FORM OF STOCK ESCROW AGREEMENT
Exhibit 10.3
FORM OF
This STOCK ESCROW AGREEMENT, dated as of , 2008 (the “Agreement”) is entered into
by and among FinTech Acquisition Corp., a Delaware corporation (“Company”), the undersigned parties
listed as Initial Stockholders on the signature page hereto (collectively, the “Initial
Stockholders”) and American Stock Transfer & Trust Company, a New York corporation (“Escrow
Agent”).
WHEREAS, the Company has entered into an Underwriting Agreement, dated , 2008 (the
“Underwriting Agreement”) with UBS Securities LLC acting as representative of the several
underwriters (collectively, the “Underwriters”), pursuant to which, among other matters, the
Underwriters have agreed to purchase 10,000,000 units (not including the Underwriters’
over-allotment option) (the “Units”) of the Company, with each Unit consisting of one share of the
Company’s common stock, par value $.0001 per share (the “Common Stock”), and one warrant
(“Warrant”), with each Warrant being exercisable to purchase one share of Common Stock, all as more
fully described in the Company’s final prospectus, dated , 2008 (“Prospectus”)
comprising part of the Company’s Registration Statement on Form S-1 (File No. 333-149977) (as
amended, the “Registration Statement”) under the Securities Act of 1933, as amended, declared
effective on , 2008 (the “Effective Date”);
WHEREAS, solely for the purpose of covering over-allotments, the Company has granted to the
Underwriters the option to purchase from the Company up to an additional 1,500,000 Units (the
“Overallotment Option”);
WHEREAS, the Initial Stockholders have agreed as a condition of the Underwriters’ obligation
to purchase the Units pursuant to the Underwriting Agreement and to offer them to the public to (i)
deposit all of their Units of the Company, as set forth opposite their respective names in Exhibit
A attached hereto (collectively, the “Escrow Units”), as well as certificates representing the
shares of common stock (the “Escrow Common Shares”) and warrants (the “Escrow Warrants”) underlying
the Escrow Units and (ii) deposit the 3,300,000 Warrants TBBK Acquisitions I, LLC has agreed to
purchase from the Company at a price of $1.00 per warrant in a private placement pursuant to a
warrant agreement between the Company and Escrow Agent as trustee thereunder (the “Warrant
Agreement”) immediately before the completion of the offering (collectively, the “Additional Escrow
Warrants”, and together with the Escrow Common Shares and the Escrow Warrants, the “Escrow
Securities”), in escrow as hereinafter provided; and
WHEREAS, the Company and the Initial Stockholders desire that the Escrow Agent accept the
Escrow Securities, in escrow, to be held and disbursed as hereinafter provided.
NOW, THEREFORE, in consideration of the foregoing, of the mutual agreements herein contained,
and for other good and valuable consideration, the receipt and sufficiency of
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which is hereby acknowledged, the Company, each Initial Stockholder and the Escrow Agent
hereby agree as follows:
1. Appointment of Escrow Agent. The Company and the Initial Stockholders hereby
appoint the Escrow Agent to act in accordance with and subject to the terms of this Agreement and
the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject
to such terms.
2. Deposit of Escrow Securities. On or before the Effective Date, each of the Initial
Stockholders shall have delivered to the Escrow Agent certificates representing their respective
Escrow Securities as set forth opposite their respective names on Exhibit A hereto, which
certificates shall remain in the name of such Initial Stockholder or in the name of such Initial
Stockholder’s Permitted Transferee (as defined below), to be held and disbursed subject to the
terms and conditions of this Agreement. Each Initial Stockholder acknowledges that the certificate
representing such Initial Stockholder’s Escrow Securities bears a legend to reflect the deposit of
such Escrow Securities under this Agreement.
3. Disbursement of the Escrow Securities. The Escrow Agent shall hold the Escrow
Units, Escrow Common Shares and Escrow Warrants until the date that is one year after the
consummation of a Business Combination (as such term is defined in the Amended and Restated
Certificate of Incorporation as in effect on the date hereof) and the Additional Escrow Warrants
until the completion of a Business Combination (each such period, an “Escrow Period”), on which
date it shall, upon written instructions from each Initial Stockholder, disburse each of the
Initial Stockholder’s Escrow Securities to such Initial Stockholder; provided, however, that at the
end of the 30-day period in which the Underwriters may exercise their over-allotment option to
purchase an additional 1,500,000 Units of the Company (as described in the Registration Statement),
the Company shall give the Escrow Agent notice with respect to the amount, if any, of the
over-allotment that was exercised by the Underwriters and, upon such notice, the Initial
Shareholders agree that the Escrow Agent shall return to the Company for cancellation, at no cost,
such number of Units as directed by the Company in writing, provided further, however, that if the
Escrow Agent is notified by the Company pursuant to Section 6.7 hereof that the Company is being
liquidated at any time during each Escrow Period, then the Escrow Agent shall promptly destroy the
certificates representing the Escrow Securities. The Escrow Agent shall have no further duties
hereunder after the disbursement or destruction of the Escrow Securities in accordance with this
Section 3.
