Form of Letter Agreement for all holders of founders’ units other than the sponsor]
Exhibit 10.9
[Form of Letter Agreement for all holders of founders’ units other than the sponsor]
, 2008
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Re: Initial Public Offering of FinTech Acquisition Corp.
Ladies and Gentlemen:
This letter is being delivered to you in accordance with the Underwriting Agreement (the
“Underwriting Agreement”) entered into by and between FinTech Acquisition Corp., a Delaware
corporation (the “Company”), and UBS Securities LLC as the representatives of the underwriters
named in Schedule A thereto (the “Underwriters”), relating to an underwritten initial public
offering (the “IPO”) of the Company’s units (the “Units”), each composed of one share of the
Company’s common stock, par value $0.0001 per share (the “Common Stock”), and one warrant, which is
exercisable for one share of Common Stock (the “Warrants”). Certain capitalized terms used herein
are defined in paragraph 9 hereof.
In order to induce the Company and the Underwriters to enter into the Underwriting Agreement
and to proceed with the IPO, and in recognition of the benefit that such IPO will confer upon the
undersigned officer and/or director and/or stockholder of the Company, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the
undersigned hereby agrees with the Company as follows:
1. In the event that the Company fails to consummate an Initial Business Combination within
24 months from the effective date (the “Effective Date”) of the registration statement on Form S-1
(File No. 333-149977) relating to the IPO (the “Registration Statement”), the undersigned will take
all reasonable actions within his or her power to (a) cause the Trust Account to be liquidated and
distributed to the holders of the IPO Shares as soon as reasonably practicable and (b) cause the
Company to liquidate as soon as reasonably practicable (the earliest date on which the conditions
in clauses (a) and (b) are both satisfied being the “Liquidation Date”). The undersigned agrees
that in connection with any cessation of corporate existence of the Company on [___, 2010], he
or she will use his or her best efforts cause the Company to adopt a plan of dissolution and
distribution in accordance with Section 281(b) of the General Corporation Law of the State of
Delaware or any successor provision thereto. The undersigned agrees that in connection with any
cessation of corporate existence of the Company on [ ], 2010, it will not interfere with or
obstruct in any way, the Company’s adoption of a plan of dissolution and distribution in accordance
with Section 281(b) of the General Corporation Law of the State of Delaware or any successor
provision thereto.
2. (a) Neither the undersigned nor any affiliate of the undersigned will be entitled to
receive, and no such person will accept, any finder’s fee, reimbursement or cash payment from the
Company for services rendered to the Company prior to or in connection with the consummation of an
Initial Business Combination, other than (subject to the following sentence) reimbursement for any
out-of-pocket expenses or advances related to: (A) the IPO, (B) identifying, investigating and
consummating an Initial Business Combination or (C) other expenses or advances that the Company is
permitted incur. The undersigned acknowledges that the Company’s Audit Committee (or the Company’s
Board of Directors in the case of a director who is a member of the Company’s Audit Committee) will
review and approve all payments made to the undersigned, the Company’s other officers and directors
and the Company’s or their affiliates.
(b) Neither the undersigned, nor any family member of the undersigned, nor any affiliate of
the undersigned, will accept a finder’s fee, consulting fee or any other compensation or fees from
any person or other entity in connection with an Initial Business Combination, other than
compensation or fees that may be received for any services provided
following such Initial Business Combination.
The undersigned acknowledges and agrees that the Company will not consummate any Initial
Business Combination which involves any entity in which its officers, directors or affiliates has a
financial interest unless (i) the Company obtains an opinion from an unaffiliated, independent
investment banking firm that is a member of the Financial Institutions Regulatory Authority
(“FINRA”), that such business combination is fair to the Company’s stockholders from a financial
point of view and (ii) the business combination is approved by a majority of the Company’s
independent and disinterested directors.
3. The undersigned’s biographical information furnished to the Company and attached hereto as
EXHIBIT A is true and accurate in all respects, does not omit any material information with respect
to the undersigned’s background and contains all of the information required to be disclosed
pursuant to Item 401 of Regulation S-K, promulgated under the Securities Act of 1933, as amended.
The undersigned’s Financial Institution Regulatory Authority (“FINRA”) questionnaire furnished to
the Company and the Underwriters and attached hereto as EXHIBIT B is true and accurate in all
respects. The undersigned represents and warrants that:
(a) the undersigned is not subject to or a respondent in any legal action for, any injunction,
cease-and-desist order or order or stipulation to desist or refrain from, any act or practice
relating to the offering of securities in any jurisdiction;
(b) the undersigned has never been convicted of or pleaded guilty to any crime (i) involving
any fraud or (ii) relating to any financial transaction or handling of funds of another person, or
(iii) pertaining to any dealings in any securities and the undersigned is not currently a defendant
in any such criminal proceeding; and
(c) the undersigned has never been suspended or expelled from membership in any securities or
commodities exchange or association or had a securities or commodities license or registration
denied, suspended or revoked.
4. To the extent the undersigned is a director of the Company, the undersigned agrees that,
prior to the consummation of the Initial Business Combination, he or she will not propose any
amendment to [Article Sixth] of the Company’s Amended and Restated Certificate of Incorporation or
support, endorse or recommend any proposal that stockholders amend
any of these provisions.
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5. To the extent the undersigned is an officer or director of the Company, the undersigned has
full right and power, without violating any agreement by which he or she is bound (including,
without limitation, any non-competition or non-solicitation agreement with any employer or former
employer), to enter into this letter agreement and serve as (i) a director of the Company, (ii) an
officer of the Company, or (iii) both, and hereby consents to being named in the Registration
Statement as an officer, director or both of the Company.
