As filed with the Securities and Exchange Commission on November 13, 2018.

Registration No. 333-227951

 

 

UNITED STATES
SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

 

AMENDMENT NO. 4

to

FORM S-1

REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933

 

 

 

FINTECH ACQUISITION CORP. III

(Exact name of registrant as specified in its charter)

 

Delaware

 

6770

 

82-0895994

(State or other jurisdiction of

incorporation or organization)

 

(Primary Standard Industrial

Classification Code Number)

 

(I.R.S. Employer

Identification Number)

 

2929 Arch Street, Suite 1703
Philadelphia, PA 19104-2870
(215) 701-9555
(Address, including zip code, and telephone number, including area code, of registrant’s principal executive offices)

 

 

 

James J. McEntee, III
President and Chief Financial Officer
FinTech Acquisition Corp. III
2929 Arch Street, Suite 1703
Philadelphia, PA 19104-2870
(215) 701-9555

(Name, address, including zip code, and telephone number, including area code, of agent for service)

 

 

 

Copies to:

 

Mark E. Rosenstein
Derick Kauffman
Ledgewood
2001 Market Street, Suite 3400
Philadelphia, PA 19103
(215) 731-9450
(215) 735-2513 — Facsimile 		Douglas S. Ellenoff, Esq.
Stuart Neuhauser, Esq.
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas, 11 th Floor
New York, New York 10105
(212) 370-1300
(212) 370-7889 — Facsimile

 

 

 

Approximate date of commencement of proposed sale to the public: As soon as practicable after the effective date of the registration statement.

 

If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, check the following box: ☐

 

If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐

 

If this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering: ☐

 

Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, a smaller reporting company, or an emerging growth company. See the definitions of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging growth company” in Rule 12b-2 of the Exchange Act. (Check one):

 

Large accelerated filer ☐   Accelerated filer ☐
Non-accelerated filer ☒   Smaller reporting company ☐
    Emerging Growth company ☒

 

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided to Section 7(a)(2)(B) of the Securities Act. ☐

 

 

 

 

CALCULATION OF REGISTRATION FEE

 

Title of Each Class of Securities to be Registered  

Amount to be Registered (1)

   

Proposed Maximum Offering Price per Unit (1)

   

Proposed Maximum Aggregate Offering Price (1)

    Amount of Registration Fee  
Units, each consisting of one share of Class A common stock, $.0001 par value, and one-half of one Warrant (2)(4)     31,625,000     $ 10.00     $ 316,250,000     $ 38,330  
Shares of Class A common stock included as part of the Units (2)(4)     31,625,000       —       —       — (3)
Warrants included as part of the Units (2)(4)     15,812,500       —       —       — (3)
Total                   $ 316,250,000     $ 38,330 (5)

 

 

(1) Estimated solely for the purpose of calculating the registration fee pursuant to Rule 457(o). See “Underwriting.”

 

(2) Includes 4,125,000 units, and 4,125,000 shares of Class A common stock and 2,062,500 warrants underlying such units, which may be issued on exercise of a 45-day option granted to the underwriters to cover overallotments, if any.

 

(3) No fee pursuant to Rule 457(g).

 

(4) Pursuant to Rule 416, there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions.

 

(5) Previously paid.

 

The registrant hereby amends this registration statement on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act of 1933 or until the registration statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.

 

 

 

 

 

 

EXPLANATORY NOTE

 

This amendment is being filed solely to file one exhibit to the Registration Statement.

 

 

 

 

PART II

 

INFORMATION NOT REQUIRED IN PROSPECTUS

 

Item 13. Other Expenses of Issuance and Distribution.

 

The estimated expenses payable by us in connection with the offering described in this registration statement (other than the underwriting discount and commissions) will be as follows:

 

SEC filing fee   $ 38,330  
FINRA filing fee     47,938  
Accounting fees and expenses     45,000  
Printing and engraving expenses     45,000  
Legal fees and expenses     275,000  
NASDAQ Capital Market fees     75,000  
Travel and roadshow     20,000  
Directors and officers insurance     200,000  
Miscellaneous expenses (1)     253,732  
Total   $ 1,000,000  

 

(1) This amount represents additional expenses that may be incurred by us in connection with the offering over and above those specifically listed above, including distribution and mailing costs, transfer agent fees, warrant agent fees and trustee fees.

