Attached files
| file | filename |
|---|---|
| S-1/A - JetPay Corp | v208770_s1a.htm |
| EX-14 - JetPay Corp | v208770_ex14.htm |
| EX-4.4 - JetPay Corp | v208770_ex4-4.htm |
| EX-4.1 - JetPay Corp | v208770_ex4-1.htm |
| EX-4.2 - JetPay Corp | v208770_ex4-2.htm |
| EX-3.3 - JetPay Corp | v208770_ex3-3.htm |
| EX-4.3 - JetPay Corp | v208770_ex4-3.htm |
| EX-3.1 - JetPay Corp | v208770_ex3-1.htm |
| EX-4.5 - JetPay Corp | v208770_ex4-5.htm |
| EX-99.1 - JetPay Corp | v208770_ex99-1.htm |
| EX-10.5 - JetPay Corp | v208770_ex10-5.htm |
| EX-10.8 - JetPay Corp | v208770_ex10-8.htm |
| EX-10.3 - JetPay Corp | v208770_ex10-3.htm |
| EX-99.2 - JetPay Corp | v208770_ex99-2.htm |
| EX-10.7 - JetPay Corp | v208770_ex10-7.htm |
| EX-10.4 - JetPay Corp | v208770_ex10-4.htm |
| EX-10.2 - JetPay Corp | v208770_ex10-2.htm |
| EX-23.1 - JetPay Corp | v208770_ex23-1.htm |
| EX-99.3 - JetPay Corp | v208770_ex99-3.htm |
| EX-10.6 - JetPay Corp | v208770_ex10-6.htm |
RESTATED
CERTIFICATE OF INCORPORATION
OF
UNIVERSAL
BUSINESS PAYMENT SOLUTIONS ACQUISITION CORPORATION
Pursuant
to Section 245 of the Delaware General Corporation Law
Universal
Business Payment Solutions Acquisition Corporation, a corporation existing under
the laws of the State of Delaware (the “Corporation”), by its Chief Executive
Officer, hereby certifies as follows:
1.
The name of the Corporation is “Universal Business
Payment Solutions Acquisition Corporation.”
2.
The Corporation’s Certificate of Incorporation was filed
in the office of the Secretary of State of the State of Delaware on November 12,
2010.
3.
This Restated Certificate of Incorporation restates,
integrates and amends the Certificate of Incorporation of the
Corporation.
4.
This Restated Certificate of Incorporation was duly
adopted by joint written consent of the Board of Directors and stockholders of
the Corporation in accordance with the applicable provisions of Sections 141(f),
228, 242 and 245 of the General Corporation Law of the State of Delaware
(“GCL”).
5.
The text of the Certificate of Incorporation of the
Corporation is hereby restated in its entirety to read as follows:
Article
1
1.1 The
name of the corporation is Universal Business Payment Solutions Acquisition
Corporation (hereinafter referred to as the “Corporation”).
Article
2
2.1 The
registered office of the Corporation is to be located at c/o The Corporation
Trust Company, 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of its registered agent at that address is The
Corporation Trust Company.
Article
3
3.1 Subject
to Article 6, the purpose of the Corporation shall be to engage in any lawful
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware (the “GCL”).
Article
4
4.1 The
total number of shares of all classes of capital stock which the Corporation
shall have authority to issue is 101,000,000 of which 100,000,000 shares shall
be Common Stock of the par value of $0.001 per share (the “Common Stock”) and
1,000,000 shares shall be Preferred Stock of the par value of $0.001 per share
(the “Preferred Stock”).
4.2 Preferred
Stock. The Board of Directors is expressly granted authority to
issue shares of Preferred Stock, in one or more series, and to fix for each such
series such voting powers, full or limited, and such designations, preferences
and relative, participating, optional or other special rights and such
qualifications, limitations or restrictions thereof as shall be stated and
expressed in the resolution or resolutions adopted by the Board of Directors
providing for the issue of such series (a “Preferred Stock Designation”) and as
may be permitted by the GCL. The number of authorized shares of Preferred
Stock may be increased or decreased (but not below the number of shares thereof
then outstanding) by the affirmative vote of the holders of a majority of the
voting power of all of the then outstanding shares of the capital stock of the
Corporation entitled to vote generally in the election of directors, voting
together as a single class, without a separate vote of the holders of the
Preferred Stock, or any series thereof, unless a vote of any such holders is
required pursuant to any Preferred Stock Designation.
