|
Cayman Islands*
(State or other jurisdiction of
incorporation or organization) |
| |
6770
(Primary Standard Industrial
Classification Code Number) |
| |
N/A
(I.R.S. Employer
Identification Number) |
|
|
Steven B. Stokdyk
Brent T. Epstein Latham & Watkins LLP 10250 Constellation Blvd. Suite 1100 Los Angeles, CA 90067 (213) 485-1234 |
| |
Alan F. Denenberg
Lee Hochbaum Davis Polk & Wardwell LLP 1600 El Camino Real Menlo Park, CA 94025 (650) 752-2000 |
|
| Large accelerated filer | | | ☐ | | | Accelerated filer | | |
☐
|
|
| Non-accelerated filer | | | ☒ | | | Smaller reporting company | | |
☒
|
|
| | | | | | | Emerging growth company | | |
☒
|
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Title of each class of securities to be registered
|
| | |
Amount
to be Registered |
| | |
Proposed
maximum offering price per security |
| | |
Proposed
maximum aggregate offering price |
| | |
Amount of
registration fee |
| ||||||||||||
Class A common stock, par value $0.0001 per share
|
| | | | | 147,601,140(1) | | | | | | $ | 11.07(2) | | | | | | $ | 1,633,944,619.80 | | | | | | $ | 178,263.36 | | |
Class B common stock, par value $0.0001 per share
|
| | | | | 22,555,108(3) | | | | | | $ | 11.07(2) | | | | | | $ | 249,685,045.56 | | | | | | $ | 27,240.64 | | |
Redeemable Warrants
|
| | | | | 7,175,000(4) | | | | | | $ | 2.73(5) | | | | | | $ | 19,587,750.00 | | | | | | $ | 2,137.03 | | |
Class A common stock, par value $0.0001 per share
|
| | | | | 7,175,000(6) | | | | | | $ | 11.50(7) | | | | | | $ | 82,512,500.00 | | | | | | $ | 9,002.12 | | |
Class A common stock, par value $0.0001 per share
|
| | | | | 22,555,108(8) | | | | | | | — | | | | | | | — | | | | | | | —(9) | | |
Total
|
| | | | | | | | | | | | | | | | | | $ | 1,985,729,915.36 | | | | | | $ | 216,643.15 | | |
|
Daniel Fetters
|
| |
Edward King
|
|
| Co-Chief Executive Officer | | | Co-Chief Executive Officer | |
Clause
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Page
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| | | | F-1 | | | |
| | | | F-1 | | | |
| | | | II-1 | | |
| | | | | A-1 | | | |
| | | | | B-1 | | | |
| | | | | C-1 | | | |
| | | | | D-1 | | | |
| | | | | E-1 | | | |
| | | | | F-1 | | | |
| | | | | G-1 | | | |
| | | | | H-1 | | | |
| | | | | I-1 | | | |
| | | | | J-1 | | | |
| | | | | K-1 | | |
| | |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| | | | | | | | | | | | | ||||||||||||||||||||||||||||||
(in dollars, except share data)
|
| |
Shares
|
| |
Ownership %
|
| |
Voting
Power (%) |
| |
Shares
|
| |
Ownership %
|
| |
Voting
Power (%) |
| | | | | ||||||||||||||||||||||||||
Acies public shareholders(1)
|
| | | | 21,525,000 | | | | | | 16.5% | | | | | | 4.9% | | | | | | — | | | | | | — | | | | | | —% | | | | | | | ||||||||
Sponsor(1)(2) | | | | | 4,531,250 | | | | | | 3.5% | | | | | | 0.8% | | | | | | 3,724,062 | | | | | | 3.0% | | | | | | 0.6% | | | | | | | ||||||||
PLAYSTUDIOS stockholders (excluding Founder Group)(3)
|
| | | | 63,041,235 | | | | | | 48.3% | | | | | | 14.2% | | | | | | 74,166,159 | | | | | | 60.7% | | | | | | 15.1% | | | | | | | ||||||||
Founder Group(3)
|
| | | | 16,482,910 | | | | | | 12.6% | | | | | | 74.5% | | | | | | 19,391,659 | | | | | | 15.9% | | | | | | 79.2% | | | | | | | ||||||||
PIPE Investors
|
| | | | 25,000,000 | | | | | | 19.1% | | | | | | 5.6% | | | | | | 25,000,000 | | | | | | 20.4% | | | | | | 5.1% | | | | | | | ||||||||
Pro forma New PLAYSTUDIOS common stock at September 30, 2020
|
| | | | 130,580,395 | | | | | | 100.0% | | | | | | 100.0% | | | | | | 122,281,880 | | | | | | 100.0% | | | | | | 100.0% | | | | | | |
| | |
Cayman Constitutional Documents
|
| |
Proposed Organizational Documents
|
|
Authorized Shares
(Organizational Documents Proposal A) |
| | The Cayman Constitutional Documents authorize 550,000,000 shares, consisting of 500,000,000 Acies Class A ordinary shares, 50,000,000 Acies Class B ordinary shares and 5,000,000 preferred shares. | | | The Proposed Organizational Documents authorize shares, consisting of shares of New PLAYSTUDIOS Class A common stock, shares of New PLAYSTUDIOS Class B common stock and shares of New PLAYSTUDIOS preferred stock. Holders of New PLAYSTUDIOS Class A common stock will be entitled to cast one vote per Class A share, while holders of New PLAYSTUDIOS Class B common stock will be entitled to cast 20 votes per share of New PLAYSTUDIOS Class B common stock. Except as | |
| | |
Cayman Constitutional Documents
|
| |
Proposed Organizational Documents
|
|
| | | | | | otherwise provided by applicable law or the Proposed Certificate of Incorporation, holders of all classes of New PLAYSTUDIOS common stock vote together as a single class. | |
| | | See paragraph 5 of Acies’ Amended and Restated Memorandum of Association. | | | See Article Fourth, subsection 1 of the Proposed Certificate of Incorporation. | |
Authorize the Board of Directors to Issue Preferred Stock Without Stockholder Consent (Organizational Documents Proposal B) | | | The Cayman Constitutional Documents authorize the issuance of 5,000,000 preferred shares with such designation, rights and preferences as may be determined from time to time by Acies Board of Directors. Accordingly, Acies Board of Directors is empowered under the Cayman Constitutional Documents, without shareholder approval, to issue preferred shares with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of ordinary shares (except to the extent it may affect the ability of Acies to carry out a conversion of Acies Class B ordinary shares on the Closing Date, as contemplated by Acies’ Amended and Restated Articles of Association). | | | The Proposed Organizational Documents authorize the New PLAYSTUDIOS Board of Directors to issue all or any shares of preferred stock in one or more series and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as the New PLAYSTUDIOS Board of Directors may determine. | |
| | | See paragraph 5 of Acies’ Amended and Restated Memorandum of Association and Articles 3 and 17 of Acies’ Amended and Restated Articles of Association. | | | See Article Fourth, subsection 2 of the Proposed Certificate of Incorporation. | |
Declassified Board (Organizational Documents Proposal C) | | | The Cayman Constitutional Documents provide that Acies Board of Directors of directors shall be composed of three classes. | | | The Proposed Organizational Documents provide that the New PLAYSTUDIOS Board be declassified with all directors being elected each year for one-year terms. | |
| | | See Article 27 of Acies’ Amended and Restated Articles of Association. | | | See Article Sixth, subsection 3 of the Proposed Certificate of Incorporation. | |
Corporate Name
(Organizational Documents Proposal D) |
| | The Cayman Constitutional Documents provide the name of the company is “Acies Acquisition Corp.” | | | The Proposed Organizational Documents provide that the name of the corporation will be “PLAYSTUDIOS, Inc.” | |
| | | See paragraph 1 of Acies’ Amended and Restated Memorandum of Association. | | | See Article First of the Proposed Certificate of Incorporation. | |
Perpetual Existence
(Organizational Documents Proposal D) |