4. Rights of Initial Stockholders in Escrow Securities.
4.1 Voting Rights as a Stockholder. Subject to the terms of the Insider Letter
described in Section 4.4 hereof and except as herein provided, the Initial Stockholders shall
retain all of their rights as stockholders of the Company during each Escrow Period, including,
without limitation, the right to vote the Escrow Common Shares.
4.2 Dividends and Other Distributions in Respect of the Escrow Securities. During each
Escrow Period, all dividends payable in cash with respect to the Escrow Securities shall be paid to
the Initial Stockholders, but all dividends or other distributions made by the Company during the
Escrow Period payable in shares of Common Stock or other non-cash
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property (“Non-Cash Dividends”) shall be delivered to the Escrow Agent to hold in accordance
with the terms hereof. As used herein, the term “Escrow Securities” shall be deemed to include the
Non-Cash Dividends distributed thereon, if any.
4.3 Restrictions on Transfer. During each Escrow Period, no sale, transfer or other
disposition may be made of any or all of the Escrow Securities except to permitted transferees
which includes: (i) the Company’s officers or directors or any affiliates or family members of any
of its officers or directors; (ii) a member of an Initial Stockholder’s immediate family or a trust
(the beneficiary of which is a member of the Initial Stockholder’s immediate family, an affiliate
of the Initial Stockholder or a charitable organization) or a charitable organization, who in each
case receives such Escrow Securities as a gift; (iii) any person who receives such Escrow
Securities by virtue of the laws of descent and distribution upon death of the Initial Stockholder;
or (iv) any person who receives such Escrow Securities pursuant to a qualified domestic relations
order (each such transferee, a “Permitted Transferee”); provided, however, that such permissive
transfers may be implemented only upon the respective transferee’s written agreement to be bound by
the terms and conditions of this Agreement and of the Insider Letter and Warrant Agreement signed
by the Initial Stockholder transferring the Escrow Securities. During each Escrow Period, the
Initial Stockholders shall not pledge or grant a security interest in the Escrow Securities or
grant a security interest in their rights under this Agreement.
4.4 Insider Letters. Each of the Initial Stockholders has executed a letter agreement
with UBS Securities LLC acting as representative of the Underwriters, and the Company, the form of
which is filed as an exhibit to the Registration Statement, regarding the rights and obligations of
such Initial Stockholder in certain events described therein, including, without limitation, upon
the liquidation of the Company (such letter agreement, the “Insider Letter”).
4.5 Escrow Warrants. TBBK Acquisitions I, LLC acknowledges that the Escrow Warrants
are subject to the restrictions on exercise and transfer during the Escrow Period as specified in
the Warrant Agreement.
5. Concerning the Escrow Agent.
5.1 Good Faith Reliance. The Escrow Agent shall not be liable for any action taken or
omitted by it in good faith and in the exercise of its own best judgment, and may rely conclusively
and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of
counsel (including counsel chosen by the Escrow Agent), statement, instrument, report or other
paper or document (not only as to its due execution and the validity and effectiveness of its
provisions, but also as to the truth and acceptability of any information therein contained) which
is believed by the Escrow Agent to be genuine and to be signed or presented by the proper person or
persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification,
termination or rescission of this Agreement unless evidenced by a writing delivered to the Escrow
Agent signed by the proper party or parties and, if the duties or rights of the Escrow Agent are
affected, unless it shall have given its prior written consent thereto.
