FINTECH ACQUISITION CORP. FOUNDERS’ SECURITIES PURCHASE AGREEMENT
Exhibit 10.1
THIS FOUNDERS’ SECURITIES PURCHASE AGREEMENT (this “Agreement”), dated as of March ___, 2008,
is entered into by and between FINTECH ACQUISITION CORP., a Delaware corporation (the “Company”)
and the individuals listed on Exhibits A1-20 (each, a “Purchaser” and, together, the “Purchasers”).
Terms used but not otherwise defined in this Agreement shall have the meaning assigned such terms
in the Registration Statement (as defined below).
WHEREAS, the Company intends to file a registration statement (the “Registration Statement”)
for the initial public offering of units (the “Initial Public Offering”), each unit consisting of
one share of the Company’s common stock, par value $0.0001 per share (a “Share”), and one warrant
to purchase one Share at an exercise price of $7.50 per Share.
WHEREAS, concurrent with the execution and delivery of this Agreement, the Purchasers desire
to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in
this Agreement, an aggregate of 1,365,625 units (the “Founders’ Units”), in the respective amounts
set forth opposite such Purchaser’s name on Schedule A hereto, each unit consisting of one share of
the Company’s common stock, par value $0.0001 per share (the “Founders’ Shares”) and one warrant to
purchase one Share at an exercise price of $7.50 per share (the “Founders’ Warrants”).
NOW THEREFORE, in consideration of the mutual promises contained in this Agreement and other
good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
parties to this Agreement hereby agree as follows:
SECTION 1
Authorization, Purchase and Sale; Terms of the Founders’ Units, Founders’ Shares
and Founders’ Warrants
Authorization, Purchase and Sale; Terms of the Founders’ Units, Founders’ Shares
and Founders’ Warrants
A. Authorization of the Founders’ Units, Founders’ Shares, Founders’ Warrants and Shares
Underlying the Founders’ Warrants. The Company has duly authorized the issuance and sale to
the Purchasers of each of the Founders’ Units, Founders’ Shares and Founders’ Warrants and Shares
underlying the Founders’ Warrants (collectively, the “Securities”).
B. Purchase and Sale of the Founders’ Units. Concurrently with the execution and
delivery of this Agreement, the Company shall issue and sell to the Purchasers and the Purchasers
shall purchase from the Company, the number of Founders’ Units listed beside each Purchaser’s name
on Exhibits A for a purchase price listed beside each Purchaser’s name on Exhibits A (the
“Founders’ Units Purchase Price”). As soon as practicable after
the execution and delivery of this Agreement, the Company shall deliver certificates
evidencing the Founders’ Units, Founders’ Shares and Founders’ Warrants to be purchased by the
Purchasers hereunder, in each case registered in each Purchaser’s name, upon the payment by the
Purchaser of the Founders’ Units Purchase Price, by wire transfer of immediately available funds to
the Company in accordance with the Company’s wiring instructions or by such other method as may be
reasonably acceptable to the Company.
C. Terms of the Founders’ Units, Founder’s Shares and Founder’s Warrants.
(i) Founders’ Units: Each Unit of the Founders’ Units shall consist of one Founders’ Share and
one Founders’ Warrant and shall have the terms set forth in the Unit Certificate attached as
EXHIBIT B hereto.
(ii) Founder’s Shares: The Founder’s Shares shall have the terms set forth in the Certificate
of Incorporation of the Company and the Founder’s Share Certificate attached as EXHIBIT C hereto.
Without limiting the foregoing, the Purchasers hereby expressly agree that if the Company
consummates the Initial Public Offering, then (a) in connection with the stockholder vote required
to approve an initial merger, capital stock exchange, asset acquisition or other similar business
combination with one or more businesses or assets (a “Business Combination”), the Purchasers agree
to vote the Founders’ Shares in accordance with a majority of the shares of common stock voted by
holders of shares of common stock issued in the Initial Public Offering and (b) the Purchasers
agree to waive any right to participate in any liquidation distribution to the extent set forth in
Section 3.D of this Agreement.
(iii) Founders’ Warrants: The Founders’ Warrants shall have the terms set forth in the Warrant
Agreement set forth as EXHIBIT D hereto.
