GLOBAL CONSUMER ACQUISITION
CORP.
EMPLOYMENT
AGREEMENT (this “ Agreement ”) dated as of
July 13, 2009, between Global Consumer Acquisition Corp., a
Delaware corporation, its successors or assigns (the “
Company ”), and Mark Daigle (the “
Employee ”).
WHEREAS,
the Company currently is in negotiations to purchase certain assets
and deposits of Colonial Bank, the majority of which will originate
from the Nevada regional branch (the “ Transaction
”);
WHEREAS ,
the Company desires to employ the Employee as the Chief Executive
Officer of the Company’s Nevada commercial banking operations
(the “ Business ”) following the consummation of
the Transaction;
WHEREAS,
the Company and the Employee desire to enter into this Agreement as
to the terms of the Employee’s employment as Chief Executive
Officer of the Business; and
WHEREAS,
the Employee’s agreement to be employed by the Company as of
the Effective Date (as defined in Section 2 hereof) is a
material inducement to the Company to enter into this Agreement as
of the date hereof;
NOW,
THEREFORE, in consideration of the foregoing, of the mutual
promises contained herein and of other good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto hereby agree as
follows:
(a) During
the Employment Term (as defined in Section 2 hereof), the
Employee shall serve as the Chief Executive Officer of the Business
and, upon appointment as provided in Section 1(d) below, as a
member of the Board of Directors of the Company (the “
Board ”). In this capacity, the Employee shall have
responsibility for the general management and control of the
business and affairs of the Business and shall have all duties,
authorities and responsibilities commensurate with the duties,
authorities and responsibilities of persons in similar capacities
in similarly sized companies, and such other duties, authorities
and responsibilities as the Chairman (the “ Chairman
”) of the Board shall designate from time to time that are
not inconsistent with the Employee’s position as Chief
Executive Officer of the Business. Such duties include, but are not
limited to (1) managing the day-to-day operations of the
Business, (2) managing the efforts of the Business to comply
with applicable laws and regulations, (3) promotion of the
Business and its services, (4) supervising employees of the
Business, (5) providing prompt and accurate reports to the
Board regarding the affairs and condition of the Business, and
(6) making recommendations to the Board concerning the
strategies, capital structure, tactics, and general
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operations of
the Business. The Employee shall report to the Chairman, as well as
to the board of directors of any subsidiary he may serve
hereunder.
(b) During
the Employment Term, the Employee shall devote all of the
Employee’s business time, energy and skill and the
Employee’s best efforts to the performance of the
Employee’s duties with the Company; provided , that
the foregoing shall not prevent the Employee from (i) serving
on the boards of directors of non-profit organizations and, with
the prior written approval of the Board in each instance, other
for-profit companies, (ii) participating in charitable, civic,
educational, professional, community or industry affairs, and
(iii) managing the Employee’s passive personal
investments; so long as such activities do not, individually or in
the aggregate, interfere or conflict with the Employee’s
duties hereunder or create a potential conflict of interest;
provided further , that the foregoing shall not
prevent the Employee from participating in other non-passive
activities if, as and when approved by the Board, in each instance.
If the Board determines, in its sole discretion, that any outside
activity or activities pose or will pose a conflict of interest, or
that the time commitments required interfere with the performance
of the Employee’s duties hereunder, even if previously
approved, the Employee shall, at the request of the Board, cease
such activities at the earliest available opportunity.
(c) The
Employee shall serve hereunder as an officer or director of any
subsidiary or division of the Company that includes any portion of
the Business as requested by the Company from time to time without
any additional compensation therefor. The Company may, without
limiting its liability hereunder, cause any subsidiary to assume
the Company’s obligations hereunder.
(d) The Board
shall take such action as may be necessary to appoint or elect the
Employee as a member of the Board as of the Effective Date.
Thereafter, during the Employment Term (as defined in
Section 2 hereof), the Board shall nominate the Employee for
re-election as a member of the Board at the expiration of the then
current term; provided , that the foregoing shall not be
required to the extent prohibited by legal or regulatory
requirements.
2. EMPLOYMENT TERM. The Company agrees to employ the
Employee pursuant to the terms of this Agreement, and the Employee
agrees to be so employed, for a term of three years (the “
Initial Term ”) commencing as of the Effective Date.
