AMENDED AND RESTATED SPONSOR SUPPORT AGREEMENT
Exhibit
10.1
EXECUTION COPY
AMENDED
AND RESTATED SPONSOR SUPPORT AGREEMENT
This
Agreement (this “Agreement”) is entered into as of
July 28, 2009, by and between
Hayground Cove Asset Management LLC, a Delaware Limited Liability Company (“HCAM”) and
Global Consumer Acquisition Corp., a Delaware Corporation
(“GCAC”), and amends and restates in its entirety that
certain Sponsor Support Agreement, dated as of July 13, 2009, by and
between HCAM and GCAC.
WHEREAS, GCAC has entered into (i) a Merger Agreement (the “1st Commerce Merger
Agreement”), with WL Interim Bank, a Nevada corporation (“1st Commerce Merger Sub”),
1st Commerce Bank, a Nevada-chartered non-member bank (“1st Commerce Bank”), Capitol
Development Bancorp Limited V, a Michigan corporation (“Capitol Development”) and Capitol
Bancorp Limited, a Michigan corporation, which provides for the merger (the “Merger”) of
1st Commerce Merger Sub with and into 1st Commerce Bank, with 1st Commerce Bank being the surviving
entity and becoming GCAC’s wholly-owned subsidiary and (ii) together with 1st Commerce Bank as
assignee, an Asset Purchase Agreement (the “Colonial Asset Purchase Agreement”), with
Colonial Bank, an Alabama banking corporation (“Colonial Bank”), and wholly-owned
subsidiary of The Colonial BancGroup, Inc. a Delaware corporation. The transactions contemplated by
the 1st Commerce Merger Agreement and the Colonial Asset Purchase Agreement are referred to herein
as the “Acquisitions”.
WHEREAS, HCAM, as GCAC’s sponsor, may commence privately negotiated purchases of shares of
GCAC (the “Sponsor Share Purchases”) for the purchase of up to
39% of the outstanding shares of common stock of GCAC in order to help facilitate the necessary
votes of the shareholders of GCAC to consummate the Acquisitions.
WHEREAS,
as of the date hereof,
neither HCAM nor GCAC have solicited or will solicit any tenders of
any GCAC securities pursuant to any public tender offer in lieu of
any Sponsor Share Purchases and does not intend to engage in any
private negotiations in connection with any Sponsor Share Purchases unless necessary to consummate the Acquisitions.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto agree as follows:
1. Sponsor Share Purchases. HCAM acknowledges that it may, at is option and in its
sole discretion, affect the Sponsor Share Purchases at any time prior to the meeting of GCAC
stockholders where such stockholders will vote to approve the Acquisitions (the “Special
Meeting”). Should HCAM elect to proceed with the Sponsor Share Purchases, HCAM will not
attempt to affect the Sponsor Share Purchases from any seller who does not represent to HCAM that
it is an “accredited investor” as defined in Regulation D of the Securities Act of 1933, as
amended. HCAM hereby agrees that the Sponsor Share Purchases will be in compliance with all
federal and state laws and regulations, including the Securities
Exchange Act of 1934, as amended.
2. Exchange of Securities. In the event HCAM chooses to affect the Sponsor Share
Purchases, HCAM shall have the right, at its option and in its sole
discretion, prior to the closing of the Acquisitions, to propose a term sheet to GCAC that shall set forth
the terms of an exchange offer whereby any shares purchased by HCAM through the Sponsor Share
Purchases (other than any shares repurchased by GCAC upon HCAM’s exercise of the Share Repurchase
Option) will be exchanged for new GCAC securities (the
“Permanent Financing Exchange”). The Permanent
Financing Exchange option shall automatically terminate immediately prior
to the Special Meeting. HCAM hereby agrees that the Permanent Financing Exchange shall be on commercially reasonable terms
and shall be subject to approval by a majority of the disinterested
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members of GCAC’s board of directors (the “Board”). If approved, GCAC shall be obligated,
within ten days of such approval, to commence an exchange offer on substantially similar terms to
the Permanent Financing Exchange term sheet to all holders of GCAC’s public shares on a pro rata
basis in compliance with all federal and state laws and regulations, including the Securities
Exchange Act of 1934, as amended.
3. Share Repurchase Option. In the event HCAM chooses to affect the Sponsor Share
Purchases, HCAM shall have the option, in its sole discretion, to require GCAC to repurchase on
the closing date of the Acquisitions all or any part of the shares acquired by HCAM through the
Sponsor Share Purchases for an aggregate purchase price equal to the aggregate purchase price paid
by HCAM for such shares (the “Share Repurchase Option”); provided, however,
that such purchase shall be subject to the approval of a majority of the disinterested members of
the Board if the purchase price for such shares is more than five percent (5%) greater than the per
share amount to be received by GCAC shareholders that exercise their option to convert their shares
to cash in accordance with the terms of GCAC’s Amended and Restated Certificate of Incorporation.
