UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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| Item 1.01. | Entry into a Material Definitive Agreement. |
As previously disclosed, on December 13, 2021, Global Consumer Acquisition Corp., a Delaware corporation (the “Company”), entered into (i) a Stock Purchase Agreement (the “Luminex SPA”) with CLP Luminex Holdings, LLC, a Delaware limited liability company (“Luminex Seller”), and Luminex Home Décor & Fragrance Holding Corporation, a Delaware corporation (“Luminex”), pursuant to which a business combination between the Company and Luminex will be effected by the acquisition of 100% of the issued and outstanding shares of capital stock of Luminex from Luminex Seller (the “Luminex Stock Acquisition”) and (ii) a Stock Purchase Agreement (the “GP Global SPA”) with TGP Trading FZCO, a freezone company with limited liability organized in Dubai Airport Free Zone, Dubai, United Arab Emirates (“GP Global Seller”), and GP Global Limited, an offshore company with limited liability organized in Jebel Ali Free Zone, Dubai, United Arab Emirates (“GP Global”), pursuant to which a business combination between the Company and GP Global will be effected by the acquisition of 100% of the issued and outstanding capital shares of GP Global from GP Global Seller (the “GP Global Stock Acquisition”). Capitalized terms used in this Current Report on Form 8-K but not otherwise defined herein shall have the respective meanings ascribed to such terms in the respective agreements.
On June 24, 2022, the Company, Luminex Seller and Luminex entered into the First Amendment to Stock Purchase Agreement (the “Luminex SPA Amendment”) to, among other things, extend the Outside Closing Date (as defined in the Luminex SPA) to August 15, 2022. With the exception of such amended terms, the Luminex SPA remains in full force and effect.
On June 24, 2022, the Company, GP Global Seller and GP Global entered into the First Amendment to Stock Purchase Agreement (the “GP Global SPA Amendment”) to extend the Outside Closing Date (as defined in the GP Global SPA) to September 11, 2022. With the exception of such amended terms, the GP Global SPA remains in full force and effect.
The foregoing descriptions of agreements and amendments and the transactions and documents contemplated thereby are not complete and are subject to and qualified in their entirety by reference to the Luminex SPA Amendment and the GP Global SPA Amendment, copies of which are filed with this Current Report on Form 8-K as Exhibits 2.1 and 2.2, respectively, and the terms of which are incorporated by reference herein.
Important Information for Investors and Stockholders
This document relates to proposed transactions between the Company and each of Luminex and GP Global. This document does not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange, any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The Company intends to file a proxy statement with the SEC. A proxy statement will be sent to all the Company’s stockholders. The Company also will file other documents regarding the proposed transactions with the SEC. Before making any voting decision, investors and security holders of the Company are urged to read the proxy statement and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transactions as they become available because they will contain important information about the proposed transactions.
Investors and security holders will be able to obtain free copies of the proxy statement and all other relevant documents filed or that will be filed with the SEC by the Company through the website maintained by the SEC at www.sec.gov.
Forward Looking Statements
Certain statements included in this Current Report on Form 8-K are not historical facts but are forward-looking statements. Forward-looking statements generally are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “future,” “outlook,” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean that a statement is not forward-looking. These forward-looking statements include, but are not limited to, statements regarding estimates and forecasts of other performance metrics and projections of market opportunity. These statements are based on various assumptions, whether or not identified in this Current Report on Form 8-K and on the current expectations of the Company’s, Luminex’s and GP Global’s respective management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Company, Luminex and GP Global. Some important factors that could cause actual results to differ materially from those in any forward-looking statements could include changes in domestic and foreign business, market, financial, political and legal conditions.
