Exhibit 2.2
THIS WARRANT AND THE SHARES
ISSUABLE UPON EXERCISE OF THIS WARRANT HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
“ACT”) OR ANY OTHER SECURITIES LAWS AND MAY NOT BE
OFFERED FOR SALE, SOLD, DELIVERED AFTER SALE, TRANSFERRED, PLEDGED
OR HYPOTHECATED IN THE ABSENCE OF (1) AN EFFECTIVE REGISTRATION
STATEMENT COVERING THE COMMON STOCK UNDER THE ACT AND ANY OTHER
APPLICABLE SECURITIES LAWS, OR (2) AN OPINION OF COUNSEL
SATISFACTORY TO THE COMPANY THAT SUCH REGISTRATION IS NOT
REQUIRED.
UNITED BANK CARD,
INC.
WARRANT TO PURCHASE SHARES OF COMMON
STOCK
|
Date of Issuance: February 2, 2009
|
Warrant No. 1
|
FOR VALUE RECEIVED,
UNITED BANK CARD, INC., a New
Jersey corporation (together with its successors, the “
Company ”), hereby certifies that Optimal Payments
Corp., a Delaware corporation, or itsregistered transferees,
successors or assigns (each person or entity holding all or part of
this Warrant being referred to as a “ Holder ”),
is the registered holder of warrants (this “ Warrant
”) to subscribe for and purchase, subject to the terms and
conditions of Article 2 hereof, shares of common stock of the
Company (the “ Shares ”) representing up to 3.5%
of the issued and outstanding Shares of the Company as determined
in accordance with Section 2.2 or Section 2.3, as the case may be,
(as may be adjusted pursuant to Article 4 hereof, the “ Warrant Shares
”), at a purchase price per share equal to one tenth of one
cent ($0.001), as may be adjusted from time to time in accordance
with Article 4
hereof (the “ Warrant
Price ”), on or before the Expiration Date (as defined
below), subject to the provisions and upon the terms and conditions
hereinafter set forth. As used in this Warrant, the term “
Business Day ” means any day other than a Saturday or
Sunday on which commercial banks located in New York, New York are
open for the general transaction of business.
Article 1.
Defined Terms . As used herein, the following terms shall have
the following respective meanings:
1.1 “
Affiliates ” shall have the meaning ascribed to such
term in the Shareholders Agreement.
|
|
1.2
|
“ Call Right ”
shall have the meaning ascribed to such term in the Letter
Agreement.
|
|
|
1.3
|
“ Date of Issuance
” means February 2,
2009.
|
1.4 “
Exercise Date ” means the date that is the thirtieth
(30th) calendar month anniversary of the Date of
Issuance.
1.5 “
Expiration Date ” means that certain date which shall
be the earlier to occur of (i) consummation of a Sale of the
Company, (ii) an IPO, or (iii) the 15 th anniversary of
the Date of Issuance.
- 2-
1.6 “
Initial Purchase Price ” shall have the meaning
ascribed to such term in the Purchase and Sale Option
Agreement.
1.7 “
IPO ” means the consummation of the Company’s
first underwritten public offering of its Common Stock (other than
a registration statement relating either to the sale of securities
to employees of the Company pursuant to its stock option, stock
purchase or similar plan or an SEC Rule 145
transaction).
1.8 “
Person ” means an individual, partnership,
corporation, joint stock company, unincorporated organization or
association, trust, or joint venture, or a governmental agency or
political subdivision thereof.
1.9 “
Purchase and Sale Option Agreement ” means that
certain Purchase and Sale Option Agreement, dated as of February 2,
2009, by and between the Company, the Holder and Jared
Isaacman.
1.10 “
Sale of the Company ” either: (a) one or more transactions during a
period of 12 months in which one or more persons acquires, directly
or indirectly, from Jared Isaacman shares in the Company for cash
consideration of not less than the Initial Purchase Price at the
time of the last transaction; (b) one or more transactions during a
period of 12 months in which one or more persons acquires, directly
or indirectly, from the Company or any of its Affiliates shares in
the Company or any of its Affiliates for cash consideration of
$20,000,000 or more; (c) a merger or consolidation of the Company
with or into another person following which Jared Isaacman owns
less than a majority of the voting power or equity of the merged or
consolidated entity; or (c) one or more transactions during a
period of 12 months in which one or more persons acquires, directly
or indirectly, assets of the Company or any of its Affiliates for
cash consideration of not less than $20,000,000.
