Attached files
| file | filename |
|---|---|
| S-1/A - JetPay Corp | v208770_s1a.htm |
| EX-14 - JetPay Corp | v208770_ex14.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-3.2 - JetPay Corp | v208770_ex3-2.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 |
WARRANT
AGREEMENT, dated as of , 2011,
(the “Agreement”), by and between
Universal Business Payment Solutions Acquisition Corporation, a Delaware
corporation, with offices located at Radnor Financial Center, 150 North
Radnor-Chester Road, Suite F-200, Radnor, Pennsylvania 19087 (the “Company”),
and Continental Stock Transfer & Trust Company, a New York corporation, with
offices at 17 Battery Place, New York, New York 10004 (the “Warrant
Agent”).
INTRODUCTION
WHEREAS,
the Company is engaged in a public offering (“Public Offering”) of securities
and, in connection therewith, has determined to issue and sell up to 13,800,000
Warrants to the public investors (“Public Warrants”), each of such Warrants
evidencing the right of the holder thereof to purchase one share of the
Company’s common stock, par value $0.001 per share (“Common Stock”), for $6.90,
subject to adjustment as described herein;
WHEREAS,
the Company has filed with the Securities and Exchange Commission a Registration
Statement on Form S-1, No. 333-171359 (the “Registration Statement”), for the
registration, under the Securities Act of 1933, as amended (the “Act”), of,
among other securities, the Public Warrants and the Common Stock issuable upon
exercise of the Public Warrants;
WHEREAS,
the Company has received a binding commitment from EarlyBirdCapital, Inc.
or its designees (“EBC”), to purchase an aggregate of 720,000 warrants
(the “EBC Warrants”), which will be identical to the Public Warrants with
certain exceptions set forth herein, in a private placement to take place
simultaneously with the consummation of the Public Offering;
WHEREAS,
the Company has received binding commitments from certain individuals
(collectively “Insiders”) to purchase an aggregate of 6,240,000 warrants
(collectively, the “Insider Warrants” and, together with the Public Warrants and
the EBC Warrants, the “Warrants”), which will be identical to the Public
Warrants with certain exceptions set forth herein, in a private placement to
take place simultaneously with the consummation of the Public
Offering;
WHEREAS,
the Company desires the Warrant Agent to act on behalf of the Company, and the
Warrant Agent is willing to so act, in connection with the issuance,
registration, transfer, exchange, redemption and exercise of the
Warrants;
WHEREAS,
the Company desires to provide for the form and provisions of the Warrants, the
terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights and immunities of the Company, the Warrant Agent and the
holders of the Warrants; and
WHEREAS,
all acts and things have been done and performed which are necessary to make the
Warrants, when executed on behalf of the Company and countersigned by or on
behalf of the Warrant Agent, as provided herein, the valid, binding and legal
obligations of the Company, and to authorize the execution and delivery of this
Agreement.
NOW,
THEREFORE, in consideration of the mutual agreements contained herein, the
Warrant Agent and the Company agree as follows:
1. Appointment of Warrant
Agent. The Company hereby appoints the Warrant Agent to act as
agent for the Company for the Warrants and the Warrant Agent hereby accepts such
appointment and agrees to perform the same in accordance with the terms and
conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each
Public Warrant shall be issued in registered form only, shall be in
substantially the form of Exhibit A hereto, the
provisions of which are incorporated herein, and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board or Chief Executive Officer and
Chief Financial Officer, Treasurer or Secretary of the Company. Each Insider
Warrant shall be issued in registered form only, shall be in substantially the
form of Exhibit
B hereto, the provisions of which are incorporated herein, and shall be
signed by, or bear the facsimile signature of, the Chairman of the Board or
Chief Executive Officer and Chief Financial Officer, Treasurer or Secretary of
the Company. Each EBC Warrant shall be issued in registered form
only, shall be in substantially the form of Exhibit C hereto, the
provisions of which are incorporated herein, and shall be signed by, or bear the
facsimile signature of, the Chairman of the Board or Chief Executive Officer and
Chief Financial Officer, Treasurer or Secretary of the Company. In
the event the person whose facsimile signature has been placed upon any Warrant
shall have ceased to serve in the capacity in which such person signed the
Warrant before such Warrant is issued, it may be issued with the same effect as
if he or she had not ceased to be such at the date of issuance.
2.2. Effect of
Countersignature. Unless and until countersigned by the Warrant Agent
pursuant to this Agreement, a Warrant shall be invalid and of no effect and may
not be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant Register. The
Warrant Agent shall maintain books (the “Warrant Register”) for the registration
of original issuance and the registration of transfer of the
Warrants. Upon the initial issuance of the Warrants, the Warrant
Agent shall issue and register the Warrants in the names of the respective
holders thereof in such denominations and otherwise in accordance with
instructions delivered to the Warrant Agent by the Company.