 

Item 14. Indemnification of Directors and Officers.

 

Our amended and restated bylaws will provide that all of our directors, officers, employees and agents will be entitled to be indemnified by us to the fullest extent permitted by Section 145 of the Delaware General Corporation Law.

 

Section 145 of the Delaware General Corporation Law concerning indemnification of officers, directors, employees and agents is set forth below.

 

Section 145. Indemnification of officers, directors, employees and agents; insurance.

 

(a) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust account or other enterprise, against expenses (including attorneys’ fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with respect to any criminal action or proceeding, had reasonable cause to believe that the person’s conduct was unlawful.

 

(b) A corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust account or other enterprise against expenses including attorneys’ fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court of Chancery or such other court shall deem proper.

 

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(c) To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

 

(d) Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.

 

(e) Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may 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 such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.

 

(f) The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office

 

(g) A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust account or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.

 

(h) For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.

 

(i) For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.

 

II- 2

 

 

(j) The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.

 

(k) The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).

 

Insofar as indemnification for liabilities arising under the Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise, we have been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Securities Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

The Corporation, to the full extent permitted by Section 145 of the DGCL, 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.

 

Our amended and restated bylaws will provide for the indemnification of our directors, officers or other persons, and permit us to secure insurance on behalf of any officer, director or employee for any liability arising out of his or her actions, regardless of whether Delaware law would permit such indemnification. We will purchase a policy of directors’ and officers’ liability insurance that insures our officers and directors against the cost of defense, settlement or payment of a judgment in some circumstances and insures us against our obligations to indemnify our officers and directors.

 

We will enter into agreements with our officers and directors to provide contractual indemnification in addition to the indemnification provided for in our amended and restated certificate of incorporation.

 

Pursuant to the Underwriting Agreement, a form of which is filed as Exhibit 1.1 to this Registration Statement, we have agreed to indemnify the underwriters, and the underwriters have agreed to indemnify us, against certain civil liabilities that may be incurred in connection with this offering, including certain liabilities under the Securities Act.

 

Item 15. Recent Sales of Unregistered Securities.

 

In March 2017, FinTech Investor Holdings III, LLC purchased 9,803,333 founder shares for an aggregate purchase price of $25,000. On August 22, 2018, FinTech Investor Holdings III contributed back to us for no consideration 2,040,833 shares of common stock. In October 2018, we effected a stock dividend of 0.04847021 share per share of Class B common stock for each share of Class B common stock outstanding prior to the dividend, and, as a result, our initial holders hold 8,138,750 founder shares with an average purchase price of approximately $0.00307 per share. The number of founder shares issued was determined based on the expectation that the founder shares would represent 20% of our issued and outstanding shares of common stock upon completion of this offering. Such securities were issued in connection with our organization pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act. Our sponsor is an accredited investor for purposes of Rule 501 of Regulation D.

 

II- 3

 

 

In addition, our sponsor and Cantor Fitzgerald have committed, pursuant to written agreements, to purchase from us an aggregate of 930,000 placement units (830,000 placement units to be purchased by our sponsor and 100,000 placement units to be purchased by Cantor Fitzgerald) at $10.00 per unit (for an aggregate purchase price of $9,300,000). This purchase will take place on a private placement basis simultaneously with the completion of our initial public offering. This issuance will be made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act.

 

No underwriting discounts or commissions were paid with respect to such sales.

 

In addition, if we increase the size of the offering pursuant to Rule 462(b) under the Securities Act, we may effect a stock dividend immediately prior to the consummation of the offering in such amount as to maintain our sponsor’s collective ownership of founder shares at 20% of the aggregate of our founder shares and our public shares upon consummation of the offering. If we decrease the size of the offering, we expect to effect a reverse split of our common stock immediately prior to the consummation of the offering in such amount as to maintain our sponsor’s collective ownership of founder shares at 20% of the aggregate of our founder shares and our public shares of upon the date of this prospectus. Any such increased number of shares will be subject to forfeiture in the event that the underwriter’s overallotment option is not exercised in full. Any such decreased number of shares will be forfeited, with the remainder subject to forfeiture in the event that the underwriter’s overallotment option is not exercised in full.

 

Item 16. Exhibits and Financial Statement Schedules.