2.1
Exercise Right . This Warrant is only exercisable at the
option of the Holder at any time from and after the Exercise Date
and prior to the Expiration Date.
2.2
Vesting Schedule . Subject to Section 2.1 , the number of Warrant Shares issuable to the
Holder under this Warrant shall vest as follows:
(a) If
the Call Right is not exercised by the Company on or before the
thirteenth (13th) calendar month anniversary of the Date of
Issuance, then this Warrant shall be exercisable for 1% of the
issued and outstanding Shares of the Company as of such anniversary
date;
(b) If
the Call Right is not exercised by the Company on or before the
eighteenth (18th) calendar month anniversary of the Date of
Issuance, then this Warrant Shall be exercisable for an additional
1% of the issued and outstanding Shares of the Company as of such
anniversary date; and
(c) If
the Call Right is not exercised by the Company on or before the
thirtieth (30th) calendar month anniversary of the Date of
Issuance, then this Warrant shall be exercisable for an additional
1.5% of the issued and outstanding Shares of the Company as of such
anniversary date.
2.3
Accelerated Vesting . Notwithstanding the provisions
of Sections
2.1, 2.2
and 2.4 ,
this Warrant shall vest and be deemed to have been fully exercised
immediately prior to a Sale of the Company without any further
formality or action on the part of Holder.
|
|
2.4
|
Method of Exercise; Payment;
Issuance of New Warrant .
|
- 3 -
(a) Subject
to Sections 2.1
, 2.2 and 2.3 ,
the Holder may exercise this Warrant, in whole or part, by the
surrender of this Warrant (together with the Notice of Exercise
attached hereto as Appendix A duly executed and completed) together with
payment by the Holder by wire transfer of immediately available
funds to an account designated to the Holder by the Company, of an
amount equal to the Warrant Price multiplied by the whole number of
Warrant Shares then being purchased (the “ Exercise
Price ”), at the principal office of the Company, or such
other office or agency of the Company as it may reasonably
designate by written notice to the Holder, during normal business
hours on any Business Day (the date of surrender may hereinafter be
referred to as an “ Exercise Date ”). The Holder
(or such other person or persons as directed by the Holder) shall
be treated for all purposes as the holder of record of such Warrant
Shares as of the close of business on the date on which the Holder
shall have delivered the Notice of Exercise to the
Company.
(b) In
the event of any exercise of the rights represented by this
Warrant, certificates for the whole number of Shares so purchased
shall be delivered by the Company to the Holder (or such other
person or persons as directed by the Holder) as promptly as is
reasonably practicable after the applicable Exercise Date, at the
Company’s expense, and, unless this Warrant has been fully
exercised, a new Warrant (in the same form as this Warrant)
representing the whole number of Warrant Shares, if any, with
respect to which this Warrant shall not then have been exercised
shall also be issued to the Holder as soon as reasonably
practicable thereafter. This Warrant shall only be exercised for a
whole number of Warrant Shares.
(c) Notwithstanding
anything herein to the contrary, prior to the initial exercise of
this Warrant, the Company, Holder and Jared Isaacman shall,
simultaneously with such exercise, enter into the shareholders
agreement substantially in the form attached hereto as Appendix B
(the “ Shareholders Agreement ”).
Article 3.
Shares Valid . All Warrant Shares issued upon exercise of this
Warrant shall be, at the time of delivery of the certificates for
such Warrant Shares upon payment in full of the Exercise Price
therefor in accordance with the terms of this Warrant, validly
issued and fully paid Shares of Common Stock.
Article 4.