2.3.2. Registered Holder.
Prior to due presentment for registration of transfer of any Warrant, the
Company and the Warrant Agent may deem and treat the person in whose name such
Warrant shall be registered upon the Warrant Register (the “Registered Holder”),
as the absolute owner of such Warrant and of each Warrant represented thereby
(notwithstanding any notation of ownership or other writing on the Warrant
Certificate made by anyone other than the Company or the Warrant Agent), for the
purpose of any exercise thereof, and for all other purposes, and neither the
Company nor the Warrant Agent shall be affected by any notice to the
contrary.
2
2.4. Detachability of Public
Warrants. Each Public Warrant shall initially be issued
together with one share of Common Stock as a unit (a “Unit”). The
shares of Common Stock and the Public Warrants comprising the Units shall not be
separately transferable until 90 days after the date of the prospectus relating
to the Public Offering filed with the U.S. Securities and Exchange Commission
(the “SEC”) pursuant to Rule 424 under the Act unless, EBC, as representative of
the underwriters, informs the other parties hereto of its decision to allow
earlier separate trading, but in no event will EBC, as representative of the
underwriters, allow separate trading of the securities comprising the Units
until the Company files a Current Report on Form 8-K with the SEC, including an audited balance
sheet that will reflect our receipt of the proceeds of this offering, including
the proceeds from the exercise, if any, of the over-allotment option if it is
exercised prior to the filing of the Form 8-K and (b) the Company issues a press
release announcing when such separate trading will begin. The date on
which the securities comprising the Units become separately transferable is
referred to herein as the “Detachment Date.” Prior to the Detachment
Date, Public Warrants may be transferred or exchanged only together with the
Unit in which such Public Warrant is included, and only for the purpose of
effecting, or in conjunction with, a transfer or exchange of such
Unit.
2.5. Restrictions on Transfer of
Insider Warrants and EBC Warrants.
2.5.1. Except
for transfers (i) to the Company’s officers and
directors, (ii) to an entity’s members upon its liquidation, (iii) by
bona fide gift to a member of an initial stockholder’s (as the term in defined
in the Registration Statement) 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) in
the case of EBC, to an underwriter or a selected dealer in connection with the
Public Offering, or (v) in the case of EBC, to a bona fide officer or partner of
EBC or of any such underwriter or selected dealer (collectively,
“Permitted Transferees”), no Insider Warrant or EBC Warrant will be transferable
unless and until (a) there is then in effect a registration statement under the
Securities Act covering such transfer and such transfer is made in accordance
with such registration statement or (b) if reasonably requested by the Company,
(i) the holder of such Insider Warrant shall have furnished to the Company an
opinion of counsel reasonably satisfactory to the Company that such disposition
does not require registration under the Act and (ii) the transferee shall have
agreed in writing to be bound by the restrictions set forth in this Section
2.5.2.
2.5.2. The
holders of the Insider Warrants or EBC Warrants shall give the Company prior
written notice of any proposed transfer (other
than a proposed transfer pursuant to an effective registration
statement) of Insider Warrants or EBC Warrants expressing its desire
to effect such transfer and describing briefly the proposed
transfer.
3. Terms and Exercise of
Warrants.
3.1. Warrant Price. Each
Warrant shall, when countersigned by the Warrant Agent, entitle the registered
holder thereof, subject to the provisions of such Warrant and of this Agreement,
to purchase from the Company the number of shares of Common Stock stated
therein, at the price of $6.90 per whole share, subject to the adjustments
provided in Section 4 hereof and in the last sentence of this Section
3.1. The term “Warrant Price” as used in this Agreement refers to the
exercise price per share at which Common Stock may be purchased at the time a
Warrant is exercised. The Company in its sole discretion may lower
the Warrant Price at any time prior to the Expiration Date (as defined below)
for a period of not less than 10 business days; provided, however, that any such
reduction shall be identical in percentage terms among all of the
Warrants.
3
3.2. Duration of Warrants.
A Warrant may be exercised only during the period (“Exercise Period”) commencing
on the later of (i) the consummation by the Company of a merger, share exchange,
asset acquisition, plan of arrangement, recapitalization, reorganization or
other similar business combination with a target business and
(ii) , 2012 [one year from the date of the
prospectus] and terminating at 5:00 p.m., New York City time on the
earliest of
(i) ,
2016 [five years from the date
of the prospectus], (ii) the liquidation of the trust account managed by
Morgan Stanley (the “Trust Account”) established on or about the date hereof and
(iii) other than with respect to the Insider Warrants and EBC Warrants, the date
fixed for redemption of the Warrants as provided in Section 6 of this Agreement
(“Expiration Date”). Except with respect to the right to
receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant
not exercised on or before the Expiration Date shall become void, and all rights
thereunder and all rights in respect thereof under this Agreement, shall cease
at the close of business on the Expiration Date. The Company in its sole
discretion may extend the duration of the Warrants by delaying the Expiration
Date; provided, however, that the Company
will provide notice to registered holders of the Warrants of such extension of
not less than 20 days, provided that any extension
of the duration of the Warrants must apply equally to all of the
Warrants.