Notwithstanding anything herein to the contrary, the Employee
agrees that he shall not terminate this Agreement prior to the
Effective Date; provided , that the Effective Date occurs no
later than November 27, 2009 (or such later date as the
Company may elect upon an extension by a majority of the
Company’s shares at a meeting of the shareholders prior to
November 27, 2009); provided further , that,
prior to the Effective Date, the Employee shall agree to cooperate
and permit the Company to use his name in regulatory filings that
he has approved, which approval shall not unreasonably be withheld
or delayed. On each anniversary of the Effective Date following the
Initial Term, the term of this Agreement shall be automatically
extended for successive 1-year periods (each a “ Renewal
Term ”), provided , however , that either
party hereto may elect not to extend the term of this Agreement by
giving written notice to the other party at least 30 days
prior to any such anniversary date. Notwithstanding the foregoing,
the Employee’s employment hereunder may be earlier terminated
at any time during the Initial Term or any Renewal Term in
accordance with Section 7 hereof, subject to Section 8
hereof. The period of time between the Effective Date and the
termination of the Employee’s employment hereunder for any
reason
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shall be
referred to herein as the “ Employment Term .”
For purposes of this Agreement, “ Effective Date
” means the closing of the Transaction.
3. BASE
SALARY. During the Employment Term, the Company agrees to pay
the Employee a base salary at an annual rate of not less than
$460,000, payable in accordance with the regular payroll practices
of the Company. The Employee’s Base Salary shall be subject
to annual review by the Board (or a committee thereof), and may be
increased, but not decreased below its then current level, from
time to time by the Board. The base salary as determined herein
from time to time shall constitute “ Base Salary
” for purposes of this Agreement
(a) Subject
to the approval of the award by (i) the Board and
(ii) the Company’s stockholders in connection with the
solicitation of proxies for approval of the Transaction, on the
Effective Date the Employee shall receive a one-time grant of a
number of restricted shares of the Company’s common stock
(the “ Restricted Stock ”) equal to $3,000,000
divided by the closing price of the Company’s common stock on
the Effective Date. The Company hereby agrees that it will not
solicit proxies or consents from its stockholders for approval of
the Transaction unless the Company solicits proxies or consents
from its stockholders to approve the issuance of the Restricted
Stock concurrently therewith; provided , that you are
continuously employed by the Company through the date of such
solicitation. The Restricted Stock will vest 20% on each of the
first, second, third, fourth and fifth anniversaries of the
Effective Date, subject to the Employee’s continuous
employment through each vesting date, except that the Restricted
Stock shall immediately vest in full upon a Change in Control (as
defined below). In addition, the Employee agrees that, for a period
of one year following each vesting date (each such period, a
“ Lock-up Period ”), the Employee will not
offer, sell, contract to sell, pledge, grant any option to
purchase, make any short sale or otherwise dispose of, directly or
indirectly, the shares of the Company’s common stock that
became vested on such vesting date; provided ,
however , that on each such vesting date, the Employee shall
be able to sell certain of his Restricted Stock to the extent the
proceeds of each such sale will be applied exclusively towards the
satisfaction of the portion of any tax liabilities that become due
and payable that is directly attributable to the vesting of such
shares of common stock; provided further ,
however , that the Employee shall not transfer the shares of
common stock subject to forfeiture, as provided in
Section 8(c), without first delivering prior notice to the
Company, then receiving written approval from the Company, which
approval shall not unreasonably be withheld or delayed. For the
avoidance of doubt, the shares of common stock subject to a Lock-up
Period shall not be Restricted Stock and are not subject to
forfeiture, except as otherwise provided in Section 8(c). Each
Lock-up Period shall survive the termination of the
Employee’s employment hereunder. The Restricted Stock will be
subject to the terms of a restricted stock agreement to be entered
into between the Employee and contain such other provisions as
determined necessary by the Board, which provisions shall not be
inconsistent with the terms set forth in this Agreement. For
purposes of this Agreement, a “ Change in Control
” means the acquisition, directly or indirectly, in one or
more transactions, by any person or group of persons acting in
concern, of 50% of more of the then outstanding voting securities
of the Company or the power to cause the election of a majority of
the members of the Board of Directors of the Company.
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(b) During
the Employment Term, the Employee shall be eligible to receive
other equity and other long-term incentive awards under the
equity-based incentive compensation plans adopted by the Company
during the Employment Term for which the Company’s senior
executives are generally eligible. The level of the
Employee’s participation in any such plan, if any, shall be
determined in the sole discretion of the Board from time to
time.
5. TRANSACTION BONUS . Within 10 days following
the Effective Date, the Company shall pay to the Employee a lump
sum cash payment in the amount of $100,000; provided , that
the Employee is continuously employed by the Company through the
date of such closing.