Adjustments and Distributions . The number and kind of securities purchasable
upon the exercise of this Warrant shall be subject to adjustment
from time to time upon the occurrence of certain events, as
follows:
4.1
Splits, Dividends and Subdivisions . If the Company shall at
any time or from time to time while this Warrant is outstanding,
make a distribution on its Shares with additional Shares, subdivide
its outstanding Shares into a greater number of Shares or combine
its outstanding Shares into a smaller number of Shares, then the
number of Warrant Shares purchasable upon exercise of this Warrant
in effect immediately prior to the date upon which such change
shall become effective shall be proportionally adjusted by the
Company so that the Holder thereafter exercising this Warrant shall
be entitled to receive the number of Shares or other securities
which the Holder would have received if this Warrant had been fully
exercised immediately prior to such event. Such adjustments shall
be made successively whenever any event listed above shall
occur.
4.2
Recapitalization, reclassification or reorganization . If
any recapitalization, reclassification or reorganization (other
than in connection with a bankruptcy or insolvency proceeding or a
refinance transaction) of the Shares shall be effected in such a
manner (including, without limitation, in connection with a
consolidation or merger in which the Company is the continuing
corporation), that holders of Shares shall be entitled to receive
securities or other assets or property, in exchange for their
Shares (a “ Reorganization ”), then, as a
condition of such Reorganization, lawful and adequate provisions
shall be made by the Company whereby the Holder
- 4 -
hereof shall thereafter have the
right to purchase and receive (in lieu of the Shares immediately
theretofore purchasable and receivable upon the exercise of the
rights represented hereby) upon exercise of this Warrant such
securities or other assets or property as may be issued or payable
in exchange for a number of outstanding Shares equal to the number
of Shares immediately theretofore purchasable and receivable upon
the exercise of the rights represented hereby. In the event of any
Reorganization, appropriate provision shall be made by the Company
with respect to the rights and interests of the Holder of this
Warrant to the end that the provisions hereof shall thereafter be
applicable, in relation to any securities or assets thereafter
deliverable upon the exercise hereof.
|
|
4.3
|
Consolidation or
Merger .
|
(a) If
any consolidation or merger of the Company with another entity in
which the Company is not the survivor, or sale, transfer or other
disposition of all or substantially all of the Company’s
assets to another entity (collectively, a “ Sale
Transaction ”) shall be effected, as a condition of such
Sale Transaction, lawful and adequate provision shall be made
whereby the Holder shall thereafter have the right to purchase and
receive upon the basis and upon the terms and conditions herein
specified and in lieu of the Warrant Shares immediately theretofore
issuable upon exercise of this Warrant, such securities or assets
as would have been issuable or payable with respect to or in
exchange for a number of securities or property equal to the number
of Warrant Shares immediately theretofore issuable upon exercise of
this Warrant, had such Sale Transaction not taken place, and in any
such case appropriate provision shall be made with respect to the
rights and interests of the Holder to the end that the provisions
hereof shall thereafter be applicable, as nearly equivalent as may
be practicable in relation to any securities or properties
thereafter deliverable upon the exercise thereof. The Company shall
not effect any such Sale Transaction unless prior to or
simultaneously with the consummation thereof the successor entity
(if other than the Company) resulting from such consolidation or
merger, or the entity purchasing or otherwise acquiring such assets
or other appropriate entity shall assume the obligation to deliver
to the Holder such securities or assets as, in accordance with the
foregoing provisions, the Holder may be entitled to purchase, and
the other obligations under this Warrant.
(b) The
provisions of this Section 4.3 shall similarly apply to successive
consolidations, mergers, sales, transfers or other
dispositions.
4.4
Other Securities . In the event that, as a result of an
adjustment made pursuant to this Article 4 , the Holder shall become entitled to receive
any securities of the Company other than Shares, the number of such
other securities so receivable upon exercise of this Warrant shall
be subject thereafter to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions
with respect to the Warrant Shares contained in this
Warrant.
4.5
Notice of Adjustments . With each adjustment pursuant to
this Article 4,
the Company shall deliver a
certificate signed by an executive officer of the Company setting
forth, in reasonable detail, the event requiring the adjustment,
the amount of the adjustment, the method by which such adjustment
was calculated and the number of Warrant Shares purchasable
hereunder after giving effect to such adjustment.
