Form of Letter Agreement for TBBK Acquisitions I, LLC and The Bancorp, Inc.]
Exhibit 10.10
[Form of Letter Agreement for TBBK Acquisitions I, LLC and The Bancorp, Inc.]
, 2008
UBS Securities LLC
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 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 representative (the “Representative”) 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 10 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, and for other good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the undersigned hereby agree 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 its 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], it
will 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) (i) repayment of that
certain Promissory Note in the amount of $100,000 made to the Company by TBBK Acquisitions I, LLC,
to cover offering-related
and organizational expenses; (ii) a payment of an aggregate of $7,500 per month to The
Bancorp, Inc. for office space, secretarial and administrative services; and (iii) 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 acknowledge 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 officers and
directors and the Company’s or their affiliates, other than the $7,500 per month payment described
in the immediately preceding sentence.
(b) Neither 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.
(c) The undersigned acknowledge and agree that the Company is not permitted to enter into an
Initial Business Combination with any target in which the undersigned, any of its respective
affiliates, officers or directors, or officers or directors of the Company, have 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. If the Company seeks approval of its stockholders of an Initial Business Combination, the
undersigned will:
(a) vote all of its Founders’ Shares owned directly or indirectly by it either for or against
an Initial Business Combination in the same manner as a majority of the Company’s Public
Stockholders who vote at the meeting called for the purpose of approving the Initial Business
Combination; and
(b) vote all shares of Common Stock that it may acquire in or following the IPO in favor of
the Initial Business Combination.
4. Notwithstanding the $7,500 per month payment for office space and secretarial and
administrative services, the undersigned hereby waive 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 its Founders’ Shares
(any “Claim”), and hereby waive 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 agree 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.
5. In the case of the Company’s dissolution and liquidation, the undersigned understand that
the Company expects that all costs and expenses associated with implementing the Company’s plan of
distribution, as well as payments to any creditors, will be funded from amounts remaining out of
the $50,000 of proceeds from the IPO held outside the Trust Account and from the $2.0 million in
interest income on the balance of the Trust Account that will be released to the Company to fund
its working capital requirements. The undersigned further understand that if those funds are not
sufficient to cover the costs and expenses associated with implementing the Company’s plan of
distribution, to the extent that there is any interest accrued in the Trust Account not required to
pay income taxes on interest income
earned on the Trust Account balance, the Company may request that the Trustee release to it an
additional amount of up to $75,000 of such accrued interest to pay those costs and expenses. Should
there be no such accrued interest available or should the aforementioned funds still not be
sufficient, the undersigned hereby agree to reimburse the Company for its out-of-pocket costs
associated with its dissolution and liquidation, excluding any special, indirect or consequential
costs, such as litigation, pertaining to the dissolution and liquidation. The undersigned hereby
represent and warrant to the Company that it is an accredited investor as such term is defined in
Regulation D under the Securities Act of 1933, as amended.
6. The undersigned agree to indemnify and hold harmless the Company against any and all
losses, liabilities, claims, damages and expenses whatsoever (including, but not limited to, any
and all legal or other expenses reasonably incurred in investigating, preparing or defending
against any litigation, whether pending or threatened, or any claim whatsoever) (collectively,
“Damages”) to which the Company may become subject, but only if, and to the extent (i) the claims
reduce the amounts in the Trust Account available for payment to holders of the IPO Shares in the
event of a liquidation of the Trust Account and (ii) the claims are made by (A) a vendor for
services rendered, or products sold, to the Company, (B) by a third party with which the Company
enters into a contractual relationship following consummation of the IPO, or (C) by a prospective
target business arising out of any negotiations, contracts or agreements with the Company, provided
that such indemnity shall not apply to any amounts claimed owed to a third party who executed a
valid and legally enforceable waiver of any right, title, interest or claim of any kind in or to
the Trust Account, or as to any claims under the Company’s obligation to indemnify the Underwriters
against certain liabilities, including liabilities under the Securities Act of 1933, as amended.
7. The undersigned’s FINRA questionnaire furnished to the Company and the Underwriters and
attached hereto as Exhibit A is true and accurate in all respects. Each of 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.
8. The undersigned has full right and power, without violating any agreement by which it is
bound, to enter into this letter agreement, and hereby consents to being named in the Registration
Statement as a shareholder of the Company.
9. The undersigned hereby acknowledge and agree that in addition to the transfer restrictions
set forth in (1) the Sponsor Securities Purchase Agreement, dated as of March 10, 2008, (the
“Sponsor Purchase Agreement”) by and between the Company and TBBK Acquisitions I, LLC, and (2) the
Warrant Agreement, dated as of , 2008, (the “Warrant Agreement”) by and between the Company and
American Stock Transfer & Trust Company, it 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 Sponsor 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
Combination; provided, however, that notwithstanding anything to the contrary in this paragraph 9,
the undersigned may, at any time, (i) transfer such Securities to Permitted Transferees (as defined
in the Warrant Agreement but subject to the terms of the Sponsor Purchase Agreement), (ii) transfer
Private Placement Warrants (as defined in the Sponsor Purchase Agreement) and Shares underlying
such Private Placement Warrants after the Company completes its Initial Business Combination, (iii)
exercise Sponsor Warrants and Private Placement Warrants (as defined in the Sponsor Purchase
Agreement) as contemplated by the Warrant Agreement and (iv) issue additional membership interests
in TBBK Acquisitions I, LLC.
10. 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 (and any shares received as dividends thereon) acquired prior to the IPO
owned by (a) TBBK Acquisitions I, LLC, which is wholly-owned by The Bancorp, Inc., (b) officers and
directors of the Company, and (c) certain employees of 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, as Trustee.
The undersigned acknowledge 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 and provided further that paragraph 6 of this
agreement shall survive a 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]
| TBBK ACQUISITIONS I, LLC | ||||
| By: The Bancorp, Inc., its sole member | ||||
| Title: | ||||
| THE BANCORP, INC. | ||||
Name: |
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Title: |
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| Accepted and agreed: | ||||
| FINTECH ACQUISITION CORP. | ||||
By: |
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| Name: | ||||
| Title: | ||||
Exhibit A
