As
filed with the Securities and Exchange Commission on December 22, 2020
Registration
No. 333-
united
states
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-8
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
PAYA
HOLDINGS INC.
(Exact
name of registrant as specified in its charter)
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Delaware
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85-2199433
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(State or other jurisdiction of
incorporation or organization)
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(I.R.S. Employer
Identification No.)
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303 Perimeter Center North Suite 600,
Atlanta,
Georgia 30346
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30346
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(Address of Principal Executive Offices)
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(Zip Code)
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Paya
Holdings Inc. Omnibus Incentive Plan
(Full
title of the plan)
Glenn
Renzulli
Chief Financial Officer
303 Perimeter Center North Suite 600
Atlanta, Georgia 30346
(800) 261-0240
(Name,
address and telephone number, including area code, of agent for service)
Copies
to:
Mark
A. Fennell, P.C.
Christian O. Nagler
Robert E. Goedert, P.C.
Kirkland & Ellis LLP
300 North LaSalle
Chicago, Illinois 60654
(312) 862-2000 — Phone
(312) 862-2200 — Facsimile
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.
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Large accelerated filer
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☐
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Accelerated filer
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☒
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Non-accelerated filer
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☐
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Smaller reporting company
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☒
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Emerging growth company
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☒
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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 pursuant to Section 7(a)(2)(B) of the Securities Act
. ☐
CALCULATION
OF REGISTRATION FEE
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Title of securities to be registered
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Amount to be
registered (1)
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Proposed maximum
offering price per
share (2)
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Proposed maximum
aggregate offering
price (2)
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Amount of
registration
fee
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Common stock, par value $0.0001 per share, reserved for issuance pursuant to the Paya Holdings Inc. Omnibus Incentive Plan
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10,560,000
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(3)
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$
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13.55
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$
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143,088,000
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$
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15,610.90
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(1)
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Pursuant
to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”),
this Registration Statement shall also cover any additional shares of Common Stock which
become issuable under the above-named plan by reason of any stock dividend, stock split,
recapitalization or any other similar transaction effected without the receipt of consideration
which results in an increase in the number of shares of our outstanding Common Stock.
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(2)
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Estimated
solely for the purpose of calculating the registration fee in accordance with Rule 457(c)
and Rule 457(h) of the Securities Act. The price per share and aggregate offering price
are calculated on the basis of $13.55, the average of the high and low price of the registrant’s
common stock on December 16, 2020, as reported on the Nasdaq Capital Market.
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(3)
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Represents
shares of common stock issuable pursuant to the Paya Holdings Inc. Omnibus Incentive
Plan (the “Omnibus Plan”) being registered herein, which shares consist of
shares of common stock reserved and available for delivery with respect to awards under
the Omnibus Plan, shares of common stock that may again become available for delivery
with respect to awards under the Omnibus Plan pursuant to the share counting, share recycling
and other terms and conditions of the Omnibus Plan.
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PART
I
INFORMATION
REQUIRED IN THE SECTION 10(a) PROSPECTUS
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Item
1.
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Plan Information.
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The
documents containing the information specified in Part I will be delivered in accordance with Rule 428(b) under the Securities
Act. Such documents are not required to be, and are not, filed with the Securities and Exchange Commission (the “Commission”),
either as part of this Registration Statement or as prospectuses or prospectus supplements pursuant to Rule 424 under the Securities
Act. These documents, and the documents incorporated by reference in this Registration Statement pursuant to Item 3 of Part II
of the Form S-8, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
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Item
2.
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Registrant
Information and Employee Plan Annual Information.
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The
written statement required by Item 2 of Part I is included in documents that will be delivered to participants in the plans covered
by this Registration Statement pursuant to Rule 428(b) of the Securities Act.
PART
II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
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Item
3.
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Incorporation
of Documents by Reference.
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The
following documents, which have been filed by Paya Holdings Inc. (the “Company”) with the Commission, are incorporated
in this Registration Statement by reference:
(a) The
Company’s prospectus filed pursuant to Rule 424(b) under the Securities Act (File No. 333-249949) on November 17, 2020,
relating to the Company’s Registration Statement on Form S-1, as amended (Registration No. 333-249949), originally filed
with the Commission on November 6, 2020 (as amended, including all exhibits);
(b) The
Company’s Current Reports on Form 8-K filed with the Commission on October 22, 2020 and Current Report on Form 8-K/A filed
on November 9, 2020 (in each case, other than information furnished under Item 2.02 and Item 7.01 therein); and
(c) The
description of the Company’s common stock contained in the Company’s Registration Statement on Form 8-A filed with
the Commission on October 16, 2020, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”), including any amendments or reports filed for the purpose of updating such description.
All
reports and other documents subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act (other than Current Reports on Form 8-K furnished pursuant to Item 2.02 or Item 7.01 of Form 8-K, including any exhibits included
with such information that are related to such items) after the date of this Registration Statement, but prior to the filing of
a post-effective amendment which indicates that all securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference herein and to be a part hereof from the date of filing
of such documents; provided, however, that documents or information deemed to have been furnished and not filed in accordance
with the rules of the Commission shall not be deemed incorporated by reference into this Registration Statement.
Any
statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Registration Statement to the extent that a statement contained herein or in any other subsequently
filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any statement
so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Registration
Statement.
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Item
4.
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Description
of Securities.
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Not
applicable.
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Item
5.
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Interests
of Named Experts and Counsel.
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The
validity of the common stock offered hereby will be passed upon for the Company by Kirkland & Ellis LLP, Chicago, Illinois.
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Item
6.
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Indemnification
of Directors and Officers.
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Section
102(b)(7) of the General Corporation Law of the State of Delaware (the “DGCL”) allows a corporation to provide in
its certificate of incorporation that a director of the corporation will not be personally liable to the corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except where the director breached the duty of loyalty, failed
to act in good faith, engaged in intentional misconduct or knowingly violated a law, authorized the payment of a dividend or approved
a stock repurchase in violation of Delaware corporate law or obtained an improper personal benefit. The Company’s certificate
of incorporation provides for this limitation of liability.
Section
145 of the DGCL (“Section 145”) provides that a Delaware corporation may indemnify any person who was, is or is threatened
to be made, 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 such corporation), by reason of the fact that such person is or was
an officer, director, employee or agent of such corporation or is or was serving at the request of such corporation as a director,
officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees), judgments, fines and amounts paid in settlement actually and reasonably incurred by such person in connection with such
action, suit or proceeding, provided such person acted in good faith and in a manner he reasonably believed to be in or not opposed
to the corporation’s best interests and, with respect to any criminal action or proceeding, had no reasonable cause to believe
that his conduct was illegal. A Delaware corporation may indemnify any persons who were or are a party to any threatened, pending
or completed action or suit by or in the right of the corporation by reason of the fact that such person is or was a director,
officer, employee or agent of another corporation or enterprise. The indemnity may include expenses (including attorneys’
fees) actually and reasonably incurred by such person in connection with the defense or settlement of such action or suit, provided
such person acted in good faith and in a manner he reasonably believed to be in or not opposed to the corporation’s best
interests, provided that no indemnification is permitted without judicial approval if the officer, director, employee or agent
is adjudged to be liable to the corporation. Where an officer or director is successful on the merits or otherwise in the defense
of any action referred to above, the corporation must indemnify him against the expenses which such officer or director has actually
and reasonably incurred.
Section
145 further authorizes a corporation 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 or enterprise, against any liability asserted against him and incurred by him in any such capacity,
or arising out of his status as such, whether or not the corporation would otherwise have the power to indemnify him under Section
145.
The
Company’s bylaws provide that the Company will indemnify its directors and officers to the fullest extent authorized by
the DGCL and must also pay expenses incurred in defending any such proceeding in advance of its final disposition upon delivery
of an undertaking, by or on behalf of an indemnified person, to repay all amounts so advanced if it should be determined ultimately
that such person is not entitled to be indemnified under this section or otherwise.
The
Company has entered into indemnification agreements with each of its executive officers and directors. The indemnification agreements
provide the executive officers and directors with contractual rights to indemnification, expense advancement and reimbursement,
to the fullest extent permitted under the DGCL. The form of Indemnification Agreement was filed as Exhibit 10.7 to the Company’s
Current Report on Form 8-K filed on October 22, 2020.
The
indemnification rights set forth above shall not be exclusive of any other right which an indemnified person may have or hereafter
acquire under any statute, provision of the Company’s certificate of incorporation or bylaws, agreement, vote of stockholders
or disinterested directors or otherwise.
The
Company will maintain standard policies of insurance that provide coverage (1) to the Company’s directors and officers against
loss arising from claims made by reason of breach of duty or other wrongful act and (2) to the Company with respect to indemnification
payments that the Company may make to such directors and officers.
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Item
7.
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Exemption
from Registration Claimed.
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Not
applicable.
(a) The
undersigned Company hereby undertakes:
(1)
To file, during any period in which offers or sales are being made, a post-effective amendment to the Registration Statement:
(i) To
include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To
reflect in the prospectus any facts or events arising after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering
price set forth in the “Calculation of Registration Fee” table in the effective Registration Statement; and
(iii) To
include any material information with respect to the plan of distribution not previously disclosed in the Registration Statement
or any material change to such information in the Registration Statement;
provided,
however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective
amendment by those paragraphs is contained in reports filed with or furnished to the Commission by the Company pursuant to Section
13 or Section 15(d) of the Exchange Act that are incorporated by reference in the Registration Statement.
(2)
That, for the purpose of determining any liability under the Securities Act, each such post-effective amendment 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)
To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold
at the termination of the offering.
(b) The
undersigned Company hereby undertakes that, for purposes of determining any liability under the Securities Act, each filing of
the Company’s annual report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and, where applicable, each
filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new registration statement relating to the securities offered
herein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar
as indemnification for liabilities arising under the Securities Act may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the Company has been advised that in the opinion of the Commission
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 by the Company of expenses incurred or paid
by a director, officer or controlling person of the Company 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 Company 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.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Company certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-8 and has duly caused this Registration Statement to be signed on its behalf by the
undersigned, thereunto duly authorized, in the City of Atlanta, State of Georgia, on December 22, 2020.
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PAYA
HOLDINGS INC.
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By:
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/s/ Glenn Renzulli
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Name:
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Glenn Renzulli
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Title:
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Chief Financial Officer
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Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement has been signed by the following persons in the
capacities indicated on December 22, 2020.