These forward-looking statements are subject to a number of risks and uncertainties, including, the inability of the parties to successfully or timely consummate the Luminex SPA and the GP Global SPA, including the risk that any required regulatory approvals (including approval from antitrust regulators) are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the Company or the expected benefits of the Luminex Stock Acquisition and the GP Global Stock Acquisition (collectively, the “Stock Acquisitions”), if not obtained; the failure to realize the anticipated benefits of the Stock Acquisitions; matters discovered by the parties as they complete their respective due diligence investigation of the other parties; the ability of the Company prior to the Stock Acquisitions, and the Company following the Stock Acquisitions, to maintain the listing of the Company’s shares on Nasdaq; costs related to the Stock Acquisitions; the failure to satisfy the conditions to the consummation of each of the Stock Acquisitions, including the approval of the Luminex SPA and the GP Global SPA by the stockholders of the Company and the receipt of a fairness opinion with respect to the GP Global Stock Acquisition, the risk that the Stock Acquisitions may not be completed by the stated deadlines and the potential failure to obtain an extension of the stated deadlines; the inability to complete a PIPE transaction; the outcome of any legal proceedings that may be instituted against the Company, Luminex or GP Global related to the Stock Acquisitions; the attraction and retention of qualified directors, officers, employees and key personnel following the Stock Acquisitions, the Company’s ability following the Stock Acquisitions to compete effectively in a highly competitive market; the ability to protect and enhance Luminex’s and GP Global’s corporate reputation and brand; the impact from future regulatory, judicial, and legislative changes in Luminex’s and GP Global’s industry; the uncertain effects of the COVID-19 pandemic; future financial performance of the Company following the Stock Acquisitions; the ability of the Company to forecast and maintain an adequate rate of revenue growth and appropriately plan its expenses; the risk that the Stock Acquisitions disrupt current plans and operations of Luminex and GP Global as a result of the announcement and consummation of the Stock Acquisitions; the possibility that Luminex or GP Global may be adversely affected by other economic, business, regulatory, and/or competitive factors; the evolution of the markets in which Luminex and GP Global compete, including ecommerce; the ability of Luminex and GP Global to anticipate and respond to changing consumer preferences and merchandise trends; the ability of Luminex and GP Global to implement their existing strategic initiatives and continue to innovate their existing products; the ability of Luminex and GP Global to defend their intellectual property; the risk that Luminex and GP Global may not be able to execute their growth strategies and the timing of expected business milestones; the risk that Luminex and GP Global may not be able to recognize revenue for their products or secure additional contracts that generate revenue; and Luminex’s and GP Global’s performance, capabilities, strategy, and outlook. The foregoing list of risks is not exhaustive.
If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that the Company, Luminex and GP Global do not presently know, or that the Company, Luminex and GP Global currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect the Company’s, Luminex’s and GP Global’s current expectations, plans and forecasts of future events and views as of the date hereof. Nothing in this Current Report on Form 8-K and the exhibits hereto should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements in this Current Report on Form 8-K and the exhibits hereto, which speak only as of the date they are made and are qualified in their entirety by reference to the cautionary statements herein and the risk factors of the Company, Luminex and GP Global described above. The Company, Luminex and GP Global anticipate that subsequent events and developments will cause their assessments to change. However, while the Company, Luminex and GP Global may elect to update these forward-looking statements at some point in the future, they each specifically disclaim any obligation to do so, except as required by law. These forward-looking statements should not be relied upon as representing the Company’s, Luminex’s or GP Global’s assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Participants in the Solicitation
The Company and its directors and executive officers may, under the rules of the SEC, be deemed participants in the solicitation of proxies from the Company’s stockholders with respect to the business combination. A list of the names of those directors and executive officers and a description of their interests in the Company will be included in the proxy statement for the proposed business combination and be available at www.sec.gov. Additional information regarding the interests of such participants will be contained in the proxy statement for the proposed business combination when available.
Luminex, GP Global and their respective directors and executive officers may, under the rules of the SEC, also be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed business combination. Information regarding such persons may be obtained by directing a request to: Global Consumer Acquisition Corp., 1926 Rand Ridge Court, Marietta GA, 30062.
This Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transaction and shall not constitute an offer to sell or exchange, or a solicitation of an offer to buy or exchange, any securities or a solicitation of any vote or approval, nor shall there be any sale of any securities in any state or jurisdiction in which such offer, solicitation, sale or exchange would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an exemption therefrom.
| Item 9.01 | Financial Statements and Exhibits. |
| Exhibit No. |
Description | |
| 2.1 | First Amendment to Stock Purchase Agreement, dated as of June 24, 2022, by and among Global Consumer Acquisition Corp., CLP Luminex Holdings, LLC and Luminex Home Décor & Fragrance Holding Corporation | |
| 2.2 | First Amendment to Stock Purchase Agreement, dated as of June 24, 2022, by and among Global Consumer Acquisition Corp., TGP Trading FZCO and GP Global Limited | |
| 104 | Cover Page Interactive Data File - the cover page XBRL tags are embedded within the Inline XBRL document. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
Dated: June 29, 2022
GLOBAL CONSUMER ACQUISITION CORP.
| By: | /s/ Rohan Ajila | |
| Name: | Rohan Ajila | |
| Title: | Chief Executive Officer |
Exhibit 2.1
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement (this “Amendment”), dated as of June 24, 2022, is entered into by and among CLP Luminex Holdings, LLC, a Delaware limited liability company (“Seller”), Luminex Home Décor & Fragrance Holding Corporation, a Delaware corporation (the “Company”), and Global Consumer Acquisition Corp., a Delaware corporation (“Purchaser”). Capitalized and other defined terms used in this Amendment and not otherwise defined herein have the respective meanings given to them in the Original Purchase Agreement (as defined below).