(iv) Transfer Restrictions: In addition to the restrictions on transfer set forth in Section 6
hereof, the Purchasers shall not sell or transfer the Founders’ Units, Founders’ Shares, Founders’
Warrants and the Shares underlying the Founders’ Warrants for a period of one year from the date
the Company completes its Business Combination except to a Permitted Transferee (as defined in the
Warrant Agreement) who agrees in writing with the Company to be subject to such transfer
restrictions, vote the Founders’ Shares as provided in (ii) above; waive any right to participate
in any liquidation distribution as provided in (ii) above and agrees to the forfeiture of the
Founders’ Units, Founders’ Shares and Founders’ Warrants as provided in (vi) below. During this
period, the Purchasers and their Permitted Transferees shall retain all other rights of holders of
Shares, including, without limitation, the right to vote their Shares (except as described above
with respect to a Business Combination) and the right to receive cash dividends, if declared. If
dividends are declared and payable in Shares, such dividends will also be subject to the
restrictions contained in this Section 1.C.(iv).
(v) Registration Rights: In connection with the closing of the Initial Public Offering, the
Company and the Purchasers shall enter into an agreement (the “Registration Rights Agreement”)
granting the Purchasers registration rights with respect to the Securities.
(vi) Forfeiture and Sell-Back of Securities:
a. Each Purchaser hereby agrees to forfeit, in such proportion as such
Purchaser purchased the Securities under this Agreement, a number of Securities
necessary to ensure that the aggregate amount of Founders’ Shares held by the
Purchasers, together with TBBK Acquisitions I, LLC (the “Sponsor”) and any
permitted transferees does not exceed 20% of the issued and outstanding common
stock of the Company upon the consummation of the Company’s Initial Public
Offering.
b. Each Purchaser acknowledges and agrees that if, prior to the
consummation of the Business Combination, his or her employment or involvement
with any of the Company, Bancorp or the Sponsor terminates for any reason,
including resignation, or if written notice of termination is given by any such
company, the Sponsor shall have the right, for a period of 60 days following
such termination, resignation or, if earlier, notice of either thereof, to
purchase such Purchaser’s Founders’ Units at the original price set forth on
Exhibit A. The Sponsor shall be deemed to have exercised its purchase right
hereunder if it shall send notice to the Purchaser of its exercise to the
address as it appears on the books and records of Bancorp, or if it shall
personally deliver such notice, within such 60-day period. Each Purchaser
hereby agrees that if the Sponsor sends notification that it will exercise its
right to purchase Founders’ Units, such Purchaser must promptly (and, in any
event, within five business days of the date upon which such notice was sent or
delivered), tender his or her Founders’ Units to the Sponsor for purchase by
it.
SECTION 2
Representations and Warranties of the Company
Representations and Warranties of the Company
As a material inducement to the Purchasers to enter into this Agreement and purchase the
Founders’ Units, the Company hereby represents and warrants to the Purchaser that:
A. Organization and Corporate Power. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware and is qualified to
do business in every jurisdiction in which the failure to so qualify would reasonably be expected
to have a material adverse effect on the financial condition, operating results or assets of the
Company. The Company possesses all requisite corporate power and authority necessary to carry out
the transactions contemplated by this Agreement and the Warrant Agreement.
B. Authorization; No Breach.
(i) The execution and delivery of this Agreement and the Warrant Agreement and the performance
of this Agreement and the Warrant Agreement have been duly authorized by the Company. This
Agreement constitutes the valid and binding obligation of the Company, enforceable in accordance
with its terms. The Warrant Agreement, and upon issuance in accordance with, and payment pursuant
to, the terms of the Warrant Agreement and this Agreement, the Founders’ Warrants, constitute valid
and binding obligations of the Company, enforceable in accordance with their respective terms.
(ii) The execution and delivery by the Company of this Agreement, the Warrant Agreement and
the sale and issuance of each of the Securities and the fulfillment of and compliance with the
respective terms hereof and thereof by the Company, do not and will not (a) conflict with or result
in a breach of the terms, conditions or provisions of, (b) constitute a default under, (c) result
in the creation of any lien, security interest, charge or encumbrance upon the Company’s capital
stock or assets, (d) result in a violation of, or (e) require any authorization, consent, approval,
exemption or other action by or notice or declaration to, or filing with, any court or
administrative or governmental body or agency pursuant to the Certificate of Incorporation of the
Company or the bylaws of the Company, or any material law, statute, rule or regulation to which the
Company is subject, or any agreement, order, judgment or decree to which the Company is subject,
except for any filings required after the date hereof under federal or state securities laws.