| | The Cayman Constitutional Documents provide that if Acies does not consummate a business combination (as defined in the Cayman Constitutional Documents) by | | | The Proposed Organizational Documents do not include any provisions relating to New PLAYSTUDIOS’ ongoing existence; the default under the DGCL will | |
| | |
Cayman Constitutional Documents
|
| |
Proposed Organizational Documents
|
|
| | | October 22, 2022, Acies will cease all operations except for the purposes of winding up and will redeem the public shares and liquidate Acies’ trust account. | | | make New PLAYSTUDIOS’ existence perpetual. | |
| | | See Article 49 of Acies’ Amended and Restated Articles of Association. | | | Default rule under the DGCL. | |
Exclusive Forum
(Organizational Documents Proposal D) |
| | The Cayman Constitutional Documents do not contain a provision adopting an exclusive forum for certain shareholder litigation. | | | The Proposed Organizational Documents adopt Delaware as the exclusive forum for certain stockholder litigation and the federal district courts of the United States of America the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. | |
| | | | | | See Article Tenth of the Proposed Certificate of Incorporation. | |
Provisions Related to Status as Blank Check Company (Organizational Documents Proposal D) | | | The Cayman Constitutional Documents include various provisions related to Acies’ status as a blank check company prior to the consummation of a business combination. | | | The Proposed Organizational Documents do not include such provisions related to Acies’ status as a blank check company, which no longer will apply upon consummation of the Mergers, as Acies will cease to be a blank check company at such time. | |
| | | See Article 49 of Acies’ Amended and Restated Articles of Association. | | | | |
| | |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| | | | | | | | | | | | | ||||||||||||||||||||||||||||||
(in dollars, except share data)
|
| |
Shares
|
| |
Ownership %
|
| |
Voting
Power (%) |
| |
Shares
|
| |
Ownership %
|
| |
Voting
Power (%) |
| | | | | ||||||||||||||||||||||||||
Acies public shareholders(1)
|
| | | | 21,525,000 | | | | | | 16.5% | | | | | | 4.9% | | | | | | — | | | | | | — | | | | | | —% | | | | | | | ||||||||
Sponsor(1)(2) | | | | | 4,531,250 | | | | | | 3.5% | | | | | | 0.8% | | | | | | 3,724,062 | | | | | | 3.0% | | | | | | 0.6% | | | | | | | ||||||||
PLAYSTUDIOS stockholders (excluding Founder Group)(3)
|
| | | | 63,041,235 | | | | | | 48.3% | | | | | | 14.2% | | | | | | 74,166,159 | | | | | | 60.7% | | | | | | 15.1% | | | | | | | ||||||||
Founder Group(3)
|
| | | | 16,482,910 | | | | | | 12.6% | | | | | | 74.5% | | | | | | 19,391,659 | | | | | | 15.9% | | | | | | 79.2% | | | | | | | ||||||||
PIPE Investors
|
| | | | 25,000,000 | | | | | | 19.1% | | | | | | 5.6% | | | | | | 25,000,000 | | | | | | 20.4% | | | | | | 5.1% | | | | | | | ||||||||
Pro forma New PLAYSTUDIOS common stock at September 30,
2020 |
| | | | 130,580,395 | | | | | | 100.0% | | | | | | 100.0% | | | | | | 122,281,880 | | | | | | 100.0% | | | | | | 100.0% | | | | | | |
Sources
|
| |
Uses
|
| ||||||||||||
($ in thousands)
|
| | | | | | | | | | ||||||
| | | | | | | | | | |||||||
Cash and investments held in trust account(1)
|
| | | $ | 215,250 | | | |
Cash to PLAYSTUDIOS stockholders
|
| | | $ | 140,337 | | |
PIPE Investment(2)
|
| | | $ | 250,000 | | | |
Cash to balance sheet
|
| | | $ | 266,251 | | |
| | | | | — | | | |
Transaction expenses(3)
|
| | | $ | 58,662 | | |
Total sources
|
| | | $ | 465,250 | | | |
Total uses
|
| | | $ | 465,250 | | |
(in thousands, except share and per share data)
|
| |
Pro Forma Combined
(No Redemption Scenario) |
| |
Pro Forma Combined
(Maximum Redemption Scenario) |
| ||||||
Summary Unaudited Pro Forma Condensed Combined | | | | | | | | | | | | | |
Statement of Operations Data | | | | | | | | | | | | | |
Nine Months Ended September 30, 2020 | | | | | | | | | | | | | |
Revenue
|
| | | $ | 205,883 | | | | | $ | 205,883 | | |
Net income
|
| | | $ | 23,554 | | | | | $ | 23,554 | | |
Class A Common Stock | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | 113,197,485 | | | | | | 101,990,221 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | 120,970,515 | | | | | | 109,763,251 | | |
Net income attributable to common stockholders per share – basic
|
| | | $ | 0.18 | | | | | $ | 0.19 | | |
Net income attributable to common stockholders per share – diluted
|
| | | $ | 0.17 | | | | | $ | 0.18 | | |
Class B Common Stock | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | 16,482,910 | | | | | | 19,391,659 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | 17,843,673 | | | | | | 20,752,422 | | |
Net income attributable to common stockholders per share – basic
|
| | | $ | 0.18 | | | | | $ | 0.19 | | |
Net income attributable to common stockholders per share – diluted
|
| | | $ | 0.17 | | | | | $ | 0.18 | | |
(in thousands, except share and per share data)
|
| |
Pro Forma Combined
(No Redemption Scenario) |
| |
Pro Forma Combined
(Maximum Redemption Scenario) |
| ||||||
Summary Unaudited Pro Forma Condensed Combined | | | | | | | | | | | | | |
Statement of Operations Data | | | | | | | | | | | | | |
Year Ended December 31, 2019 | | | | | | | | | | | | | |
Revenue
|
| | | $ | 239,421 | | | | | $ | 239,421 | | |
Net income
|
| | | $ | 5,062 | | | | | $ | 4,875 | | |
Class A Common Stock | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | 113,197,485 | | | | | | 101,990,221 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | 117,196,604 | | | | | | 105,989,340 | | |
Net income attributable to common stockholders per share – basic
|
| | | $ | 0.04 | | | | | $ | 0.04 | | |
Net income attributable to common stockholders per share – diluted
|
| | | $ | 0.04 | | | | | $ | 0.04 | | |
Class B Common Stock | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | 16,482,910 | | | | | | 19,391,659 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | 17,176,217 | | | | | | 20,084,966 | | |
Net income attributable to common stockholders per share – basic
|
| | | $ | 0.04 | | | | | $ | 0.04 | | |
Net income attributable to common stockholders per share – diluted
|
| | | $ | 0.04 | | | | | $ | 0.04 | | |
Summary Unaudited Pro Forma Condensed Combined | | | | | | | | | | | | | |
Balance Sheet Data as of September 30, 2020 | | | | | | | | | | | | | |
Total assets
|
| | | $ | 375,815 | | | | | $ | 300,902 | | |
Total liabilities
|
| | | $ | 22,248 | | | | | $ | 22,248 | | |
Total stockholders’ equity
|
| | | $ | 353,567 | | | | | $ | 278,654 | | |
Selected Company
|
| |
Enterprise Value to Revenue
|
| |
Enterprise Value
to Adj. EBITDA |
| |||
| | |
FY 2021E
|
| |
FY 2022E
|
| |
FY 2022E
|
|
Social Casino Companies | | | | | | | | | | |
Playtika Holding Corp.(1)
|
| |
NA
|
| |
NA
|
| |
NA
|
|
SciPlay Corporation
|
| |
3.68x
|
| |
3.52x
|
| |
11.0x
|
|
Skillz Inc.
|
| |
NMF
|
| |
22.03x
|
| |
NMF
|
|
Casual Gaming Companies | | | | | | | | | | |
Glu Mobile Inc.
|
| |
2.19x
|
| |
1.95x
|
| |
11.1x
|
|
MAG Interactive AB
|
| |
2.88x
|
| |
2.60x
|
| |
12.7x
|
|
Rovio Entertainment Oyj
|
| |
1.39x
|
| |
1.35x
|
| |
8.9x
|
|
Stillfront Group AB
|
| |
5.33x
|
| |
4.76x
|
| |
11.3x
|
|
Team17 Group PLC
|
| |
11.57x
|
| |
10.57x
|
| |
27.9x
|
|
Zynga Inc.