3.3. Exercise of
Warrants.
3.3.1. Payment. Subject to
the provisions of the relevant Warrant and this Agreement, including Section
3.3.5 below, a Warrant, when countersigned by the Warrant Agent, may be
exercised by the registered holder thereof by surrendering it, at the office of
the Warrant Agent, or, if applicable, at the office of its successor as Warrant
Agent, in the Borough of Manhattan, City and State of New York, with the
subscription form, as set forth in the Warrant, duly executed, and by paying in
full the Warrant Price for each full share of Common Stock as to which the
Warrant is exercised and any and all applicable taxes due in connection with the
exercise of the Warrant, the exchange of the Warrant for shares of Common Stock
and the issuance of Common Stock, as follows:
(a) by
certified or official bank check payable to the order of the Company,
or
(b) with
respect to the Insider Warrants held by an Insider or a Permitted Transferee and
the EBC Warrants held by EBC or a Permitted Transferee, by surrendering such
Insider Warrants or EBC Warrants for that number of shares of Common Stock equal
to the quotient obtained by dividing (x) the product of the number of shares of
Common Stock underlying such Insider Warrants or EBC Warrants, multiplied by the
difference between the exercise price of such Insider Warrants or EBC Warrants
and the Fair Market Value (as defined below), by (y) the Fair Market Value.
Solely for purposes of this Section 3.3.1(b), “Fair Market Value” means the
average reported last sale price of the shares of Common Stock for
the 5 trading days ending on the third trading day prior to the
date of exercise.
4
3.3.2. Issuance of
Certificates. As soon as practicable after the proper exercise
of any Warrant and the clearance of the funds in payment of the Warrant Price
(if cash is paid), the Company shall issue to the registered holder of such
Warrant a certificate or certificates for the number of full shares of Common
Stock to which he, she or it is entitled, registered in such name or names as
may be directed by him, her or it, and if such Warrant shall not have been
exercised in full, a new countersigned Warrant for the number of shares as to
which such Warrant shall not have been exercised.
3.3.3. Valid Issuance. All
shares of Common Stock issued upon the proper exercise of a Warrant in
conformity with this Agreement shall be validly issued, fully paid and
nonassessable.
3.3.4. Date of Issuance.
Each person in whose name any such certificate for shares of Common Stock is
issued shall for all purposes be deemed to have become the holder of record of
such shares on the date on which the Warrant was surrendered and payment of the
Warrant Price was made, irrespective of the date of delivery of such
certificate, except that, if the date of such surrender and payment is a date
when the stock transfer books of the Company are closed, such person shall be
deemed to have become the holder of such shares at the close of business on the
next succeeding date on which the stock transfer books are open.
3.3.5. Restrictions on
Exercise. The Company shall have no obligation to deliver any securities
pursuant to the exercise of a Public Warrant and shall have no obligation
to settle such Public Warrant exercise unless there is an
effective and current registration statement covering the shares issuable upon
exercise of the Public Warrants and a current registration statement,
including a prospectus, relating to such shares of Common
Stock. In the event that a registration statement with respect
to the Common Stock underlying a Public Warrant is not effective under the Act
or a current prospectus is not available, the holder of such Warrant shall not
be entitled to exercise such Warrant, such Warrant may have no value and expire
worthless and the purchaser of the Unit containing such Warrant will have paid
the full purchase price for the Unit solely for the share of Common Stock
included in such Unit.
3.3.6. Net Cash Settlement.
In no event will the Company be required to “net cash settle” any such Warrant
exercise. The Company, however, is subject to its obligations under
Section 7.4. Notwithstanding the foregoing, the shares of Common Stock issuable
upon exercise of the Insider Warrants and EBC Warrants shall be unregistered
shares, unless, at the time of exercise, the Company has in place an effective
and current Registration Statement with respect to such underlying Insider
Warrants and EBC Warrants and the shares of Common Stock.
5
4. Adjustments.
4.1. Stock Dividends; Split
Ups. If after the date hereof, and subject to the provisions
of Section 4.5 below, the number of outstanding shares of Common Stock is
increased by a stock dividend payable in shares of Common Stock, or by a
split-up of shares of Common Stock, or other similar event, then, on the
effective date of such stock dividend, split-up or similar event, the number of
shares of Common Stock issuable on exercise of each Warrant shall be increased
in proportion to such increase in outstanding shares of Common Stock. A rights
offering to all holders of the shares of Common Stock entitling holders to
purchase shares of Common Stock at a price less than the “Fair Market Value” (as
defined below) shall be deemed a share dividend of a number of shares of Common
Stock equal to the product of (i) the number of shares of Common Stock actually
sold in such rights offering (or issuable under any other equity securities
actually sold in such rights offering that are convertible into or exercisable
for the shares of Common Stock) multiplied by (ii) the quotient of (x) the Fair
Market Value less the price per share of the shares of Common Stock paid in such
rights offering divided by (y) the Fair Market Value. Solely for the purpose of
this Section 4.1, “Fair Market Value” means the average reported last sale price
of the shares of Common Stock for the 5 trading days ending on the third
trading day prior to the date of such rights offering.