C. Title to Securities. Upon issuance in accordance with, and payment pursuant to,
the terms hereof and the Warrant Agreement, as the case may be, each of the Securities will be duly
and validly issued, fully paid and nonassessable. Upon issuance in accordance with, and payment
pursuant to, the terms hereof and the Warrant Agreement, as the case may be, the Purchaser will
have or receive good title to the Securities, free and clear of all liens, claims and encumbrances
of any kind, other than (a) transfer restrictions hereunder and under the other agreements
contemplated hereby, (b) transfer restrictions under federal and state securities laws, (c) liens,
claims or encumbrances imposed due to the actions of the Purchasers and (d) forfeiture requirements
pursuant to Section 1(C)(vi) hereunder.
D. Governmental Consents. No permit, consent, approval or authorization of, or
declaration to or filing with, any governmental authority is required in connection with the
execution, delivery and performance by the Company of this Agreement or the Warrant Agreement, or
the consummation by the Company of any other transactions contemplated hereby.
SECTION 3
Representations and Warranties of the Purchasers
Representations and Warranties of the Purchasers
A. Capacity and State Law Compliance. Each Purchaser hereby represents and warrants
as to itself, that they have engaged in the transactions contemplated by this Agreement within a
state in which the offer and sale of the Securities is permitted under applicable securities laws.
Each Purchaser understands and acknowledge that the purchase of Shares upon the exercise of the
Founders’ Warrants will require the availability of an exemption from registration under federal
and/or state securities laws and that any sale of
such Shares shall require registration or the availability of an exemption from registration
under federal and/or state securities laws.
B. Authorization; No Breach.
(i) Each Purchaser hereby represents and warrants as to itself, that this Agreement
constitutes a valid and binding obligation, enforceable in accordance with its terms.
(ii) Each Purchaser hereby represents and warrants as to itself, that the execution and
delivery of this Agreement and the fulfillment of and compliance with the respective terms hereof
do not and shall not conflict with or result in a breach of the terms, conditions or provisions of
any agreements, instruments, orders, judgments or decrees to which any of such Purchasers are
subject.
C. Investment Representations.
(i) Each Purchaser hereby represents and warrants as to itself, that they are acquiring the
Securities for their own account, for investment only and not with a view towards, or for resale in
connection with, any public sale or distribution thereof.
(iii) Each Purchaser hereby represents and warrants as to itself, that they understand that
the Securities are being offered and will be sold to it in reliance on specific exemptions from the
registration requirements of the United States federal and state securities laws and that the
Company is relying upon the truth and accuracy of, and the Purchasers’ compliance with, the
representations and warranties of the Purchasers set forth herein in order to determine the
availability of such exemptions and the eligibility of the Purchasers to acquire such Securities.
(iv) Each Purchaser hereby represents and warrants as to itself, that they did not decide to
enter into this Agreement as a result of any general solicitation or general advertising within the
meaning of Rule 502(c) under the Securities Act of 1933, as amended (the “Securities Act”).
(v) Each Purchaser hereby represents and warrants as to itself, that they have been furnished
with all materials relating to the business, finances and operations of the Company and materials
relating to the offer and sale of the Securities which have been requested by the Purchasers. Each
Purchaser has been afforded the opportunity to ask questions of the executive officers and
directors of the Company. The Purchasers understand that their investments in the Securities
involve a high degree of risk. The Purchasers have sought such accounting, legal and tax advice as
the Purchasers have considered necessary to make an informed investment decision with respect to
their acquisitions of the Securities.
(vi) Each Purchaser hereby represents and warrants as to itself, that they understand that no
United States federal or state agency or any other government or
governmental agency has passed on or made any recommendation or endorsement of the Securities
or the fairness or suitability of the investment in the Securities by the Purchasers nor have such
authorities passed upon or endorsed the merits of the offering of the Securities.
(vii) Each Purchaser hereby represents and warrants as to itself, that they understand that:
(a) the Securities 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 (A)
subsequently registered thereunder or (B) sold in reliance on an exemption therefrom; and (b)
except as specifically set forth in the Registration Rights Agreement, neither the Company nor any
other person is under any obligation to register the Securities under the Securities Act or any
state securities laws or to comply with the terms and conditions of any exemption thereunder. In
this regard, the Purchasers understand that the Securities and Exchange Commission has taken the
position that promoters or affiliates of a blank check company and their transferees, both before
and after a Business Combination, are deemed to be “underwriters” under the Securities Act when
reselling the securities of a blank check company. Based on that position, Rule 144 adopted
pursuant to the Securities Act would not be available for resale transactions of the Securities
despite technical compliance with the requirements of such Rule, and the Securities can be resold
only through a registered offering or in reliance upon another exemption from the registration
requirements of the Securities Act. The Purchaser is able to bear the economic risk of its
investment in the Securities for an indefinite period of time.