|
| |
4.14x
|
| |
3.88x
|
| |
15.9x
|
|
Announced
|
| |
Target
|
| |
Acquiror
|
| |
Transaction Value /
LTM Revenue |
|
Social Casino Transactions | | | | | | | | | | |
9/2020 | | | Skillz Inc | | | Flying Eagle Acquisition Corp. | | |
24.28x
|
|
11/2017 | | | Big Fish Games, Inc. | | |
Aristocrat Technologies, Inc
|
| |
2.16x
|
|
8/2017 | | | Plarium Global Ltd. | | | Aristocrat Leisure Limited | | |
2.49x
|
|
4/2017 | | | Double Down Interactive, LLC | | | DoubleUGames Co., Ltd | | |
NA
|
|
7/2016 | | | Playtika Ltd. | | | Investor Group | | |
6.07x
|
|
Casual Gaming Transactions | | | | | | | | | | |
6/2020 | | | Peak Oyun Yazilim ve Pazarlama AS | | | Zynga Inc. | | |
3.08x
|
|
1/2020 | | | Storm8, Inc. | | | Stillfront Group AB | | |
2.51x
|
|
12/2018 | | | Small Giant Games Oy | | | Zynga Inc. | | |
9.28x
|
|
12/2017 | | | Altigi GmbH | | | Stillfront Group AB | | |
2.86x
|
|
2/2017 | | | Social Point S.L. | | | Take-Two Invest Espana, S.L. | | |
3.08x
|
|
1/2017 | | | Outfit7 Investments Limited | | | Zhejiang Jinke Entertainment Culture Co., Ltd. (nka:Zhejiang Jinke Culture) | | |
9.23x
|
|
7/2016 | | | TinyCo, Inc. | | | SGN Games, Inc. (nka:Jam City, Inc.) | | |
NA
|
|
6/2016 | | | Supercell Oy | | | Tencent Holdings Limited | | |
4.44x
|
|
2//2016 | | | GameLoft SE | | | Vivendi SA | | |
2.66x
|
|
(US$ in millions)
|
| |
2020E(2)
|
| |
2021E(3)
|
| |
2022E(4)
|
| |||||||||
Revenue
|
| | |
$
|
269.8
|
| | | |
$
|
328.0
|
| | | |
$
|
435.2
|
| |
Cost of Sales
|
| | | | 91.2 | | | | | | 102.2 | | | | | | 128.4 | | |
User Acquisition
|
| | | | 50.1 | | | | | | 94.3 | | | | | | 103.4 | | |
All other expenses
|
| | | | 96.0 | | | | | | 109.7 | | | | | | 113.5 | | |
Adjusted EBITDA(1)
|
| | | | 32.4 | | | | | | 21.8 | | | | | | 89.9 | | |
| | |
The Cayman Constitutional Documents
|
| |
The Proposed Organizational Documents
|
|
Authorized Shares (Organizational Documents Proposal A) | | | The Cayman Constitutional Documents authorize 555,000,000 shares, consisting of 500,000,000 Acies Class A ordinary shares, 50,000,000 Acies Class B ordinary shares and 5,000,000 preferred shares. | | | The Proposed Organizational Documents authorize shares, consisting of shares of New PLAYSTUDIOS common stock and shares of New PLAYSTUDIOS preferred stock. Holders of New PLAYSTUDIOS Class A common stock will be entitled to cast one vote per Class A share, while holders of New PLAYSTUDIOS Class B common stock will be entitled to cast 20 votes per share of New | |
| | |
The Cayman Constitutional Documents
|
| |
The Proposed Organizational Documents
|
|
| | | | | | PLAYSTUDIOS Class B common stock. Except as otherwise provided by applicable law or the Proposed Certificate of Incorporation, holders of all classes of New PLAYSTUDIOS common stock vote together as a single class. | |
| | | See paragraph 5 of the Existing Memorandum. | | | See Article Fourth, subsection 1 of the Proposed Certificate of Incorporation. | |
Authorize the Board of Directors to Issue Preferred Stock Without Stockholder Consent (Organizational Documents
Proposal B) |
| | The Cayman Constitutional Documents authorize the issuance of 5,000,000 preferred shares with such designation, rights and preferences as may be determined from time to time by Acies Board of Directors. Accordingly, Acies Board of Directors is empowered under the Cayman Constitutional Documents, without shareholder approval, to issue preferred shares with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of ordinary shares (except to the extent it may affect the ability of Acies to carry out a conversion of Acies Class B ordinary shares on the Closing Date, as contemplated by the Existing Articles). | | | The Proposed Organizational Documents authorize the Board to issue all or any shares of preferred stock in one or more series and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as the New PLAYSTUDIOS Board of Directors may determine. | |
| | | See paragraph 5 of the Existing Memorandum and Articles 3 and 17 of the Existing Articles. | | | See Article Fourth, subsection 2 of the Proposed Certificate of Incorporation. | |
Declassified Board (Organizational Documents
Proposal C) |
| | The Cayman Constitutional Documents provide that Acies Board of Directors shall be composed of three classes. | | | The Proposed Organizational Document does not provide for a classified board of directors, and thus all directors will be elected each year for one-year terms. | |
| | | See Article 27 of the Existing Articles. | | | See Article Sixth, subsection 3 of the Proposed Certificate of Incorporation. | |
Corporate Name (Organizational Documents Proposal D) | | | The Cayman Constitutional Documents provide that the name of the company is “Acies Acquisition Corp.” | | | The Proposed Organizational Documents provide that the name of the corporation will be PLAYSTUDIOS, Inc. | |
| | | See paragraph 1 of the Existing Memorandum. | | | See Article First of the Proposed Certificate of Incorporation. | |
| | |
The Cayman Constitutional Documents
|
| |
The Proposed Organizational Documents
|
|
Perpetual Existence (Organizational Documents Proposal D) | | | The Cayman Constitutional Documents provide that if Acies does not consummate a Business Combination (as defined in the Cayman Constitutional Documents) October 22, 2022, Acies will cease all operations except for the purposes of winding up and will redeem the public shares and liquidate Acies’ Trust Account. | | | The Proposed Organizational Documents do not include any provisions relating to New PLAYSTUDIOS’ ongoing existence; the default under the DGCL will make New PLAYSTUDIOS’ existence perpetual. | |
| | | See Article 49 of the Cayman Constitutional Documents. | | | Default rule under the DGCL. | |
Exclusive Forum (Organizational Documents Proposal D) | | | The Cayman Constitutional Documents do not contain a provision adopting an exclusive forum for certain shareholder litigation. | | | The Proposed Organizational Documents adopt Delaware as the exclusive forum for certain stockholder litigation and the federal district courts of the United States of America the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act. | |
| | | | | | See Article Tenth of the Proposed Certificate of Incorporation. | |
Provisions Related to Status as Blank Check Company (Organizational Documents
Proposal D) |
| | The Cayman Constitutional Documents include various provisions related to Acies’ status as a blank check company prior to the consummation of a Business Combination. | | | The Proposed Organizational Documents do not include such provisions related to Acies’ status as a blank check company, which no longer will apply upon consummation of the Merger, as Acies will cease to be a blank check company at such time. | |
| | | See Article 49 of the Cayman Constitutional Documents. | | | | |
Name of Director
|
| | | |
| |
|
| |
| |