 

(a) Exhibits. The following exhibits are filed as part of this Registration Statement:

 

Exhibit No.   Description
1.1   Form of Underwriting Agreement.*
3.1(a)   Certificate of Incorporation.*
3.1(b)   Certificate of Amendment to Certificate of Incorporation*
3.1(c)   Form of Amended and Restated Certificate of Incorporation.*
3.2(a)   Bylaws.*
3.2(b)   Form of Amended and Restated Bylaws.*
4.1   Specimen Unit Certificate.*
4.2   Specimen Common Stock Certificate.*
4.3   Specimen Warrant Certificate (included in Exhibit 4.4).*
4.4   Form of Warrant Agreement between Continental Stock Transfer & Trust Company and the Registrant.*
5.1   Opinion of Ledgewood, P.C.*
10.1   Form of Investment Management Trust Account Agreement between Continental Stock Transfer & Trust Company and the Registrant.*
10.2   Form of Registration Rights Agreement among the Registrant and security holders.*
10.3 (a)   Form of Placement Unit Subscription Agreement with FinTech Investor Holdings III, LLC, FinTech Masala Advisors, LLC and 3FIII, LLC.*
10.3 (b)   Form of Placement Unit Subscription Agreement with Cantor Fitzgerald & Co.*
10.4   Form of Letter Agreement by and between the Registrant, the Registrant’s security holders named therein, and the officers and directors of the Registrant.*
10.5   Form of Indemnity Agreement.*
10.6   Promissory Note for expenses prior to initial public offering expenses from FinTech Investor Holdings III, LLC to Registrant.*
10.7   Form of Administrative Services Agreement*
10.8  

Letter Agreement with Deutsche Bank Securities Inc.**

14.1   Code of Business Conduct and Ethics.*
23.1   Consent of WithumSmith+Brown, PC.*
23.2   Consent of Ledgewood, P.C. (included in Exhibit 5.1).*
24.1   Powers of Attorney (included on signature page of the Registration Statement).*
99.1   Form of Audit Committee Charter.*
99.2   Form of Compensation Committee Charter.*
99.3   Consent of Madelyn Antoncic*
99.4   Consent of Brittain Ezzes*
99.5   Consent of Jan Hopkins Trachtman*

 

 

* Previously filed
** Filed herewith

 

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Item 17. Undertakings.

 

(a) The undersigned hereby undertakes to provide to the underwriters at the closing specified in the underwriting agreement, certificates in such denominations and registered in such names as required by the underwriters to permit prompt delivery to each purchaser.

 

(b) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the SEC such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed by the final adjudication of such issue.

 

(c) The undersigned registrant hereby undertakes that:

 

(1) For purposes of determining any liability under the Securities Act, the information omitted from the form of prospectus filed as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement as of the time it was declared effective.

 

(2) For the purpose of determining any liability under the Securities Act, each post-effective amendment that contains a form of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.

 

(3) For the purpose of determining liability under the Securities Act of 1933 to any purchaser, if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use.

 

(4) For the purpose of determining liability of a registrant under the Securities Act of 1933 to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of an undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:

 

(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424;

 

(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by an undersigned registrant;

 

(iii) The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and

 

(iv) Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser.

 

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SIGNATURES

 

Pursuant to the requirements of the Securities Act of 1933, as amended, the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Philadelphia, Commonwealth of Pennsylvania on this 13th day of November, 2018.

 

  FINTECH ACQUISITION CORP. III
     
  By: /s/ James J. McEntee, III
  Name: James J. McEntee, III
  Title: President, Chief Financial Officer and Secretary

 

Pursuant to the requirements of the Securities Act of 1933, as amended, this Registration Statement has been signed below by the following persons in the capacities and on the dates indicated.