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Signature
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Title
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/s/
Jeff Hack
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Chief
Executive Officer and Director
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Jeff Hack
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(principal executive
officer)
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/s/
Glenn Renzulli
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Chief
Financial Officer
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Glenn Renzulli
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(principal financial
and accounting officer)
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/s/
Aaron Cohen
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Director
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Aaron Cohen
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/s/
KJ McConnell
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Director
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KJ McConnell
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/s/
Collin Roche
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Director
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Collin Roche
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/s/
Anna May Trala
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Director
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Anna May Trala
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/s/
Stuart Yarbrough
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Director
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Stuart Yarbrough
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/s/
Jim Bonetti
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Director
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Jim Bonetti
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/s/
Mike Gordon
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Director
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Mike Gordon
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/s/
Christine Larsen
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Director
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Christine Larsen
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- 6 -
Exhibit 5.1
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300 North LaSalle
Chicago, IL 60654
United States
+1 312 862 2000
www.kirkland.com
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Facsimile:
+1 312 862 2200
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December 22, 2020
Paya Holdings Inc.
303 Perimeter Center North
Suite 600
Atlanta, Georgia 30346
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Re:
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Registration Statement
on Form S-8
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Ladies and Gentlemen:
We are acting as special counsel to Paya
Holdings Inc., a Delaware corporation (the “Company”), in connection with the filing by the Company of a Registration
Statement on Form S-8 (the “Registration Statement”) under the Securities Act of 1933, as amended (the “Act”),
with the Securities and Exchange Commission (the “Commission”) covering the offering of up to 10,560,000
shares of its common stock, par value $0.0001 per share (the “Shares”) under the Paya Holdings Inc. Omnibus
Incentive Plan (the “Omnibus Plan”).
In reaching the opinions set forth herein,
we have examined such documents, records, certificates, resolutions and other instruments as we have considered necessary or advisable
for purposes of this opinion letter, including (i) the organizational documents of the Company, including the Amended and Restated
Certificate of Incorporation, (ii) minutes and records of the corporate proceedings of the Company, including certain resolutions
adopted by the Board of Directors of the Company, (iii) the Omnibus Plan and (iv) the Registration Statement and the exhibits
thereto.
For purposes of this opinion, we have assumed
(i) the authenticity of all documents submitted to us as originals, (ii) the conformity to the originals of all documents submitted
to us as copies and the authenticity of the originals of all documents submitted to us as copies, (iii) the legal capacity of all
natural persons, (iv) the genuineness of all signatures, (v) the authority of all persons signing all documents submitted to us
on behalf of the parties thereto, (vi) that all information contained in all documents reviewed by us is true, correct and complete,
and (vii) that the Shares will be issued in accordance with the terms of the Omnibus Plan. We have not independently established
or verified any facts relevant to our opinions expressed herein, but have relied upon statements and representations of officers
or other representatives of the Company.
Based upon and subject to the foregoing
qualifications, assumptions and limitations and the further limitations set forth herein and having due regard for the legal considerations
we deem relevant, we are of the opinion that the Shares are duly authorized and when the Shares are issued in accordance with the
terms of the Omnibus Plan and the instruments executed thereunder the Shares will be validly issued, fully paid and non-assessable.
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Beijing Boston Dallas Hong Kong Houston London Los Angeles Munich New York Palo Alto Paris San Francisco Shanghai Washington, D.C.
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Paya Holdings Inc.
December 22, 2020
Page 2
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Our opinions expressed above are subject
to the qualification that we express no opinion as to the applicability of, compliance with, or effect of any laws except the General
Corporation Law of the State of Delaware.
We have relied without independent investigation
upon, among other things, an assurance from the Company that the number of shares which the Company is authorized to issue in its
Amended and Restated Certificate of Incorporation exceeds the number of shares outstanding and the number of shares which the Company
is obligated to issue (or had otherwise reserved for issuance) for any purposes other than issuances of the Shares by at least
the number of Shares and we have assumed that such condition will remain true at all future times relevant to this opinion.
We hereby consent to the filing of this
opinion with the Commission as Exhibit 5.1 to the Registration Statement. We also consent to the reference to our firm under the
heading “Interests of Named Experts and Counsel” in the Registration Statement. In giving this consent, we do not thereby
admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations
of the Commission.
We do not find it necessary for the purposes
of this opinion, and accordingly we do not purport to cover herein, the application of the securities or “Blue Sky”
laws of the various states to the issuance and sale of the Shares.
This opinion is limited to the specific
issues addressed herein, and no opinion may be inferred or implied beyond that expressly stated herein. This opinion speaks only
as of the date hereof. We assume no obligation to revise or supplement this opinion should the General Corporation Law of the State
of Delaware be changed by legislative action, judicial decision or otherwise. This opinion is furnished to you in connection with
the filing of the Registration Statement in accordance with the requirements of Item 601(b)(5) of Regulation S-K under the Act
and is not to be used, circulated, quoted or otherwise relied upon for any other purposes.
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Sincerely,
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/s/ KIRKLAND & ELLIS LLP
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KIRKLAND & ELLIS LLP
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Exhibit 10.1
Execution Version
PAYA HOLDINGS
INC.
OMNIBUS INCENTIVE PLAN
Article
I
PURPOSE; EFFECTIVE DATE; TERM
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1.1
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Purpose. The purpose of this Paya Holdings Inc. Omnibus Incentive Plan is to enhance the profitability and value
of the Company for the benefit of its Stockholders by enabling the Company to offer Eligible Individuals stock- and cash-based
incentives in order to attract, retain, and reward such individuals and strengthen the mutuality of interests between such individuals
and the Stockholders.
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1.2
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Effective Date. The Plan shall become effective on the Closing Date (the “Effective
Date”), subject to the approval of the Plan by the Stockholders in accordance with the requirements of the laws of
the State of Delaware.
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1.3
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Term. No Award may be granted on or after the 10th anniversary of the Effective Date,
but Awards granted before such 10th anniversary may extend beyond that date.
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Article
II
DEFINITIONS
For purposes
of the Plan, the following terms will have the following meanings:
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2.1
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“Affiliate” means each of the following: (a) any Subsidiary; (b) any
Parent; (c) any corporation, trade, or business that is directly or indirectly controlled 50% or more (whether by ownership
of stock, assets, or an equivalent ownership interest or voting interest) by the Company or any Affiliate; (d) any trade or
business that directly or indirectly controls 50% or more (whether by ownership of stock, assets, or an equivalent ownership interest
or voting interest) of the Company; and (e) any other entity in which the Company or any Affiliate has a material equity interest
and that is designated as an “Affiliate” by resolution of the Committee.
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2.2
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“Applicable Law” means the requirements related to or implicated by the
administration of the Plan under applicable state corporate laws, United States federal and state securities laws, the Code, any
stock exchange or quotation system on which the Shares are listed or quoted, and the applicable laws of any foreign country or
jurisdiction where Awards are granted.
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2.3
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“Award” means any award granted under the Plan of any Stock Option, Stock
Appreciation Right, Restricted Shares, Performance Award, Other Share-Based Award, or Other Cash-Based Award. All Awards will be
granted by, confirmed by, and subject to the terms and conditions of, a written
Award Agreement executed by the Company and the Participant.
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2.4
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“Award Agreement” means the written or electronic agreement setting forth
the terms and conditions applicable to an Award.
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2.5
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“Board” means the Board of Directors of the Company.
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2.6
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“Business Combination” has the meaning set forth in Section 11.2(c).
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2.7
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“Cause” has the meaning set forth in the Participant’s Award Agreement.
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2.8
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“Change in Control” has the meaning set forth in Section 11.2.
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2.9
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“Change in Control Price” has the meaning set forth in Section 11.1.
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2.10
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“Closing Date” has the meaning set forth in the Agreement and Plan of
Merger, dated as of August 3, 2020, entered into by and among GTCR-Ultra Holdings, LLC, GTCR Ultra-Holdings II, LLC, FinTech Acquisition
Corp. III Parent Corp., FinTech III Merger Sub Corp., FinTech Acquisition Corp. III, GTCR/Ultra Blocker, Inc. and GTCR Fund XI/C
LP.
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2.11
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“Code” means the Internal Revenue Code of 1986.
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2.12
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“Committee” means any committee of the Board duly authorized by the Board
to administer the Plan. If no committee is duly authorized by the Board to administer the Plan, “Committee” will be
deemed to refer to the Board for all purposes under the Plan.
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2.13
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“Common Stock” means the shares of common stock, $0.0001 par value per
share, of the Company. Unless otherwise determined by the Committee, the Common Stock subject to any Award must constitute “service
recipient stock” under Section 409A (or otherwise not subject the Award to Section 409A).
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2.14
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“Company” means Paya Holdings Inc., a Delaware corporation, and its successors
by operation of law.
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2.15
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“Consultant” means an advisor or consultant to the Company or an Affiliate.
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2.16
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“Disability” has the meaning set forth in the Participant’s Award
Agreement.
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2.17
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“Effective Date” has the meaning set forth in Section 1.2.
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2.18
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“Eligible Employee” means each employee of the Company or an Affiliate.
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2.19
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“Eligible Individual” means each Eligible Employee, Non-Employee Director,
and Consultant who is designated by the Committee as eligible to receive an Award.
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2.20
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“Exchange Act” means the Securities Exchange Act of 1934.
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2.21
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“Fair Market Value” means, as of any date and except as provided below,
the last sales price reported for the Common Stock on the applicable date as reported on the principal stock exchange in the United
States on which the Common Stock is then listed, or if the Common Stock is not listed, or otherwise reported or quoted, the Committee
will determine the Fair Market Value taking into account the requirements of Section 409A. For purposes of the grant of any
Award, the applicable date will be the trading day immediately before the date on which the Award is granted. For purposes of any
Award granted in connection with the Registration Date, the Fair Market Value will be the public offering price in the initial
public offering as set forth on the cover of the final prospectus. For purposes of the purchase of any Award, the applicable date
will be the date a notice of purchase is received by the Company or, if not a day on which the applicable market is open, the next
day that it is open.
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2.22
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“Family Member” means the Participant’s child, stepchild, grandchild,
parent, stepparent, grandparent, spouse, former spouse, sibling, niece, nephew, mother-in-law, father-in-law, son-in-law, daughter-in-law,
brother-in-law, or sister-in-law, including adoptive relationships, any person sharing the Participant’s household (other
than a tenant or employee), a trust in which these persons have more than 50% of the beneficial interest, a foundation in which
these persons (or the Participant) control the management of assets, and any other entity in which these persons (or the Participant)
own more than 50% of the voting interests.
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2.23
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“GAAP” means generally accepted accounting principles.
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2.24
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“Incentive Stock Option” or “ISO” means any
Stock Option awarded to an Eligible Employee of the Company, its Subsidiaries, or any Parent intended to be and designated as an
“incentive stock option” within the meaning of Code Section 422.
