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or
otherwise dispose of, directly or indirectly, (i) the Restricted Stock Units or any part thereof,
(ii) any shares of Common Stock or (iii) any other securities of the Company (collectively, the
“Securities”). The foregoing restriction is expressly agreed to preclude you or any of your
affiliates from engaging in any hedging or other transaction which is designed to or which
reasonably could be expected to lead to or result in a sale or disposition of any Securities or any
part thereof. Such prohibited hedging or other transactions would include, without limitation, any
short sale or any purchase, sale or grant of any right (including, without limitation, any put or
call option) with respect to the Securities or any part thereof. The “Lock-Up Period” will
commence on the date of this Letter Agreement and continue for a period of 180 calendar days after
the closing date of a Business Combination.
Notwithstanding the foregoing, during the Lock-Up Period you may transfer the Securities or
any part thereof (i) as a bona fide gift or gifts, provided that the donee or donees thereof agree
to be bound by the restrictions set forth herein or (ii) to any trust for the direct or indirect
benefit of you or your immediate family, provided that the trustee of the trust agrees to be bound
by the restrictions set forth herein, and provided further that any such transfer shall not involve
a disposition for value. For purposes hereof, “immediate family” shall mean any relationship by
blood, marriage or adoption, not more remote than first cousin. You further understand and agree
that this paragraph 3 is irrevocable and shall be binding upon your heirs, legal representatives,
successors, and assigns.
4. Waiver of Trust. You hereby acknowledge that the aggregate gross proceeds from the
Company’s initial public offering (“IPO”), including the proceeds received upon the consummation of
the exercise of the over-allotment option, and proceeds received from a private placement that
closed simultaneously with the first closing of the IPO, was placed in a trust account (the “Trust
Account”) for the benefit of the Company’s public stockholders. You further acknowledge and agree
that you do not have any right, title, interest or claim of any kind in or to any monies in the
Trust Account established by the Company (“Claim”) and hereby waive any Claim you may have in the
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future as a result of, or arising out of, the matters contemplated by this Letter Agreement and
will
not seek recourse against the Trust Account for any reason whatsoever, including any accrued
interest not released to the Company in accordance with the terms of the IPO.
5. Representations and Warranties. You hereby represent and warrant to the Company as
follows:
a. You have all the requisite power, authority and legal capacity to execute and
deliver this Letter Agreement, to perform fully your obligations hereunder and to consummate
the transactions contemplated hereby.
b. This Letter Agreement constitutes your legal, valid and binding obligations,
enforceable against you in accordance with its terms, except as enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or other similar laws relating
to or affecting the rights of creditors generally and by equitable principles.
c. You are an “accredited investor” as such term is defined in Rule 501(a) of
Regulation D promulgated under the Securities Act of 1933, as amended (the “Securities
Act”).
d. You have such knowledge and experience in financial and business matters to be
capable of evaluating the merits and risks of entering into this Letter Agreement and to
make an informed decision relating thereto.
e. The receipt of Restricted Stock Units and shares of Common Stock pursuant to the
terms and conditions of this Letter Agreement will be for your account for the purpose of
investment and not with a view to or for sale in connection with any distribution thereof
within the meaning of the Securities Act of 1933, as amended.
f. You understand that your shares of Common Stock may not be sold, transferred or
otherwise disposed of by you without registration under the Securities Act and any
applicable state securities laws, or an exemption thereto, and your shares of Common Stock
shall bear the following legend: THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THESE
SHARES HAVE BEEN ACQUIRED FOR INVESTMENT AND NOT WITH A VIEW TO DISTRIBUTION OR RESALE, AND
MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE TRANSFERRED WITHOUT AN
EFFECTIVE REGISTRATION STATEMENT FOR SUCH SHARES UNDER THE SECURITIES ACT OR AN OPINION OF
COUNSEL FOR THE CORPORATION THAT REGISTRATION IS NOT REQUIRED UNDER THE SECURITIES ACT.
6. Counterparts. This Letter Agreement may be executed (including by facsimile
transmission) with counterpart signature pages or in several counterparts, each of which shall be
deemed an original and all of which shall together constitute one and the same instrument.
7. D&O Coverage. As long as the Company maintains directors and officers liability
insurance, the levels of coverage shall not be reduced from those currently in effect as of the
date of this Agreement.
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8. Headings. The headings contained in this Letter Agreement are for the sole purpose
of convenience of reference, and shall not in any way limit or affect the meaning or interpretation
of any of the terms or provisions of this Letter Agreement.
