STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT dated
as
of (this
“Agreement”), by and between Universal Business Payment Solutions Acquisition
Corporation, a Delaware Corporation (the “Seller”)
and (the
“Purchaser”).
INTRODUCTION
The
Purchaser wishes to purchase from the
Seller shares
of Common Stock of the Seller, par value $0.001 per share (the “Shares”), on the
terms and subject to the conditions set forth in this Agreement.
The
Seller wishes to sell the Shares to the Purchaser on the terms and subject to
the conditions set forth in this Agreement.
In
consideration of the premises and the mutual covenants and agreements contained
in this Agreement, the parties hereto agree as follows:
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1. Definitions.
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The
terms defined in this Section 1 shall have for all purposes of this
Agreement the respective meanings set forth
below:
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(a)
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“Purchaser”
shall have the meaning set forth in the preamble to this
Agreement.
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(b)
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“Closing”
shall have the meaning set forth in Section 4 of this
Agreement.
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(c)
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“Common
Stock” shall mean the Common Stock, $0.001 par value per share, of the
Seller.
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(d)
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“Purchase
Price” shall have the meaning set forth in Section 3 of this
Agreement.
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(e)
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“SEC”
shall mean the U.S. Securities and Exchange
Commission.
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(f)
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“Securities
Act” shall mean the United States Securities Act of 1933, as amended, or
any successor federal statute, and the applicable rules and regulations
promulgated and in effect from time to time
thereunder.
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(g)
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“Shares”
shall have the meaning set forth in the recitals to this
Agreement.
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2. Purchase and Sale of
Shares. Subject to the terms and conditions hereof and in
reliance upon the representations and warranties of the parties contained
herein, simultaneous with the execution of this Agreement, the Seller shall sell
and deliver to the Purchaser, and the Purchaser shall purchase from the Seller,
the Shares, in consideration of the payment of the Purchase Price.
3. Purchase
Price. As payment in full for the Shares being purchased under
this Agreement and against delivery of the certificates therefor, simultaneous
with the execution hereof, the Purchaser or an affiliate of the Purchaser on the
Purchaser’s behalf, shall pay
$ (the
“Purchase Price”) to the Seller by wire transfer of immediately available funds
or by such other method as may be reasonably acceptable to the
Seller.
4. Closing. The
closing of the purchase and sale of the Shares (the “Closing”) shall be held on
the date of this Agreement at the offices of Dechert LLP, 0000 X Xxxxxx, X.X.,
Xxxxxxxxxx, X.X. 00000, or such other place as may be agreed upon by the parties
hereto.
5. Closing
Deliveries. All actions taken at the Closing shall be deemed
to have been taken simultaneously.
(a) At
the Closing the Purchaser shall deliver to the Seller the Purchase
Price.
(b) At
the Closing, or within a reasonable time after the Closing but in no event later
than thirty (30) days after Closing, Grail Investment shall deliver to the
Purchaser the certificates representing the Shares.
6. Forfeiture of
Shares. If the underwriters (the “Underwriters”) in the
Seller’s initial public offering (the “IPO”) do not exercise in full their
over–allotment option to be granted by the Seller pursuant to an underwriting
agreement by and among the Underwriters and the Seller, then the Purchaser shall
forfeit up to shares of the Shares, such amount forfeited to be
proportionate to the portion of the over-allotment not exercised by the
Underwriters, and no consideration or refund of any part of the Purchase Price
shall be paid to the Purchaser by the Seller in connection with such
forfeiture.
7. Certificates;
Legends.
(a) The
certificates evidencing the Shares shall include a legend substantially in the
following form:
THE
SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. THE SECURITIES MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS, AND, IN THE CASE OF A TRANSACTION EXEMPT FROM REGISTRATION,
ONLY IF THE SELLER HAS RECEIVED AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO
THE SELLER REGARDING THE AVAILABILITY OF SUCH EXEMPTION UNDER THE SECURITIES ACT
AND SUCH OTHER APPLICABLE LAWS.
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(b) The
Purchaser agrees, prior to any permitted transfer of the Shares, to give written
notice to the Seller expressing its desire to effect such transfer and
describing briefly the proposed transfer. Upon receiving such notice,
the Seller shall present copies thereof to its counsel. The Purchaser
shall not make any disposition of any Shares unless and until (i) there is then
in effect a registration statement under the Securities Act covering such
transfer and such transfer is made in accordance with such registration
statement, or (ii) if reasonably requested by the Seller, (x) the Purchaser
shall have furnished to the Seller an opinion of counsel reasonably satisfactory
to the Seller that such disposition will not require registration under the
Securities Act and (y) the transferee shall have agreed to comply with the
restrictions in the legend set forth in Section 7(a) above.
8. Escrow
Agreement. In connection with the closing of the IPO, the
Seller, the Purchaser and Continental Stock Transfer & Trust Company, acting
as escrow agent, shall enter into an agreement placing the Shares in an escrow
account, pursuant to which the Shares will not be transferable until one year
following the Seller’s consummation of a business combination, subject to
certain exceptions.