|
| |
| |
|
| |
| |
|
|
(in dollars, except share data)
|
| |
No Redemption
Scenario |
| |
Maximum
Redemption Scenario |
| ||||||
Cash consideration(1)(3)
|
| | | $ | 140,336,730 | | | | | $ | — | | |
Shares transferred at closing(2)
|
| | | | 79,524,145 | | | | | | 93,557,818 | | |
Value per share
|
| | | $ | 10.00 | | | | | $ | 10.00 | | |
Share consideration
|
| | | $ | 795,241,450 | | | | | $ | 935,578,180 | | |
Total consideration
|
| | | $ | 935,578,180 | | | | | $ | 935,578,180 | | |
Shares of New PLAYSTUDIOS common stock underlying vested options(3)
|
| | | | 10,542,182 | | | | | | 10,542,182 | | |
Value per share
|
| | | $ | 10.00 | | | | | $ | 10.00 | | |
| | | | $ | 105,421,820 | | | | | $ | 105,421,820 | | |
Aggregate consideration
|
| | | $ | 1,041,000,000 | | | | | $ | 1,041,000,000 | | |
| | |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| | | | | | | | | | | | | ||||||||||||||||||||||||||||||
(in dollars, except share data)
|
| |
Shares
|
| |
Ownership %
|
| |
Voting
Power (%) |
| |
Shares
|
| |
Ownership %
|
| |
Voting
Power (%) |
| | | | | ||||||||||||||||||||||||||
Acies public shareholders(1)
|
| | | | 21,525,000 | | | | | | 16.5% | | | | | | 4.9% | | | | | | — | | | | | | — | | | | | | —% | | | | | | | ||||||||
Sponsor(1)(2) | | | | | 4,531,250 | | | | | | 3.5% | | | | | | 0.8% | | | | | | 3,724,062 | | | | | | 3.0% | | | | | | 0.6% | | | | | | | ||||||||
PLAYSTUDIOS stockholders (excluding Founder Group)(3)
|
| | | | 63,041,235 | | | | | | 48.3% | | | | | | 14.2% | | | | | | 74,166,159 | | | | | | 60.7% | | | | | | 15.1% | | | | | | | ||||||||
Founder Group(3)
|
| | | | 16,482,910 | | | | | | 12.6% | | | | | | 74.5% | | | | | | 19,391,659 | | | | | | 15.9% | | | | | | 79.2% | | | | | | | ||||||||
PIPE Investors
|
| | | | 25,000,000 | | | | | | 19.1% | | | | | | 5.6% | | | | | | 25,000,000 | | | | | | 20.4% | | | | | | 5.1% | | | | | | | ||||||||
Pro forma New PLAYSTUDIOS common stock at September 30, 2020
|
| | | | 130,580,395 | | | | | | 100.0% | | | | | | 100.0% | | | | | | 122,281,880 | | | | | | 100.0% | | | | | | 100.0% | | | | | | |
| | |
As of
September 30, 2020 |
| | | | | | | |
As Adjusted
September 30, 2020 |
| |
As of
September 30, 2020 |
| | | | | | | |
No Redemption
Scenario |
| |
Maximum Redemption Scenario
|
| |||||||||||||||||||||||||||||||||
| | |
Acies Acquisition
Corp. (Historical) |
| |
Acies Acquisition
Corp. Adjustments (Note 2) |
| |
Acies Acquisition
Corp. (Adjusted) |
| |
Playstudios, Inc.
(Historical) |
| |
Reclassification
Adjustments |
| |
Transaction
Accounting Adjustments |
| | | | |
Pro Forma
Combined |
| |
Additional
Transaction Accounting Adjustments |
| | | | |
Pro Forma
Combined |
| |||||||||||||||||||||||||||
ASSETS | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current Assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 143 | | | | | $ | 4,036 | | | | | $ | 4,179 | | | | | $ | 42,816 | | | | | $ | — | | | | | $ | 215,250 | | | |
(C)
|
| | | $ | 293,728 | | | | | $ | (215,250) | | | |
(O)
|
| | | $ | 218,815 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (7,534) | | | |
(D)
|
| | | | | | | | | | 140,337 | | | |
(P)
|
| | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (140,337) | | | |
(F)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (20,000) | | | |
(H)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (5,000) | | | |
(I)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (2,500) | | | |
(J)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 250,000 | | | |
(K)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (27,213) | | | |
(L)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (15,933) | | | |
(M)
|
| | | | | | | | | | | | | | | | | | | | | |
Receivables
|
| | | | — | | | | | | — | | | | | | — | | | | | | 23,571 | | | | | | — | | | | | | | | | | | | | | | 23,571 | | | | | | | | | | | | | | | 23,571 | | |
Prepaid expenses
|
| | | | — | | | | | | — | | | | | | — | | | | | | 2,973 | | | | | | 751 | | | | | | | | | | | | | | | 3,724 | | | | | | | | | | | | | | | 3,724 | | |
Other current assets
|
| | | | — | | | | | | — | | | | | | — | | | | | | 2,349 | | | | | | — | | | | | | (879) | | | |
(L)
|
| | | | 1,470 | | | | | | | | | | | | | | | 1,470 | | |
Prepaid assets
|
| | | | — | | | | | | 751 | | | | | | 751 | | | | | | — | | | | | | (751) | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Total current assets
|
| | | | 143 | | | | | | 4,787 | | | | | | 4,930 | | | | | | 71,709 | | | | | | — | | | | | | 245,854 | | | | | | | | | 322,493 | | | | | | (74,913) | | | | | | | | | 247,580 | | |
Non-current Assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Security deposit
|
| | | | 3 | | | | | | — | | | | | | 3 | | | | | | — | | | | | | (3) | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Deferred offering costs
|
| | | | 125 | | | | | | (125) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash held in Trust Account
|
| | | | — | | | | | | 215,250 | | | | | | 215,250 | | | | | | — | | | | | | | | | | | | (215,250) | | | |
(C)
|
| | | | | | | | | | | | | | | | | | | — | | |
Property and equipment, net
|
| | | | — | | | | | | — | | | | | | — | | | | | | 6,515 | | | | | | — | | | | | | | | | | | | | | | 6,515 | | | | | | | | | | | | | | | 6,515 | | |
Internal-use software, net
|
| | | | — | | | | | | — | | | | | | — | | | | | | 35,849 | | | | | | — | | | | | | | | | | | | | | | 35,849 | | | | | | | | | | | | | | | 35,849 | | |
Goodwill
|
| | | | — | | | | | | — | | | | | | — | | | | | | 5,059 | | | | | | — | | | | | | | | | | | | | | | 5,059 | | | | | | | | | | | | | | | 5,059 | | |
Intangibles, net
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,736 | | | | | | — | | | | | | | | | | | | | | | 1,736 | | | | | | | | | | | | | | | 1,736 | | |
Deferred income taxes
|
| | | | — | | | | | | — | | | | | | — | | | | | | 2,252 | | | | | | | | | | | | | | | | | | | | | 2,252 | | | | | | | | | | | | | | | 2,252 | | |
Other long-term assets
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,908 | | | | | | 3 | | | | | | | | | | | | | | | 1,911 | | | | | | | | | | | | | | | 1,911 | | |
Total non-current assets
|
| | | | 128 | | | | | | 215,125 | | | | | | 215,253 | | | | | | 53,319 | | | | | | — | | | | | | (215,250) | | | | | | | | | 53,322 | | | | | | — | | | | | | | | | 53,322 | | |
Total Assets
|
| | | $ | 271 | | | | | $ | 219,912 | | | | | $ | 220,183 | | | | | $ | 125,028 | | | | | $ | — | | | | | $ | 30,064 | | | | | | | | $ | 375,815 | | | | | $ | (74,913) | | | | | | | | $ | 300,902 | | |
| | |
As of
September 30, 2020 |
| | | | | | | |
As Adjusted
September 30, 2020 |
| |
As of
September 30, 2020 |
| | | | | | | |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| ||||||||||||||||||||||||||||||||||||
| | |
Acies Acquisition
Corp. (Historical) |
| |
Acies Acquisition
Corp. Adjustments (Note 2) |
| |
Acies Acquisition
Corp. (Adjusted) |
| |
Playstudios, Inc.