4.3 Common Stock.
Except as otherwise required by law or as otherwise provided in any Preferred
Stock Designation, the holders of the Common Stock shall exclusively possess all
voting power and each share of Common Stock shall have one vote.
Article
5
5.1 The
Corporation shall have perpetual existence.
Article
6
6.1 Sections
6.2 through 6.8 shall apply during the period commencing upon the filing of this
Restated Certificate of Incorporation and terminating upon the consummation of
any Business Combination, and may not be amended except in connection with a
Business Combination.
“Business Combination” shall mean the
acquisition by the Corporation of one or more operating businesses, whether
through a merger, share exchange, stock purchase, asset acquisition, plan of
arrangement, recapitalization, reorganization or other similar business
combination.
“Initial Shares” shall mean the
3,450,000 shares purchased by certain insiders prior to the IPO.
“IPO” shall mean the Corporation’s
initial public offering.
“IPO Shares” shall mean the shares of
Common Stock issued as part of the units sold in the IPO.
“Trust Account” shall mean the trust
account established by the Corporation at Morgan Stanley, with Continental Stock
Transfer & Trust Company acting as trustee, at the consummation of the IPO
and into which a certain amount of the net proceeds of the IPO and a private
placement of warrants to purchase shares of Common Stock, which will occur
concurrently with the IPO, will be deposited.
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6.2 Prior
to the consummation of any Business Combination, the Corporation shall submit
such Business Combination to its stockholders for approval regardless of whether
the Business Combination is of a type which normally would require such
stockholder approval under the GCL. In the event that a majority of the
then outstanding IPO Shares present and entitled to vote at the meeting to
approve the Business Combination are voted for the approval of such Business
Combination, the Corporation shall be authorized to consummate the Business
Combination; provided that the Corporation shall not consummate any Business
Combination if 93.1% or more of the IPO Shares are redeemed in connection with
the Business Combination or sold to the Corporation for cancellation under the
Corporation’s share repurchase program.
6.3 In
the event that a Business Combination is approved in accordance with the above
Section 6.2 and is consummated by the Corporation, any stockholder of the
Corporation holding IPO Shares may demand that the Corporation redeem his, her
or its IPO Shares for cash. If so demanded, the Corporation shall,
promptly after consummation of the Business Combination, redeem such IPO Shares
at a per share conversion price equal to their pro rata share of the aggregate
amount then on deposit in the trust account, plus any interest earned on such
stockholder’s portion of the trust account but less any interest that has been
released to the Corporation to fund its working capital requirements and pay any
of its tax obligations, in each case as described in Section 6.7, calculated as
of two business days prior to the consummation of the Business
Combination. Notwithstanding the foregoing, any holder of IPO Shares,
together with his, her or its affiliates or any other person with whom he, she
or it is acting in concert or as a partnership, syndicate or other “group” (as
defined under Section 13(d)(3) of the Securities Exchange Act of 1934, as
amended) for the purpose of acquiring, holding or disposing of the Corporation’s
securities, shall be restricted from seeking redemption rights with respect to
more than an aggregate 10% of the IPO Shares sold in the IPO.
6.4 In the event that the Corporation does
not consummate an initial Business Combination by
, 2012 [18 months from the date of the
prospectus] or , 2012, [21 months from the date of the
prospectus] if the Corporation has not executed a letter of intent,
memorandum of understanding or definitive agreement for a Business Combination
within 18 months of , 2011 [date of prospectus] the officers of the Corporation shall
take all such action necessary to liquidate the Trust Account and cause to be
distributed to the holders of the IPO Shares, on a pro rata basis, the amount in
the Trust Account, including any accrued interest then remaining in the Trust
Account. In the event the Trust Account is so dissolved, only the holders of
record of IPO Shares as of such liquidation shall receive pro rata liquidating
distributions and the Corporation shall pay no liquidating distributions with
respect to any other shares of capital stock of the
Corporation.
6.5 A
holder of IPO Shares shall be entitled to receive distributions from the Trust
Account only in the event of a liquidation of the Trust Account or in the event
he, she or it demands redemption of his, her or its shares in accordance with
Section 6.3 above. Except as may be required by applicable law, in no
other circumstances shall a holder of IPO Shares have any right or interest of
any kind in or to the Trust Account.