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2.25
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“Incumbent Directors” has the meaning set forth in Section 11.2(b).
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2.26
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“Lead Underwriter” has the meaning set forth in Section 13.20.
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2.27
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“Lock-Up Period” has the meaning set forth in Section 13.20.
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2.28
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“Non-Employee Director” means a member of the Board or the board of directors
of an Affiliate who is not an active employee of the Company or an Affiliate.
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2.29
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“Nonstatutory Stock Option” means any Stock Option that is not an ISO.
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2.30
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“Other Cash-Based Award” means an award granted to an Eligible Individual
under Section 10.3 that is payable in cash at the time or times and subject to the terms and conditions determined
by the Committee.
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2.31
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“Other Share-Based Award” means an award granted to an Eligible Individual
under Article X that is valued in whole or in part by reference to, or is payable in or otherwise based on, Common Stock,
including an award valued by reference to an Affiliate.
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2.32
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“Parent” means any parent corporation of the Company within the meaning
of Code Section 424(e).
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2.33
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“Participant” means an Eligible Individual who has been granted, and
holds, an Award.
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2.34
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“Performance Award” means an an award granted to an Eligible Individual
under Article IX contingent upon achieving specified Performance Goals.
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2.35
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“Performance Goals” means goals established by the Committee as contingencies
for Awards to vest or become exercisable or distributable, which are based on performance criteria selected by the Committee.
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2.36
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“Performance Period” means the designated period during which Performance
Goals must be satisfied with respect to a Performance Award.
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2.37
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“Person” means an individual, a partnership, a corporation, a limited
liability company, an association, a joint stock company, a trust, a joint venture, an unincorporated organization, and a government
or any branch, department, agency, political subdivision, or official thereof.
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2.38
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“Plan” means this Paya Holdings Inc. Omnibus Incentive Plan, as may be
amended from time to time.
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2.39
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“Proceeding” has the meaning set forth in Section 13.10.
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2.40
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“Registration Date” means the date on which the Company consummates the
sale of its Common Stock in a bona fide, firm commitment underwriting pursuant to a registration statement under the Securities
Act.
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2.41
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“Restricted Shares” means restricted Shares granted to an Eligible Individual
under Article VIII.
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2.42
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“Restriction Period” has the meaning set forth in Section 8.3(a).
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2.43
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“Rule 16b-3” means Rule 16b-3 under Section 16(b) of the Exchange
Act.
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2.44
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“Section 409A” means Code Section 409A.
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2.45
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“Securities Act” means the Securities Act of 1933.
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2.46
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“Separation from Service” means, unless otherwise determined by the Committee
or the Company, the termination of the applicable Participant’s employment with, and performance of services for, the Company
and all Affiliates, including by reason of the fact that the Participant’s employer or other service recipient ceases to
be an Affiliate of the Company. Unless otherwise determined by the Committee, if a Participant’s employment or service with
the Company or an Affiliate terminates but the Participant continues to provide services to the Company or an Affiliate in a Non-Employee
Director capacity or as an Eligible Employee or Consultant, as applicable, such change in status will not be considered a Separation
from Service. Approved temporary absences from employment because of illness, vacation,
or leave of absence and transfers among the Company and its Affiliates will not be considered Separations from Service. Notwithstanding
the foregoing definition of Separation from Service, with respect to any Award that constitutes nonqualified deferred compensation
under Section 409A, “Separation from Service” means a “separation from service” as defined under Section 409A.
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2.47
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“Share” means a share of Common Stock.
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2.48
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“Share Reserve” has the meaning set forth in Section 4.1.
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2.49
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“Stock Appreciation Right” means a right granted to an Eligible Individual
under Article VII to receive an amount in cash or Shares equal to the difference between (a) the Fair Market Value
of a Share on the date such right is exercised and (b) the per Share exercise price of such right.
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2.50
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“Stock Option” means an option to purchase Shares granted to an Eligible
Individual under Article VI.
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2.51
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“Stockholder” means a stockholder of the Company.
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2.52
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“Subsidiary” means any subsidiary corporation of the Company within the
meaning of Code Section 424(f).
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2.53
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“Ten Percent Stockholder” means a Person owning stock possessing more
than 10% of the total combined voting power of all classes of stock of the Company, its Subsidiaries, or any Parent.
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2.54
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“Transfer” means (a) when used as a noun, any direct or indirect transfer,
sale, assignment, pledge, hypothecation, encumbrance, or other disposition, whether for value or no value and whether voluntary
or involuntary, and (b) when used as a verb, to directly or indirectly transfer, sell, assign, pledge, encumber, charge, hypothecate,
or otherwise dispose of, whether for value or for no value and whether voluntarily or involuntarily. “Transferred”
and “Transferable” have a correlative meaning under the Plan.
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Article
III
ADMINISTRATION
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3.1
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Committee. The Plan will be administered and interpreted by the Committee. To the
extent required by Applicable Law, it is intended that each member of the Committee will qualify as (a) a “non-employee director”
under Rule 16b-3 and (b) an “independent director” under the rules of the principal stock exchange in the United States
on which the Common Stock is then listed, as applicable. If it is later determined that one or more members of the Committee do
not so qualify, actions taken by the Committee before such determination will be valid despite such failure to qualify.
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3.2
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Authority of the Committee. The Committee will have full authority to grant, under
the terms and conditions of the Plan, to Eligible Individuals: (i) Stock Options, (ii) Stock Appreciation Rights, (iii) Restricted
Shares, (iv) Performance Awards, (v) Other Share-Based Awards, and (vi) Other
Cash-Based Awards. In particular, the Committee will have the authority:
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(a)
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to select the Eligible Individuals to whom Awards may be granted;
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(b)
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to determine whether and to what extent Awards, or any combination thereof, are to be granted to
one or more Eligible Individuals;
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(c)
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to determine the number of Shares to be covered by each Award;
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(d)
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to determine the terms and conditions, not inconsistent with the terms and conditions of the Plan,
of all Awards (including the exercise or purchase price (if any), any restriction or limitation, any vesting schedule or acceleration
thereof, Performance Goals, or any forfeiture restrictions or waiver thereof regarding any Award and/or Common Stock relating thereto);
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(e)
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to determine the amount of cash to be covered by each Award;
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(f)
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to determine whether, to what extent, and under what circumstances grants of Stock Options and
other Awards are to operate on a tandem basis or in conjunction with or apart from other awards made by the Company outside of
the Plan;
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(g)
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to determine whether and under what circumstances an Award may be settled in cash, Common Stock,
or Restricted Shares;
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(h)
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to determine whether a Stock Option is an ISO or Nonstatutory Stock Option;
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(i)
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to impose a “blackout” period during which Stock Options may not be exercised;
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(j)
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to determine whether to require a Participant, as a condition of the granting of any Award, to
not sell or otherwise dispose of Shares acquired upon the exercise of an Award for a period of time as determined by the Committee
after the date of the acquisition of such Award; and
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(k)
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to modify, waive, extend, renew, or adjust the terms and conditions of an Award (including the
acceleration of vesting, waiver of forfeiture restrictions, modification of the form of settlement of the Award (for example, from
cash to Shares or vice versa), early termination of a performance period, or modification of any other condition or limitation
regarding an Award, including Performance Goals), subject to Section 6.4(l) and Article XII.
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3.3
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Guidelines. Subject to Article XII, the Committee will have the authority
to adopt, alter, and repeal such administrative rules, guidelines, and practices governing the Plan and perform all acts, including
the delegation of its responsibilities as set forth in Section 3.4 (to the extent permitted by Applicable Law), as it may
deem advisable; to construe and interpret the Plan, all Awards, and all Award Agreements (and in each case any agreements relating
thereto); and to otherwise supervise the administration of the Plan. The Committee may correct any defect, supply any omission,
or reconcile any inconsistency in the Plan or in any agreement relating thereto
in the manner and to the extent it deems necessary to effectuate the purpose and intent of the Plan. The Committee may adopt special
terms and conditions for Persons who are residing in, or employed in, or subject to the taxes of, any domestic or foreign jurisdictions
to comply with Applicable Law. Notwithstanding the foregoing terms and conditions of this Section 3.3, no action of
the Committee under this Section 3.3 may materially and adversely affect the rights of any Participant without the
Participant’s consent. To the extent applicable, the Plan is intended to comply with the applicable requirements of Rule
16b-3, and the Plan will be limited, construed, and interpreted in a manner so as to comply therewith.
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3.4
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Delegation of Authority. The Committee may delegate any or all of its powers and
duties under the Plan to a subcommittee of directors or to any officer of the Company, including the power to perform administrative
functions and grant Awards; provided, that such delegation does not (i) violate Applicable Law, or (ii) result in the loss
of an exemption under Rule 16b-3(d)(1) for Awards granted to Participants subject to Section 16 of the Exchange Act in respect
of the Company. Upon any such delegation, all references in the Plan to the “Committee,” other than in Section 4.2
and Article XI, shall be deemed to include any subcommittee or officer of the Company to whom such powers have been delegated
by the Committee. Any such delegation shall not limit the right of such subcommittee members or such an officer to receive Awards;
provided, however, that such subcommittee members and any such officer may not grant Awards to himself or herself,
a member of the Board, or any executive officer of the Company or an Affiliate, or take any action with respect to any Award previously
granted to himself or herself, a member of the Board, or any executive officer of the Company or an Affiliate. The Committee may
also appoint agents who are not executive officers of the Company or members of the Board to assist in administering the Plan,
provided, however, that such individuals may not be delegated the authority to grant or modify any Awards that will,
or may, be settled in Shares.
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3.5
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Sole Discretion; Decisions Final. Any decision, interpretation, or other action made
or taken by or at the direction of the Company, the Board, or the Committee (or any of their members) arising out of or in connection
with the Plan will be within the sole and absolute discretion of all and each of them, as the case may be, and will be final, binding,
and conclusive on the Company and all employees and Participants and their respective heirs, executors, administrators, successors,
and assigns and all other Persons having an interest in the Plan.
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3.6
|
Designation of Consultants/Liability.
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(a)
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The Committee may designate employees of the Company and professional advisors to assist the Committee
in the administration of the Plan and may grant authority to officers to grant Awards and execute agreements and other documents
on behalf of the Committee, in each case to the extent permitted by Applicable Law. In the event of any designation of authority
hereunder, subject to Applicable Law and any terms and conditions imposed by the Committee in connection with such designation,
such designee or designees will have the power and authority to take such actions, exercise such powers,
and make such determinations that are otherwise specifically designated to the Committee hereunder.