4.2. Aggregation of
Shares. If after the date hereof, and subject to the
provisions of Section 4.5, the number of outstanding shares of Common Stock is
decreased by a consolidation, combination, reverse stock split or
reclassification of shares of Common Stock or other similar event, then, on the
effective date of such consolidation, combination, reverse stock split,
reclassification or similar event, the number of shares of Common Stock issuable
on exercise of each Warrant shall be decreased in proportion to such decrease in
outstanding shares of Common Stock.
4.3. Adjustments in Exercise
Price. Whenever the number of shares of Common Stock
purchasable upon the exercise of the Warrants is adjusted as provided in Section
4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by
multiplying such Warrant Price immediately prior to such adjustment by a
fraction (x) the numerator of which shall be the number of shares of Common
Stock purchasable upon the exercise of the Warrants immediately prior to such
adjustment, and (y) the denominator of which shall be the number of shares of
Common Stock so purchasable immediately thereafter.
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4.4.
Replacement of
Securities upon Reorganization, etc. In the event of the exercise of any
Warrant for shares of Common Stock after any reclassification or reorganization
of the outstanding shares of Common Stock (other than a change covered by
Section 4.1 or 4.2 hereof or that solely affects the par value of such shares of
Common Stock), or any merger or consolidation of the Company with or into
another corporation (other than a consolidation or merger in which the Company
is the continuing corporation and that does not result in any reclassification
or reorganization of the outstanding shares of Common Stock), or any sale or
conveyance to another corporation or entity of the assets or other property of
the Company as an entirety or substantially as an entirety in connection with
which the Company is dissolved, the Warrant holders shall thereafter have the
right to receive in lieu of the shares of Common Stock of the Company receivable
upon the exercise of the rights represented hereby, the kind and amount of
shares of stock or other securities or property (including cash) (the
"Reorganization Consideration") receivable upon such reclassification,
reorganization, merger or consolidation, or upon a dissolution following any
such sale or transfer, that the Warrant holder would have received if such
Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in shares of
Common Stock covered by Section 4.1 or 4.2, then such adjustment shall be made
pursuant to Sections 4.1, 4.2, 4.3 and this Section 4.4. The provisions of this
Section 4.4 shall similarly apply to successive reclassifications,
reorganizations, mergers or consolidations, sales or other transfers. For the
purposes of clarity, a Warrant holder must exercise the Warrant to receive the
Reorganization Consideration, and the Warrants may not be net cash
settled.
7
4.5. Extraordinary
Dividends. If the Company, at any time while the Warrants are
outstanding and unexpired, shall pay a dividend or make a distribution in cash,
securities or other assets to the holders of the shares of Common Stock on
account of such shares of Common Stock (or other shares of the Company’s capital
stock into which the Warrants are convertible), other than (a) as described in
subsection 4.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to
satisfy the redemption rights of the holders of the shares of Common Stock in
connection with a proposed initial Business Combination, (d) as a result of the
repurchase of shares of Common Stock by the Company in connection with an
initial Business Combination (as defined in the Registration Statement) or (e)
in connection with the redemption of the Company’s shareholders or liquidation and the
distribution of its assets upon its failure to consummate a Business Combination
(any such non-excluded event being referred to herein as an “Extraordinary
Dividend”), then the Warrant Price shall be decreased, effective immediately
after the effective date of such Extraordinary Dividend, by the amount of cash
and the fair market value (as determined by the Company’s board of directors, in
good faith) of any securities or other assets paid on each share of the shares
of Common Stock in respect of such Extraordinary Dividend. For purposes of this
subsection 4.5, “Ordinary Cash Dividends” means any cash dividend or cash
distribution which, when combined on a per share of the shares of Common Stock
basis, with the per share amounts of all other cash dividends and cash
distributions paid on the shares of Common Stock during the 365-day period
ending on the date of declaration of such dividend or distribution (as adjusted
to appropriately reflect any of the events referred to in other subsections of
this Section 4 and excluding cash dividends or cash distributions that resulted
in an adjustment to the Warrant Price or to the number of shares of Common Stock
issuable on exercise of each Warrant) does not exceed $0.30 (being 5% of the
offering price of the Units in the Public Offering).
4.6. Aggregation of
Shares. If after the date hereof, and subject to the provisions of
Section 4.5, the number of outstanding shares of Common Stock is decreased by a
consolidation, combination, reverse stock split or reclassification of shares of
Common Stock or other similar event, then, on the effective date of such
consolidation, combination, reverse stock split, reclassification or similar
event, the number of shares of Common Stock issuable on exercise of each Warrant
shall be decreased in proportion to such decrease in outstanding shares of
Common Stock.