(Historical) |
| |
Reclassification
Adjustments |
| |
Transaction
Accounting Adjustments |
| | | | | | | |
Pro Forma
Combined |
| |
Additional
Transaction Accounting Adjustments |
| | | | |
Pro Forma
Combined |
| |||||||||||||||||||||||||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable and accrued expenses.
|
| | | $ | — | | | | | $ | 1 | | | | | $ | 1 | | | | | $ | — | | | | | $ | (1) | | | | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Accrued offering costs
|
| | | | 5 | | | | | | 73 | | | | | | 78 | | | | | | — | | | | | | (78) | | | | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Due to Sponsor
|
| | | | — | | | | | | 2,621 | | | | | | 2,621 | | | | | | — | | | | | | (2,621) | | | | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Promissary note – related party
|
| | | | 258 | | | | | | 21 | | | | | | 279 | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | 279 | | | | | | | | | | | | | | | 279 | | |
Accounts payable
|
| | | | — | | | | | | — | | | | | | — | | | | | | 3,622 | | | | | | 2,622 | | | | | | | | | | | | | | | | | | 6,244 | | | | | | | | | | | | | | | 6,244 | | |
Accrued liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | 9,729 | | | | | | 78 | | | | | | (300) | | | | | | (H) | | | | | | 9,110 | | | | | | | | | | | | | | | 9,110 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (397) | | | | | | (L) | | | | | | | | | | | | | | | | | | | | | | | |
Total current liabilities
|
| | | | 263 | | | | | | 2,716 | | | | | | 2,979 | | | | | | 13,351 | | | | | | — | | | | | | (697) | | | | | | | | | | | | 15,633 | | | | | | — | | | | | | | | | 15,633 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Non-current Liabilities: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Deferred underwriting fee payable
|
| | | | — | | | | | | 7,534 | | | | | | 7,534 | | | | | | — | | | | | $ | (7,534) | | | | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Minimum guarantee liability
|
| | | | — | | | | | | — | | | | | | — | | | | | | 350 | | | | | | — | | | | | | | | | | | | | | | | | | 350 | | | | | | | | | | | | | | | 350 | | |
Deferred income taxes
|
| | | | — | | | | | | — | | | | | | — | | | | | | 4,911 | | | | | | — | | | | | | | | | | | | | | | | | | 4,911 | | | | | | | | | | | | | | | 4,911 | | |
Other long-term liabilities
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1,354 | | | | | | 7,534 | | | | | | (7,534) | | | | | | (D) | | | | | | 1,354 | | | | | | | | | | | | | | | 1,354 | | |
Total non-current liabilities
|
| | | | — | | | | | | 7,534 | | | | | | 7,534 | | | | | | 6,615 | | | | | | — | | | | | | (7,534) | | | | | | | | | | | | 6,615 | | | | | | — | | | | | | | | | 6,615 | | |
Total liabilities
|
| | | | 263 | | | | | | 10,250 | | | | | | 10,513 | | | | | | 19,966 | | | | | | — | | | | | | (8,231) | | | | | | | | | | | | 22,248 | | | | | | — | | | | | | | | | 22,248 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
COMMITMENTS AND CONTINGENCIES | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Class A ordinary shares subject to
possible redemption |
| | | | — | | | | | | 204,670 | | | | | | 204,670 | | | | | | — | | | | | | | | | | | | (204,670) | | | | | | (B) | | | | | | — | | | | | | | | | | | | | | | — | | |
Stockholders’ Equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Class A Ordinary shares
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Class B Ordinary shares
|
| | | | 1 | | | | | | — | | | | | | 1 | | | | | | — | | | | | | — | | | | | | (1) | | | | | | (A) | | | | | | — | | | | | | | | | | | | | | | — | | |
| | |
As of
September 30, 2020 |
| | | | | | | |
As Adjusted
September 30, 2020 |
| |
As of
September 30, 2020 |
| | | | | | | |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| |||||||||||||||||||||||||||||||||||||||
| | |
Acies Acquisition
Corp. (Historical) |
| |
Acies Acquisition
Corp. Adjustments (Note 2) |
| |
Acies Acquisition
Corp. (Adjusted) |
| |
Playstudios, Inc.
(Historical) |
| |
Reclassification
Adjustments |
| |
Transaction
Accounting Adjustments |
| | | | | | | |
Pro Forma
Combined |
| |
Additional
Transaction Accounting Adjustments |
| | | | | | | |
Pro Forma
Combined |
| |||||||||||||||||||||||||||
Common stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | 11 | | | | | | — | | | | | | (2) | | | | | | (F) | | | | | | — | | | | | | | | | | | | | | | | | | — | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (9) | | | | | | (G) | | | | | | — | | | | | | | | | | | | | | | | | | — | | |
Preferred stock
|
| | | | — | | | | | | — | | | | | | | | | | | | 8 | | | | | | — | | | | | | (1) | | | | | | (F) | | | | | | — | | | | | | | | | | | | | | | | | | — | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (7) | | | | | | (G) | | | | | | | | | | | | | | | | | | | | | | | | | | |
Class A Common Stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 1 | | | | | | (A) | | | | | | 11 | | | | | | (2) | | | | | | (O) | | | | | | 10 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2 | | | | | | (B) | | | | | | | | | | | | 1 | | | | | | (P) | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 5 | | | | | | (G) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3 | | | | | | (K) | | | | | | | | | | | | | | | | | | | | | | | | | | |
Class B Common Stock
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2 | | | | | | (G) | | | | | | 2 | | | | | | — | | | | | | (P) | | | | | | 2 | | |
Additional paid-in capital
|
| | | | 24 | | | | | | 5,022 | | | | | | 5,046 | | | | | | 70,282 | | | | | | — | | | | | | 204,668 | | | | | | (B) | | | | | | 329,472 | | | | | | (215,248) | | | | | | (O) | | | | | | 254,804 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (47) | | | | | | (E) | | | | | | | | | | | | 140,336 | | | | | | (P) | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (140,334) | | | | | | (F) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 9 | | | | | | (G) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (19,700) | | | | | | (H) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 249,997 | | | | | | (K) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (27,583) | | | | | | (L) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (14,415) | | | | | | (M) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 1,549 | | | | | | (N) | | | | | | | | | | | | 244 | | | | | | (N) | | | | | | | | |
Retained earnings (accumulated
deficit) |
| | | | (17) | | | | | | (30) | | | | | | (47) | | | | | | 34,566 | | | | | | — | | | | | | 47 | | | | | | (E) | | | | | | 23,887 | | | | | | | | | | | | | | | | | | 23,643 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (5,000) | | | | | | (I) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (2,500) | | | | | | (J) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (112) | | | | | | (L) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (1,518) | | | | | | (M) | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (1,549) | | | | | | (N) | | | | | | | | | | | | (244) | | | | | | (N) | | | | | | | | |
Accumulated other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | 195 | | | | | | — | | | | | | | | | | | | | | | | | | 195 | | | | | | — | | | | | | | | | | | | 195 | | |
Total stockholders’ equity
(deficit) |
| | | | 8 | | | | | | 4,992 | | | | | | 5,000 | | | | | | 105,062 | | | | | | — | | | | | | 243,505 | | | | | | | | | | | | 353,567 | | | | | | (74,913) | | | | | | | | | | | | 278,654 | | |
TOTAL LIABILITIES AND STOCKHOLDERS’
EQUITY |
| | | $ | 271 | | | | | $ | 219,912 | | | | | $ | 220,183 | | | | | $ | 125,028 | | | | | $ | — | | | | | | 30,604 | | | | | | | | | | | | 375,815 | | | | | | (74,913) | | | | | | | | | | | | 300,902 | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | |
For the Period from
August 14, 2020 (inception) to September 30, 2020 |
| |
For the
Nine Months ended September 30, 2020 |
| | | | | | | |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| ||||||||||||||||||||||||
| | |
Acies
Acquisition Corp. (Historical) |
| |
Playstudios, Inc.