RECITALS
WHEREAS, Seller, the Company and Purchaser entered into that certain Stock Purchase Agreement, dated as of December 13, 2021 (the “Original Purchase Agreement”); and
WHEREAS, in accordance with Section 10.2(a) of the Original Purchase Agreement, Seller, the Company and Purchaser desire to amend the Original Purchase Agreement as provided in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1. Amendment of Schedule 1.1(g) of the Original Purchase Agreement. The information set forth on Schedule 1.1(g) of the Original Purchase Agreement is hereby amended to add the following as a new item included on Schedule 1.1(g) of the Original Purchase Agreement:
“Reasonable fees and expenses of the Company’s outside attorneys, as previously approved by Purchaser, and any other defeasance costs, fees and expenses resulting from, arising out of or relating to any sale leaseback or similar arrangement for the property located at 250 Eastern Ave., Leesburg, Ohio.”
2. Amendment of Section 8.1(a) of the Original Purchase Agreement. Section 8.1(a) of the Original Purchase Agreement is hereby deleted and replaced in its entirety to read as follows:
“(a) In the event that (i) the Closing of the transactions contemplated hereunder has not occurred by August 15, 2022 (the “Outside Closing Date”); and (ii) the material breach or violation of any representation, warranty, covenant or obligation under this Agreement by the party (i.e., Purchaser, on one hand, or Seller, on the other hand) seeking to terminate this Agreement was not the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Closing Date, then Purchaser or Seller, as applicable, shall have the right, at its sole option, to terminate this Agreement without liability to the other party. Such right may be exercised by Purchaser or Seller, as the case may be, giving written notice to the other at any time after the Outside Closing Date.”
3. Amendment of Section 10.5 of the Original Purchase Agreement. Section 10.5 of the Original Purchase Agreement is hereby deleted and replaced in its entirety to read as follows:
“10.5 Expenses. Except as otherwise contemplated by this Agreement, including with respect to the Incurred Purchase Expenses, the costs and expenses in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses; provided that (whether or not the Closing occurs): (a) Purchaser and the Company shall each bear one-half of the costs and expenses associated with any filing under the HSR Act or any other Applicable Antitrust Laws; and (b) notwithstanding anything to the contrary contained in this Agreement, Purchaser shall pay (or cause to be paid) directly, and shall solely bear, the reasonable fees and expenses of the Company’s outside attorneys, as previously approved by Purchaser, and any other defeasance costs, fees and expenses resulting from, arising out of or relating to any sale leaseback or similar arrangement for the property located at 250 Eastern Ave., Leesburg, Ohio.”
4. Leasing Reserve. Reference is hereby made to that certain Loan Agreement between CIBC Inc. and CL Property, LLC, dated April 11, 2019 (together with the related documents, as assigned (the “Loan Agreement”)). The Company shall deliver to Purchaser an appropriate payoff letter from the mortgage lender for the property located at 250 Eastern Ave., Leesburg, Ohio, which payoff letter shall (a) be issued no earlier than one day prior to the Closing Date and (b) reflect the amount held in the Leasing Reserve (as defined in the Loan Agreement) as of the Closing Date (the “Leasing Reserve Amount”). Following both (i) the full payoff of the Note (as defined in the Loan Agreement) and (ii) Purchaser’s receipt of the Leasing Reserve Amount (or any portion thereof), Purchaser shall deliver to Seller such funds in an aggregate amount up to the Leasing Reserve Amount by wire transfer or delivery of other immediately available funds within three Business Days after the date on which Purchaser received such funds. Purchaser shall keep Seller informed on a reasonably current basis of the status of all matters contemplated by this Section 4, including by promptly notifying Seller of, but in any event at least one day prior to, the full payoff of the Note and Purchaser’s receipt of the Leasing Reserve Amount (or any portion thereof).
