Contract
WARRANT
SUBSCRIPTION AGREEMENT, dated as of ___________, 2011 (this “Agreement”),
by and between [ ], (the “Purchaser”),
and Universal Business Payment Solutions Acquisition Corporation, a Delaware
corporation (the “Company”).
INTRODUCTION
In
connection with the consummation of the Company’s initial public offering (the
“IPO”), the Company desires to issue and sell, and Purchaser desires to
purchase, on the terms and conditions set forth in this Agreement,
[ ] warrants (the “Warrants”), each to purchase one share
of the Company’s common stock, par value $0.001 per share (the “Common Stock”)
at an initial exercise price of $6.90 per Warrant.
The
Warrants shall have the terms set forth in the warrant agreement to be entered
into by and between the Company and Continental Stock Transfer & Trust
Company (“Continental”), as Warrant Agent, in connection with the IPO,
substantially in the form attached hereto as Exhibit A (the
“Warrant Agreement”).
In
consideration of the premises and the mutual covenants and agreements contained
in this Agreement, Purchaser and the Company agree as follows:
1. Purchase and Sale of
Warrants. The purchase and sale of the Warrants shall occur
simultaneously with the consummation of the IPO. At least 24 hours
prior to the date of the final prospectus in connection with the IPO, the
undersigned shall deliver $[$0.50 * the number of warrants] (the “Purchase
Price”) to Continental or such other agent as may be agreed to by the parties
hereto (“Agent”) to hold in an account until the Company consummates the
IPO. Simultaneously with the consummation of the IPO, Agent shall
deposit the Purchase Price, without interest or deduction, into a trust account
established by the Company for the benefit of the Company’s public stockholders
at Xxxxxx Xxxxxxx and maintained by Continental, as trustee. In the
event that the IPO is not consummated within fourteen (14) days of the date the
Purchase Price is delivered to Agent, Agent shall return the Purchase Price to
the Purchaser, with accrued interest.
2. Terms of the
Warrants. Each Warrant shall have the terms set forth in the
Warrant Agreement. In connection with the IPO, the Company and
Purchaser shall enter into an agreement granting holders of the Warrants
registration rights with respect to the Warrants and the shares of Common Stock
issuable upon exercise of the Warrants (the “Warrant Shares” and, together with
the Warrants, the “Securities”).
3. Investment Representations
and Covenants.
(a) Purchaser
is acquiring the Warrants for his, her or its own account, for investment only
and not with a view towards, or for resale in connection with, any public sale
or distribution thereof. Unless a registration statement is effective
at the time of exercise of the Warrants, the Purchaser covenants to acquire the
Warrant Shares for his, her or its own account, for investment only and not with
a view towards, or for resale in connection with, any public sale or
distribution thereof.
(b) Purchaser
is an accredited investor as such term is defined in Rule 501 of Regulation D
promulgated by the Securities and Exchange Commission under the Securities Act
of 1933, as amended (the “Securities Act”). Purchaser understands
that its investment in the Securities involves a high degree of
risk. Purchaser has sought such accounting, legal and tax advice as
Purchaser has considered necessary to make an informed decision with respect to
the Purchaser’s acquisition of such Securities. 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. Purchaser is able to bear the economic risk of an
investment in the Securities in the amount contemplated hereunder for an
indefinite period of time. Purchaser can afford a complete loss of
its investment in the Securities. Purchaser has had access to all
information that it believes is necessary, sufficient or appropriate in
connection with the purchase of the Warrants.
(c) Purchaser
understands that the Securities have not been and are not being registered under
the Securities Act or any state securities laws, except as may be contemplated
by any registration rights agreement between the Company and the Purchaser, 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 Securities or the fairness or suitability of the investment in the
Securities nor have any such governmental authorities passed upon or endorsed
the merits of the offering of the Securities.
(d) Purchaser
understands that the Securities are being offered and will be sold to it in
reliance on specific exemptions from the registration requirements of the U.S.
federal and state securities laws and that the Company 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 Securities.
4. Certificates;
Legends.
(a) The
certificates evidencing the Warrants shall be substantially in the form attached
as an exhibit to the Warrant Agreement and shall include a legend substantially
in the following form:
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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 COMPANY HAS RECEIVED AN
OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE COMPANY REGARDING THE
AVAILABILITY OF SUCH EXEMPTION UNDER THE SECURITIES ACT AND SUCH OTHER
APPLICABLE LAWS.
(b) Additionally,
the certificates evidencing the Insider Warrants (as defined in the Warrant
Agreement) shall include a legend substantially in the following
form:
IN ADDITION, PRIOR TO CONSUMMATION
OF A MERGER, SHARE
EXCHANGE, ASSET ACQUISITION, PLAN OF ARRANGEMENT, RECAPITALIZATION,
REORGANIZATION OR OTHER SIMILAR BUSINESS COMBINATION WITH A TARGET BUSINESS, THE SECURITIES REPRESENTED HEREIN MAY
BE TRANSFERRED ONLY TO (i) THE
COMPANY’S OFFICERS AND DIRECTORS, (ii) AN
ENTITY’S MEMBERS UPON ITS LIQUIDATION, (iii) BY BONA
FIDE GIFT TO A MEMBER OF AN INITIAL STOCKHOLDER’S IMMEDIATE FAMILY OR TO A
TRUST, THE BENEFICIARY OF WHICH IS AN INITIAL STOCKHOLDER OR A MEMBER OF AN
INITIAL STOCKHOLDER’S IMMEDIATE FAMILY FOR ESTATE PLANNING PURPOSES,
(iv) BY
VIRTUE OF THE LAWS OF DESCENT AND DISTRIBUTION UPON DEATH, OR (v)
PURSUANT TO A QUALIFIED DOMESTIC RELATIONS ORDER.
(c) Purchaser
agrees, prior to any permitted transfer of the Securities (other
than a transfer pursuant to an effective registration statement), 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. Purchaser
shall not make any disposition of any Securities except in accordance with the
restrictions in the legend set forth in Sections 4(a) and 4(b) above and the
transferee shall have agreed to be comply with such restrictions as then
applicable.
5. 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 5(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
Company:
Universal
Business Payments Solutions Acquisition Corporation
c/o UBPS
Services, LLC
Radnor
Financial Center
000 Xxxxx
Xxxxxx-Xxxxxxx Xxxx, Xxxxx X-000
Xxxxxx,
Xxxxxxxxxxxx 00000
Attn:
Xxxxx X. Xxxx
If to
Purchaser, at the address set forth on the signature page hereto,
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, telegraphed or mailed.
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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 day and year first above written.
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UNIVERSAL
BUSINESS PAYMENT SOLUTIONS ACQUISITION
CORPORATION
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By:
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Name:
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Xxxxx
X. Xxxx
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Title:
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President
and Chief Executive
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Officer
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By:
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Name:
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Address:
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Exhibit
A
Form of
Warrant Agreement