8
4.7. Adjustments in Warrant Price
and Redemption Threshold. Whenever the number of shares of Common
Stock purchasable upon the exercise of the Warrants is adjusted, as provided in
Sections 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest
cent, but in no case below the par value of the shares) by multiplying such
Warrant Price immediately prior to such adjustment by a fraction (x) the
numerator of which shall be the number of shares of Common Stock purchasable
upon the exercise of the Warrants immediately prior to such adjustment, and (y)
the denominator of which shall be the number of shares of Common Stock so
purchasable immediately thereafter. Whenever the Warrant Price is
adjusted, the redemption threshold (e.g., the minimum price at which the Common
Stock must trade in order for the Company to have the right to redeem the Public
Warrants) shall be adjusted to equal 138% of the Warrant Price, as
contemplated by Section 6.1 below.
4.8. Notices of Changes in
Warrant. Upon every adjustment of the Warrant Price or the
number of shares issuable upon exercise of a Warrant, the Company shall give
written notice thereof to the Warrant Agent, which notice shall state the
Warrant Price resulting from such adjustment and the increase or decrease, if
any, in the number of shares purchasable at such price upon the exercise of a
Warrant, setting forth in reasonable detail the method of calculation and the
facts upon which such calculation is based. Upon the occurrence of
any event specified in Sections 4.1, 4.2, 4.3 or 4.4, then, in any such event,
the Company shall give written notice to each Warrant holder, at the last
address set forth for such holder in the warrant register, of the record date or
the effective date of the event. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such
event.
4.9. No Fractional
Shares. Notwithstanding any provision contained in this
Agreement to the contrary, the Company shall not issue fractional shares upon
exercise of Warrants. If, by reason of any adjustment made pursuant
to this Section 4, the holder of any Warrant would be entitled, upon the
exercise of such Warrant, to receive a fractional interest in a share, the
Company shall, upon such exercise, round down to the nearest whole number the
number of the shares of Common Stock to be issued to the Warrant
holder.
9
4.10. Form of
Warrant. The form of Warrant need not be changed because of
any adjustment pursuant to this Section 4, and Warrants issued after such
adjustment may state the same Warrant Price and the same number of shares as is
stated in the Warrants initially issued pursuant to this
Agreement. However, the Company may at any time in its sole
discretion make any change in the form of Warrant that the Company may deem
appropriate and that does not affect the substance thereof, and any Warrant
thereafter issued or countersigned, whether in exchange or substitution for an
outstanding Warrant or otherwise, may be in the form as so changed.
4.11. Other
Events. In
case any event shall occur affecting the Company as to which none of the
provisions of preceding subsections of this Section 4 are strictly applicable,
but which would require an adjustment to the terms of the Warrants in order to
effectuate the intent and purpose of this Section 4, then, in each such case,
the Company shall appoint a firm of independent public accountants, investment
banking or other appraisal firm of recognized national standing which shall give
their opinion as to whether or not any adjustment to the rights represented by
the Warrants is necessary to effectuate the intent and purpose of this Section 4
and, if they determine that an adjustment is necessary, the terms of such
adjustment. The Company shall adjust the terms of the Warrants in a
manner that is consistent with any adjustment recommended in such
opinion. Without limiting any other remedies provided by this
Agreement, at law or in equity, a Warrant holder shall have the right to bring
an action for specific performance to enforce the provisions of this Section
4.
10
5. Transfer and Exchange of
Warrants.
5.1. Registration of
Transfer. The Warrant Agent shall register the transfer, from time to
time, of any outstanding Warrant upon the Warrant Register, upon surrender of
such Warrant for transfer, properly endorsed with signatures properly guaranteed
and accompanied by appropriate instructions for transfer and, with respect to
any Insider Warrant or EBC Warrant, subject to the terms and limitations imposed
by Section 2.5 above; provided, however, that in the event that a Warrant
surrendered for transfer bears a restrictive legend, the Warrant Agent shall not
cancel such Warrant and issue new Warrants in exchange therefor until the
Warrant Agent has received an opinion of counsel for the Company stating that
such transfer may be made and indicating whether the new Warrants must also bear
a restrictive legend. Upon any such transfer, a new Warrant
representing an equal aggregate number of Warrants shall be issued and
registered and the old Warrant shall be cancelled by the Warrant Agent. The
Warrants so cancelled shall be delivered by the Warrant Agent to the Company
from time to time upon request.
5.2. Procedure for Surrender of
Warrants. Warrants may be surrendered to the Warrant Agent, together with
a written request for exchange , and thereupon the Warrant Agent shall issue in
exchange therefor one or more new Warrants as requested by the registered holder
of the Warrants so surrendered, representing an equal aggregate number of
Warrants; provided,
however, that in the
event that a Warrant surrendered for exchange bears a restrictive legend, the
Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange
therefor until the Warrant Agent has received an opinion of counsel for the
Company stating that such exchange may be made and indicating whether the new
Warrants must also bear a restrictive legend.