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(b)
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The Committee may employ such legal counsel, consultants, and agents as it may deem desirable for
the administration of the Plan and may rely upon any opinion received from any such counsel or consultant and any computation received
from any such consultant or agent. Expenses incurred by the Committee or the Board in the engagement of any such counsel, consultant,
or agent will be paid by the Company. The Committee, its members, and any Person designated under Section 3.6(a) will
not be liable for any action or determination made in good faith with respect to the Plan. To the maximum extent permitted by Applicable
Law, no officer of the Company or member or former member of the Committee or of the Board will be liable for any action or determination
made in good faith with respect to the Plan or any Award.
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3.7
|
Indemnification. To the maximum extent permitted by Applicable Law and the Certificate
of Incorporation and by-laws of the Company and to the extent not covered by insurance directly insuring such Person, each officer
and employee of the Company and each Affiliate and member or former member of the Committee and the Board will be indemnified and
held harmless by the Company against all costs and expenses and liabilities, and advanced amounts necessary to pay the foregoing
at the earliest time and to the fullest extent permitted, arising out of any act or omission to act in connection with the administration
of the Plan, except to the extent arising out of such officer’s, employee’s, member’s, or former member’s
own fraud or bad faith. Such indemnification will be in addition to any right of indemnification the employees, officers, directors,
or members or former officers, directors, or members may have under Applicable Law or under the Certificate of Incorporation or
by-laws of the Company or an Affiliate. Notwithstanding any other term or condition of the Plan, this indemnification will not
apply to the actions or determinations made by an individual with regard to Awards granted to himself or herself.
|
Article
IV
SHARE LIMITATION
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(a)
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Share Limits and Counting.
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(i)
|
The maximum number of Shares available for issuance with respect to Awards under the Plan may not
exceed 8,800,000 Shares (subject to any increase or decrease under this Section 4.1 or Section 4.2) (the
“Share Reserve”). The Shares to be delivered under the Plan shall be made available from (i) authorized
and unissued Shares, (ii) Shares held in or acquired for the treasury of the Company, or (iii) previously issued Shares reacquired
by the Company, including shares purchased on the open market. The maximum number of Shares with respect to which ISOs may be granted
is 8,800,000 Shares.
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(ii)
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If any Stock Option, Stock Appreciation Right, or Other Share-Based Award expires, terminates,
or is canceled for any reason without having been exercised in full, the number of Shares underlying such Award will be added back
to the Share Reserve. If any Restricted Shares, Performance Awards, or Other Share-Based Awards denominated in Shares are forfeited
for any reason, the number of Shares underlying such Award will be added back to the Share Reserve. Any Award settled in cash will
not count against the Share Reserve. For the avoidance of doubt, the following Shares shall not be added back to the Share Reserve:
(A) Shares withheld or surrendered to the Company in payment of any exercise or purchase price of a Stock Option or Stock Appreciation
Right, (B) Shares withheld or surrendered to the Company in payment of any taxes relating to an Award, and (C) Shares repurchased
on the open market with the proceeds from the exercise price of a Stock Option.
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(iii)
|
Awards may be granted in assumption of, or in substitution
for, outstanding awards previously granted by an entity acquired by the Company or with which the Company combines (“Substitute
Awards”). Substitute Awards will not count against the Share Reserve; provided, that Substitute Awards
issued in connection with the assumption of, or in substitution for, outstanding Stock Options intended to qualify as ISOs will
count against the ISO limit above. Additionally, in the event that a company acquired by the Company or any Subsidiary or with
which the Company or any Subsidiary combines has shares available under a pre-existing plan approved by stockholders and not adopted
in contemplation of such acquisition or combination, the shares available for grant pursuant to the terms of such pre-existing
plan (as adjusted, to the extent appropriate, using the exchange ratio or other adjustment or valuation ratio or formula used in
such acquisition or combination to determine the consideration payable to the holders of common stock of the entities party to
such acquisition or combination) may, if and to the extent determined by the Board and subject to compliance with applicable stock
exchange requirements, be used for Awards under the Plan and shall not reduce the Share Reserve; provided, that Awards using such
available shares shall not be made after the date awards or grants could have been made under the terms of the pre-existing plan,
absent the acquisition or combination, and shall only be made to individuals who were not, prior to such acquisition or combination,
employed by (and who were not non-employee directors or other service providers of) the Company or any Subsidiary immediately prior
to such acquisition or combination.
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(b)
|
Annual Non-Employee Director Award Limitation. The maximum value of Awards granted
during any calendar year to any Non-Employee Director may not exceed $400,000 in total value (based on the Fair Market Value
of the Shares underlying the Award as of the grant date for Restricted Shares and Other Share-Based Awards, and based on the
grant date fair value for accounting purposes for Stock Options and Stock Appreciation Rights); provided, that for any
calendar year in which a Non-Employee Director (i)
first commences service on the Board, (ii) serves on a special committee of the Board, or (iii) serves as lead director or chairperson
of the Board, additional Awards may be granted to such Non-Employee Director in excess of such limit.
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|
(a)
|
The existence of the Plan and any Awards will not affect in any way the right or power of the Board,
the Committee, or the Stockholders to make or authorize (i) any adjustment, recapitalization, reorganization, or other change
in the Company’s capital structure or its business, (ii) any merger or consolidation of the Company or any Affiliate,
(iii) any issuance of bonds, debentures, preferred, or prior preference stock ahead of or affecting the Common Stock, (iv) the
dissolution or liquidation of the Company or any Affiliate, (v) any sale or transfer of all or part of the assets or business
of the Company or any Affiliate, or (vi) any other corporate act or proceeding.
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|
(b)
|
Subject to Section 11.1:
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|
|
(i)
|
In the event of any change in the outstanding Common Stock or in the capital structure of the Company
by reason of any stock split, reverse stock split, recapitalization, reorganization, merger, consolidation, combination, division,
exchange, spin off, extraordinary stock dividend, or other relevant change in capitalization, Awards will be equitably adjusted
or substituted to the extent necessary to preserve the economic intent of such Awards, as determined by the Committee.
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|
(i)
|
The Committee may adjust the Performance Goals applicable to any Awards to reflect any unusual
or non-recurring events and other extraordinary items, impact of charges for restructurings, discontinued operations, and the cumulative
effects of accounting or tax changes, each as defined by GAAP or as identified in the Company’s financial statements, notes
to the financial statements, management’s discussion and analysis, or other Company public filing.
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|
(ii)
|
Fractional Shares resulting from any adjustment in Awards under this Section 4.2(b)
will be aggregated until, and eliminated at, the time of exercise or payment by rounding down to the nearest whole number. No cash
settlements will be required with respect to fractional Shares eliminated by rounding. Notice of any adjustment will be given by
the Committee to each Participant whose Award has been adjusted and such adjustment (whether or not such notice is given) will
be effective and binding for all purposes of the Plan.
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4.3
|
Minimum Purchase Price. Notwithstanding any other term or condition of the Plan,
if authorized but previously unissued Shares are issued under the Plan, such Shares may not be issued for a consideration that
is less than as permitted under Applicable Law.
|
Article
V
ELIGIBILITY
|
|
5.1
|
General Eligibility. All current and prospective Eligible Individuals are eligible
to be granted Awards. Eligibility for the grant of Awards and actual participation in the Plan will be determined by the Committee.
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|
5.2
|
ISOs. Notwithstanding Section 5.1, only Eligible Employees of the Company,
its Subsidiaries, and any Parent are eligible to be granted ISOs.
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5.3
|
General Requirement. The vesting and exercise of Awards granted to a prospective
Eligible Individual must be conditioned upon such individual actually becoming an Eligible Employee, Consultant, or Non-Employee
Director, respectively.
|
Article
VI
STOCK OPTIONS
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|
6.1
|
Stock Options. Stock Options may be granted alone or in addition to other Awards.
Each Stock Option will be of one of two types: (a) an ISO or (b) a Nonstatutory Stock Option.
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6.2
|
Grants. The Committee will have the authority to grant to any Eligible Employee 1
or more ISOs, Nonstatutory Stock Options, or both types of Stock Options. The Committee will have the authority to grant any Consultant
or Non-Employee Director one or more Nonstatutory Stock Options. To the extent that any Stock Option does not qualify as an ISO,
such Stock Option or the portion thereof that does not so qualify will constitute a separate Nonstatutory Stock Option.
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6.3
|
ISOs. Notwithstanding any other term or condition of the Plan, no term or condition
of the Plan relating to ISOs will be interpreted, amended, or altered, nor will any discretion or authority granted under the Plan
be so exercised, so as to disqualify the Plan under Code Section 422, or, without the consent of the Participants affected,
to disqualify any ISO under Code Section 422.
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6.4
|
Terms and Conditions of Stock Options. Stock Options will be subject to terms and
conditions, not inconsistent with the Plan, determined by the Committee, and the following:
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|
|
(a)
|
Exercise Price. The exercise price per Share subject to a Stock Option will be determined
by the Committee at the time of grant, provided that the per Share exercise price of a Stock Option may not be less than
100% (or, in the case of an ISO granted to a Ten Percent Stockholder, 110%) of the Fair Market Value of a Share at the grant date.
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|
|
(b)
|
Stock Option Term. The term of each Stock Option will be fixed by the Committee, provided
that no Stock Option may be exercisable more than 10 years after the date the Stock Option is granted; and provided further
that the term of an ISO granted to a Ten Percent Stockholder may not exceed five years.
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|
(c)
|
Exercisability. Unless otherwise determined by the Committee in accordance with this Section 6.4,
Stock Options will be exercisable at the time or times and subject to the terms and conditions determined by the Committee. If
the Committee provides that any Stock Option is exercisable subject to certain terms and conditions, the Committee may waive those
terms and conditions on the exercisability at any time at or after the time of grant in whole or in part.
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|
(d)
|
Method of Exercise. Subject to whatever installment exercise and waiting period terms and
conditions that may apply under Section 6.4(c), to the extent vested, Stock Options may be exercised in whole or in
part at any time during the Stock Option term by giving written notice of exercise to the Company specifying the number of Shares
to be purchased. Such notice must be accompanied by payment in full of the exercise price as follows: (i) in cash or by check,
bank draft, or money order payable to the order of the Company; (ii) solely to the extent permitted by Applicable Law, if
the Common Stock is listed on a national stock exchange, and authorized by the Committee, through a procedure whereby the Participant
delivers irrevocable instructions to a broker reasonably acceptable to the Committee to deliver promptly to the Company an amount
equal to the exercise price; (iii) to the extent authorized by the Committee, having the Company withhold Shares issuable
upon exercise of the Stock Option, or by payment in full or in part in the form of Shares owned by the Participant, based on the
Fair Market Value of the Shares on the payment date; or (iv) on such other terms and conditions that may be acceptable to,
and authorized by, the Committee. No Shares will be issued under the Plan until payment for those Shares has been made or provided
for in accordance with the Plan.