(viii) Each Purchaser hereby represents and warrants as to itself, that they have such
knowledge and expertise in financial and business matters, know of the high degree of risk
associated with investments generally and particularly investments in the securities of companies
in the development stage such as the Company, are capable of evaluating the merits and risks of an
investment in the Securities and are able to bear the economic risk of an investment in the
Securities in the amount contemplated hereunder. The Purchasers have adequate means of providing
for their current financial needs and contingencies and will have no current or anticipated future
needs for liquidity which would be jeopardized by the investment in the Securities. Each Purchaser
hereby represents and warrants as to itself, that they can afford a complete loss of its investment
in the Securities.
D. Waiver of Right to Amounts in the Trust Account and Indemnification.
(i) Each Purchaser hereby waives any and all right, title, interest or claim of any kind in or
to any distribution of the trust account established by the Company for the deposit of proceeds
from the Initial Public Offering, as a result of any liquidation of the trust account, with respect
to the Founders’ Shares (“Claim”) and hereby waives any Claim it may have in the future as a result
of, or arising out of, any contracts or agreements with the Company and will not seek recourse
against the trust account for any reason whatsoever except for any amounts to which it may be
entitled upon liquidation of the Company in respect of such Purchaser’s ownership of Shares other
than the Founders’ Shares.
(ii) Each Purchaser acknowledges and agrees that the stockholders of the Company, including
those who purchase the units in the Initial Public Offering, are and shall be third-party
beneficiaries of the foregoing provisions of Section 3.D. of this Agreement.
(iii) Each Purchaser agrees that to the extent any waiver of rights under this Section 3.D. is
ineffective as a matter of law, such Purchaser has offered such waiver for the benefit of the
Company as an equitable right that shall survive any statutory disqualification or bar that applies
to a legal right. Each Purchaser acknowledges the receipt and sufficiency of consideration received
from the Company hereunder in this regard.
SECTION 4
Conditions of the Purchasers’ Obligations
Conditions of the Purchasers’ Obligations
The obligation of the Purchasers to purchase and pay for the Founders’ Units is subject to the
fulfillment of each of the following conditions:
A. Representations and Warranties. The representations and warranties of the Company
contained in Section 2, shall be true and correct at and as of the date hereof.
B. No Injunction. No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court
or governmental authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby, which prohibits the consummation of any of the
transactions contemplated by this Agreement or the Warrant Agreement.
SECTION 5
Conditions of the Company’s Obligations
Conditions of the Company’s Obligations
The obligations of the Company to the Purchasers under this Agreement are subject to the
fulfillment of each of the following conditions:
A. Representations and Warranties. The representations and warranties of the
Purchaser contained in Section 3 shall be true and correct at and as of the date hereof.
B. Corporate Consents. The Company shall have obtained the consent of its Board of
Directors authorizing the execution, delivery and performance of this Agreement and the Warrant
Agreement and the issuance and sale of the Founders’ Units.
C. No Injunction. No litigation, statute, rule, regulation, executive order, decree,
ruling or injunction shall have been enacted, entered, promulgated or endorsed by or in any court
or governmental authority of competent jurisdiction or any self-regulatory organization having
authority over the matters contemplated hereby, which prohibits the
consummation of any of the transactions contemplated by this Agreement or the Warrant
Agreement.
SECTION 6
Miscellaneous
Miscellaneous
A. Legends.
(i) The certificates evidencing the Founders’ Units and the Founders’ Shares will include the
legend set forth on EXHIBITS B and C hereto, respectively, which each Purchaser has read and
understands. The Founders’ Warrants and Shares issued upon exercise of such warrants will include
the legend set forth in Exhibit B to the Warrant Agreement in the case of the Founders’ Warrants
and in the Warrant Agreement in the case of the Shares, which each Purchaser has read and
understands.