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5.2 Indemnification. The Escrow Agent shall be indemnified and held harmless by the
Company from and against any expenses, including counsel fees and disbursements, or loss suffered
by the Escrow Agent in connection with any action, suit or other proceeding involving any claim
which in any way, directly or indirectly, arises out of or relates to this Agreement, the services
of the Escrow Agent hereunder, or the Escrow Securities held by it hereunder, other than expenses
or losses arising from the gross negligence or willful misconduct of the Escrow Agent. Promptly
after the receipt by the Escrow Agent of notice of any demand or claim or the commencement of any
action, suit or proceeding, the Escrow Agent shall notify the other parties hereto in writing. In
the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an
action in the nature of interpleader in an appropriate court to determine ownership or disposition
of the Escrow Securities or it may deposit the Escrow Securities with the clerk of any appropriate
court or it may retain the Escrow Securities pending receipt of a final, non-appealable order of a
court having jurisdiction over all of the parties hereto directing to whom and under what
circumstances the Escrow Securities are to be disbursed and delivered. The provisions of this
Section 5.2 shall survive in the event the Escrow Agent resigns or is discharged pursuant to
Sections 5.5 or 5.6 below.
5.3 Compensation. The Escrow Agent shall be entitled to reasonable compensation from
the Company for all services rendered by it hereunder, as set forth on Exhibit B hereto. The
Escrow Agent shall also be entitled to reimbursement from the Company for all expenses paid or
incurred by it in the administration of its duties hereunder including, but not limited to, all
counsel, advisors’ and agents’ fees and disbursements and all taxes or other governmental charges.
5.4 Further Assurances. From time to time on and after the date hereof, the Company
and the Initial Stockholders shall deliver or cause to be delivered to the Escrow Agent such
further documents and instruments and shall do or cause to be done such further acts as the Escrow
Agent shall reasonably request to carry out more effectively the provisions and purposes of this
Agreement, to evidence compliance herewith or to assure itself that it is protected in acting
hereunder.
5.5 Resignation. The Escrow Agent may resign at any time and be discharged from its
duties as escrow agent hereunder by its giving the other parties hereto written notice and such
resignation shall become effective as hereinafter provided. Such resignation shall become
effective at such time that the Escrow Agent shall turn over the Escrow Securities held hereunder
to a successor escrow agent appointed by the Company. If no new escrow agent is so appointed
within the 60 day period following the giving of such notice of resignation, the Escrow Agent may
deposit the Escrow Securities with a State or Federal court located in New York County, New York,
provided the Escrow Agent provides notice of such deposit to the Company and the Initial
Stockholders in accordance with Section 6.7 hereof.
5.6 Discharge of Escrow Agent. The Escrow Agent shall resign and be discharged from
its duties as escrow agent hereunder if so requested in writing at any time by the other parties
hereto, jointly; provided, however, that such resignation shall become effective only upon the
appointment by a successor escrow agent as provided for in Section 5.5.
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5.7 Liability. Notwithstanding anything herein to the contrary, the Escrow Agent
shall not be relieved from liability hereunder for its own gross negligence or its own willful
misconduct.
5.8 Waiver. The Escrow Agent hereby waives any and all right, title, interest or
claim of any kind (each, a “Claim”) in or to any distribution of the Trust Account (as defined in
that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the
Company and the Escrow Agent as trustee thereunder), and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason
whatsoever.
6. Miscellaneous.
6.1 Governing Law. This Agreement shall for all purposes be deemed to be made under
and shall be construed in accordance with the laws of the State of New York. Each of the parties
hereby agrees that any action, proceeding or claim against it arising out of or relating in any way
to this Agreement shall be brought and enforced in the courts of the State of New York located in
New York County or the United States District Court for the Southern District of New York, and
irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive. Each of the
parties hereby waives any objection to such exclusive jurisdiction and that such courts represent
an inconvenient forum. Any such process or summons to be served upon the Company may be served by
transmitting a copy thereof by registered or certified mail, return receipt requested, postage
prepaid, addressed to it at the address set forth in Section 6.6 hereof. Such mailing shall be
deemed personal services and shall be legal and binding upon the Company in any action, proceeding
or claim.
6.2 Third Party Beneficiaries. Each of the Initial Stockholders hereby expressly
acknowledges and agrees that the Underwriters are third party beneficiaries of this Agreement and
this Agreement may not be modified, amended or changed without the prior written consent of UBS
Securities LLC.
6.3 Entire Agreement. This Agreement contains the entire agreement of the parties
hereto with respect to the subject matter hereof and, except as expressly provided herein, may not
be changed or modified except by an instrument in writing signed by the party to be charged.
6.4 Headings. The headings contained in this Agreement are for reference purposes only
and shall not affect in any way the meaning or interpretation thereof.