5.3. Fractional Warrants.
The Warrant Agent shall not be required to effect any registration of transfer
or exchange which will result in the issuance of a warrant certificate for a
fraction of a warrant.
5.4. Service Charges. No
service charge shall be made for any exchange or registration of transfer of
Warrants.
5.5. Warrant Execution and
Countersignature. The Warrant Agent is hereby authorized to countersign
and to deliver, in accordance with the terms of this Agreement, the Warrants
required to be issued pursuant to the provisions of this Section 5, and the
Company, whenever required by the Warrant Agent, will supply the Warrant Agent
with Warrants duly executed on behalf of the Company for such
purpose.
6. Redemption.
6.1. Redemption. Subject
to Section 6.4 hereof, not less than all of the outstanding Public Warrants and
any Insider Warrants or EBC Warrants not then held by the original purchaser or
a Permitted Transferee (collectively, the “Redeemable Warrants”) may be
redeemed, at the option of the Company, at any time while they are exercisable
and prior to their expiration, if and only if an effective registration
statement with respect to the Redeemable Warrants has been filed with the
Commission, at the office of the Warrant Agent, upon the notice referred to in
Section 6.2, at the price of $0.01 per Public Warrant (“Redemption Price”),
provided that the last
sales price of the Common Stock has been at least $9.50 per share (appropriately
adjusted for any stock split, reverse stock split, stock dividend or other
reclassification or combination of the Common Stock occurring after the date
hereof), on each of twenty (20) trading days within any thirty (30) trading day
period ending on the third business day prior to the date on which notice is
given in accordance with Section 6.2. The Company shall also have the
option, upon written notice to the Warrant Agent, to require that each
Redeemable Warrant be exchanged for that number of shares of Common Stock equal
to the quotient obtained by dividing (x) the product of the number of shares of
Common Stock underlying Redeemable Warrants, multiplied by the difference
between the exercise price of Redeemable Warrants and the Fair Market Value (as
defined below), by (y)
the Fair Market Value. Solely for purposes of this Section 6.1, “Fair Market
Value” means the average reported last sale price of the shares for the 5
trading days ending on the third trading day prior to the date on which the
notice of redemption is sent to the holders of Warrants. For the
avoidance of doubt, no Insider Warrant or EBC Warrant may be redeemed to the
extent held by the original purchaser or a Permitted
Transferee.
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6.2. Date Fixed for, and Notice
of, Redemption. In the event the Company shall elect to redeem all of the
Redeemable Warrants, the Company shall fix a date for the redemption. Notice of
redemption shall be mailed by first class mail, postage prepaid, by the Company
not less than 30 days prior to the date fixed for redemption to the registered
holders of the Redeemable Warrants to be redeemed at their last addresses as
they shall appear on the registration books. Any notice mailed in the manner
herein provided shall be conclusively presumed to have been duly given whether
or not the registered holder received such notice.
6.3. Exercise After Notice of
Redemption. The Redeemable Warrants may be exercised in accordance with
Section 3 of this Agreement at any time after notice of redemption shall have
been given by the Company pursuant to Section 6.2 hereof and prior to the time
and date fixed for redemption. On and after the redemption date, the record
holder of the Redeemable Warrants shall have no further rights except to
receive, upon surrender of the Redeemable Warrants, the Redemption
Price.
6.4. Outstanding Warrants;
Insider Warrants. Notwithstanding anything to the contrary herein, the
redemption rights provided in this Section 6 apply only to outstanding
Warrants.
7. Other Provisions Relating to
Rights of Holders of Warrants.
7.1. No Rights as
Stockholder. A Warrant does not entitle the registered holder thereof to
any of the rights of a stockholder of the Company, including, without
limitation, the right to receive dividends, or other distributions, exercise any
preemptive rights to vote or to consent or to receive notice as stockholders in
respect of the meetings of stockholders or the election of directors of the
Company or any other matter.
7.2. Lost, Stolen, Mutilated or
Destroyed Warrants. If any Warrant is lost, stolen, mutilated or
destroyed, the Company and the Warrant Agent may on such terms as to indemnity
or otherwise as they may in their discretion impose (which shall, in the case of
a mutilated Warrant, include the surrender thereof), issue a new Warrant of like
denomination, tenor and date as the Warrant so lost, stolen, mutilated or
destroyed. Any such new Warrant shall constitute a substitute
contractual obligation of the Company, whether or not the allegedly lost,
stolen, mutilated or destroyed Warrant shall be at any time enforceable by
anyone.
7.3. Reservation of Common
Stock. The Company shall at all times reserve and keep available a number
of its authorized but unissued shares of Common Stock that will be sufficient to
permit the exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
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7.4. Registration of Common
Stock. The Company will use its best efforts to cause the registration
statement to become effective from the date the Warrants become exercisable and
to maintain a current prospectus with respect to the Common Stock, until the
Warrants expire or are redeemed in accordance with this Agreement.
8. Concerning the Warrant Agent
and Other Matters.
