FINTECH ACQUISITION CORP. SPONSOR SECURITIES PURCHASE AGREEMENT
Exhibit 10.2
THIS SPONSOR 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
TBBK ACQUISITIONS I, LLC, a Delaware limited liability company (the “Purchaser”).
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 Purchaser desires
to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in
this Agreement, at an aggregate purchase price of $13,125 (the “Sponsor Units Purchase Price”),
1,509,375 units (the “Sponsor Units”), each unit consisting of one share of the Company’s common
stock, par value $0.001 per share (the “Sponsor Shares”) and one warrant to purchase one Share at
an exercise price of $7.50 per share (the “Sponsor Warrants”).
WHEREAS, concurrently with the closing of the Initial Public Offering, the Purchaser desires
to purchase and the Company desires to issue and sell, upon the terms and conditions set forth in
this Agreement, for an aggregate purchase price of $3,300,000 (the “Private Placement Warrants
Purchase Price”), 3,300,000 warrants to purchase Shares (the “Private Placement 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 Sponsor Units, Sponsor Shares,
Sponsor Warrants and Private Placement Warrants
Authorization, Purchase and Sale; Terms of the Sponsor Units, Sponsor Shares,
Sponsor Warrants and Private Placement Warrants
A. Authorization of the Sponsor Units, Sponsor Shares, Sponsor Warrants, Private
Placement Warrants and Shares Underlying each of the Sponsor Warrants and Private Placement
Warrants. The Company has duly authorized the issuance and sale to the Purchaser of each of the
Sponsor Units, Sponsor Shares, Sponsor Warrants, Private Placement Warrants and Shares underlying
each of the Sponsor Warrants and Private Placement Warrants (collectively, the “Securities”).
B. Purchase and Sale of the Sponsor Units and Private Placement Warrants. Concurrently
with the execution and delivery of this Agreement, in the case of the Sponsor Units, and
concurrently with the closing of the Initial Public Offering, in the case of the Private Placement
Warrants, or as each such date may be extended from time to time by mutual agreement of the parties
(in each case, the “Closing Date”), the Company shall issue and sell to the Purchaser and the
Purchaser shall purchase from the Company, the Sponsor Units, Sponsor Shares and Sponsor Warrants
for the Sponsor Units Purchase Price and the Private Placement Warrants for the Private Placement
Warrants Purchase Price, respectively. On the applicable Closing Date, or as soon thereafter as is
practicable, the Company shall deliver certificates evidencing the Sponsor Units, Sponsor Shares
and Sponsor Warrants, or the Private Placement Warrants, as the case may be, to be purchased by the
Purchaser hereunder, in each case registered in the Purchaser’s name, upon the payment by the
Purchaser of the Sponsor Units Purchase Price or the Private Placement Warrants Purchase Price, as
the case may be, 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 Sponsor Units, Sponsor Shares, Sponsor Warrants and Private Placement
Warrants.
(i) Sponsor Units: Each Unit of the Sponsor Units shall consist of one Sponsor Share and one
Sponsor Warrant and shall have the terms set forth in the Unit Certificate attached as EXHIBIT A
hereto.
(ii) Sponsor Shares: The Sponsor Shares shall have the terms set forth in the Certificate of
Incorporation of the Company and the Sponsor Share Certificate attached as EXHIBIT B hereto.
Without limiting the foregoing, the Purchaser hereby expressly agrees that if the Corporation
consummates the Initial Public Offering, then (i) in connection with the stockholder vote required
to approve a merger, capital stock exchange, asset acquisition or other similar business
combination with one or more businesses or assets (a “Business Combination”), the Purchaser agrees
to vote the Sponsor 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 (ii) the Purchaser
agrees to waive any right to participate in any liquidation distribution to the extent set forth in
Section 3.D of this Agreement.
(iii) Sponsor Warrants: The Sponsor Warrants shall have the terms set forth in the Warrant
Agreement set forth as EXHIBIT C hereto.