9. Investment
Representations.
(a) The
Purchaser is acquiring the Shares for his own account, for investment only and
not with a view towards, or for resale in connection with, any public sale or
distribution thereof.
(b) The
Purchaser is an accredited investor as such term is defined in Rule 501 of
Regulation D promulgated by the SEC under the Securities Act. The
Purchaser understands that its investment in the Shares involves a high degree
of risk. The Purchaser has sought such accounting, legal and tax
advice as the Purchaser has considered necessary to make an informed decision
with respect to the Purchaser’s acquisition of the Shares. The
Purchaser has knowledge and experience in financial and business matters and
knows of the high degree of risk associated with investments generally and
particularly investments in the securities of development stage
companies. The Purchaser is able to bear the economic risk of an
investment in the Shares in the amount contemplated hereunder for an indefinite
period of time. The Purchaser can afford a complete loss of his
investment in the Shares. The Purchaser has had access to all
information that he believes is necessary, sufficient or appropriate in
connection with its purchase of the Shares.
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(c) The
Purchaser understands that the Shares have not been and are not being registered
under the Securities Act or any state securities laws and may not be offered for
sale, sold, assigned or transferred unless (i) subsequently registered
thereunder or (ii) sold in reliance on an exemption therefrom. No
U.S. federal or state agency or any other government or governmental agency has
passed on or made any recommendation or endorsement of the Shares or the
fairness or suitability of the investment in the Shares nor have any such
authorities passed upon or endorsed the merits of the offering of the
Shares.
(d) The
Purchaser understands that the Shares are being offered and will be sold to him
in reliance on specific exemptions from the registration requirements of the
U.S. federal and state securities laws and that the Seller is relying upon the
truth and accuracy of, and the Purchaser’s compliance with, the representations
and warranties of the Purchaser set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchaser to acquire
such Shares.
10. Seller
Representation. The Seller has duly authorized the issuance
and sale of the Shares to the Purchaser and, subject to the provisions of
Section 6 above, when the Shares are issued in accordance with this Agreement,
the Shares will be duly and validly issued, fully paid and
non-assessable.
11. Miscellaneous.
(a) Any
notice, request, demand, waiver, consent, approval or other communication that
is required or permitted to be given to either party hereunder shall be in
writing and shall be deemed given only if delivered to such party personally
(including by recognized overnight courier), or sent to such party by facsimile
transmission (promptly followed by a hard-copy delivered in accordance with this
Section 11(a)) or by registered or certified mail (return receipt requested),
with postage and registration or certification fees thereon prepaid, addressed
to such party at its address set forth below:
If to the
Seller:
Xxxxx X.
Xxxx
Chief
Executive Officer
c/o UBPS
Services, LLC
Radnor
Financial Center
000 Xxxxx
Xxxxxx-Xxxxxxx Xxxx, Xxxxx X-000
Xxxxxx,
Xxxxxxxxxxxx 00000
If to the
Purchaser:
or to
such other address as such party may have specified in a notice duly given to
the other party hereto as provided herein. Such notice, request,
demand, waiver, consent, approval or other communication will be deemed to have
been given as of the date so delivered, if sent by facsimile transmission, or as
of the third business day thereafter if sent by any other method permitted under
this Section 11(a).
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(b) This
Agreement may be amended, modified or supplemented at any time by mutual
agreement of the parties hereto. Any amendment, modification or
revision of this Agreement and any waiver of compliance or consent with respect
hereto shall be effective only if in a written instrument executed by the
parties hereto. For the avoidance of doubt, any such written
instrument shall only be effective if it is manually-signed by an individual
with actual authority to act on behalf of such party.
(c) This
Agreement shall be governed by, and construed in accordance with, the laws of
the State of New York. Each of the parties hereto (i) consents to
submit itself to the personal jurisdiction of the United States District Court
for the Southern District of New York or the Supreme Court of the State of New
York, New York County in the event any dispute arises out of this Agreement or
any of the transactions contemplated hereby, (ii) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (iii) agrees that it will not bring any
action relating to this Agreement or any of the transactions contemplated hereby
in any court other than the United States District Court for the Southern
District of New York or the Supreme Court of the State of New York, New York
County.
(d) EACH
OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY
JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE
TRANSACTIONS CONTEMPLATED HEREBY.
(e) If
any term or other provision of this Agreement is determined to be invalid,
illegal or incapable of being enforced by any rule of law or public policy, all
other terms and provisions of this Agreement shall remain in full force and
effect. Upon such determination, the parties hereto shall negotiate
in good faith to modify this Agreement so as to give effect to the original
intent of the parties hereto to the fullest extent permitted by applicable
law.
(f)
This Agreement may be executed in one or more counterparts (including by
facsimile), each of which shall be deemed an original, but all of which together
shall constitute one and the same instrument.
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IN
WITNESS WHEREOF, each of the parties has caused this Agreement to be duly
executed and delivered as of the date first above written.
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By:
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By:
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Xxxxx
X. Xxxx
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