6. If the Company seeks approval of its stockholders of an Initial Business Combination, the
undersigned will:
(a) vote any Founders’ Shares owned directly or indirectly in accordance with the majority of
the shares of Common Stock voted by the Company’s Public Stockholders in connection with the vote
on any Initial Business Combination; and
(b) vote all shares of Common Stock that he or she may acquire in or following the IPO in
favor of the Initial Business Combination.
7. The undersigned hereby waives any and all right, title, interest or claim of any kind in
or to any distributions of the Trust Account, or to any other amounts distributed in connection
with a liquidating distribution of the Company, with respect to his or her Founders’ Shares (a
“Claim”), and hereby waives any Claim the undersigned 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; PROVIDED, that the foregoing shall not apply to any IPO
Shares acquired by the undersigned. The undersigned hereby agrees that the Company shall be
entitled to reimbursement from the undersigned for any distribution of the Trust Account or any
other amounts distributed by the Company in connection with a liquidating distribution received by
the undersigned with respect to its Founders’ Shares.
8. The undersigned hereby acknowledges and agrees that in addition to the transfer
restrictions set forth in (1) the Founders’ Securities Purchase Agreement, dated as of March 10,
2008 (the “Founders’ Securities Purchase Agreement”), by and among the Company and the purchasers
named therein, and (2) the Warrant Agreement, dated as of , 2008, (the “Warrant Agreement”) by and
between the Company and American Stock Transfer & Trust Company, he or she will not (A) offer,
sell, contract to sell, pledge, hypothecate, grant any option to purchase or otherwise dispose of
(or enter into any transaction which is designed to, or might reasonably be expected to, result in
the disposition (whether by actual disposition or effective economic disposition due to cash
settlement or otherwise) by the undersigned or any affiliate of the undersigned or any person in
privity with the undersigned or any affiliate of the undersigned), directly or indirectly,
including the participation in the filing of a registration statement with the Securities and
Exchange Commission in respect of, (B) establish or increase a put equivalent position or liquidate
or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange
Act of 1934, as amended, and the rules and regulations of the Securities and Exchange Commission
promulgated thereunder, with respect to or (C) enter into any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of, or any
securities convertible into or exercisable or exchangeable for, or other rights to purchase,
whether any such transaction is to be settled by delivery of Common Stock or such other securities,
in cash or otherwise, any Securities (as defined in the Founders’ Securities Purchase Agreement),
or publicly announce an intention to effect any such transaction, for a period of one year from the
date the Company completes its initial business
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combination; provided, however, that notwithstanding anything to the contrary in this
paragraph 8, the undersigned may, at any time, (i) transfer such Securities to Permitted
Transferees (as defined in the Warrant Agreement) as contemplated by the Founders’ Securities
Purchase Agreement and Warrant Agreement, as the case may be, and (ii) exercise Founders’ Warrants
(as defined in Founders’ Securities Purchase Agreement), each as contemplated by the Warrant
Agreement.
9. As used herein, (i) “Initial Business Combination” shall mean the acquisition through a
merger, capital stock exchange, asset acquisition, stock purchase, reorganization or other similar
business combination, of one or more businesses or assets in connection with which the Company will
require that a majority of the shares of Common Stock voted by the Public Stockholders are voted in
favor of such acquisition and stockholders owning up to one share less than 30% of the IPO Shares
exercise their conversion rights; (ii) “Founders’ Shares” shall mean an aggregate of 2,875,000
shares of Common Stock owned by TBBK Acquisitions I, LLC and officers, directors and employees of
the Company and/or The Bancorp, Inc.; (iii) “IPO Shares” shall mean the shares of Common Stock
underlying the Units issued in the Company’s IPO; (iv) “Public Stockholders” shall mean purchasers
of Common Stock in the IPO or in the secondary market, including any of the Company’s officers or
directors or their affiliates, including the undersigned, to the extent that they purchase or
acquire Common Stock in the IPO or the secondary market; and (v) “Trust Account” shall mean the
trust account established under the Investment Management Trust Agreement, dated as of the date
hereof, by and between the Company and American Stock Transfer & Trust Company.
The undersigned acknowledges and understands that the Company and the Underwriters will rely
upon the agreements, representations and warranties set forth herein in proceeding with the IPO.
Nothing contained herein shall be deemed to render the Underwriters a representative of, or a
fiduciary with respect to, the Company, its stockholders, or any creditor or vendor of the Company
with respect to the subject matter hereof.
This letter agreement shall be binding on the undersigned and such person’s respective
successors, heirs, personal representatives and assigns. This letter agreement shall terminate on
the earlier of (i) the consummation of an Initial Business Combination and (ii) the Liquidation
Date; PROVIDED that such termination shall not relieve the undersigned from liability for any
breach of this agreement prior to its termination.
This letter agreement shall be governed by and interpreted and construed in accordance with
the laws of the State of New York applicable to contracts formed and to be performed entirely
within the State of New York, without regard to the conflicts of law provisions thereof to the
extent such principles or rules would require or permit the application of the laws of another
jurisdiction.
No term or provision of this letter agreement may be amended, changed, waived, altered or
modified except by written instrument executed and delivered by the party against whom such
amendment, change, waiver, alteration or modification is to be enforced.
[SIGNATURE PAGE FOLLOWS]
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Name: |
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Title: |
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| Accepted and agreed: | ||||
| FINTECH ACQUISITION CORP. | ||||
By: |
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| Title: | ||||
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Exhibit A
Exhibit B