The Share Repurchase Option may only be exercised by written notification from HCAM to GCAC that
HCAM has chosen to exercise the Share Repurchase Option with respect to all or any part of the GCAC
shares acquired through the Sponsor Share Purchases within one day prior to the Special Meeting.
In the event HCAM exercises the Share Repurchase Option it will
relinquish all of its rights to affect the Permanent Financing Exchange.
4. Indemnification. GCAC will indemnify, defend and hold harmless HCAM, its
affiliates, any current or previous investors in any of the funds or accounts it manages, any
other person acting on behalf of such persons, and each other person, if any, who controls any of
the foregoing persons within the meaning of the Securities Act of 1934, as amended, against any
obligations, claims, disputes, losses, damages, expenses or liabilities, joint or several, (or
actions in respect thereof) to which any of the foregoing persons may become subject and insofar as
such, obligations, claims, disputes, losses, damages, expenses or liabilities (or actions in
respect thereof) arise out of or are based upon the Sponsor Share Purchases or any related
agreements or transactions contemplated thereby, regardless of whether HCAM is a party thereto.
5. Conditions Precedent. The obligations of HCAM and GCAC under this
Agreement shall be subject to the satisfaction of the following conditions precedent:
(i) Warrant Restructuring: The holders of GCAC’s outstanding
warrants shall have agreed to restructure such warrants on terms acceptable to
HCAM; and
(ii) Approval of the Acquisitions. The Acquisitions shall have been
approved by the requisite number of GCAC stockholders at the Special Meeting to
permit GCAC to consummate Acquisitions, and the Acquisitions shall have been
consummated;
provided, however, that GCAC’s obligations under Paragraph 4 above shall
not be subject to the provisions of this Paragraph 5.
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6. Waiver of Trust. HCAM hereby acknowledges that the aggregate gross proceeds from
GCAC’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, including any accrued
interest not released to GCAC in accordance with the terms of the IPO was placed in a trust account
(the “Trust Account”) for the benefit of the GCAC’s public stockholders. HCAM further hereby
acknowledges and agrees that HCAM does not have any right, title, interest or claim of any kind in
or to any monies the Trust Account established by GCAC (“Claim”) and hereby waives any
Claim HCAM may have in the future as a result of, or arising out of, any negotiations, contracts or
agreements with GCAC, including this Agreement and the transactions contemplated hereby, and will
not seek recourse against the Trust Account for any reason whatsoever.
7. Complete Agreement; Amendment. This Agreement constitutes the entire agreement
between the parties and supersedes all prior agreements, representations, warranties, statements,
promises and understandings, whether oral or written, with respect to the subject matter hereof.
No party hereto shall be bound by nor charged with any oral or written agreements, representations,
warranties, statements, promises or understandings not specifically set forth in this Agreement, or
the exhibits hereto. This Agreement may not be changed, amended, altered or modified except by a
writing signed by the parties hereto, and no provision hereof may be waived other than in a writing
signed by the party to be charged.
8. Validity. In the event that any provision of this Agreement shall be held to be
invalid or unenforceable, the same shall not affect in any respect whatsoever the validity or
enforceability of the remainder of this Agreement.
9. Survival of Rights. Except as provided herein to the contrary, this Agreement
shall be binding upon and inure to the benefit of the parties signatory hereto, and their
respective permitted successors and assigns.
10. Waiver. No consent or waiver, express or implied, by a party to or of any breach
or default by the other party in the performance by such other party of its obligations hereunder
shall be deemed or construed to be a consent or waiver to or of any other breach or default in the
performance of such other party of the same or any other obligations of such other party hereunder.
Failure on the part of a party to complain of any act or failure to act on the part of the other
party or to declare the other party in default, irrespective of how long such failure continues,
shall not constitute a waiver by such party of its rights hereunder unless such default is cured
prior the date upon which the non-defaulting party declares such default. The giving of consent by
a party in any one instance shall not limit or waive the necessity to obtain such party’s consent
in any future instance.
11. Counterparts. This Agreement may be executed in any number of counterparts, each
of which shall be deemed to be an original and all of which shall constitute one and the same
instrument.
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12. Further Assurances. Each party hereto agrees to do all acts and things and to
make, execute and deliver such written instruments, as shall from time to time be reasonably
required, to carry out the terms and provisions of this Agreement.
13. Choice of Law. This Letter Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of New York, without giving effect to conflict of
law principles that would result in the application of the substantive laws of another
jurisdiction.
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IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the date first above
written.
| HAYGROUND COVE ASSET MANAGEMENT LLC | ||||
| /s/ Xxxxx X. Xxxx
|
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| Title: Sole Member | ||||
| GLOBAL CONSUMER ACQUISITION CORP. | ||||
| /s/ Xxxxxx X. Xxxxxxx
|
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| Title: President |