(ii) By accepting the Securities, each Purchaser agrees, prior to any transfer of the
Securities, to give written notice to the Company expressing its desire to effect such transfer and
describing briefly the proposed transfer. Upon receiving such notice, the Company shall present
copies thereof to its counsel and the Purchasers agree not to make any disposition of all or any
portion of the Securities unless and until:
(a) there is then in effect a registration statement under the Securities Act covering
such proposed disposition and such disposition is made in accordance with such registration
statement, in which case the legends set forth above with respect to the Securities sold
pursuant to such registration statement shall be removed; or
(b) if reasonably requested by the Company, (A) the Purchaser shall have furnished the
Company with an opinion of counsel, reasonably satisfactory to the Company, that such
disposition will not require registration of such Securities under the Securities Act, (B)
the Company shall have received customary representations and warranties regarding the
transferee that are reasonably satisfactory to the Company signed by the proposed
transferee and (C) the Company shall have received an agreement by such transferee to the
restrictions contained in the legends referred to in (i) hereof.
Notwithstanding the foregoing, the Purchasers also understand and acknowledge that the transfer of
the Founders’ Units, Founders’ Shares and Founders’ Warrants and exercise of the Founders’ Warrants
are subject to the specific conditions to such transfer or exercise as outlined herein and the
Warrant Agreement as to which the Purchasers specifically assent by their execution hereof.
(iii) The Company may, from time to time, make stop transfer notations in its records and
deliver stop transfer instructions to its transfer agent to the extent its counsel considers it
necessary to ensure compliance with federal and state securities laws and the transfer restrictions
contained elsewhere in this Agreement and the Warrant Agreement.
B. Successors and Assigns. Except as otherwise expressly provided herein, all
covenants and agreements contained in this Agreement by or on behalf of any of the parties hereto
shall bind and inure to the benefit of the respective successors of the parties hereto whether so
expressed or not. Notwithstanding the foregoing or anything to the contrary herein, the parties may
not assign this Agreement.
C. Severability. Whenever possible, each provision of this Agreement shall be
interpreted in such manner as to be effective and valid under applicable law, but if any provision
of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall
be ineffective only to the extent of such prohibition or invalidity, without invalidating the
remainder of this Agreement.
D. Counterparts. This Agreement may be executed simultaneously in two or more
counterparts, none of which need contain the signatures of more than one party, but all such
counterparts taken together shall constitute one and the same agreement.
E. Descriptive Headings; Interpretation. The descriptive headings of this Agreement
are inserted for convenience only and do not constitute a substantive part of this Agreement. The
use of the word “including” in this Agreement shall be by way of example rather than by limitation.
F. Governing Law. This Agreement, the entire relationship of the parties hereto, and
any litigation between the parties (whether grounded in contract, tort, statute, law or equity)
shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the
State of Delaware, without giving effect to its choice of laws principles.
G. Notices. All notices, demands or other communications to be given or delivered
under or by reason of the provisions of this Agreement shall be in writing and shall be deemed to
have been given when delivered personally to the recipient, sent to the recipient by reputable
overnight courier service (charges prepaid) or mailed to the recipient by certified or registered
mail, return receipt requested and postage prepaid. Such notices, demands and other communications
shall be sent:
If to the Company:
|
FinTech Acquisition Corp. | |
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Fax No.: (000) 000-0000 | ||
With a copy to:
|
Ledgewood, P.C. | |
| Attn: Xxxx Xxxxxxxxxx, Esq. | ||
| 0000 Xxxxxx Xxxxxx, Xxxxx 000 | ||
| Xxxxxxxxxxxx, XX 00000 | ||
| Fax No.: (000) 000-0000 | ||
If to the Purchasers:
|
c/o The Bancorp, Inc. |
| Attn: Xxxxx Xxxx | ||
| 000 Xxxxxxxxxx Xxxx | ||
| Xxxxxxxxxx, XX 00000 | ||
| Fax No.: (000) 000-0000 |
or to such other address or to the attention of such other person as the recipient party has
specified by prior written notice to the sending party.
H. No Strict Construction. The parties hereto have participated jointly in the
negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or
interpretation arises, this Agreement shall be construed as if drafted jointly by the parties
hereto, and no presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any of the provisions of this Agreement.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have executed this Founders’ Securities Purchase
Agreement on the date first written above.
COMPANY:
By: |
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Name:
|
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Title:
|
President |
SPONSOR (signing solely in connection with Section 1(C)(vi):
TBBK ACQUISITIONS I, LLC
By: The Bancorp, Inc., its sole member
| By: | ||||||
| Name: | ||||||
| Title: | President and Chief Operating Officer |