 

Name   Position   Date
         
*   Chief Executive Officer   November 13, 2018
Daniel G. Cohen   (Principal Executive Officer)    
         
/s/ James J. McEntee, III   President, Chief Financial Officer and Secretary   November 13, 2018
James J. McEntee, III   (Principal Financial Officer and Principal Accounting Officer)    
         
*   Chairman of the Board of Directors   November 13, 2018
Betsy Z. Cohen        
         
*   Director   November 13, 2018
Mei Mei Tuan        
         
*   Director   November 13, 2018
Pawneet Abramowski        

 

* By: /s/ James J. McEntee, III  
  Name: James J. McEntee, III, Attorney-in-Fact  

 

II- 6

 

 

Exhibit 10.8

 

November 12, 2018  
   

Mr. Daniel Cohen
Chief Executive Officer
FinTech Acquisition Corp. III
3 Columbus Circle, 24 th Floor

New York, NYC 10019

 

 

Dear Mr. Cohen:

 

This Agreement (this “Agreement”) will confirm the basis upon which FinTech Acquisition Corp. III (the “Company”) has engaged Deutsche Bank Securities Inc. (“Deutsche Bank”) to provide capital markets advisory and related services in connection with the Company’s initial public offering of units (“IPO”) and any potential business combination (“Business Combination”) as contemplated by the registration statement in connection with the IPO (the “Engagement”).

 

Section 1 . Services to be Rendered .

 

(a) The capital markets advisory services to be rendered by Deutsche Bank pursuant to the Engagement in connection with the IPO shall include, but not be limited to:

 

(1) advising on timing, sizing and structuring considerations;

 

(2) using its institutional knowledge to advise on investor target lists prepared by the underwriter(s) for the Company;

 

(3) advising senior management of the Company on presentations to be used in meetings with potential investors in connection with the IPO and assisting the Company on Company positioning considerations;

 

(4) advising on book-building matters; and

 

(5) providing such other capital markets advisory services as the Company and Deutsche Bank may from time to time agree upon.

 

(b) The capital markets advisory and related services to be rendered by Deutsche Bank pursuant to the Engagement in connection with a potential Business Combination shall include, but not be limited to:

 

(1) advising on potential sources and targets for a Business Combination;

 

(2) advising on transaction structuring considerations;

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 2

 

(3) using its institutional knowledge to assist with benchmarking and valuation analyses;

 

(4) using its institutional knowledge to advise on potential new shareholders in connection with a potential Business Combination;

 

(5) arranging meetings with and managing communications with existing shareholders and potential new shareholders in connection with a potential Business Combination;

 

(6) advising and assisting senior management of the Company on presentations to be used in roadshow and other meetings with existing and potential new shareholders and assisting the Company on shareholder positioning considerations; and

 

(7) providing such other capital markets advisory and related services as the Company and Deutsche Bank may from time to time agree upon.

 

The capital markets advisory and related services described in this Section 1(b) are not intended to and shall not include services customarily performed or provided pursuant to separate agreements for the provision of merger and acquisition advisory services (“M&A Advisory Services”). Any such M&A Advisory Services are beyond the scope of the Engagement and shall be subject to a separate engagement and additional compensation as agreed by the parties hereto.

 

For the avoidance of doubt, the above services to be provided in connection with the IPO shall not include activities involving the solicitation or distribution of any offering of any securities, such as p articipation in the preparation of the offering or other documents, participation in the distribution of any offering on an underwritten, non-underwritten, or any other basis, or the furnishing of customer and/or broker lists for solicitation. In no event shall Deutsche Bank be obligated to purchase any securities of the Company for its own account or for the account of its customers and neither Deutsche Bank nor any of its affiliates shall be deemed to be an underwriter for any securities of the Company. Deutsche Bank shall have no liability for any disclosures or other information or representations provided by the Company to investors or to any other person.

 

The Company will furnish, and, if the Company enters into negotiations with a potential target in connection with a potential Business Combination (a “Business Combination Target”), will request such Business Combination Target to furnish, to Deutsche Bank such information as Deutsche Bank reasonably requests in connection with the performance of its services hereunder (all such information so furnished is referred to herein as the “Information”).

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 3

 

The Company understands and agrees that Deutsche Bank, in performing its services hereunder, will use and rely upon the Information as well as publicly available information regarding the Company and any Business Combination Target and that Deutsche Bank does not assume responsibility for independent verification of any information, whether publicly available or otherwise furnished to it, concerning the Company or any Business Combination Target, including, without limitation, any financial information, forecasts or projections, considered by Deutsche Bank in connection with the rendering of its services. Accordingly, Deutsche Bank shall be entitled to assume and rely upon the accuracy and completeness of all such information and is not required to conduct a physical inspection of any of the properties or assets, or to prepare or obtain any independent evaluation or appraisal of any of the assets or liabilities, of any Business Combination Target. With respect to any financial forecasts and projections made available to Deutsche Bank by the Company or any Business Combination Target and used by Deutsche Bank in its analysis, Deutsche Bank shall be entitled to assume that such forecasts and projections have been reasonably prepared on bases reflecting the best currently available estimates and judgments of the management of the Company or any Business Combination Target, as the case may be, as to the matters covered thereby.