(Historical) |
| |
Reclassification
Adjustments |
| |
Transaction
Accounting Adjustments |
| |
Pro Forma
Combined |
| |
Additional
Transaction Accounting Adjustments |
| |
Pro Forma
Combined |
| |||||||||||||||||||||
Net revenues
|
| | |
$
|
—
|
| | | |
$
|
205,883
|
| | | |
|
—
|
| | | |
$
|
—
|
| | | |
$
|
205,883
|
| | | |
$
|
—
|
| | | |
$
|
205,883
|
| |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenue
|
| | |
|
—
|
| | | | | 70,199 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 70,199 | | | | |
|
—
|
| | | | | 70,199 | | |
Selling and marketing
|
| | |
|
—
|
| | | | | 41,232 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 41,232 | | | | |
|
—
|
| | | | | 41,232 | | |
General and administrative
|
| | |
|
—
|
| | | | | 13,883 | | | | | | 17 | | | | |
|
—
|
| | | | | 13,900 | | | | |
|
—
|
| | | | | 13,900 | | |
Research and development
|
| | |
|
—
|
| | | | | 35,942 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 35,942 | | | | | | | | | | | | 35,942 | | |
Depreciation and amortization
|
| | |
|
—
|
| | | | | 16,405 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 16,405 | | | | | | | | | | | | 16,405 | | |
Formation operating costs
|
| | | | 17 | | | | | | — | | | | | | (17) | | | | |
|
—
|
| | | | | | | | | | | | | | | | | | | |
Total operating cost and
expenses |
| | | | 17 | | | | | | 177,661 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 177,678 | | | | |
|
—
|
| | | | | 177,678 | | |
Income (loss) from operations
|
| | | | (17) | | | | | | 28,222 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 28,205 | | | | |
|
—
|
| | | | | 28,205 | | |
Interest expense
|
| | | | — | | | | | | (94) | | | | |
|
—
|
| | | |
|
—
|
| | | | | (94) | | | | |
|
—
|
| | | | | (94) | | |
Other income (expense), net
|
| | | | — | | | | | | 509 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 509 | | | | |
|
—
|
| | | | | 509 | | |
Total other income (expense), net
|
| | | | — | | | | | | 415 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 415 | | | | |
|
—
|
| | | | | 415 | | |
Income (loss) before income taxes
|
| | | | (17) | | | | | | 28,637 | | | | |
|
—
|
| | | |
|
—
|
| | | | | 28,620 | | | | |
|
—
|
| | | | | 28,620 | | |
Provision for income taxes
|
| | | | | | | | | | (5,066) | | | | |
|
—
|
| | | | | — | | | | | | (5,066) | | | | |
|
—
|
| | | | | (5,066) | | |
Net income (loss)
|
| | |
$
|
(17)
|
| | | | $ | 23,571 | | | | | $ | — | | | | | $ | — | | | | | $ | 23,554 | | | | | $ | — | | | | | $ | 23,554 | | |
Class A Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 113,197,485 | | | | | | | | | | | | 101,990,221 | | |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 120,970,515 | | | | | | | | | | | | 109,763,251 | | |
Net income attributable to common
stockholders per share: |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | | | |
$
|
0.18
|
| | | | | | | | | |
$
|
0.19
|
| |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | | | |
$
|
0.17
|
| | | | | | | | | |
$
|
0.18
|
| |
Class B Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 16,482,910 | | | | | | | | | | | | 19,391,659 | | |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | 17,843,673 | | | | | | | | | | | | 20,752,422 | | |
Net income attributable to common
stockholders per share: |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | | | |
$
|
0.18
|
| | | | | | | | | |
$
|
0.19
|
| |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | | | |
$
|
0.17
|
| | | | | | | | | |
$
|
0.18
|
| |
| | |
For the Year ended
December 31, 2019 |
| |
No Redemption Scenario
|
| |
Maximum Redemption Scenario
|
| |||||||||||||||||||||||||||||||||
| | |
Acies Acquisition
Corp (Historical)(1) |
| |
Playstudios,
Inc. (Historical) |
| |
Transaction
Accounting Adjustments |
| | | | |
Pro Forma
Combined |
| |
Additional
Transaction Accounting Adjustments |
| | | | |
Pro Forma
Combined |
| ||||||||||||||||||
Net revenues
|
| | |
$
|
—
|
| | | | $ | 239,421 | | | | | | | | | | | | | | $ | 239,421 | | | | |
$
|
—
|
| | | | | | |
$
|
239,421
|
| |
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenue
|
| | |
|
—
|
| | | | | 80,267 | | | | | | | | | | | | | | | 80,267 | | | | | | | | | | | | | | | 80,267 | | |
Selling and marketing
|
| | |
|
—
|
| | | | | 59,931 | | | | | | | | | | | | | | | 59,931 | | | | | | | | | | | | | | | 59,931 | | |
General and administrative
|
| | |
|
—
|
| | | | | 16,824 | | | | | | 5,000 | | | |
(AA)
|
| | | | 27,503 | | | | | | | | | | | | | | | 27,747 | | |
| | | | | | | | | | | | | | | | | 2,500 | | | |
(BB)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | 112 | | | |
(CC)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | 1,518 | | | |
(DD)
|
| | | | | | | | | | | | | | | | | | | | | |
| | | | | | | | | | | | | | | | | 1,549 | | | |
(EE)
|
| | | | | | | | | | 244 | | | |
(EE)
|
| | | | | | |
Research and development
|
| | | | — | | | | | | 40,108 | | | | | | | | | | | | | | | 40,108 | | | | | | | | | | | | | | | 40,108 | | |
Depreciation and amortization
|
| | | | — | | | | | | 25,154 | | | | | | | | | | | | | | | 25,154 | | | | | | | | | | | | | | | 25,154 | | |
Total operating cost and expenses
|
| | | | — | | | | | | 222,284 | | | | | | 10,679 | | | | | | | | | 232,963 | | | | | | 244 | | | | | | | | | 233,207 | | |
Income (loss) from operations
|
| | | | — | | | | | | 17,137 | | | | | | (10,679) | | | | | | | | | 6,458 | | | | | | (244) | | | | | | | | | 6,214 | | |
Interest expense
|
| | |
|
—
|
| | | | | (264) | | | | | | | | | | | | | | | (264) | | | | | | | | | | | | | | | (264) | | |
Other income (expense), net
|
| | |
|
—
|
| | | | | 716 | | | | | | | | | | | | | | | 716 | | | | | | | | | | | | | | | 716 | | |
Total other income (expense), net
|
| | |
|
—
|
| | | | | 452 | | | | | | — | | | | | | | | | 452 | | | | | | | | | | | | | | | 452 | | |
Income (loss) before income taxes
|
| | |
|
—
|
| | | | | 17,589 | | | | | | (10,679) | | | | | | | | | 6,910 | | | | | | (244) | | | | | | | | | 6,666 | | |
Provision for income taxes
|
| | | | | | | | | | (3,975) | | | | | | 2,127 | | | | | | | | | (1,848) | | | | | | 57 | | | | | | | | | (1,791) | | |
Net income (loss)
|
| | |
$
|
—
|
| | | | $ | 13,614 | | | | | $ | (8,552) | | | | | | | | $ | 5,062 | | | | | $ | (187) | | | | | | | |
$
|
4,875
|
| |
Class A Common Stock
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | | 113,197,485 | | | | | | | | | | | | | | | 101,990,221 | | |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | | 117,196,604 | | | | | | | | | | | | | | | 105,989,340 | | |
Net income (loss) attributable to common stockholders per share:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | $ | 0.04 | | | | | | | | | | | | | |
$
|
0.04
|
| |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | $ | 0.04 | | | | | | | | | | | | | |
$
|
0.04
|
| |
Class B Common Stock
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | | 16,482,910 | | | | | | | | | | | | | | | 19,391,659 | | |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | | 17,176,217 | | | | | | | | | | | | | | | 20,084,966 | | |
Net income (loss) attributable to common stockholders per share:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | | | | | | | | | | | | | | | | | | | | | $ | 0.04 | | | | | | | | | | | | | |
$
|
0.04
|
| |
Diluted
|
| | | | | | | | | | | | | | | | | | | | | | | | $ | 0.04 | | | | | | | | | | | | | |
$
|
0.04
|
| |
| | |
For the nine months ended
September 30, 2020 |
| |
For the year ended
December 31, 2019 |
| ||||||||||||||||||
(in thousands, except share and per share data)
|
| |
No
Redemption Scenario |
| |
Maximum
Redemption Scenario |
| |
No
Redemption Scenario |
| |
Maximum
Redemption Scenario |
| ||||||||||||
Pro forma net income attributable to common stockholders
|
| | | $ | 23,554 | | | | | $ | 23,554 | | | | | $ | 5,062 | | | | | $ | 4,875 | | |
Class A Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic(1)
|
| | | | 113,197,485 | | | | | | 101,990,221 | | | | | | 113,197,485 | | | | | | 101,990,221 | | |