(iv) Private Placement Warrants: The Private Placement Warrants shall have the terms set forth
in the Warrant Agreement set forth as EXHIBIT C hereto, as such terms may be amended prior to the
applicable Closing Date with the consent of the Purchaser, which consent shall be evidenced by the
purchase of the Private Placement Warrants on the applicable Closing Date.
(v) Transfer Restrictions: In addition to the restrictions on transfer set forth in Section 9
hereof, the Purchaser shall not sell or transfer the Sponsor Units, Sponsor Shares, Sponsor
Warrants and the Shares underlying the Sponsor Warrants for a period of
one year from the date the Company completes its initial 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 Sponsor 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 Sponsor Units, Sponsor Shares and Sponsor Warrants as provided in (vii)
below. During this period, the Purchaser and its 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.(v). In addition to the restrictions on transfer
set forth in Section 9 hereof, the Purchaser acknowledges that the Private Placement Warrants and
the Shares issuable upon exercise of the Private Placement Warrants are subject to the restrictions
on transfer set forth in the Warrant Agreement.
(vi) Registration Rights: In connection with the closing of the Initial Public Offering, the
Company and the Purchaser shall enter into an agreement (the “Registration Rights Agreement”)
granting the Purchaser registration rights with respect to the Securities.
(vii) Forfeiture of Sponsor Units, Sponsor Shares and Sponsor Warrants: The Purchaser hereby
agrees to forfeit a number of Securities necessary to ensure that the aggregate amount of Sponsor
Shares held by the Purchaser, insiders of the Company and The Bancorp, Inc., and any permitted
transferees, does not exceed 20% of the issued and outstanding common stock of the Company upon the
consummation of the Initial Public Offering.
SECTION 2
Representations and Warranties of the Company
Representations and Warranties of the Company
As a material inducement to the Purchaser to enter into this Agreement and purchase the
Sponsor Units and Private Placement Warrants, 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, the Warrant Agreement, the Sponsor Warrants
and the Private Placement Warrants and performance of this Agreement and the Warrant Agreement have
been duly authorized by the Company as of the applicable Closing Date. 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 Sponsor Warrants and the Private Placement Warrants, constitute valid and binding
obligations of the Company, enforceable in accordance with their respective terms as of the
applicable Closing Date.
(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 as of the applicable
Closing Date (i) conflict with or result in a breach of the terms, conditions or provisions of,
(ii) constitute a default under, (iii) result in the creation of any lien, security interest,
charge or encumbrance upon the Company’s capital stock or assets, (iv) result in a violation of, or
(v) 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, and (c)
liens, claims or encumbrances imposed due to the actions of the Purchaser.
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 Purchaser
Representations and Warranties of the Purchaser
As a material inducement to the Company to enter into this Agreement and issue and sell the
Sponsor Units and Private Placement Warrants, the Purchaser hereby represents and warrants to the
Company that:
A. Capacity and State Law Compliance. The Purchaser has 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. The Purchaser understands and acknowledges that the
purchase of Shares upon the exercise of the Private Placement
Warrants and the Sponsor 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) This Agreement constitutes a valid and binding obligation of the Purchaser, enforceable in
accordance with its terms.
(ii) The execution and delivery by the Purchaser of this Agreement and the fulfillment of and
compliance with the respective terms hereof by the Purchaser do not and shall not as of the
applicable Closing Date conflict with or result in a breach of the terms, conditions or provisions
of the certificate of formation or limited liability company agreement of the Purchaser or any
other agreement, instrument, order, judgment or decree to which the Purchaser is subject.
C. Investment Representations.
(i) The Purchaser is acquiring the Securities for its own account, for investment only and not
with a view towards, or for resale in connection with, any public sale or distribution thereof.
(ii) The Purchaser is an “accredited investor” as such term is defined in Rule 501(a)(3) of
Regulation D.
(iii) The 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 United States 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.
(iv) The Purchaser 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) The Purchaser has 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 Purchaser. The Purchaser has been afforded the opportunity to ask questions
of the executive officers and directors of the Company. The Purchaser understands that its
investment in the Securities involves a high degree of risk. The Purchaser has sought such
accounting, legal and tax advice as the Purchaser has considered necessary to make an informed
investment decision with respect to the Purchaser’s acquisition of the Securities.