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6.6 Unless
and until the Corporation has consummated an initial Business Combination as
permitted under this Article 6, the Corporation may not consummate any other
business combination, whether by merger, capital stock exchange, asset
acquisition, stock purchase, reorganization or other similar business
combination or transaction or otherwise. The Corporation will not enter into an
initial Business Combination with any entity that has been affiliated since
_______ , 2006 [five years
prior to date of prospectus] with any of our officers, directors or
holders of the Initial Shares unless the Corporation obtains an opinion from an
independent investment banking firm reasonably acceptable to EarlyBirdCapital,
Inc., that the Business Combination is fair to its unaffiliated stockholders
from a financial point of view.
6.7 The
Corporation shall not, and no employee of the Corporation shall, disburse or
cause to be disbursed any of the proceeds held in the Trust Account except (i)
for any amounts that the Corporation may need to pay its income or other tax
obligations, (ii) for the release of interest income earned on the proceeds held
in the Trust Account to the Corporation to fund the Corporation’s working
capital requirements, (iii) in connection with an initial Business Combination
or thereafter, (iv) for any amounts necessary to purchase up to 50% of the IPO
Shares in accordance with a 10b5-1 plan or (v) as otherwise set forth
herein.
6.8 The number of directors on the Board of
Directors shall be fixed at 6.
Article
7
7.1 Election
of directors to the Board of Directors need not be by ballot unless the bylaws
of the Corporation so provide.
7.2 The
Board of Directors shall have the power, without the assent or vote of the
stockholders, to make, alter, amend, change, add to or repeal the bylaws of the
Corporation as provided in the bylaws of the Corporation, subject to the power
of the stockholders to alter or repeal any bylaw whether adopted by them or
otherwise.
7.3 The
directors in their discretion may submit any contract or act for approval or
ratification at any annual meeting of the stockholders or at any meeting of the
stockholders called for the purpose of considering any such act or contract, and
any contract or act that shall be approved or be ratified by the vote of the
holders of a majority of the stock of the Corporation which is represented in
person or by proxy at such meeting and entitled to vote thereat (provided that a
lawful quorum of stockholders be there represented in person or by proxy),
unless a higher vote is required by applicable law, shall be as valid and
binding upon the Corporation and upon all the stockholders as though it had been
approved or ratified by every stockholder of the Corporation, whether or not the
contract or act would otherwise be open to legal attack because of directors’
interests, or for any other reason.
7.4 In
addition to the powers and authorities hereinbefore or by statute expressly
conferred upon them, the directors are hereby empowered to exercise all such
powers and do all such acts and things as may be exercised or done by the
Corporation; subject, nevertheless, to the provisions of the statutes of
Delaware, of this Restated Certificate of Incorporation, and to any bylaws from
time to time made by the stockholders; provided, however, that no bylaw so made
shall invalidate any prior act of the directors which would have been valid if
such bylaw had not been made.
4
Article
8
8.1 A
director of the Corporation shall not be personally liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director, except for liability (i) for any breach of the director’s duty of
loyalty to the Corporation or its stockholders, (ii) for acts or omissions not
in good faith or which involve intentional misconduct or a knowing violation of
law, (iii) under Section 174 of the GCL or (iv) for any transaction from which
the director derived an improper personal benefit. If the GCL is amended
to authorize corporate action further eliminating or limiting the personal
liability of directors, then the liability of a director of the Corporation
shall be eliminated or limited to the fullest extent permitted by the GCL, as so
amended. Any repeal or modification of this Section 8.1 by the
stockholders of the Corporation shall not adversely affect any right or
protection of a director of the Corporation with respect to events occurring
prior to the time of such repeal or modification.
8.2 The
Corporation, to the full extent permitted by Section 145 of the GCL, as amended
from time to time, shall indemnify all persons whom it may indemnify pursuant
thereto. Expenses (including attorneys’ fees) incurred by an officer or
director in defending any civil, criminal, administrative, or investigative
action, suit or proceeding for which such officer or director may be entitled to
indemnification hereunder shall be paid by the Corporation in advance of the
final disposition of such action, suit or proceeding upon receipt of an
undertaking by or on behalf of such director or officer to repay such amount if
it shall ultimately be determined that he is not entitled to be indemnified by
the Corporation as authorized hereby.
Article
10
10.1 Subject
to the provisions set forth in Article 6, the Corporation reserves the right to
amend, alter, change or repeal any provision contained in this Restated
Certificate in the manner now or hereafter prescribed by law, and all rights and
powers conferred herein on stockholders, directors and officers are subject to
this reserved power.
IN
WITNESS WHEREOF, the Corporation has caused this Restated Certificate of
Incorporation to be signed by Bipin C. Shah, its Chief Executive Officer, as
of ·,
2011
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Bipin
C. Shah, Chief Executive
Officer
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