Dilutive options
|
| | | | 7,773,030 | | | | | | 7,773,030 | | | | | | 3,999,119 | | | | | | 3,999,119 | | |
Weighted average shares of common stock outstanding – diluted(1)(2)
|
| | | | 120,970,515 | | | | | | 109,763,251 | | | | | | 117,196,604 | | | | | | 105,989,340 | | |
Net income attributable to common stockholders per share – basic
|
| | | $ | 0.18 | | | | | $ | 0.19 | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Net income attributable to common stockholders per share – diluted
|
| | | $ | 0.17 | | | | | $ | 0.18 | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Class B Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic(1)
|
| | | | 16,482,910 | | | | | | 19,391,659 | | | | | | 16,482,910 | | | | | | 19,391,659 | | |
Dilutive options
|
| | | | 1,360,763 | | | | | | 1,360,763 | | | | | | 693,307 | | | | | | 693,307 | | |
Weighted average shares of common stock outstanding – diluted(1)(2)
|
| | | | 17,843,673 | | | | | | 20,752,422 | | | | | | 17,176,217 | | | | | | 20,084,966 | | |
Net income attributable to common stockholders per share – basic
|
| | | $ | 0.18 | | | | | $ | 0.19 | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Net income attributable to common stockholders per share – diluted
|
| | | $ | 0.17 | | | | | $ | 0.18 | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
| | | | | | | | | | | | | | |
Pro Forma Combined
|
| |||||||||
(in thousands, except share and per share data)
|
| |
Acies
(Historical) |
| |
Playstudios
(Historical) |
| |
No
Redemption Scenario |
| |
Maximum
Redemption Scenario |
| ||||||||||||
As of and for the Nine Months Ended September 30, 2020
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss)
|
| | | $ | (17) | | | | | $ | 23,571 | | | | |
$
|
23,554
|
| | | | $ | 23,554 | | |
Total stockholders’ equity
|
| | | $ | 8 | | | | | $ | 105,062 | | | | | $ | 353,567 | | | | | $ | 278,654 | | |
Historical Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | 5,000,000 | | | | | | 235,958,921 | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | 5,000,000 | | | | | | 277,015,765 | | | | | | | | | | | | | | |
Net income (loss) attributable to common stockholders per share – basic
|
| | | $ | — | | | | | $ | 0.05 | | | | | | | | | | | | | | |
Net income (loss) attributable to common stockholders per share – diluted
|
| | | $ | — | | | | | $ | 0.05 | | | | | | | | | | | | | | |
Total stockholders’ equity per share(1)
|
| | | $ | — | | | | | $ | 0.45 | | | | | | | | | | | | | | |
Class A Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | | | | | | | | | | | | | 113,197,485 | | | | | | 101,990,221 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | | | | | | | | | | | | | 120,970,515 | | | | | | 109,763,251 | | |
Net income attributable to common stockholders per share – basic
|
| | | | | | | | | | | | | | | $ | 0.18 | | | | | $ | 0.19 | | |
Net income attributable to common stockholders per share – diluted
|
| | | | | | | | | | | | | | | $ | 0.17 | | | | | $ | 0.18 | | |
Total stockholders’ equity per share
|
| | | | | | | | | | | | | | | $ | 2.73 | | | | | $ | 2.30 | | |
Class B Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | | | | | | | | | | | | | 16,482,910 | | | | | | 19,391,659 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | | | | | | | | | | | | | 17,843,673 | | | | | | 20,752,422 | | |
Net income attributable to common stockholders per share – basic
|
| | | | | | | | | | | | | | | $ | 0.18 | | | | | $ | 0.19 | | |
Net income attributable to common stockholders per share – diluted
|
| | | | | | | | | | | | | | | $ | 0.17 | | | | | $ | 0.18 | | |
Total stockholders’ equity per share(1)
|
| | | | | | | | | | | | | | | $ | 2.73 | | | | | $ | 2.30 | | |
| | | | | | | | | | | | | | |
Pro Forma Combined
|
| |||||||||
(in thousands, except share and per share data)
|
| |
Acies
(Historical) |
| |
Playstudios
(Historical) |
| |
No
Redemption Scenario |
| |
Maximum
Redemption Scenario |
| ||||||||||||
As of and for the year ended December 31, 2019
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Net income
|
| | | | N/A(2) | | | | | $ | 13,614 | | | | | $ | 5,062 | | | | | $ | 4,875 | | |
Historical Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | N/A(2) | | | | | | 234,070,277 | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | N/A(2) | | | | | | 255,453,583 | | | | | | | | | | | | | | |
Net income attributable to common stockholders per share – basic
|
| | | | N/A(2) | | | | | $ | 0.03 | | | | | | | | | | | | | | |
Net income attributable to common stockholders per share – diluted
|
| | | | N/A(2) | | | | | $ | 0.03 | | | | | | | | | | | | | | |
Total stockholders’ equity per share(3)
|
| | | | N/A(3) | | | | | | N/A(3) | | | | | | | | | | | | | | |
Class A Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | | | | | | | | | | | | | 113,197,485 | | | | | | 101,990,221 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | | | | | | | | | | | | | 117,196,604 | | | | | | 105,989,340 | | |
Net income attributable to common stockholders per share – basic
|
| | | | | | | | | | | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Net income attributable to common stockholders per share – diluted
|
| | | | | | | | | | | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Total stockholders’ equity per share(3)
|
| | | | | | | | | | | | | | | | N/A(3) | | | | | | N/A(3) | | |
Class B Common Stock | | | | | | | | | | | | | | | | | | | | | | | | | |
Weighted average shares of common stock outstanding – basic
|
| | | | | | | | | | | | | | | | 16,482,910 | | | | | | 19,391,659 | | |
Weighted average shares of common stock outstanding – diluted
|
| | | | | | | | | | | | | | | | 17,176,217 | | | | | | 20,084,966 | | |
Net income attributable to common stockholders per share – basic
|
| | | | | | | | | | | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Net income attributable to common stockholders per share – diluted
|
| | | | | | | | | | | | | | | $ | 0.04 | | | | | $ | 0.04 | | |
Total stockholders’ equity per share(3)
|
| | | | | | | | | | | | | | | | N/A(3) | | | | | | N/A(3) | | |
Name
|
| |
Age
|
| |
Position
|
|
James J. Murren | | |
59
|
| | Chairman | |
Daniel Fetters | | |
42
|
| | Co-Chief Executive Officer | |
Edward King | | |
46
|
| | Co-Chief Executive Officer | |
Christopher Grove | | |
44
|
| | Director | |
Zach Leonsis | | |
32
|
| | Director | |
Brisa Trinchero | | |
41
|
| | Director | |
Andrew Zobler | | |
59
|
| | Director | |
Sam Kennedy | | |
47
|
| | Director | |
| myVEGAS Slots | | | | |
|
As myVEGAS was being favorably received on Facebook, the market was shifting from desktop to mobile. We followed suit and quickly went to work on our first mobile game, leveraging our existing content and lessons we learned on the social platform. In November 2013, myVEGAS Slots was launched on iTunes and Google Play. Similar to its predecessor, myVEGAS Slots also featured an extensive collection of real-world rewards—a first for the mobile platforms. Within weeks of its launch, myVEGAS, had attracted more than 250,000 players, validating our compelling proposition. It was clear that playing for fun while earning real-world benefits was resonating with out target audience.
|
| |
|
|
| myVEGAS Blackjack | | | | |
|
Having established the myVEGAS brand and proven the value of real-world rewards, we elected to leverage both in a new, albeit adjacent category. In November 2014, we released myVEGAS Blackjack for iOS and Android devices. The game offers players traditional Blackjack rules and game mechanics with a host of social gaming features such as collectables, challenges, and leaderboards, along with distinct “rooms” that provide the look and feel of familiar Las Vegas casinos. Central to the game experience is our loyalty program, which shares a common, linked currency across all of the other myVEGAS games. Blackjack quickly became a favorite among our network of players, amassing over 200,000 daily active users within weeks of its launch.