 

Section 2 .  Fees .  The Company shall be obligated to pay or cause to be paid to Deutsche Bank a fee for advisory services rendered in connection with the Engagement in an amount equal to the sum of (a) Two Million dollars ($2,000,000) plus (b) 50% of the Deferred Compensation (together, the “Advisory Fee”). For the purposes of this Agreement, “Deferred Compensation” means the 4.0% gross spread payable to the underwriter(s) of the IPO at the closing of a Business Combination on the gross proceeds received by the Company in the IPO.

 

The Advisory Fee shall be earned by Deutsche Bank upon execution of an underwriting agreement in connection with the IPO and shall be payable in two installments as follows:

 

● Two Million dollars ($2,000,000) of the Advisory Fee (the “First Installment”) shall be due and payable immediately upon the closing of the IPO (such closing date the “First Installment Date”); and

 

● The remainder of the Advisory Fee (the “Second Installment”), which shall be equal to 50% of the Deferred Compensation, shall be due and payable immediately upon the consummation of any Business Combination (the “Second Installment Date”).

 

The Company shall cause the underwriter(s) of the IPO to pay each installment of the Advisory Fee to Deutsche Bank on behalf of the Company as a reimbursed expense to be credited by the underwriter(s) against the portion of the gross spread payable to such underwriter(s) at the applicable installment date.  If the Company is unable to cause such payment to be made to Deutsche Bank from the underwriter(s) on either the First Installment Date or Second Installment Date, as applicable, the Company will remain fully responsible for prompt payment to Deutsche Bank of the applicable installment of the Advisory Fee.  

 

If the IPO does not close, no Advisory Fee will be payable to Deutsche Bank. If the IPO closes, Deutsche Bank shall be entitled to the First Installment of the Advisory Fee, but if a Business Combination is not consummated, Deutsche Bank shall not be entitled to the Second Installment of the Advisory Fee.

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 4

 

The fees described in this Section 2 are compensation for the Engagement.  Any work outside of the scope of the Engagement shall be subject to additional compensation as separately agreed by the parties hereto.

 

All fees payable hereunder are net of all applicable withholding and similar taxes and are payable in United States dollars.

 

Section 3 . Expenses . In addition to any fees that may be payable to Deutsche Bank hereunder and regardless of whether any IPO or Business Combination is proposed or consummated, the Company hereby agrees, from time to time upon request, to reimburse Deutsche Bank for all reasonable fees and disbursements of Deutsche Bank’s counsel and all of Deutsche Bank’s reasonable travel and other out-of-pocket expenses incurred during the Engagement in connection with any actual or proposed transaction or otherwise arising out of the Engagement, up to a maximum of $20,000; provided, however, that all expenses in excess of $5,000 in the aggregate shall require the Company’s prior written approval, which shall not be unreasonably withheld.

 

Section 4 . Termination of Engagement . Deutsche Bank’s engagement hereunder may be terminated by either the Company or Deutsche Bank at any time, with or without cause, upon written advice to that effect to the other party; provided , however, that

 

(a) Deutsche Bank will be entitled to any fees payable at the time of such termination pursuant to Section 2 hereof; and

 

(b) the provisions of the last paragraph of Section 1, of this Section 4 and of Sections 3, 6, 7, 8, 9, 12 and 13 hereof shall survive such termination.

 

Section 5 . Reliance on Others . The Company confirms that it will rely on its own counsel, accountants and other similar expert advisors for legal, accounting, tax and other similar advice.

 

Section 6 . Scope of Responsibility . Neither Deutsche Bank nor any of its affiliates (nor any of their respective control persons, directors, officers, employees or agents) shall be liable to the Company or to any other person claiming through the Company for any claim, loss, damage, liability, cost or expense suffered by the Company or any such other person arising out of or related to the Engagement except to the extent a claim, loss or expense arises out of or is based upon any action or failure to act by Deutsche Bank, other than an action or failure to act undertaken at the request or with the consent of the Company, that is found in a final judicial determination (or a settlement tantamount thereto) to constitute bad faith, willful misconduct or gross negligence on the part of Deutsche Bank.