8.1. Payment of Taxes. The
Company will from time to time promptly pay all taxes and charges that may be
imposed upon the Company or the Warrant Agent in respect of the issuance or
delivery of shares of Common Stock upon the exercise of Warrants, but the
Company shall not be obligated to pay any transfer taxes in respect of the
Warrants or such shares.
8.2. Resignation, Consolidation,
or Merger of Warrant Agent.
8.2.1. Appointment of Successor
Warrant Agent. The Warrant Agent, or any successor to it hereafter
appointed, may resign its duties and be discharged from all further duties and
liabilities hereunder after giving 60 days’ notice in writing to the
Company. If the office of the Warrant Agent becomes vacant by
resignation or incapacity to act or otherwise, the Company shall appoint in
writing a successor Warrant Agent in place of the Warrant Agent. If
the Company shall fail to make such appointment within a period of 30 days after
it has been notified in writing of such resignation or incapacity by the Warrant
Agent or by the holder of the Warrant (who shall, with such notice, submit his
or her Warrant for inspection by the Company), then the holder of any Warrant
may apply to the Supreme Court of the State of New York for the County of New
York for the appointment of a successor Warrant Agent at the Company’s
cost. Any successor Warrant Agent, whether appointed by the Company
or by such court, shall be a corporation organized and existing under the laws
of the State of New York, in good standing and having its principal office in
the Borough of Manhattan, City and State of New York, and authorized under such
laws to exercise corporate trust powers and subject to supervision or
examination by federal or state authority. After appointment, any
successor Warrant Agent shall be vested with all the authority, powers, rights,
immunities, duties and obligations of its predecessor Warrant Agent with like
effect as if originally named as Warrant Agent hereunder, without any further
act or deed; but if for any reason it becomes necessary or appropriate, the
predecessor Warrant Agent shall execute and deliver, at the expense of the
Company, an instrument transferring to such successor Warrant Agent all the
authority, powers and rights of such predecessor Warrant Agent hereunder; and
upon request of any successor Warrant Agent the Company shall make, execute,
acknowledge and deliver any and all instruments in writing for more fully and
effectually vesting in and confirming to such successor Warrant Agent all such
authority, powers, rights, immunities, duties and obligations.
8.2.2. Notice of Successor Warrant
Agent. In the event a successor Warrant Agent shall be appointed, the
Company shall give notice thereof to the predecessor Warrant Agent and the
transfer agent for the Common Stock not later than the effective date of any
such appointment.
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8.2.3. Merger or Consolidation of
Warrant Agent. Any corporation into which the Warrant Agent may be merged
or with which it may be consolidated or any corporation resulting from any
merger or consolidation to which the Warrant Agent shall be a party shall be the
successor Warrant Agent under this Agreement without any further
act.
8.3. Fees and Expenses of Warrant
Agent.
8.3.1. Remuneration. The
Company agrees to pay the Warrant Agent reasonable remuneration for its services
as such Warrant Agent hereunder as the Company and the Warrant Agent shall agree
in writing and will reimburse the Warrant Agent upon demand for all expenditures
that the Warrant Agent may reasonably incur in the execution of its duties
hereunder.
8.3.2. Further Assurances.
The Company agrees to perform, execute, acknowledge and deliver or cause to be
performed, executed, acknowledged and delivered all such further and other acts,
instruments and assurances as may reasonably be required by the Warrant Agent
for the carrying out or performing of the provisions of this
Agreement.
8.4. Liability of Warrant
Agent.
8.4.1. Reliance on Company
Statement. Whenever in the performance of its duties under this
Agreement, the Warrant Agent shall deem it necessary or desirable that any fact
or matter be proved or established by the Company prior to taking or suffering
any action hereunder, such fact or matter (unless other evidence in respect
thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the Chief Executive Officer or
Chairman of the Board of the Company and delivered to the Warrant
Agent. The Warrant Agent may rely upon such statement for any action
taken or suffered in good faith by it pursuant to the provisions of this
Agreement.
8.4.2. Indemnity. The
Warrant Agent shall be liable hereunder only for its own negligence, willful
misconduct or bad faith. The Company agrees to indemnify the Warrant
Agent and save it harmless against any and all liabilities, including judgments,
costs and reasonable counsel fees, for anything done or omitted by the Warrant
Agent in the execution of this Agreement except as a result of the Warrant
Agent’s negligence, willful misconduct or bad faith.
8.4.3. Exclusions. The
Warrant Agent shall have no responsibility with respect to the validity of this
Agreement or with respect to the validity or execution of any Warrant (except
its countersignature thereof); nor shall it be responsible for any breach by the
Company of any covenant or condition contained in this Agreement or in any
Warrant; nor shall it be responsible to make any adjustments required under the
provisions of Section 4 hereof or responsible for the manner, method or amount
of any such adjustment or the ascertaining of the existence of facts that would
require any such adjustment; nor shall it by any act hereunder be deemed to make
any representation or warranty as to the authorization or reservation of any
shares of Common Stock to be issued pursuant to this Agreement or any Warrant or
as to whether any shares of Common Stock will when issued be valid and fully
paid and nonassessable.