(a)
BENEFIT PLANS. During the Employment Term, the Employee
shall be entitled to participate in any employee benefit plan that
the Company has adopted or may adopt, maintain or contribute to for
the benefit of its employees generally from time to time in
accordance with, and subject to, the terms and conditions thereof,
including satisfying the applicable eligibility requirements.
Notwithstanding the foregoing, the Company may in its sole
discretion modify or terminate any employee benefit plan at any
time.
(b)
VACATIONS. During the Employment Term, the Employee shall be
entitled to four weeks of paid vacation per calendar year (as
prorated for partial years) in accordance with the Company’s
policy on accrual and use applicable to employees as in effect from
time to time. The Employee agrees that any vacation taken by the
Employee during the Employment Term shall be taken at times which
are mutually determined by the Chairman and the Employee not to
interfere, in any material respect, with the Employee’s
performance of his duties hereunder.
(c)
BUSINESS AND ENTERTAINMENT EXPENSES. Upon presentation of
appropriate documentation, the Employee shall be reimbursed in
accordance with the Company’s expense reimbursement policy,
for all reasonable business and entertainment expenses incurred in
connection with the performance of the Employee’s duties
hereunder and the Company’s policies with regard
thereto.
7. TERMINATION. The Employee’s employment and the
Employment Term shall terminate on the first of the following to
occur:
(a)
DISABILITY. Upon written notice by the Company to the
Employee of termination due to Disability. For purposes of this
Agreement, “ Disability ” shall be defined as
the inability of the Employee to have performed the
Employee’s material duties hereunder due to a physical or
mental injury, infirmity or incapacity for 180 days (including
weekends and holidays) in any 365-day period.
(b)
DEATH. Automatically on the date of death of the
Employee.
(c)
CAUSE. Immediately upon written notice by the Company to the
Employee of a termination for Cause. “ Cause ”
shall mean:
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(i) the
Employee’s willful misconduct or gross negligence in the
performance of the Employee’s duties to the Company that has
or could reasonably be expected to have an adverse effect on the
Business that, if curable, is not cured within 30 days of the
giving of written notice thereof to the Employee;
(ii) the
Employee’s repeated refusal or failure to perform the
Employee’s duties to the Company or to follow the lawful
directives of the Board (other than as a result of death or a
physical or mental incapacity), which refusal or failure continued
for at least 30 days following the giving of written notice of
demand for substantial performance to the Employee;
(iii) indictment
for, conviction of, or pleading of guilty or nolo
contendere to, a felony or any crime involving moral
turpitude;
(iv) the
Employee’s embezzlement or misappropriation of corporate
funds or other acts of theft, fraud, malfeasance, self-dealing,
dishonesty or breach of fiduciary duty in connection with the
performance of the Employee’s duties to the
Company;
(v) the Employee
either not receiving approval from the Bank Regulators to serve as
the Chief Executive Officer of the Business or later being
determined by the Bank Regulators to be unsuitable to serve in such
capacity. “ Bank Regulators ” shall mean the
Federal Deposit Insurance Corporation or any successor thereto, the
Office of the Nevada Division of Banking, or any other federal or
state regulatory agency with authority over the Company or Colonial
Bank; or
(vi) breach of
Section 10 of this Agreement;
(vii) material
breach of any other Section of this Agreement or any other
agreement with the Company, or a violation of the Company’s
code of conduct or other written policy that, if curable, is not
cured within 30 days of the giving of written notice thereof
to the Employee.
(d)
WITHOUT CAUSE. Immediately upon written notice by the
Company to the Employee of an involuntary termination without Cause
(other than for death or Disability).
(e) GOOD
REASON. Upon written notice by the Employee to the Company of a
termination for Good Reason. “ Good Reason ”
shall mean the occurrence of any of the following events without
the written consent of the Employee, unless such events are fully
corrected in all material respects by the Company within
30 days following its receipt of the written notification by
the Employee to the Company described below:
(i) material
diminution in the Employee’s Base Salary;
(ii) the removal
of the Employee from the Board by the Company (other than for
Cause) or the failure to re-elect the Employee to serve on the
Board; or
(iii) relocation
of the Employee’s primary work location outside Clark County,
Nevada.
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Any claim of
any such event as “Good Reason” shall be deemed
irrevocably waived by the Employee unless: (x) the Employee
delivers written notice to the Board of his intent to resign from
his employment hereunder for Good Reason within 60 days
following the date on which the event the Employee claims
constitutes Good Reason occurs, which notice shall specifically
identify the facts and circumstances the Employee claims
constitutes Good Reason, and (y) the Employee resigns from his
employment hereunder for Good Reason within 150 days following
the date on which the event the Employee claims constitutes Good
Reason occurs.