5. Representations and Warranties of Seller and the Company. Each of Seller and the Company hereby represents and warrants to Purchaser as of the date of this Amendment and as of the Closing Date as follows:
(a) Seller has the limited liability company power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby. The execution and delivery by Seller of this Amendment and the consummation by Seller of the transactions contemplated hereby have been duly authorized by all necessary limited liability company action on the part of Seller. No other proceedings on the part of Seller are necessary to authorize this Amendment or to consummate the transactions contemplated hereby. This Amendment has been duly executed and delivered by Seller and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the Enforceability Exceptions.
(b) The Company has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby. The execution and delivery by the Company of this Amendment and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. No other corporate proceedings on the part of the Company are necessary to authorize this Amendment or to consummate the transactions contemplated by this Amendment. This Amendment has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
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(c) None of the execution, delivery or performance by Seller or the Company of this Amendment or the consummation by Seller or the Company of the transactions contemplated hereby does or will (i) contravene or conflict with any provision of the Company Certificate of Incorporation or Bylaws of the Company or the organizational or constitutive documents of Seller or any other member of the Company Group, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to Seller or any member of the Company Group or to any of their respective properties, rights or assets, (iii) (A) require consent, approval or waiver under, (B) constitute a default under or breach of (with or without the giving of notice or the passage of time or both), (C) violate, (D) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of any member of the Company Group or to a loss of any material benefit to which any member of the Company Group is entitled, in the case of each of clauses (A)–(D), under any provision of any Permit, Contract or other instrument or obligations binding upon any member of the Company Group or any of their respective properties, rights or assets, (iv) result in the creation or imposition of any Lien (except for Permitted Liens) on any of any Company Group’s properties, rights or assets, (v) require any consent, approval or waiver from any Person pursuant to any provision of the Company Certificate of Incorporation or Bylaws of the Company or the organizational or constitutive documents of any other member of the Company Group, or (vi) result in the imposition of any Lien upon the Company Shares (other than Liens under the Closing Funded Debt and restrictions on the subsequent transfer of the Company Shares by Purchaser imposed under applicable securities laws).
6. Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller and the Company as of the date of this Amendment and as of the Closing Date as follows:
(a) Purchaser has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby (other than, in the case of the Acquisition, the receipt of the Purchaser Stockholder Approval). The execution and delivery by Purchaser of this Amendment and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Purchaser. No other corporate proceedings on the part of Purchaser are necessary to authorize this Amendment or to consummate the transactions contemplated hereby (other than, in the case of the Acquisition, the receipt of the Purchaser Stockholder Approval). This Amendment has been duly executed and delivered by Purchaser and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to the Enforceability Exceptions.
(b) The execution, delivery and performance by Purchaser of this Amendment or the consummation by Purchaser of the transactions contemplated hereby do not and will not (i) contravene or conflict with the organizational or constitutive documents of Purchaser, (ii) contravene or conflict with or constitute a violation of any provision of any Law or any Order binding upon Purchaser, (iii) (A) require consent, approval or waiver under, (B) constitute a default under or breach of (with or without the giving of notice or the passage of time or both), (C) violate, (D) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of Purchaser, in the case of each of clauses (A)-(D), under any provision of any Permit, Contract or other instrument or obligations binding upon Purchaser, or (iv) except for the Purchaser Stockholder Approval, require any consent, approval or waiver from any Person.
7. No Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
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8. Miscellaneous.
(a) Entire Agreement. The Original Purchase Agreement, as amended by this Amendment, together with the Additional Agreements, sets forth the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein.
(b) Ratification. This Amendment shall form a part of the Original Purchase Agreement for all purposes, and each party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, each reference in the Original Purchase Agreement to “this Agreement,” “hereof,” “hereunder,” “herein,” “hereby” or words of like import referring to the Original Purchase Agreement shall mean and be a reference to the Original Purchase Agreement as amended by this Amendment. Except as amended hereby, the terms and provisions of the Original Purchase Agreement shall remain unchanged and in full force and effect. In the event of any conflict between the terms of the Original Purchase Agreement and the terms of this Amendment, the terms of this Amendment shall govern and control.
(c) Counterparts; Electronic Signatures. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Amendment shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other parties.
(d) Governing Law. This Amendment and all disputes or controversies arising out of or relating to this Amendment or the transactions contemplated hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of New York.
(e) Incorporation by Reference. The provisions of Article X of the Original Purchase Agreement, as modified by this Amendment, are hereby incorporated by reference herein mutatis mutandis.