Article 5.
Transfer Taxes . The Company will pay any documentary stamp taxes
attributable to the initial issuance of Warrant Shares issuable
upon the exercise of the Warrant; provided , however , that the Company shall not be required to pay
any tax or taxes which may be payable in respect of any transfer
involved in the issuance or delivery of any certificates for
Warrant Shares in a name other than that of the registered holder
of this Warrant in respect of which such shares are issued, and in
such case, the Company shall not be required to issue or deliver
any certificate for Warrant Shares
- 5 -
or any Warrant until the person
requesting the same has paid to the Company the amount of such tax
or has established to the Company’s reasonable satisfaction
that such tax has been paid.
Article 6.
Mutilated or Missing Warrants . In case this Warrant shall be mutilated, lost,
stolen, or destroyed, the Company shall issue in exchange and
substitution of and upon cancellation of the mutilated Warrant, or
in lieu of and substitution for the Warrant lost, stolen or
destroyed, a new Warrant of like tenor and for the purchase of a
like number of Warrant Shares, but only upon receipt of evidence
reasonably satisfactory to the Company of such loss, theft or
destruction of the Warrant, and with respect to a lost, stolen or
destroyed Warrant, reasonable indemnity or bond with respect
thereto, if requested by the Company; in each case, such bond and
indemnity to be in form and substance reasonably satisfactory to
the Company.
Article 7.
Fractional Shares . No fractional Warrant Shares will be issued in
connection with any exercise of this Warrant. In lieu of any
fractional shares which would otherwise be issuable, the number of
shares of Warrant Shares to be issued shall be rounded up to the
nearest whole number.
Article 8.
No Rights as a Stockholder . The Holder, solely in such person's capacity as
a holder of this Warrant, shall not be entitled to vote or receive
dividends or be deemed the holder of share capital of the Company
for any purpose, nor shall anything contained in this Warrant be
construed to confer upon the Holder, solely in such person's
capacity as the Holder of this Warrant, any of the rights of a
stockholder of the Company or any right to vote, give or withhold
consent to any corporate action (whether any reorganization, issue
of stock, reclassification of stock, consolidation, merger,
amalgamation, conveyance or otherwise), receive notice of meetings,
receive dividends or subscription rights, or otherwise, prior to
the issuance to the Holder of the Warrant Shares which such person
is then entitled to receive upon the due exercise of this Warrant.
In addition, nothing contained in this Warrant shall be construed
as imposing any liabilities on the Holder to purchase any
securities (upon exercise of this Warrant or otherwise) or as a
stockholder of the Company, whether such liabilities are asserted
by the Company or by creditors of the Company. Prior to any
exercise of this Warrant, the Holder shall be required to deliver
to the Company an executed counterpart to that certain
Shareholders’ Agreement of the Company.
Article 9.
Modification and Waiver . This Warrant and any provision hereof may be
changed, waived, discharged or terminated only by an instrument in
writing signed by the Company and the then current Holder, and such
change, waiver, discharge or termination shall be binding on all
future Holders.
Article 10.
Notices . All
notices, requests, demands and other communications which are
required or may be given under this Warrant shall be in writing and
shall be deemed to have been duly given if delivered personally, if
sent by facsimile or mailed, first class mail, postage prepaid,
return receipt requested, as follows:
if to Holder:
Optimal Payments Corp.
c/o Optimal Group Inc.
2 Place Alexis Nihon
3500 De Maisonneuve Blvd. West,
#800
Montreal, Quebec, Canada
H3Z 3C1
Attn: General Counsel
Facsimile: (514) 738-8355
- 6 -
with a copy to:
Osler, Hoskin & Harcourt
LLP
1000 De La Gauchetière Street
West
Montreal, Quebec, Canada
H3B 4W5
Attn: Warren Katz
Facsimile: (514) 904-8101
if to Company:
United Bank Card, Inc
53 Frontage Road
Perryville Corporate Park, Bld.
III
Hampton, NJ 08827
Attn: Chief Executive
Officer
Facsimile: (908) 847-0218
with a copy to:
United Bank Card, Inc
53 Frontage Road
Perryville Corporate Park, Bld.