(f)
WITHOUT GOOD REASON. Upon 30 days’ prior written
notice by the Employee to the Company of the Employee’s
voluntary termination of employment without Good Reason;
provided , that upon receipt of such notice the Company may,
in its sole discretion, make such termination effective at an
earlier date and the termination shall still be treated as a
voluntary termination by the Employee without Good
Reason.
(g)
EXPIRATION OF EMPLOYMENT TERM; NON-EXTENSION OF AGREEMENT.
Upon the expiration of the Employment Term due to a non-extension
of the Agreement by the Company or the Employee pursuant to the
provisions of Section 2 hereof.
8. CONSEQUENCES OF TERMINATION.
(a)
DEATH. In the event that the Employee’s employment and
the Employment Term ends on account of the Employee’s death,
the Employee’s estate shall be entitled to the
following:
(i) any unpaid
Base Salary through the date of termination, paid in accordance
with the regular payroll practices of the Company;
(ii) reimbursement
for any unreimbursed business expenses incurred through the date of
termination pursuant to, and paid in accordance with, Sections 5(c)
and 23(b)(iii) of this Agreement;
(iii) any accrued
but unused vacation time paid in accordance with Company policy;
and
(iv) such vested
accrued benefits, if any, as to which the Employee may be entitled
under the Company’s employee benefit plans and programs
applicable to the Employee as of the date of termination (other
than any severance pay plan), which shall be paid or provided in
accordance with the terms of the applicable plan or program
(collectively, Sections 8(a)(i) through 8(a)(iv) hereof shall
be hereafter referred to as the “ Accrued Benefits
”).
For the
avoidance of doubt, in the event that the Employee’s
employment and the Employment Term ends on account of the
Employee’s death, any unvested shares of Restricted Stock
shall be forfeited.
(b)
DISABILITY. In the event that the Employee’s
employment and/or Employment Term ends on account of the
Employee’s Disability, the Company shall pay or provide the
Employee with the Accrued Benefits. For the avoidance of doubt, in
the event that
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the
Employee’s employment and/or Employment Term ends on account
of the Employee’s Disability, any unvested shares of
Restricted Stock shall be forfeited.
(c)
TERMINATION FOR CAUSE OR WITHOUT GOOD REASON OR AS A RESULT OF
EMPLOYEE NON-EXTENSION OF THIS AGREEMENT. If the
Employee’s employment is terminated (i) by the Company
for Cause, (ii) by the Employee without Good Reason, or
(iii) as a result of the Employee’s non-extension of the
Employment Term as provided in Section 2 hereof, the Company
shall pay to the Employee the Accrued Benefits, and, if the
Employee’s employment is terminated on account of
Section 8(c)(i) or Section 8(c)(ii), the Employee shall
forfeit and transfer to the Company at no cost (other than any
amounts the Employee paid to acquire such shares) 50% of the shares
of Restricted Stock vested (subject to reduction for any amount of
tax liability incurred by the Employee with respect to that 50% of
the shares); provided , that the Employee has not made an
election with respect to the shares of Restricted Stock under
Section 83(b) of the Code (as defined in Section 23(b)), as of
the date of termination (including any shares subject to a Lock-up
Period), and, for the avoidance of doubt, any unvested shares of
Restricted Stock shall be forfeited.
(d)
TERMINATION WITHOUT CAUSE OR FOR GOOD REASON OR AS A RESULT OF
COMPANY NON-EXTENSION OF THIS AGREEMENT. If the
Employee’s employment by the Company is terminated
(x) by the Company other than for Cause, (y) by the
Employee for Good Reason, or (z) as a result of the
Company’s non-extension of the Employment Term as provided in
Section 2 hereof, the Company shall pay or provide the
Employee with the Accrued Benefits and, subject to the
Employee’s compliance with the obligations in
Sections 9, 10 and 11 hereof, the following, subject to the
provisions of Section 23 hereof:
(i) an amount
equal to the Employee’s monthly Base Salary rate (but not as
an employee), which would continue to be paid monthly for a period
of 12 months following the date of such termination;
provided , that the first payment shall be made on the first
payroll period on or after the 60 th day following such termination and shall include
payment of any amounts that would otherwise be due prior thereto;
and
(ii) subject to
(A) the Employee’
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