[Signature Page Follows]
* * * * *
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Amendment as of the day and year first above written.
| PURCHASER: | ||
| GLOBAL CONSUMER ACQUISITION CORP. | ||
| By: | /s/ Rohan Ajila | |
| Name: Rohan Ajila | ||
| Title: Chief Executive Officer | ||
| SELLER: | ||
| CLP LUMINEX HOLDINGS, LLC | ||
| By: | /s/ Mayank Singh | |
| Name: Mayank Singh | ||
| Title: Authorized Signatory | ||
| COMPANY: | ||
| LUMINEX HOME DéCOR & FRAGRANCE HOLDING CORPORATION | ||
| By: | /s/ Scott Meader | |
| Name: Scott Meader | ||
| Title: Chief Executive Officer | ||
[Signature Page to First Amendment to Stock Purchase Agreement]
Exhibit 2.2
FIRST AMENDMENT TO
STOCK PURCHASE AGREEMENT
This First Amendment to Stock Purchase Agreement (this “Amendment”), dated as of June 24, 2022, is entered into by and among TGP Trading FZCO, a freezone company with limited liability organized in Dubai Airport Free Zone, Dubai, United Arab Emirates, with Registration No. DAFZA-FZCO-CF-729 (“Seller”), GP Global Limited, an offshore company with limited liability organized in Jebel Ali Free Zone, Dubai, United Arab Emirates, with Registration No. 133080 (the “Company”), and Global Consumer Acquisition Corp., a Delaware corporation (“Purchaser”). Capitalized and other defined terms used in this Amendment and not otherwise defined herein have the respective meanings given to them in the Original Purchase Agreement (as defined below).
RECITALS
WHEREAS, Seller, the Company and Purchaser entered into that certain Stock Purchase Agreement, dated as of December 13, 2021 (the “Original Purchase Agreement”); and
WHEREAS, in accordance with Section 11.2(a) of the Original Purchase Agreement, Seller, the Company and Purchaser desire to amend the Original Purchase Agreement as provided in this Amendment.
NOW, THEREFORE, in consideration of the mutual covenants and promises set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties, intending to be legally bound, hereby agree as follows:
1. Amendment of Section 10.1(a) of the Original Purchase Agreement. Section 8.1(a) of the Original Purchase Agreement is hereby deleted and replaced in its entirety to read as follows:
“(a) In the event that (i) the Closing of the transactions contemplated hereunder has not occurred by September 11, 2022 (the “Outside Closing Date”) (provided that, if the SEC has cleared the Proxy Statement on or prior to September 11, 2022, the Outside Closing Date shall be automatically extended for 60 days after such clearance); and (ii) the material breach or violation of any representation, warranty, covenant or obligation under this Agreement by the party (i.e., Purchaser, on one hand, or the Company, on the other hand) seeking to terminate this Agreement was not the cause of, or resulted in, the failure of the Closing to occur on or before the Outside Closing Date, then Purchaser or the Company, as applicable, shall have the right, at its sole option, to terminate this Agreement without liability to the other party. Such right may be exercised by Purchaser or the Company, as the case may be, giving written notice to the other at any time after the Outside Closing Date.”
2. Representations and Warranties of Seller and the Company. Each of Seller and the Company hereby represents and warrants to Purchaser as of the date of this Amendment and as of the Closing Date as follows:
(a) Seller has all requisite company power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby. The execution and delivery by Seller of this Amendment and the consummation by Seller of the transactions contemplated hereby have been duly authorized by all necessary company action on the part of Seller. No other proceedings on the part of Seller are necessary to authorize this Amendment or to consummate the transactions contemplated hereby. This Amendment has been duly executed and delivered by Seller and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of Seller, enforceable against Seller in accordance with its terms, subject to the Enforceability Exceptions.