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|
|
(e)
|
Non-Transferability of Stock Options. No Stock Option will be Transferable by the Participant
other than by will or by the laws of descent and distribution, and all Stock Options will be exercisable, during the Participant’s
lifetime, only by the Participant, except that the Committee may determine at the time of grant or thereafter that a Nonstatutory
Stock Option that is otherwise not Transferable under this Section 6.4(e) is Transferable to a Family Member in whole
or in part on terms and conditions that are specified by the Committee. A Nonstatutory Stock Option that is Transferred to a Family
Member under the preceding sentence (i) may not be subsequently Transferred other than by will or by the laws of descent and
distribution and (ii) remains subject to the Plan and the applicable Award Agreement. Any Shares acquired upon the exercise
of a Nonstatutory Stock Option by a permissible transferee of a Nonstatutory Stock Option or a permissible transferee under a Transfer
after the exercise of the Nonstatutory Stock Option will be subject to the Plan and the applicable Award Agreement.
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|
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(f)
|
Separation from Service by Death or Disability. Unless otherwise determined by the Committee
or as set forth in the applicable Award Agreement, if a Participant’s Separation from Service is by reason of death or Disability,
all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s Separation
from Service may be exercised by the Participant (or in the case of the Participant’s death, by the legal representative
of the Participant’s estate) at any time within a period of
one year from the date of such Separation from Service, but in no event beyond the expiration of the stated term of such Stock
Options; provided, however, that, in the event of a Participant’s Separation from Service by reason of Disability,
if the Participant dies within such exercise period, all unexercised Stock Options held by such Participant will thereafter be
exercisable, to the extent to which they were exercisable at the time of death, for a period of one year from the date of such
death, but in no event beyond the expiration of the stated term of such Stock Options.
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|
|
(g)
|
Involuntary Separation from Service without Cause. Unless otherwise determined by the Committee
or as set forth in the applicable Award Agreement, if a Participant’s Separation from Service is initiated by the Company
without Cause, all Stock Options that are held by such Participant that are vested and exercisable at the time of the Participant’s
Separation from Service may be exercised by the Participant at any time within a period of 90 days after the date of such Separation
from Service, but in no event beyond the expiration of the stated term of such Stock Options.
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|
|
(h)
|
Voluntary Resignation. Unless otherwise determined by the Committee or as set forth in the
applicable Award Agreement, if a Participant’s Separation from Service is voluntary (other than a voluntary Separation from
Service described in Section 6.4(i)(y)), all Stock Options that are held by such Participant that are vested and exercisable
at the time of the Participant’s Separation from Service may be exercised by the Participant at any time within a period
of 90 days from the date of such Separation from Service, but in no event beyond the expiration of the stated term of such Stock
Options.
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|
(i)
|
Separation from Service for Cause. Unless otherwise determined by the Committee or as set
forth in the applicable Award Agreement, if a Participant’s Separation from Service (x) is for Cause or (y) is a voluntary
Separation from Service (as provided in Section 6.4(h)) after the occurrence of an event that would be grounds for
a Separation from Service for Cause, all Stock Options, whether vested or not vested, that are held by such Participant will terminate
and expire as of the date of such Separation from Service.
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|
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(j)
|
Unvested Stock Options. Unless otherwise determined by the Committee or as set forth in
the applicable Award Agreement, Stock Options that are not vested as of the date of a Participant’s Separation from Service
for any reason will terminate and expire as of the date of such Separation from Service.
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|
|
(k)
|
ISO Terms and Conditions. To the extent that the aggregate Fair Market Value (determined
as of the time of grant) of the Common Stock with respect to which ISOs are exercisable for the first time by an Eligible Employee
during any calendar year under the Plan or any other stock option plan of the Company, any Subsidiary, or any Parent exceeds $100,000,
such Stock Options will be treated as Nonstatutory Stock Options. In addition, if an Eligible Employee does not remain employed
by the Company, any Subsidiary, or any Parent at all times from the time an ISO is granted until three months before
the date of exercise thereof (or such other period as required by Applicable Law), such Stock Option will be treated as a Nonstatutory
Stock Option. Should any term or condition of the Plan not be necessary in order for the Stock Options to qualify as ISOs, or should
any additional terms and conditions be required, the Committee may amend the Plan accordingly.
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(l)
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Form, Modification, Extension and Renewal of Stock Options. Subject to the terms and conditions
of the Plan, Stock Options will be evidenced by such form of agreement or grant as is approved by the Committee, and the Committee
may (i) modify, extend, or renew outstanding Stock Options (provided that the rights of a Participant are not materially
reduced without such Participant’s consent; and provided, further, that such action does not subject the Stock
Options to Section 409A without the consent of the Participant), and (ii) accept the surrender of outstanding Stock Options
(to the extent not theretofore exercised) and authorize the granting of new Stock Options in substitution therefor (to the extent
not theretofore exercised). Substitute Awards that are Stock Options or Stock Appreciation Rights may have an exercise price that
is less than the Fair Market Value of a Share on the date of the substitution if such substitution complies with Section 409A and
other applicable laws and exchange rules. Notwithstanding any other term or condition of the Plan, except as provided in the
immediately preceding sentence or in connection with a corporate transaction involving the Company in accordance with Section 4.2,
the repricing of Options (and Stock Appreciation Rights) is prohibited without prior approval of the Stockholders. For this purpose,
a “repricing” means any of the following (or any other action that has the same effect as any of the following): (y) any
action that is treated as a “repricing” under GAAP and (z) repurchasing for cash or canceling an Option or a Stock
Appreciation Right at a time when its exercise price is greater than the Fair Market Value of the underlying Shares in exchange
for another Award. A cancellation and exchange under clause (z) would be considered a “repricing” regardless of
whether it is treated as a “repricing” under GAAP and regardless of whether it is voluntary on the part of the Participant.
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(m)
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Early Exercise. The Committee may provide that a Stock Option include a term or condition
whereby the Participant may elect at any time before the Participant’s Separation from Service to exercise the Stock Option
as to any part or all of the Shares subject to the Stock Option before the full vesting of the Stock Option and such Shares will
be subject to the terms and conditions of Article VIII and be treated as Restricted Shares. Unvested Shares so exercised
may be subject to a repurchase option in favor of the Company or to any other restriction the Committee may determine.
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(n)
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Automatic Exercise. The Committee may include a term or condition in an Award Agreement
providing for the automatic exercise of a Nonstatutory Stock Option on a cashless basis on the last day of the term of such Stock
Option if the Participant has failed to exercise the Nonstatutory Stock Option as of such date, with respect to which the Fair
Market Value of the Shares underlying the Nonstatutory Stock Option exceeds the exercise price
of such Nonstatutory Stock Option on the date of expiration of such Stock Option, subject to Section 13.5.
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Article
VII
STOCK APPRECIATION RIGHTS
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7.1
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Terms and Conditions of Stock Appreciation
Rights. Stock Appreciation Rights will be subject to terms and conditions, not inconsistent with the Plan, determined
by the Committee, and the following:
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(a)
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Exercise Price. The exercise
price per Share subject to a Stock Appreciation Right will be determined by the Committee
at the time of grant, provided that the per Share exercise price of a Stock Appreciation
Right will not be less than 100% of the Fair Market Value of a Share at the time of grant.
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(b)
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Term. The term of each Stock Appreciation Right will be fixed by the Committee, but may
not be greater than 10 years after the date the right is granted.
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(c)
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Exercisability. Unless otherwise determined by the Committee in accordance with this Section 7.1,
Stock Appreciation Rights will be exercisable at the time or times and subject to the terms and conditions determined by the Committee
or as set forth in the applicable Award Agreement. If the Committee provides that any such right is exercisable subject to certain
terms and conditions, the Committee may waive those terms and conditions on the exercisability at any time at or after grant in
whole or in part.
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(d)
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Method of Exercise. Subject to whatever installment exercise and waiting period terms and
conditions apply under Section 7.1(c), Stock Appreciation Rights may be exercised in whole or in part at any time in
accordance with the applicable Award Agreement, by giving written notice of exercise to the Company specifying the number of Stock
Appreciation Rights to be exercised.
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(e)
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Payment. Upon the exercise of a Stock Appreciation Right, a Participant will be entitled
to receive, for each right exercised, up to, but no more than, an amount in cash or Common Stock (as chosen by the Committee) equal
in value to the excess of the Fair Market Value of one Share on the date that the right is exercised over the Fair Market Value
of one Share on the date that the right was awarded to the Participant.
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(f)
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Separation from Service. Unless otherwise determined by the Committee, subject to the applicable
Award Agreement and the Plan, upon a Participant’s Separation from Service for any reason, Stock Appreciation Rights will
remain exercisable after a Participant’s Separation from Service on the same basis as Stock Options would be exercisable
after a Participant’s Separation from Service in accordance with Sections 6.4(f) through 6.4(j).
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(g)
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Non-Transferability. No Stock Appreciation Rights will be Transferable by the Participant
other than by will or by the laws of descent and distribution, and all such rights will be exercisable, during the Participant’s
lifetime, only by the Participant.
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7.2
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Automatic Exercise. The Committee may include a term or condition in an Award Agreement
providing for the automatic exercise of a Stock Appreciation Right on a cashless basis on the last day of the term of the Stock
Appreciation Right if the Participant has failed to exercise the Stock Appreciation Right as of such date, with respect to which
the Fair Market Value of the Shares underlying the Stock Appreciation Right exceeds the exercise price of such Stock Appreciation
Right on the date of expiration of such Stock Appreciation Right, subject to Section 13.5.
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Article
VIII
RESTRICTED SHARES
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8.1
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Restricted Shares. Restricted Shares may be issued either alone or in addition to
other Awards. The Committee will determine the Eligible Individuals, to whom, and the time or times at which, grants of Restricted
Shares will be made, the number of Restricted Shares to be awarded, the price (if any) to be paid by the Participant (subject to
Section 8.2), the time or times within which such Awards will be subject to forfeiture, the vesting schedule and rights
to acceleration thereof, and all other terms and conditions of the Awards.
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8.2
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Awards and Certificates. Participants selected to receive Restricted Shares will
not have any right with respect to the Award, unless and until the Participant has delivered a fully executed copy of the agreement
evidencing the Award to the Company, to the extent required by the Committee, and has otherwise complied with the applicable terms
and conditions of the Award. Further, such Award will be subject to the following:
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(a)
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Purchase Price. The purchase price of Restricted Shares will be fixed by the Committee.