III
Hampton, NJ 08827
Attn: General Counsel
Facsimile: (908) 235-4815
with a copy to (which shall not
constitute notice):
Lowenstein Sandler PC
65 Livingston Avenue
Roseland, NJ 07094
Attn: Allen Levithan
Facsimile: (973) 597-2407
or to such other address as either
party shall have specified by notice in writing to the other party.
All such notices, requests, demands and communications shall be
deemed to have been received on the date of personal delivery or
telecopy or on the third business day after the mailing
thereof.
Article 11.
Assignment . Holder may transfer its rights hereunder to a
direct or indirect wholly-owned subsidiary of Optimal Group Inc.
organized under the laws of the United States without the prior
written consent of the Company; provided , however , that any transfer of this Warrant shall be in
accordance with applicable securities laws, including, without
limitation, delivery of a legal opinion, reasonably satisfactory to
the Company, that such transfer is not in violation of applicable
securities laws. This Warrant shall be binding upon and inure to
the benefit of the parties hereto and their respective permitted
successors and assigns.
Article 12.
Governing Law; Consent to Jurisdiction . This
Warrant shall be governed by, and construed in accordance with, the
internal laws of the State of New Jersey, without reference to
the
- 7 -
choice of law principles thereof.
Each party irrevocably and unconditionally submits to the exclusive
jurisdiction of any State or Federal court sitting in Hunterdon
County, State of New Jersey over any suit, action or proceeding
arising out of or relating to this Agreement. Without limitation of
other means of service, each party agrees that service of any
process, summons, notice or document with respect to any action,
suit or proceeding may be served on it in accordance with the
notice provisions set forth herein. Each party irrevocably and
unconditionally waives any objection to the laying of venue of any
such suit, action or proceeding brought in any such court and any
claim that such suit, action or proceeding brought in any such
court has been brought in an inconvenient forum. Each party agrees
that a final judgment in any such suit, action or proceeding
brought in any such court shall be conclusive and binding upon such
party and may be enforced in any other courts to whose jurisdiction
such party is or may be subject, by suit upon such judgment. Each
party hereby waives its rights to a trial by jury of any claim or
cause of action arising out of or relating to Buyer’s
investigation of this Warrant, the negotiation and execution of
this Warrant or any agreement entered into pursuant hereto (except
to the extent otherwise expressly set forth therein) or the
performance by the parties of their obligations hereunder or
thereunder in any action, proceeding or other litigation of any
type brought by one party against the other, regardless of the
basis of the claim or cause of action.
Article 13.
Severability . In the event that any court of competent
jurisdiction shall determine that any provision, or any portion
thereof, contained in this Warrant shall be unenforceable in any
respect, then such provision shall be deemed limited to the extent
that such court deems it enforceable, and as so limited shall
remain in full force and effect. In the event that such court shall
deem any such provision, or portion thereof, wholly unenforceable,
the remaining provisions of this Warrant shall nevertheless remain
in full force and effect.
Article 14.
Acceptance . Receipt of this Warrant by the Holder hereof
shall constitute acceptance of and agreement to the foregoing terms
and conditions.
Article 15.
No Third Party Beneficiaries . Except as expressly
provided herein, there are no third party beneficiaries, expressed
or implied, of this Warrant.
Article 16.
Entire Agreement . This Warrant constitutes the
entire agreement of the Company and the Holder (and each of its
successors and assigns) with respect to the subject matter hereof,
and supersedes all prior oral and written agreements concerning or
relating to the subject matter hereof.
Article 17.
Titles and Subtitles; Cross-References .
The titles and subtitles used in
this Warrant are used for convenience only and are not to be
considered in construing or interpreting this Warrant. All
references in this Warrant to Articles, Sections, subsections,
Exhibits and Schedules, shall be to Articles, Sections,
subsections, Exhibits and Schedules of this Warrant unless
otherwise explicitly specified. All references to statutes and
related regulations shall include any amendments of same and any
successor statutes and regulations.
[Signature page
follows]
- 8 -
IN WITNESS WHEREOF
, the Company has caused this
Warrant to be executed on its behalf by one of its officers
thereunto duly authorized.