14
8.5. Acceptance of Agency.
The Warrant Agent hereby accepts the agency established by this Agreement and
agrees to perform the same upon the terms and conditions herein set forth and
among other things, shall account promptly to the Company with respect to
Warrants exercised and concurrently account for, and pay to the Company, all
moneys received by the Warrant Agent for the purchase of shares of Common Stock
through the exercise of Warrants.
8.6. Waiver. The Warrant
Agent hereby waives any right, title, interest or claim of any kind (a “Claim”)
or to any monies in the Trust Account, and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any claim against the funds in the
Trust Account for any reason whatsoever.
9. Miscellaneous
Provisions.
9.1. Successors. All the
covenants and provisions of this Agreement by or for the benefit of the Company
or the Warrant Agent shall bind and inure to the benefit of their respective
successors and assigns.
9.2. Notices. Any notice,
statement or demand authorized by this Agreement to be given or made by the
Warrant Agent or by the holder of any Warrant to or on the Company shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
Universal
Business Payment Solutions Acquisition Corporation
c/o UBPS
Services, LLC
Radnor
Financial Center
150 North
Radnor-Chester Road, Suite F-200
Radnor,
Pennsylvania 19087
Any
notice, statement or demand authorized by this Agreement to be given or made by
the Company or by the holder of any Warrant to or on the Warrant Agent shall be
sufficiently given when so delivered if by hand or overnight delivery or if sent
by certified mail or private courier service within five days after deposit of
such notice, postage prepaid, addressed (until another address is filed in
writing by the Company with the Warrant Agent), as follows:
Continental
Stock Transfer & Trust Company
17
Battery Place
New York,
New York 10004
Attn:
Compliance Department
in each
case with a copy to:
15
Dechert
LLP
1775 I
Street, N.W.
Washington,
D.C. 20006
Attn:
Thomas J. Friedmann
and:
Greenberg
Traurig LLP
200 Park
Avenue
New York,
New York 10166
Attn:
Robert H. Cohen
9.3. Applicable Law. This
Agreement and the Warrants shall be governed by, and construed in accordance
with, the laws of the State of New York. Each of the parties hereto
(a) 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, (b) 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 (c) 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.
9.4. Persons Having Rights under
this Agreement. Nothing in this Agreement expressed and nothing that may
be implied from any of the provisions hereof is intended, or shall be construed,
to confer upon, or give to, any person or corporation other than the parties
hereto and the registered holders of the Warrants any right, remedy or claim
under or by reason of this Agreement or of any covenant, condition, stipulation,
promise or agreement hereof. All covenants, conditions, stipulations,
promises and agreements contained in this Agreement shall be for the sole and
exclusive benefit of the parties hereto and their successors and assigns and of
the registered holders of the Warrants.
9.5. Examination of the Warrant
Agreement. A copy of this Agreement shall be available at all reasonable
times at the office of the Warrant Agent in the Borough of Manhattan, City and
State of New York, for inspection by the registered holder of any
Warrant. The Warrant Agent may require any such holder to submit his
Warrant for inspection by it.
9.6. Counterparts. This
Agreement may be executed in any number of original or facsimile counterparts
and each of such counterparts shall for all purposes be deemed to be an
original, and all such counterparts shall together constitute but one and the
same instrument.
9.7. Effect of Headings.
The Section headings herein are for convenience only and are not part of this
Agreement and shall not affect the interpretation thereof.
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9.8. Amendments. This
Agreement may be amended by the parties hereto without the consent of any
registered holder for the purpose of curing any ambiguity, or of curing,
correcting or supplementing any defective provision contained herein or adding
or changing any other provisions with respect to matters or questions arising
under this Agreement as the parties may deem necessary or desirable and that the
parties deem shall not adversely affect the interest of the registered holders.
All other modifications or amendments, including any amendment to increase the
Warrant Price or shorten the Exercise Period, shall require the written consent
of the registered holders of a majority of the then outstanding Warrants;
Notwithstanding the foregoing, the Company may lower the Warrant Price or extend
the duration of the Exercise Period pursuant to Sections 3.1 and 3.2,
respectively, without the consent of the registered holders.
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IN WITNESS WHEREOF, this Agreement has
been duly executed by the parties hereto as of the date first above
written.
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UNIVERSAL
BUSINESS PAYMENT SOLUTIONS
ACQUISITION
CORPORATION
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By:______________________________
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Name: Bipin
C. Shah
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Title: Chief
Executive Officer
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CONTINENTAL
STOCK TRANSFER & TRUST
COMPANY
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By:______________________________
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Name:
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Title:
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18
Exhibit
A
Form of
Public Warrant
19
Exhibit
B
Form of
Insider Warrant
20
Exhibit
C
Form of
EBC Warrant
21