Subject to Section 4.3, the purchase price for Restricted Shares may be zero to the extent permitted by Applicable
Law, and, to the extent required by Applicable Law, such purchase price may not be less than par value.
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(b)
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Acceptance. Awards of Restricted Shares must be accepted within a period of 60 days (or
such shorter period as the Committee may specify at grant or in the Participant’s Award Agreement) after the grant date,
by executing an Award Agreement and by paying whatever price (if any) the Committee has designated thereunder.
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(c)
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Legend. Each Participant receiving Restricted Shares will be issued a stock certificate
in respect of the Restricted Shares, unless the Committee elects to use another system, such as book entries by the transfer agent,
as evidencing ownership of Restricted Shares. Such certificate will be registered in the name of the Participant, and will, in
addition to any legends required by Applicable Law, bear an appropriate legend referring to the terms and conditions applicable
to the Award, substantially in the following form:
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“The anticipation, alienation,
attachment, sale, transfer, assignment, pledge, encumbrance, or charge of the restricted shares of stock represented hereby are
subject to the terms and conditions (including forfeiture) of the Paya Holdings Inc. (the “Company”) Omnibus Incentive
Plan (the “Plan”) and an award agreement entered into between the registered owner and the Company dated __________
(the “Agreement”). Copies of such Plan and Agreement are on file at the principal office of the Company.”
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(d)
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Custody. If stock certificates are issued in respect of Restricted Shares, the Committee
may require that any stock certificates evidencing such Shares be held in custody by the Company until the restrictions thereon
have lapsed, and that, as a condition of any grant of Restricted Shares, the Participant must deliver a duly signed stock power
or other instruments of assignment, each endorsed in blank with a guarantee of signature if deemed necessary or appropriate by
the Company, which would permit transfer to the Company of all or a portion of the Restricted Shares in the event that such Award
is forfeited in whole or part.
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8.3
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Terms and Conditions. Restricted Shares will be subject to terms and conditions,
not inconsistent with the Plan, determined by the Committee, and the following:
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(a)
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Restriction Period. The Participant is not permitted to Transfer Restricted Shares during
the period or periods set by the Committee (the “Restriction Period”) commencing on the date of such
Award, as set forth in the applicable Award Agreement, and such agreement will set forth a vesting schedule and any event that
would accelerate vesting of the Restricted Shares. Within these limits, based on service, attainment of Performance Goals, or such
other factors or criteria as the Committee may determine, the Committee may condition the grant or provide for the lapse of such
restrictions in installments in whole or in part, or may accelerate the vesting of all or any part of any Restricted Shares and
waive the deferral terms and conditions for all or any part of any Restricted Shares.
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(b)
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Rights as a Stockholder. Except as provided in Section 8.3(a) and this Section 8.3(b)
or as otherwise determined by the Committee, the Participant will have, with respect to Restricted Shares, all of the rights of
a Stockholder, including the right to receive dividends, the right to vote such Restricted Shares, and, subject to and conditioned
upon the full vesting of Restricted Shares, the right to tender those Shares. The Committee may determine that the payment of dividends
will be deferred until, and conditioned upon, the expiration of the applicable Restriction Period.
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(c)
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Separation from Service. Unless otherwise determined by the Committee, subject to the applicable
Award Agreement and the Plan, upon a Participant’s Separation from Service for any reason during the relevant Restriction
Period, all Restricted Shares will be forfeited.
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(d)
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Lapse of Restrictions. If and when the Restriction Period expires without a prior forfeiture
of the Restricted Shares, the certificates for such Shares will be delivered to the Participant. All legends
will be removed from said certificates at the time of delivery to the Participant, except as otherwise required by Applicable Law
or other terms and conditions imposed by the Committee.
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Article
IX
PERFORMANCE AWARDS
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9.1
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Performance Awards. The Committee may grant a Performance Award to a Participant
payable upon the attainment of specific Performance Goals. Each Performance Award will be evidenced by an Award Agreement in such
form that is not inconsistent with the Plan and that the Committee may approve. The Committee will condition the right to payment
of any Performance Award upon the attainment of Performance Goals established under Section 9.2(c). Performance Awards
may be paid in cash, Common Stock, other property or any combination thereof, as determined by the Committee.
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9.2
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Terms and Conditions. Performance Awards will be subject to terms and conditions,
not inconsistent with the Plan, determined by the Committee, and the following:
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(a)
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Earning of Performance Award. At the expiration of the applicable Performance Period, the
Committee will determine the extent to which the Performance Goals established under Section 9.2(c) are achieved and
the percentage of each Performance Award that has been earned.
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(b)
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Non-Transferability. Subject to the applicable Award Agreement and the Plan, Performance
Awards may not be Transferred.
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(c)
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Performance Goals. The Committee will establish the objective Performance Goals for the
earning of Performance Awards based on a Performance Period applicable to each Participant or class of Participants in writing
before the beginning of the applicable Performance Period or at such later date while the outcome of the Performance Goals is substantially
uncertain. Such Performance Goals may incorporate terms and conditions for disregarding (or adjusting for) changes in accounting
methods, corporate transactions, and other similar type events or circumstances.
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(d)
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Dividends. Unless otherwise determined by the Committee at the time of grant or as set forth
in the applicable Award Agreement, amounts equal to dividends declared during the Performance Period with respect to the number
of Shares covered by a Performance Award will not be paid to the Participant.
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(e)
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Payment. After the Committee’s determination in accordance with Section 9.2(a),
the Company will settle Performance Awards, in such form as determined by the Committee, in an amount equal to such Participant’s
earned Performance Awards. Notwithstanding the foregoing sentence, the Committee may award an amount less than the earned Performance
Awards and subject the payment of all or part of any Performance Award to additional vesting, forfeiture, and deferral terms and
conditions.
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(f)
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Separation from Service. Upon a Participant’s Separation from Service for any reason
during the Performance Period for a Performance Award, the Performance Award will vest or be forfeited in accordance with the terms
and conditions established by the Committee or set forth in the Participant’s Award Agreement, subject to the Plan.
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(g)
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Accelerated Vesting. Based on service, performance, and any other factors or criteria the
Committee may determine, the Committee may, at or after grant, accelerate the vesting of all or any part of any Performance Award.
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Article
X
OTHER STOCK-BASED AND CASH-BASED AWARDS
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10.1
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Other Share-Based Awards. The Committee is authorized to grant to Eligible Individuals
Other Share-Based Awards that are payable in, valued in whole or in part by reference to, or otherwise based on or related to Shares,
including Shares awarded purely as a bonus and not subject to terms or conditions, Shares in payment of the amounts due under an
incentive or performance plan sponsored or maintained by the Company or an Affiliate, stock equivalent units, restricted stock
units (RSUs), and Awards valued by reference to book value of Shares. Other Share-Based Awards may be granted either alone or in
addition to or in tandem with other Awards. Subject to the terms and conditions of the Plan, the Committee has the authority to
determine the Eligible Individuals to whom, and the time or times at which, Other Share-Based Awards will be granted, the number
of Shares to be granted under such Awards, and all other terms and conditions of the Awards.
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10.2
|
Terms and Conditions. Other Share-Based Awards will be subject to terms and conditions,
not inconsistent with the Plan, determined by the Committee, and the following:
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(a)
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Non-Transferability. Subject to the applicable Award Agreement and the Plan, Shares subject
to Other Share-Based Awards may not be Transferred before the date on which the Shares are issued, or, if later, the date on which
any applicable restriction, performance, or deferral period lapses.
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(b)
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Dividends. Unless otherwise determined by the Committee, subject to the applicable Award
Agreement and the Plan, the recipient of an Other Share-Based Award will not be entitled to receive, currently or on a deferred
basis, dividends or dividend equivalents in respect of the number of Shares covered by the Award.
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(c)
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Vesting. All Other Share-Based Awards and any Shares covered by those awards will vest or
be forfeited to the extent so provided in the Award Agreement.
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(d)
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Price. Common Stock issued on a bonus basis under this Article X may be issued for
no cash consideration. Common Stock purchased under a purchase right awarded under this Article X will be priced as determined
by the Committee.
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10.3
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Other Cash-Based Awards. The Committee may grant Other Cash-Based Awards to Eligible
Individuals in amounts, on terms and conditions, and for consideration, including no consideration or such minimum consideration
as may be required by Applicable Law. Other Cash-Based Awards may be
granted subject to the satisfaction of vesting terms and conditions or may be awarded purely as a bonus and not subject to terms
and conditions, and if subject to vesting, the Committee may accelerate such vesting at any time.
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Article
XI
CHANGE IN CONTROL
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11.1
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Benefits. In the event of a Change in Control (as defined below), and except as otherwise
determined by the Committee in an Award Agreement, a Participant’s unvested Awards will not vest automatically and will be
treated in accordance with one or more of the following methods as determined by the Committee:
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(a)
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Awards, whether or not then vested, will be continued, assumed, or have new rights substituted
therefor, and restrictions to which Restricted Shares or any other Award granted before the Change in Control are subject will
not lapse upon the Change in Control and the Restricted Shares or other Awards will receive the same distribution as other Common
Stock on such terms and conditions as determined by the Committee, provided that the Committee may decide to award additional
Restricted Shares or other Awards in lieu of any cash distribution.
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(b)
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The Committee may provide for the purchase of any Awards by the Company or an Affiliate for an
amount of cash equal to the excess (if any) of the Change in Control Price (as defined below) of the Shares covered by such Awards,
over the aggregate purchase or exercise price of such Awards; provided, however, that if the exercise price of an Option or Stock
Appreciation Right exceeds the Change in Control Price, such Award may be cancelled for no consideration. For purposes of the Plan,
“Change in Control Price” means the highest price per Share paid in any transaction related to a Change
in Control.
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(c)
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The Committee may terminate all outstanding and unexercised Stock Options, Stock Appreciation Rights,
and other Other Share-Based Awards that provide for a Participant-elected exercise, effective as of the Change in Control, by delivering
notice of termination to each Participant at least 20 days before the date of consummation of the Change in Control, in which case
during the period from the date on which such notice of termination is delivered to the consummation of the Change in Control,
each affected Participant will have the right to exercise in full all of the Participant’s Awards that are then outstanding
(without regard to any terms and conditions on exercisability otherwise contained in the Award Agreements), but any such exercise
will be contingent on the occurrence of the Change in Control, and provided that if the Change in Control does not take
place within a specified period after giving such notice for any reason whatsoever, the notice and exercise pursuant thereto will
be null and void.