6.5 Binding Effect. This Agreement shall be binding upon and inure to the benefit of
the respective parties hereto and their legal representatives, successors and assigns.
6.6 Notices. Any notice or other communication required or which may be given
hereunder shall be in writing and either be delivered personally or by private national courier
service, or be mailed, certified or registered mail, return receipt requested, postage prepaid or
via facsimile, and shall be deemed given when so delivered personally or, if sent by private
national courier service, on the next business day after delivery to the courier, or, if
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mailed, two business days after the date of mailing, or if sent via facsimile, the next
business day after transmission of the facsimile, as follows:
If to the Company, to:
FinTech Acquisition Corp.
000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Fax No.: (000) 000-0000
000 Xxxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000
Attn: Secretary
Fax No.: (000) 000-0000
If to a Stockholder, to his, her or its address set forth in Exhibit A.
and if to the Escrow Agent, to:
American Stock Transfer & Trust Company
00 Xxxxxx Xxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax No.: (000) 000-0000
00 Xxxxxx Xxxx, Xxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx Xxxxxx
Fax No.: (000) 000-0000
A copy of any notice sent hereunder shall be sent to:
Xxxxxxxx Chance US LLP
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx
Attn: Xxxxxx X. Xxxxxxx, Esq.
Fax No.: (000) 000-0000
and
Ledgewood, P.C.
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: X. Xxxx Xxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
0000 Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000
Attn: X. Xxxx Xxxxxxxxxx, Esq.
Fax No.: (000) 000-0000
and
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Syndicate Department
Fax No.: (000) 000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Syndicate Department
Fax No.: (000) 000-0000
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The parties may change the persons and addresses to which the notices or other communications
are to be sent by giving written notice to any such change in the manner provided herein for giving
notice.
6.7 Liquidation of Company. The Company shall give the Escrow Agent written
notification of the liquidation and dissolution of the Company in the event that the Company fails
to consummate a Business Combination within the time period(s) specified in the Prospectus.
6.8 Counterparts. This Agreement may be executed in several counterparts each one of
which shall constitute an original and may be delivered by facsimile transmission and together
shall constitute one instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, this Stock Escrow Agreement has been duly executed by the parties hereto
as of the day and year first above written.
| FINTECH ACQUISITION CORP. | ||||||
| By: | ||||||
| Title: | ||||||
| Xxxxx X. Xxxxx, as Initial Stockholder | ||||||
| Xxxxx X. Xxxxxxxxxxx, as Initial Stockholder | ||||||
| Xxxxxx X. Xxxxx, as Initial Stockholder | ||||||
| Xxxxx Xxxxxxxx, as Initial Stockholder | ||||||
| Xxxxxx Xxxxxx, as Initial Stockholder | ||||||
| Xxxxxx X. Beach, as Initial Stockholder | ||||||
| Xxxxxxx X. Xxxxxxxxxxx, as Initial Stockholder | ||||||
| T. Xxxxxxx Xxxxxxx, as Initial Stockholder | ||||||
| Xxxxxxx Xxxxx, as Initial Stockholder | ||||||
| Xxxx Xxxxx, as Initial Stockholder | ||||||
| Xxxx Xxxxxxxx, as Initial Stockholder | ||||||
Signature Page to FinTech Acquisition Corp. Stock Escrow Agreement
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| Xxxxxx X. Xxxx, as Initial Stockholder | ||||||
| Xxxxxx Xxxxxxxxx, as Initial Stockholder | ||||||
| Xxx Xxxxx, as Initial Stockholder | ||||||
| Xxx XxXxxx, as Initial Stockholder | ||||||
| Xxxxx Xxxxxxxx, as Initial Stockholder | ||||||
| Xxxxx Xxxxx, as Initial Stockholder | ||||||
| Xxxxx Xxxxxxx, as Initial Stockholder | ||||||
| Xxxxx Xxxx, as Initial Stockholder | ||||||
| Xxxxx Xxxxxxx, as Initial Stockholder | ||||||
TBBK Acquisitions I, LLC, as Initial Stockholder |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
| AMERICAN STOCK TRANSFER & TRUST COMPANY |
||||
| By: | ||||
| Name: | ||||
| Title: | ||||
Signature Page to FinTech Acquisition Corp. Stock Escrow Agreement
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EXHIBIT B
Escrow Agent Fees
$ annually for acting agent escrow fee.
Initial acceptance fee and first year agent fee to be paid at closing.
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