9. Amendments Waivers.
a. No amendment or waiver of any provision of this Letter Agreement shall be valid
unless the same shall be in writing and signed by each of the parties. No amendment to the
indemnification provisions of the Company’s Certificate of Incorporation or By-laws, each as
may be amended from time to time, may become effective without your having at least five (5)
business days prior written notice of the adoption thereof.
b. This Letter Agreement is intended to comply with the applicable requirements of
Section 409A of the Internal Revenue Code of 1986, as amended (the “Code”) and shall be
limited, construed and interpreted in a manner so as to comply therewith.
10. Governing Law; Submission to Jurisdiction; Waiver of Jury Trial.
a. This Letter Agreement and all matters arising directly or indirectly herefrom shall
be governed by, construed and enforced in accordance with the laws of the State of New York,
without giving effect to any principles of conflict of laws (whether of the State of New
York or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of New York.
b. Any actions, suits or proceedings arising out of or relating to this Letter
Agreement shall be heard and determined in any state or federal court sitting in the Borough
of Manhattan, The City of New York, and each of the parties hereto hereby irrevocably
submits to the exclusive jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such action, suit or proceeding and irrevocably waives the defense
of an inconvenient forum to the maintenance of any such action, suit or proceeding. The
parties hereto agree that a final judgment in any such action, suit or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or in any
other manner provided by applicable law.
c. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER
THIS LETTER AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE
EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE
TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT OR PROCEEDING DIRECTLY OR INDIRECTLY
ARISING OUT OF OR RELATING TO THIS LETTER AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY
THIS LETTER AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE,
AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT OR PROCEEDING, SEEK TO ENFORCE THE
FOREGOING WAIVER, (B) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF
THIS WAIVER, (C) EACH SUCH PARTY MAKES THIS WAIVER
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VOLUNTARILY, AND (D) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS LETTER
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS
SECTION 10(c).
11. Severability. If any provision of this Letter Agreement, including any phrase,
sentence, clause, Section or subsection is inoperative or unenforceable for any reason, such
circumstances shall not have the effect of rendering the provision in question inoperative or
unenforceable in any other case or circumstance, or of rendering any other provision or provisions
herein contained invalid, inoperative, or unenforceable to any extent whatsoever.
12. Entire Agreement. This Letter Agreement and the documents and instruments and
other agreements specifically referred to herein or delivered pursuant hereto constitute the entire
agreement among the parties with respect to the subject matter hereof and supersede all prior
agreements and understandings, both written and oral, among the parties with respect to the subject
matter hereof.
13. Assignment. This Letter Agreement shall not be assigned by you, other than by
operation of law, without the prior written consent of the Company in its sole discretion.
14. Effective Date of this Letter Agreement. This Letter Agreement shall not become
effective and shall have no force and effect until and unless you are duly appointed to the Board.
15. Conflict of Interest. You hereby agree, until the earliest of the Company’s
consummation of a Business Combination, the Company’s liquidation or such time as you cease to be a
director, (i) to present to the Company for the Company’s consideration, prior to presentation to
any other entity, any business opportunity which may reasonably be deemed appropriate for the
Company based on the description in the Company’s registration statement on Form S-1 of the
Company’s proposed business or which is required to be presented to the Company under Delaware
General Corporation Law, (ii) that you shall not assist or participate with any other person or
entity in the pursuit of or negotiation with respect to such business opportunity unless and until
you receive written notice from the Company that the Company has determined not to pursue such
business opportunity and (iii) that you will not seek any business opportunity that would conflict
with the Company’s search for an acquisition candidate, which would include any involvement in a
blank check company that is potentially seeking acquisition candidates in the global consumer
products and services industry.
16. Indemnification Agreement. In the event that the Company enters into an
Indemnification Agreement with any director of the Company having terms that are different than the
terms of your Indemnification Agreement with the Company, you shall receive prompt written notice
thereof and the Company, at your request, will amend your Indemnification Agreement to include such
of those terms as you may request.
17. Acknowledgement of Current Report on Form 8-K. You acknowledge that the Company
intends to file a Current Report on Form 8-K (the “8-K”) in connection with your appointment to the
Board that will set forth, among other things, your appointment to the Board and a summary of the
terms of this Letter Agreement. You have been provided with the opportunity to review your
biographical information included in the 8-K in advance of filing with the Securities and Exchange
Commission.
[Signature page follows.]
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Sincerely,
| GLOBAL CONSUMER ACQUISITION CORP. |
||||
| By: | ||||
| Name: | Xxxxx X. Xxxx | |||
| Title: | ||||
Acknowledged and Xxxxxx to as
of the date first written above:
of the date first written above:
[Director]
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