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(d)
|
The Committee may terminate any Award (or portion of an Award) that is unvested as of the Change
in Control for no consideration.
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(e)
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The Committee may make any other determination as to the treatment of Awards in connection with
a Change in Control (including accelerating all or a portion of any outstanding Awards). The treatment
of Awards need not be the same for all Participants. Any escrow, holdback, earnout, or similar terms and conditions in the definitive
agreements relating to the Change in Control may apply to any payment to the holders of Awards to the same extent and in the same
manner as such terms and conditions apply to the holders of Shares.
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11.2
|
Change in Control. Unless otherwise determined by the Committee in the applicable
Award Agreement or other written agreement with a Participant approved by the Committee, a “Change in Control”
means:
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(a)
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any “person,” as that term is used in Sections 13(d) and 14(d) of the Exchange Act
(other than the Company, any trustee or other fiduciary holding securities under any employee benefit plan of the Company, or any
company owned, directly or indirectly, by the Stockholders in substantially the same proportions as their ownership of Common Stock),
becomes the beneficial owner (as defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of securities of the
Company representing 50% or more of the combined voting power of the Company’s then outstanding securities, excluding for
purposes herein, acquisitions pursuant to a Business Combination (as defined below) that does not constitute a Change in Control
as defined herein;
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(b)
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during any period of 24 consecutive calendar months, individuals who were directors serving on
the Board on the first day of such period (the “Incumbent Directors”) cease for any reason to constitute
a majority of the Board; provided, however, that any individual becoming a director after the first day of such period
whose election, or nomination for election, by the Stockholders was approved by a vote of at least 2/3 of the Incumbent Directors
will be considered as though such individual were an Incumbent Director, but excluding, for purposes of this proviso, any such
individual whose initial assumption of office occurs as a result of an actual or threatened proxy contest with respect to election
or removal of directors or other actual or threatened solicitation of proxies or consents by or on behalf of a “person”
(as used in Section 13(d) of the Exchange Act), in each case other than the Board;
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(c)
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consummation of a reorganization, merger, consolidation, or other business combination (any of
the foregoing, a “Business Combination”) of the Company or any direct or indirect subsidiary of the Company
with any other corporation, in any case with respect to which the Company voting securities outstanding immediately before such
Business Combination do not, immediately after such Business Combination, continue to represent (either by remaining outstanding
or being converted into voting securities of the Company or any ultimate parent thereof) more than 50% of the then outstanding
voting securities entitled to vote generally in the election of directors of the Company (or its successor) or any ultimate parent
thereof after the Business Combination; or
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(d)
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a complete liquidation or dissolution of the Company or the consummation of a sale or disposition
by the Company of all or substantially all of the Company’s assets other than the sale or disposition of all or substantially
all of the assets of the Company to a Person or Persons
who beneficially own, directly or indirectly, 50% or more of the combined voting power of the outstanding voting securities of
the Company at the time of the sale.
|
For purposes
of Section 11.2(a) and (c), acquisitions of securities of the Company by GTCR Fund XI/B LP, GTCR Fund XI/C LP, GTCR Co-Invest
XI LP, any of their respective Affiliates, or any investment vehicle or fund controlled by or managed by, or otherwise affiliated
with, GTCR Golder Rauner, L.L.C., GTCR Golder Rauner II, L.L.C, GTCR Management XI LLC, and/or GTCR LLC shall not constitute a
Change in Control. Notwithstanding the foregoing terms and conditions of this definition, with respect to any Award that is characterized
as “nonqualified deferred compensation” within the meaning of Section 409A, an event will not be considered to
be a Change in Control under the Plan for purposes of payment of such Award unless such event is also a “change in control
event” within the meaning of Section 409A.
Article
XII
AMENDMENT AND TERMINATION
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12.1
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Amendment and Termination of Plan. Subject to Section 12.3, the Board
or the Committee may amend or terminate the Plan at any time; provided, however, that no amendment will be effective
unless approved by the Stockholders to the extent Stockholder approval is necessary to satisfy any Applicable Laws.
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12.2
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Amendment of Awards. Subject to Section 12.3, the Board or the Committee
may amend any Award at any time; provided, however, that no amendment will be effective unless approved by the Stockholders
to the extent Stockholder approval is necessary to satisfy any Applicable Laws.
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12.3
|
No Impairment of Rights. Subject to Article IV, Section 11.1, or as
otherwise specifically provided herein, rights under any Award granted before amendment or termination of the Plan or amendment
of an Award may not be materially and adversely affected by any such amendment or termination unless the Participant consents in
writing. Notwithstanding anything herein to the contrary, the Board or the Committee may amend the Plan or any Award Agreement
at any time without a Participant’s consent to comply with Applicable Law, including Section 409A.
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Article
XIII
GENERAL TERMS AND CONDITIONS
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13.1
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Legend. The Committee may require each person receiving Shares under the Plan to
represent to and agree with the Company in writing that the Participant is acquiring the Shares without a view to distribution
thereof. In addition to any legend required by the Plan, the certificates for Shares issued under the Plan may include any legend
that the Committee deems appropriate to reflect any restrictions on Transfer. All certificates for Shares delivered under the Plan
will be subject to such stop transfer orders and other restrictions as the Committee may deem advisable under Applicable Law, and
the Committee may cause a legend or legends to be put on any such certificates to make appropriate reference to such restrictions.
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13.2
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Book Entry. Notwithstanding any other term or condition of the Plan, the Company
may elect to satisfy any requirement under the Plan for the delivery of Share certificates through the use of another system, such
as book entry.
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13.3
|
Other Plans. Nothing contained in the Plan prevents the Board from adopting other
or additional compensation arrangements, subject to Stockholder approval if such approval is required, and such arrangements may
be either generally applicable or applicable only in specific cases.
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13.4
|
No Right to Employment/Consultancy/Directorship. Neither the Plan nor the grant of
any Award gives any Person any right with respect to continuance of employment, consultancy, or directorship by the Company or
any Affiliate, nor does the Plan or the grant of any Award cause any limitation in any way on the right of the Company or any Affiliate
by which an employee is employed or a Consultant or Non-Employee Director is retained to terminate such employment, consultancy,
or directorship at any time.
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13.5
|
Withholding for Taxes. The Company or an Affiliate, as the case may be, has the right
to deduct from payments of any kind otherwise due to a Participant any federal, state, or local taxes of any kind required by Applicable
Law to be withheld (a) with respect to the vesting of or other lapse of restrictions applicable to an Award, (b) upon
the issuance of any Shares upon the exercise of an Option or Stock Appreciation Right, or (c) otherwise due in connection
with an Award. At the time the tax obligation becomes due, the Participant must pay to the Company or the Affiliate, as the case
may be, any amount that the Company or Affiliate determines to be necessary to satisfy the tax obligation. The Company or the Affiliate,
as the case may be, may require or permit the Participant to satisfy the tax obligation, in whole or in part, (i) by causing
the Company or Affiliate to withhold up to the maximum required number of Shares otherwise issuable to the Participant as may be
necessary to satisfy such tax obligation or (ii) by delivering to the Company or Affiliate Shares already owned by the Participant.
The Shares so delivered or withheld must have an aggregate Fair Market Value equal to the tax obligation. The Fair Market Value
of the Shares used to satisfy the tax obligation will be determined by the Company or the Affiliate as of the date that the amount
of tax to be withheld is to be determined. To the extent applicable, a Participant may satisfy his or her tax obligation only with
Shares that are not subject to any repurchase, forfeiture, unfulfilled vesting, or other similar requirements. Any fraction of
a Share required to satisfy tax obligations will be disregarded and the amount due must be paid instead in cash by the Participant.
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13.6
|
No Assignment of Benefits. No Award or other benefit payable under the Plan may,
except as otherwise specifically provided by Applicable Law or permitted by the Committee, be Transferable in any manner, and any
attempt to Transfer any such benefit will be void, and any such benefit will not in any manner be liable for or subject to the
debts, contracts, liabilities, engagements, or torts of any Person who will be entitled to such benefit, nor will it be subject
to attachment or legal process for or against such Person.
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13.7
|
Listing and Other Terms and Conditions.
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|
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(a)
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Unless otherwise determined by the Committee, as long as the Common Stock is listed on a national
stock exchange or system sponsored by a national securities association, the issuance of Shares under an Award will be conditioned
upon such Shares being listed on such exchange or system. The Company will have no obligation to issue such Shares unless and until
such Shares are so listed, and the right to exercise any Stock Option or other Award with respect to such Shares will be suspended
until such listing has been effected.
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(b)
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If at any time counsel to the Company is of the opinion that any sale or delivery of Shares under
an Award is or may be unlawful or result in the imposition of excise taxes on the Company, the Company will have no obligation
to make such sale or delivery, or to make any application or to effect or to maintain any qualification or registration under the
Securities Act or otherwise, with respect to Shares or Awards, and the right to exercise any Stock Option or other Award will be
suspended until, in the opinion of said counsel, such sale or delivery would be lawful or would not result in the imposition of
excise taxes on the Company.
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|
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(c)
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Upon termination of any period of suspension under this Section 13.7, any Award affected
by such suspension that has not expired or terminated will be reinstated as to all Shares available before such suspension and
as to Shares that would otherwise have become available during the period of such suspension, but no such suspension will extend
the term of any Award.
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(d)
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A Participant will be required to supply the Company with certificates, representations, and information
that the Company requests and otherwise cooperate with the Company in obtaining any listing, registration, qualification, exemption,
consent, and approval the Company determines necessary or appropriate.
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13.8
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Stockholders Agreement and Other Requirements. Notwithstanding any other term or
condition of the Plan, as a condition to the receipt of Shares under an Award, to the extent required by the Committee, the Participant
must execute and deliver a Stockholder’s agreement and such other documentation that sets forth certain restrictions on transferability
of the Shares acquired under the Plan or pursuant to an Award Agreement, and such other terms and conditions as the Committee may
establish. The Company may require the Participant to become a party to any other existing Stockholder agreement (or other agreement).
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13.9
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Governing Law. The Plan and actions taken in connection with the Plan will be governed
and construed in accordance with the laws of the State of Delaware (regardless of the law that might otherwise govern under applicable
Delaware principles of conflict of laws).