UNITED BANK CARD,
INC.
By: /s/
JARED ISAACMAN
Name: Jared Isaacman
|
|
Title:
|
Chief Executive Officer
|
INTERVENTION AND
GUARANTEE
Jared Isaacman (“
Guarantor ”), residing at 12 Tow Line Drive,
Washington, New Jersey 07882, guarantees and covenants that the
Company shall duly and punctually perform all of its obligations
under this Warrant and shall be jointly and severally liable with
the Company and be regarded as in the same position as the Company.
Guarantor expressly waives demand, presentment, protest and notice
thereof and of default and expressly subordinates to Holder the
benefits of subrogation. Without limiting the generality of the
foregoing, if, upon exercise of this Warrant by the Holder in
accordance with its terms, the Company cannot validly issue the
Warrant Shares because the Company’s corporate charter has
been revoked or the Company is not in good standing, then, upon
written request of the Holder, the Guarantor shall, or shall cause
the Company to, pay, in lieu of the issuance of the Warrant Shares
issuable in connection with such exercise, to Holder an amount
equal to the Fair Market Value (as defined in the Shareholders
Agreement) of such Warrant Shares, without any discount for the
Company for the Company’s charter having been revoked or the
Company not being in good standing. The provisions of Section 4.3
of the Shareholders Agreement in relation to the determination of
the Fair Market Value with respect to such Warrant Shares shall
apply mutatis
mutandis . If the
Company’s certificate of incorporation is reinstated at the
time of exercise of this Warrant in full by the Holder, then this
“Intervention and Guarantee” made by the Guarantor in
this Warrant shall be terminated in all respects and shall be of no
further force and effect.
COVENANT
Upon the execution of this Warrant
by the Holder and the issuance of any Warrant Shares hereunder,
Jared Isaacman hereby agrees to execute the Shareholders
Agreement.
As to the “Intervention and
Guarantee” and “Covenant” set forth in this
signature page only:
_ /s/ JARED ISAACMAN ______________
Jared Isaacman
[SIGNATURE PAGE TO WARRANT TO PURCHASE SHARES OF
COMMON STOCK]
- 9 -
APPENDIX A
NOTICE OF
EXERCISE
|
To:
|
UNITED BANK CARD,
INC.
|
1. The
undersigned hereby elects to purchase _____ Shares pursuant to the
terms of the attached Warrant.
2. Please
issue a certificate or certificates representing said Shares in the
name of the undersigned or in such other name or names as are
specified below:
______________________________
______________________________
______________________________
_________________________
(Signature)
__________________(Date)
3. Please
issue a new Warrant of equivalent form and tenor for the
unexercised portion of the attached Warrant in the name of the
undersigned or in such other name as is specified below:
______________________________________
Date:
__________________________________
(Warrantholder)
_________________________
Name: (Print)
___________________________
By:____________________________________
- 1 -
APPENDIX B
SHAREHOLDERS
AGREEMENT
Final Version
SHAREHOLDERS’ AGREEMENT
This SHAREHOLDERS’ AGREEMENT,
dated as of [_________], 200_ (this “ Agreement
”), by and among United Bank Card, Inc., a New Jersey
corporation (the “ Company ”), Jared Isaacman
(the “ Founder ”), and those shareholders of the
Company listed on the signature pages hereto and who are listed on
Schedule A (collectively, with the Founder and each other
Person who, in accordance with the terms hereof, shall become a
party to or be bound by the terms of this Agreement after the date
hereof, the “ Shareholders ”).
WITNESSETH
:
WHEREAS , the Shareholders currently own all of the
issued and outstanding shares of Common Stock, par value $[____]
per share, of the Company (the “ Common Stock ”)
as is set forth on Schedule A hereto; and
WHEREAS , the Shareholders and the Company wish to enter
into this Agreement in order to provide for certain rights and
obligations of the Shareholders and certain issues pertaining to
the governance and operation of the Company.