(vi) The Purchaser understands 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 Purchaser nor
have such authorities passed upon or endorsed the merits of the offering of the Securities.
(vii) The Purchaser understands 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 Purchaser understands 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) The Purchaser has such knowledge and expertise in financial and business matters, knows
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, is capable of evaluating
the merits and risks of an investment in the Securities and is able to bear the economic risk of an
investment in the Securities in the amount contemplated hereunder. The Purchaser has adequate means
of providing for its 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. The Purchaser can afford a complete loss of its investment in the Securities.
D. Waiver of Right to Amounts in the Trust Account and Indemnification.
(i) The 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 and the sale of the Private Placement Warrants, as a result of any
liquidation of the trust account, with respect to the Sponsor 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
the Purchaser’s ownership of Shares other than the Sponsor Shares.
(ii) The 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) The Purchaser agrees that to the extent any waiver of rights under this Section 3.D. is
ineffective as a matter of law, the 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. The Purchaser acknowledges the receipt and sufficiency of consideration received
from the Company hereunder in this regard.
SECTION 4
Conditions of the Purchaser’s Obligations
Conditions of the Purchaser’s Obligations
The obligation of the Purchaser to purchase and pay for the Sponsor Units and Private
Placement Warrants is subject to the fulfillment, on or before the applicable Closing Date, 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 applicable Closing Date as
though then made.
B. Performance. The Company shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be performed or
complied with by it on or before the applicable Closing Date.
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 5
Conditions of the Company’s Obligations
Conditions of the Company’s Obligations
The obligations of the Company to the Purchaser under this Agreement are subject to the
fulfillment, on or before the applicable Closing Date, 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 applicable Closing Date as though
then made.
B. Performance. The Purchaser shall have performed and complied with all agreements,
obligations and conditions contained in this Agreement that are required to be performed or
complied with by it on or before the applicable Closing Date.
C. 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 Sponsor Units and the Private Placement Warrants.
D. 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
Termination
Termination
This Agreement may be terminated at any time prior to the applicable Closing Date as it
relates only to the Securities to be purchased pursuant to this Agreement on and after such Closing
Date upon the mutual written consent of the Company and the Purchaser.
SECTION 7
Survival of Representations and Warranties
Survival of Representations and Warranties
All of the representations and warranties contained herein shall survive the applicable
Closing Date.
SECTION 8
Definitions
Definitions
Terms used but not otherwise defined in this Agreement shall have the meaning assigned such
terms in the Registration Statement.
SECTION 9
Miscellaneous
Miscellaneous
A. Legends.
(i) The certificates evidencing the Sponsor Units and the Sponsor Shares will include the
legend set forth on EXHIBITS A AND B hereto, respectively, which the Purchaser has read and
understands. The Sponsor Warrants, the Private Placement Warrants and Shares issued upon exercise
of the Private Placement Warrants and the Sponsor Warrants (as defined in the Warrant Agreement)
will include the legend set forth
in Exhibit B to the Warrant Agreement in the case of the Warrants and in the Warrant Agreement
in the case of the Shares, which the Purchaser has read and understands.
(ii) By accepting the Securities, the 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 Purchaser agrees 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 Purchaser also understands and acknowledges that the transfer of
the Sponsor Units, Sponsor Shares, Sponsor Warrants and the Private Placement Warrants and exercise
of the Sponsor Warrants and the Private Placement Warrants are subject to the specific conditions
to such transfer or exercise as outlined herein and the Warrant Agreement as to which the Purchaser
specifically assents by its 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:
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FinTech Acquisition Corp. | |
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With a copy to:
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Ledgewood, P.C. | |
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If to the Purchasers:
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c/o The Bancorp, Inc. | |
| Attn: ▇▇▇▇▇ ▇▇▇▇ | ||
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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 Purchase Agreement on the date first
written above.
COMPANY:
By: |
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Name:
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Title:
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President |
PURCHASER:
TBBK ACQUISITIONS I, LLC
By: The Bancorp, Inc., its sole member
| By: | ||||||
| Name: | ||||||
| Title: | President and Chief Operating Officer |