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13.10
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Jurisdiction; Waiver of Jury Trial. Any suit, action, or proceeding with respect
to the Plan or any Award or Award Agreement, or any judgment entered by any court of competent jurisdiction in respect of the Plan
or any Award or Award Agreement, will be resolved only in the courts of the State of Delaware or the United States District Court
for the District of Delaware and the appellate courts having jurisdiction of appeals in such courts. In that context, and
without limiting the generality of the foregoing, each of the Company and each Participant irrevocably and unconditionally (a) submits
in any proceeding relating to the Plan or any Award or Award Agreement, or for the recognition and enforcement of any judgment
in respect of the Plan or any Award or Award Agreement (a “Proceeding”), to the exclusive jurisdiction
of the courts of the State of Delaware or the United States District Court for the District of Delaware and the appellate courts
having jurisdiction of appeals in such courts, and agrees that all claims in respect of any Proceeding will be heard and determined
in such state court or, to the extent permitted by Applicable Law, in such federal court, (b) consents that any Proceeding
may and will be brought in such courts and waives any objection that the Company or the Participant may have at any time after
the Effective Date to the venue or jurisdiction of any Proceeding in any such court or that the Proceeding was brought in an inconvenient
court and agrees not to plead or claim the same, (c) waives all right to trial by jury in any Proceeding (whether based on contract,
tort, or otherwise) arising out of or relating to the Plan or any Award or Award Agreement, (d) agrees that service of process
in any Proceeding may be effected by mailing a copy of such process by registered or certified mail (or any substantially similar
form of mail), postage prepaid, to such party, in the case of a Participant, at the Participant’s address shown in the books
and records of the Company or, in the case of the Company, at the Company’s principal offices, attention to the Chief Financial
Officer or Secretary of the Company, and (e) agrees that nothing in the Plan will affect the right to effect service of process
in any other manner permitted by the laws of the State of Delaware.
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13.11
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Other Benefits. No Award will be considered compensation for purposes of computing
benefits under any retirement plan of the Company or any Affiliate or affect any benefit under any other benefit plan now or subsequently
in effect under which the availability or amount of benefits is related to the level of compensation.
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13.12
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Costs. The Company will bear all expenses associated with administering the Plan,
including expenses of issuing Common Stock under Awards.
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13.13
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No Right to Same Benefits. The terms and conditions of Awards need not be the same
with respect to each Participant, and Awards to individual Participants need not be the same in subsequent years (if granted at
all).
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13.14
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Death/Disability. The Committee may require the transferee of a Participant to supply
it with written notice of the Participant’s death or Disability and to supply it with a copy of the will (in the case of
the Participant’s death) or such other evidence as the Committee deems necessary to establish the validity of the transfer
of an Award. The Committee may also require that the agreement of the transferee to be bound by the Plan.
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13.15
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Section 16(b) of the Exchange Act. All elections and transactions under the
Plan by Persons subject to Section 16 of the Exchange Act involving Shares are intended to comply with any applicable exemptive
condition under Rule 16b-3.The Committee may establish and adopt written administrative guidelines, designed to facilitate
compliance with Section 16(b) of the Exchange Act, as it may deem necessary or proper for the administration and operation
of the Plan and the transaction of business thereunder. If the operation of any provision of the Plan would conflict with the intent
expressed in this Section 13.15, such provision
to the extent possible shall be interpreted and/or deemed amended so as to avoid such conflict.
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13.16
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Section 409A. The Plan is intended to comply Section 409A and will be limited,
construed, and interpreted in accordance with such intent. To the extent that any Award is subject to Section 409A, it will
be paid in a manner that complies with Section 409A. Notwithstanding any other provision of the Plan, any Plan provision that
is inconsistent with Section 409A will be deemed to be amended to comply with Section 409A and to the extent such provision
cannot be amended to comply, such provision will be null and void. The Company will have no liability to a Participant, or any
other party, if an Award that is intended to be exempt from or compliant with Section 409A is not so exempt or compliant,
or for any action taken by the Committee or the Company and, in the event that any amount or benefit under the Plan becomes subject
to penalties under Section 409A, responsibility for payment of such penalties will rest solely with the affected Participants
and not with the Company. Notwithstanding any other provision in the Plan or any Award Agreement, any payment(s) of “nonqualified
deferred compensation” (within the meaning of Section 409A) that are otherwise required to be made under the Plan to
a “specified employee” (as defined under Section 409A) as a result of such employee’s separation from service
(other than a payment that is not subject to Section 409A) will be delayed for the first six months after such separation
from service (or, if earlier, the date of death of the specified employee) and will instead be paid (in a manner set forth in the
Award Agreement) upon expiration of such delay period. All installment payments under the Plan will be deemed separate payments
for purposes of Section 409A.
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13.17
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Successor and Assigns. The Plan will be binding on all successors and permitted assigns
of a Participant, including the estate of such Participant and the executor, administrator, or trustee of such estate.
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13.18
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Severability of Terms and Conditions. If any term or condition of the Plan is held
invalid or unenforceable, such invalidity or unenforceability will not affect any other term or condition of the Plan, and the
Plan will be construed and enforced as if such term or condition had not been included.
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13.19
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Payments to Minors, Etc. Any benefit payable to or for the benefit of a minor, an
incompetent Person, or other Person incapable of receipt thereof will be considered paid when paid to such Person’s guardian
or to the party providing or reasonably appearing to provide for the care of such Person, and such payment will fully discharge
the Committee, the Board, the Company, all Affiliates, and their employees, agents, and representatives with respect thereto.
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13.20
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Lock-Up Agreement. As a condition to the grant of an Award, if requested by the Company
and the lead underwriter of any public offering of Common Stock (the “Lead Underwriter”), a Participant
must irrevocably agree not to sell, contract to sell, grant any option to purchase, transfer the economic risk of ownership in,
make any short sale of, pledge or otherwise transfer or dispose of, any interest in any Common Stock or any securities convertible
into, derivative of, or exchangeable or exercisable for, or any other rights to purchase or acquire Common Stock (except Common
Stock included in such public offering or acquired on
the public market after such offering) during such period of time after the effective date of a registration statement of the Company
filed under the Securities Act that the Lead Underwriter may specify (the “Lock-Up Period”). Each
Participant must sign such documents as may be requested by the Lead Underwriter to effect the foregoing. The Company may impose
stop-transfer instructions with respect to Common Stock acquired under an Award until the end of such Lock-Up Period.
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13.21
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Separation from Service for Cause; Clawbacks; Detrimental Conduct.
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(a)
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Separation from Service for Cause. The Company may annul an Award if the Participant incurs
a Separation from Service for Cause.
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(b)
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Clawbacks. All awards, amounts, or benefits received or outstanding under the Plan will
be subject to clawback, cancellation, recoupment, rescission, payback, reduction, or other similar action in accordance with any
Company clawback or similar policy or any Applicable Law (including Section 10D of the Exchange Act and any applicable rules and
regulations promulgated thereunder from time to time by the U.S. Securities and Exchange Commission) related to such actions. A
Participant’s acceptance of an Award will constitute the Participant’s acknowledgement of and consent to the Company’s
application, implementation, and enforcement of any applicable Company clawback or similar policy that may apply to the Participant,
whether adopted before or after the Effective Date, and any Applicable Law relating to clawback, cancellation, recoupment, rescission,
payback, or reduction of compensation, and the Participant’s agreement that the Company may take any actions that may be
necessary to effectuate any such policy or Applicable Law, without further consideration or action.
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13.22
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Data Protection. A Participant’s acceptance of an Award will be deemed to constitute
the Participant’s acknowledgement of and consent to the collection and processing of personal data relating to the Participant
so that the Company and the Affiliates can fulfill their obligations and exercise their rights under the Plan and generally administer
and manage the Plan. This data will include data about participation in the Plan and Shares offered or received, purchased, or
sold under the Plan and other appropriate financial and other data (such as the date on which the Awards were granted) about the
Participant and the Participant’s participation in the Plan.
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13.23
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Unfunded Plan. The Plan is intended to constitute an “unfunded” plan
for incentive and deferred compensation. With respect to any payment as to which a Participant has a fixed and vested interest
but that is not yet made to a Participant by the Company, nothing in the Plan gives any Participant any right that is greater than
the rights of a general unsecured creditor of the Company. The grant of an Award will not require a segregation of any of the Company’s
assets for satisfaction of the Company’s payment obligation under any Award.
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13.24
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Plan Construction. In the Plan, unless otherwise stated, the following uses apply:
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(a)
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references to Applicable Law refer to the Applicable Law and any amendments and supplements thereto
and any successor Applicable Law, and to all valid and binding rules and regulations promulgated
thereunder, court decisions, and other regulatory and judicial authority issued or rendered thereunder, as amended or supplemented,
or their successors, as in effect at the relevant time;
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(b)
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in computing periods from a specified date to a later specified date, the words “from”
and “commencing on” (and the like) mean “from and including,” and the words “to,” “until,”
and “ending on” (and the like) mean “to and including”;
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(c)
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indications of time of day will be based upon the time applicable to the location of the principal
headquarters of the Company;
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(d)
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the words “include,” “includes,” and “including” (and the like)
mean “include, without limitation,” “includes, without limitation,” and “including, without limitation”
(and the like), respectively;
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(e)
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all references to articles, sections, and exhibits are to articles, sections, and exhibits in or
to the Plan;
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(f)
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all words used will be construed to be of such gender or number as the circumstances and context
require;
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(g)
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the captions and headings of articles, sections, and exhibits have been inserted solely for convenience
of reference and will not be considered a part of the Plan, nor will any of them affect the meaning or interpretation of the Plan;
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(h)
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any reference to an agreement, plan, policy, form, document, or set of documents, and the rights
and obligations of the parties under any such agreement, plan, policy, form, document, or set of documents, will mean the agreement,
plan, policy, form, document, or set of documents as amended from time to time, and any and all modifications, extensions, renewals,
substitutions, or replacements thereof; and
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(i)
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all accounting terms not specifically defined will be construed in accordance with GAAP.
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28
Exhibit 23.1
Consent
of Independent Registered Public Accounting Firm
We
consent to the incorporation by reference in the Registration Statement (Form S-8) pertaining to the Paya Holdings Inc. Omnibus
Incentive Plan of our report dated August 1, 2020, with respect to the consolidated financial statements of GTCR-Ultra Holdings
II, LLC included in the Paya Holdings Inc. Registration Statement (Form S-1/A No. 333-249949) filed with the Securities and Exchange
Commission.
/s/
Ernst & Young LLP
Tysons,
Virginia
December 22, 2020
Exhibit
23.2
CONSENT
OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We
hereby consent to the incorporation by reference in this Registration Statement on Form S-8 of our report dated March 13, 2020
(which includes an explanatory paragraph relating to FinTech Acquisition Corp. III’s ability to continue as a going concern),
relating to the financial statements of FinTech Acquisition Corp. III appearing in the entity’s Annual Report on Form 10-K
for the years ended December 31, 2019 and 2018.
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/s/
WithumSmith+Brown, PC
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New
York, New York
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December
22, 2020
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