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 5

 

Section 7 . Indemnity and Contribution . The Company agrees to indemnify and hold harmless Deutsche Bank and its affiliates (and their respective control persons, directors, officers, employees and agents) (collectively, the “Indemnified Persons”) to the full extent lawful against any and all claims, losses, damages, liabilities, costs and expenses as incurred (including all reasonable fees and disbursements of counsel and all reasonable travel and other out-of-pocket expenses incurred in connection with investigation of, preparation for and defense of any pending or threatened claim and any litigation or other proceeding arising therefrom, whether or not in connection with pending or threatened litigation in which Deutsche Bank or any other Indemnified Person is a party) (collectively, a “Claim”) arising out of or related to any actions taken or omitted to be taken by the Company or by an Indemnified Person on the Company’s behalf or with the Company’s consent in connection with the Engagement; provided , however, there shall be excluded from such indemnification any Claims to the extent it is found in a final judicial determination (or a settlement tantamount thereto) that they arise out of or are based upon the bad faith, willful misconduct or gross negligence on the part of an Indemnified Person . In the event that the foregoing indemnity is unavailable or insufficient to hold any Indemnified Person harmless, then the Company shall contribute to amounts paid or payable by Deutsche Bank and other indemnified parties in respect of such Claims in such proportion as appropriately reflects the relative benefits received by, and, if applicable law does not permit allocation solely on the basis of benefits, fault of, the Company and the Indemnified Person in connection with the matters as to which such Claims relate and other equitable considerations, subject to the limitation that in any event Deutsche Bank’s aggregate contributions in respect of such claims, losses, damages, liabilities, costs and expenses will not exceed the amount of fees actually received by Deutsche Bank pursuant to this Agreement. For purposes hereof, relative benefits to the Company and Deutsche Bank of any transaction contemplated hereby shall be deemed to be in the same proportion that the total value paid or contemplated to be paid by the Company and/or its security holders in connection with such transaction bears to the fees paid to Deutsche Bank pursuant to its engagement in respect of such transaction.

 

The Company will not, without the prior written consent of Deutsche Bank, settle, compromise or consent to the entry of judgement in any pending or threatened Claim relating to Deutsche Bank’s engagement hereunder unless such settlement, compromise or consent includes an express, complete and unconditional release of each Indemnified Person with respect to all liability arising out of such Claims; such release to be set forth in an instrument signed by all parties to such settlement.

 

Promptly upon receipt by an Indemnified Person of notice of any complaint or the assertion or institution of any Claim with respect to which indemnification is being sought hereunder, Deutsche Bank shall notify the Company in writing of such complaint or of such assertion or institution but failure to so notify the Company shall not relieve the Company from any obligation it may have hereunder, except and only to the extent such failure results in the forfeiture by the Company of substantial rights and defenses. If the Company so elects or is requested by such Indemnified Person, the Company will assume the defense of such Claim, including the employment of counsel reasonably satisfactory to such Indemnified Person and the payment of the fees and expenses of such counsel. In the event, however, that legal counsel to such Indemnified Person reasonably determines that having common counsel would present such counsel with a conflict of interest or if the defendant in, or target of, any such Claim, includes an Indemnified Person and the Company, and legal counsel to such Indemnified Person reasonably concludes that there may be legal defenses available to it or other Indemnified Persons different from or in addition to those available to the Company, then such Indemnified Person may employ its own separate counsel to represent or defend him, her or it in any such Claim and the Company shall pay the reasonable fees and expenses of such counsel. Notwithstanding anything herein to the contrary, if the Company fails timely or diligently to defend, contest, or otherwise protect against any Claim, the relevant Indemnified Party shall have the right, but not the obligation, to defend, contest, compromise, settle, assert crossclaims, or counterclaims or otherwise protect against the same, and shall be fully indemnified by the Company therefor, including without limitation, for the reasonable fees and expenses of its counsel and all amounts paid as a result of such Claim or the compromise or settlement thereof.

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 6 

 

In addition, with respect to any Claim in which the Company assumes the defense, the Indemnified Person shall have the right to participate in such Claim and to retain his, her or its own counsel therefor at his, her or its own expense.