(b) The Company has all requisite company power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby. The execution and delivery by the Company of this Amendment and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of the Company. No other corporate proceedings on the part of the Company are necessary to authorize this Amendment or to consummate the transactions contemplated by this Amendment. This Amendment has been duly executed and delivered by the Company and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of the Company, enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions
(c) None of the execution, delivery or performance by Seller or the Company of this Amendment or the consummation by Seller or the Company of the transactions contemplated hereby does or will (i) contravene or conflict with any provision of the Company Corporate Documents or the organizational or constitutive documents of Seller or any other member of the Company Group, (ii) contravene or conflict with or constitute a violation of any provision of any Law or Order binding upon or applicable to Seller or any member of the Company Group or to any of their respective properties, rights or assets, (iii) (A) require consent, approval or waiver under, (B) constitute a default under or breach of (with or without the giving of notice or the passage of time or both), (C) violate, (D) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation of Seller or any member of the Company Group or to a loss of any material benefit to which Seller or any member of the Company Group is entitled, in the case of each of clauses (A) – (D), under any provision of any Permit, Contract or other instrument or obligations binding upon Seller or any member of the Company Group or any of their respective properties, rights or assets, (iv) result in the creation or imposition of any Lien (except for Permitted Liens) on any of Seller’s or Company Group’s properties, rights or assets, (v) require any consent, approval or waiver from any Person pursuant to any provision of the Company Corporate Documents or the organizational or constitutive documents of Seller or any other member of the Company Group, or (vi) result in the imposition of any Lien upon the Company Shares (other than restrictions on the subsequent transfer of the Company Shares by Purchaser imposed under applicable securities laws).
3. Representations and Warranties of Purchaser. Purchaser hereby represents and warrants to Seller and the Company as of the date of this Amendment and as of the Closing Date as follows:
(a) Purchaser has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated hereby (other than, in the case of the Acquisition, the receipt of the Purchaser Stockholder Approval). The execution and delivery by Purchaser of this Amendment and the consummation by Purchaser of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Purchaser. No other corporate proceedings on the part of Purchaser are necessary to authorize this Amendment or to consummate the transactions contemplated hereby (other than, in the case of the Acquisition, the receipt of the Purchaser Stockholder Approval). This Amendment has been duly executed and delivered by Purchaser and, assuming the due authorization, execution and delivery by each of the other parties hereto, this Amendment constitutes a legal, valid and binding obligation of Purchaser, enforceable against Purchaser in accordance with its terms, subject to the Enforceability Exceptions.
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(b) The execution, delivery and performance by Purchaser of this Amendment or the consummation by Purchaser of the transactions contemplated hereby do not and will not (i) contravene or conflict with the organizational or constitutive documents of Purchaser, or (ii) contravene or conflict with or constitute a violation of any provision of any Law or any Order binding upon Purchaser.
4. No Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed a waiver of any subsequent breach or default of the same or similar nature.
5. Miscellaneous.
(a) Entire Agreement. The Original Purchase Agreement, as amended by this Amendment, together with the Additional Agreements, sets forth the entire agreement of the parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein.
(b) Ratification. This Amendment shall form a part of the Original Purchase Agreement for all purposes, and each party thereto and hereto shall be bound hereby. From and after the execution of this Amendment by the parties hereto, each reference in the Original Purchase Agreement to “this Agreement,” “hereof,” “hereunder,” “herein,” “hereby” or words of like import referring to the Original Purchase Agreement shall mean and be a reference to the Original Purchase Agreement as amended by this Amendment. Except as amended hereby, the terms and provisions of the Original Purchase Agreement shall remain unchanged and in full force and effect. In the event of any conflict between the terms of the Original Purchase Agreement and the terms of this Amendment, the terms of this Amendment shall govern and control.
(c) Counterparts; Electronic Signatures. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Amendment shall become effective upon delivery to each party of an executed counterpart or the earlier delivery to each party of original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other parties.
(d) Governing Law. This Amendment and all disputes or controversies arising out of or relating to this Amendment or the transactions contemplated hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of New York, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of New York or any other jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of New York.
(e) Incorporation by Reference. The provisions of Article XI of the Original Purchase Agreement, as modified by this Amendment, are hereby incorporated by reference herein mutatis mutandis.
[Signature Page Follows]
* * * * *
3
IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Amendment as of the day and year first above written.
| PURCHASER: | ||
| GLOBAL CONSUMER ACQUISITION CORP. | ||
| By: | /s/ Rohan Ajila | |
| Name: Rohan Ajila | ||
| Title: Chief Executive Officer | ||
| SELLER: | ||
| TGP TRADING FZCO | ||
| By: | /s/ Gautham Pai | |
| Name: Gautham Pai | ||
| Title: Director and Authorized Signatory | ||
| COMPANY: | ||
| GP GLOBAL LIMITED | ||
| By: | /s/ Gautham Pai | |
| Name: Gautham Pai | ||
| Title: Director | ||
[Signature Page to First Amendment to Stock Purchase Agreement]
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