NOW, THEREFORE
, in consideration of the mutual
covenants contained herein, and intending to be legally bound, the
parties hereto hereby agree as follows:
ARTICLE I
Certain
Definitions
Section 1.1.
Certain Definitions . As used in this Agreement, the
following terms have the respective meanings set forth
below.
“ Affiliate ”
means, with respect to any Person, any other Person who directly or
indirectly, through one or more intermediaries, controls, is
controlled by, or is under common control with, such Person. The
term “control” means the possession, directly or
indirectly, of the power to direct or cause the direction of the
management and policies of a Person, whether through the ownership
of voting securities, by contract, or otherwise, and the terms
“controlled” and “controlling” have
meanings correlative thereto. Any Relative of an individual shall
be deemed to be an Affiliate of such individual for purposes
hereof.
“ Board ” means
the Board of Directors of the Company in office at the applicable
time, as elected in accordance with the provisions of this
Agreement.
“ Contract ”
means any written or oral agreement, contract, arrangement, or
instrument.
“ Disabled ”
means, with respect to any individual, that such individual has
been incapable of performing his or her customary duties with
respect to the Corporation for 180 consecutive days or 270 days
within any 360 consecutive day period.
“ Fair Market Value
” means, as of any date, the value of Common Stock determined
as follows:
(i) if the Common Stock is listed on
any established stock exchange or a national market system, the
Fair Market Value of a Share of Common Stock shall be the closing
sales price of a Share of Common Stock (or the closing bid, if no
such sales were reported) as quoted on such exchange or system for
the last market trading day prior to the day of determination, as
reported in The Wall Street Journal or such other source as
the Board deems reliable;
(ii) if the Common Stock is
regularly quoted by a recognized securities dealer but is not
listed in the manner contemplated by clause (i) above, the Fair
Market Value of a Share of Common Stock shall be the mean between
the high bid and low asked prices for the Common Stock on the last
market trading day prior to the day of determination, as reported
in The Wall Street Journal or such other source as the Board
deems reliable; or
(iii) if neither clause (i) above
nor clause (ii) above applies, the Fair Market Value shall be
determined by the Board by the good faith application of a
reasonable valuation method; provided , however ,
that, with respect to a Call Price or a Put Price, this definition
is subject to Section 4.3.
“ OPC ” means
Optimal Payments Corp., a Delaware corporation, and its successors
and permitted assigns.
“ Person ” means
an individual, partnership, corporation, joint stock company,
unincorporated organization or association, trust, or joint
venture, or a governmental agency or political subdivision
thereof.
“ Portfolio Acquisition
” means the purchase by the Company from OPC of the
"Purchased Rights" under that certain Purchase Agreement dated as
of [_________] by and between the Company as purchaser and OPC as
seller.
“ Initial Purchase
Price ” means the initial purchase price as defined in
Section 4.1 of the Purchase and Sale Option Agreement dated as of
February 2, 2009, by and among OPC, the Company and the
Founder.
“ Relative ”
means, with respect to any Shareholder, the spouse of such
Shareholder or any of such Shareholder's ancestors, descendants,
siblings, descendants of any such siblings, or the spouse of any of
the foregoing.
“ Sale of the Company
” shall mean either: (a) one or more transactions during a
period of 12 months in which one or more persons acquires, directly
or indirectly, from the Founder shares in the Company for cash
consideration of not less than the Initial Purchase Price at the
time of the last transaction; (b) one or more transactions during a
period of 12 months in which one or more persons acquires, directly
or indirectly, from the Company or any of its
Affiliates shares in the Company or
any of its Affiliates for cash consideration of $20,000,000 or
more; (c) a merger or consolidation of the Company with or into
another person following which Founder owns less than a majority of
the voting power or equity of the merged or consolidated entity; or
(c) one or more transactions during a period of 12 months in which
one or more persons acquires, directly or indirectly, assets of the
Company or any of its Affiliates for cash consideration of not less
than $20,000,000.
“ Shares ” means
shares of Common Stock of the Company.
“ Trigger Date ”
means the date which is the thirty-second (32nd) calendar month
anniversary of the date on which the Portfolio Acquisition is
consummated.
Section 1.2.
Interpretation . Unl