 

Section 8 . Governing Law; Jurisdiction . This Agreement shall be governed by and construed in accordance with the laws of the State of New York without regard to the conflicts of laws provisions thereof. Any right to trial by jury with respect to any claim, action, suit or proceeding arising out of this Agreement or any of the matters contemplated hereby is waived. The Company and Deutsche Bank hereby irrevocably submit to the exclusive jurisdiction of the courts of New York, New York in any proceeding arising out of or relating to this Agreement, and to the federal district courts located in such City, agree not to commence any suit, action or proceeding relating thereto except in such courts, and waive, to the fullest extent permitted by law, the right to move to dismiss or transfer any action brought in such court on the basis of any objection to personal jurisdiction or venue.

 

Section 9 . Trust Waiver . Deutsche Bank hereby acknowledges and agrees that neither it nor any Indemnified Person seeking indemnity under this Agreement has any right of set-off or any right, title, interest or claim of any kind (“Trust Account Claim”) to, or to any monies or other assets in, the trust account holding the net proceeds of the IPO and any private placement proceeds (the “Trust Account”), and hereby irrevocably waives any Trust Account Claim to, or to any monies or other assets in, the Trust Account that it or any Indemnified Person may have now or in the future.  In the event Deutsche Bank has any Trust Account Claim against the Company under this Agreement or otherwise, Deutsche Bank shall pursue such Trust Account Claim solely against the Company and its assets outside the Trust Account and not against the Trust Account or any monies or other assets in the Trust Account. 

 

Section 10 . No Rights in Shareholders, etc. The Company recognizes that Deutsche Bank has been engaged only by the Company, and that the Company’s engagement of Deutsche Bank is not deemed to be on behalf of and is not intended to confer rights upon any shareholder, partner or other owner of the Company or any other person not a party hereto as against Deutsche Bank or any of its affiliates or any of their respective directors, officers, agents, employees or representatives.

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 7

 

Section 11 . Disclosure . The Company acknowledges that Deutsche Bank and its affiliates may have and may continue to have investment banking, financial advisory and other relationships with parties other than the Company pursuant to which Deutsche Bank may acquire information of interest to the Company. Deutsche Bank shall have no obligation to disclose such information to the Company.

 

Deutsche Bank and its affiliates are engaged in securities trading and brokerage activities as well as investment banking and financial advisory services. In the ordinary course of their trading and brokerage activities, Deutsche Bank and its affiliates may hold positions, for their own account or the account of customers, in equity or other securities of the Company or any other company that may be involved in any transaction contemplated hereby.

 

Section 12 . Non-Exclusivity . Nothing herein shall be deemed to restrict or prohibit the engagement by the Company of other consultants providing the same or similar services or the payment by the Company of fees to such other consultants.

 

Section 13 . Miscellaneous . Nothing in this Agreement is intended to obligate or commit Deutsche Bank or any of its affiliates to provide any services other than as set out above. This Agreement may be executed in two or more counterparts, all of which together shall be considered a single instrument. In order to comply with the USA Patriot Act, Deutsche Bank must obtain, verify and record information that identifies each entity (or individual) that enters into a business relationship with Deutsche Bank. As a result, in addition to the Company’s corporate name and address, Deutsche Bank will obtain the Company’s corporate tax identification number and certain other information. Deutsche Bank may also request relevant corporate resolutions and other identifying documents. This Agreement constitutes the entire agreement, and supersedes all prior agreements and understandings (both written and oral) of the parties hereto with respect to the subject matter hereof, and cannot be amended or otherwise modified except in writing executed by the parties hereto. This Agreement may not be assigned by either party without the written consent of the other. The provisions hereof shall inure to the benefit of and be binding upon the successors and assigns of the Company and Deutsche Bank.

 

If you are in agreement with the foregoing, please sign and return the attached copy of this Agreement, whereupon this Agreement shall become effective as of the date hereof.

 

 

 

 

FinTech Acquisition Corp. III
November 12, 2018
Page 8

 

      Sincerely,
         
      DEUTSCHE BANK SECURITIES INC.
         
      By /s/ Ravi Raghunathan
        Name: Ravi Raghunathan
         
      By /s/ Adam Raucher
        Name: Adam Raucher
         
AGREED TO:      
         
FINTECH ACQUISITION CORP. III      
         
By /s/ Daniel Cohen      
Name:  Daniel Cohen      
Title: Chief Executive Officer