|
| |
|
|
| my KONAMI Slots | | | | |
|
Recognizing the growing popularity of real-world casino content in free-to-play mobile gaming, we entered into a strategic partnership with KONAMI Gaming. The relationship gave us access to the vast collection of casino-proven slot content. In January 2016, we introduced my KONAMI Slots, coupled with our unique loyalty program. The game quickly scaled to over 150,000 daily active players. Today, its audience has more than doubled as it continues to showcase KONAMI’s newest and hottest slot machines like China Mystery, Lotus Land, Lion Festival, Masked Ball Nights, and more.
|
| |
|
|
| POP! Slots | | | | |
|
With our position established as a leading developer of casual slot games, we set out to create a product that would more fully exploit the inherently social aspects of mobile gaming. POP! Slots was released in August 2016 and introduced players to an entirely new, immersive world in which they roamed a virtual strip, entered their favorite casinos, then spun the reels alongside others with whom they were teamed-up, or pitted against. With real-time audio chat and emojis, players could connect with one another as they conquered the Wall of Kahn, broke the bank at Bellagio, or topped the chart in Win Zone. The games proved to be highly engaging, and the communal nature of the experience set it apart from everything else in its genre. Similar to the rest of the PLAYSTUDIOS portfolio, POP! Slots incorporated our loyalty points and real-world rewards into the game, and extended our loyalty program to an even broader audience of players and awards partners.
|
| |
|
|
| | | | myVEGAS Bingo (Coming Soon) | |
|
|
| |
While continuing to nurture and grow our core game franchises, we elected to enter the dynamic and rapidly growing casual bingo category. According to Sensor Tower Game Intelligence, the mobile Bingo category had revenues of $601 million, grew by nearly 54% year-over-year and had 53 million downloads for 2020. As we enter into the bingo genre, we are applying our proven approach—carefully crafting a game that’s intuitive to play, feature rich, and beautifully executed. We believe players will respond to the integration of real casino brands, innovative power-ups, group social features, collectables, and leaderboards. Similar to all of the other PLAYSTUDIOS games, myVEGAS Bingo will offer its players the opportunity to earn real-world rewards. The game has recently completed its technical validation and is in beta release in select markets. We continue to review and refine the game in anticipation of a full commercial launch in the first half of 2021.
|
|
| | | | Kingdom Boss (Coming Soon) | |
|
|
| |
We expect to launch our first idle RPG game, Kingdom Boss, in mid-2021, moving beyond casino-style content and into another rapidly expanding game category. With respect to the market opportunity for Kingdom Boss, according to Sensor Tower Game Intelligence, the Squad RPG genre is among the fastest-growing gaming segments, with over 296 million downloads in 2020, a market size of $5.9 billion and year-over-year market growth of 50%. Players of Kingdom Boss will be immersed in an epic role-playing game as they build their empire, forge alliances, command an army of epic heroes, and rescue their subjects from the shadowlands of exiled kingdoms. While we firmly believe in the strong appeal of the core game experience, Kingdom Boss will enjoy additional lift from our loyalty program and a new collection of real-world benefits that will be carefully tailored to this new audience.
|
|
| | |
Nine Months Ended
September 30, |
| |
Year Ended December 31,
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
Net income
|
| | | $ | 23,571 | | | | | $ | 8,253 | | | | | | 13,614 | | | | | | 2,822 | | |
Depreciation & amortization
|
| | | | 16,405 | | | | | | 20,051 | | | | | | 25,154 | | | | | | 16,246 | | |
Income tax expense
|
| | | | 5,066 | | | | | | 4,781 | | | | | | 3,975 | | | | | | 2,964 | | |
Stock-based compensation expense
|
| | | | 2,624 | | | | | | 5,029 | | | | | | 5,884 | | | | | | 10,902 | | |
Special infrequent(1)
|
| | | | 1,427 | | | | | | — | | | | | | — | | | | | | — | | |
Restructuring and related(3)
|
| | | | 92 | | | | | | 1,212 | | | | | | 1,234 | | | | | | 2,316 | | |
Other(2) | | | | | (23) | | | | | | (355) | | | | | | (340) | | | | | | 2,081 | | |
AEBITDA before adjustment for the impact of capitalized software costs
|
| | | | 49,162 | | | | | | 38,971 | | | | | | 49,521 | | | | | | 37,331 | | |
Impact of capitalized software costs
|
| | | | (18,116) | | | | | | (15,682) | | | | | | (20,996) | | | | | | (20,844) | | |
AEBITDA | | | | | 31,046 | | | | | | 23,289 | | | | | | 28,525 | | | | | | 16,487 | | |
GAAP Revenue
|
| | | | 205,883 | | | | | | 182,734 | | | | | | 239,421 | | | | | | 195,499 | | |
Margin as a % of revenue | | | | | | | | | | | | | | | | | | | | | | | | | |
AEBITDA margin before adjustment for the impact of capitalized software costs
|
| | | | 23.9% | | | | | | 21.3% | | | | | | 20.7% | | | | | | 19.1% | | |
AEBITDA
|
| | | | 15.1% | | | | | | 12.7% | | | | | | 11.9% | | | | | | 8.4% | | |
| | |
Nine Months Ended
September 30, |
| | | | | | | | | | | | | |||||||||
| | |
2020
|
| |
2019
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
Net revenue: | | | | | | | | | | | | | | | | | | | | | | | | | |
Virtual currency
|
| | | $ | 204,905 | | | | | $ | 175,150 | | | | | $ | 29,755 | | | | | | 17.0% | | |
Advertising
|
| | | | 978 | | | | | | 272 | | | | | | 706 | | | | | | 259.6% | | |
Other
|
| | | | — | | | | | | 7,312 | | | | | | (7,312) | | | | | | -100.0% | | |
Total net revenue
|
| | | | 205,883 | | | | | | 182,734 | | | | | | 23,149 | | | | | | 12.7% | | |
| | |
Nine Months Ended
September 30, |
| | | | | | | | | | | | | |||||||||
| | |
2020
|
| |
2019
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
Operating expenses
|
| | | | 177,661 | | | | | | 170,168 | | | | | | 7,493 | | | | | | 4.4% | | |
Operating income
|
| | | | 28,222 | | | | | | 12,566 | | | | | | 15,656 | | | | | | 124.6% | | |
Interest expense
|
| | | | (94) | | | | | | (140) | | | | | | 46 | | | | | | -32.9% | | |
Other income, net
|
| | | | 509 | | | | | | 608 | | | | | | (99) | | | | | | -16.3% | | |
Provision for income taxes
|
| | | | (5,066) | | | | | | (4,781) | | | | | | (285) | | | | | | 6.0% | | |
Net income
|
| | | | 23,571 | | | | | | 8,253 | | | | | | 15,318 | | | | | | 185.6% | | |
AEBITDA before adjustment for the impact of capitalized software costs
|
| | | | 49,162 | | | | | | 38,971 | | | | | | 10,191 | | | | | | 26.2% | | |
AEBITDA
|
| | | | 31,046 | | | | | | 23,289 | | | | | | 7,757 | | | | | | 33.3% | | |
Margin (% of revenue) | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating margin
|
| | | | 13.7% | | | | | | 6.9% | | | | | | 6.8pp | | | | | | 98.6% | | |
Net income margin
|
| | | | 11.4% | | | | | | 4.5% | | | | | | 6.9pp | | | | | | 153.3% | | |
AEBITDA margin before adjustment for the impact of capitalized software costs
|
| | | | 23.9% | | | | | | 21.3% | | | | | | 2.6pp | | | | | | 12.2% | | |
AEBITDA margin
|
| | | | 15.1% | | | | | | 12.7% | | | | | | 2.4pp | | | | | | 18.9% | | |
pp = percentage points | | | | | | | | | | | | | | | | | | | | | | | | | |
| | |
Nine Months Ended
September 30, |
| | | | | | | | | | | | | |||||||||
| | |
2020
|
| |
2019
|
| |
Change
|
| |
% Change
|
| ||||||||||||
Average DAU
|
| | | | 1,517 | | | | | | 1,653 | | | | | | (136) | | | | | | (8.2%) | | |
Average MAU
|
| | | | 4,377 | | | | | | 4,848 | | | | | | (471) | | | | | | (9.7%) | | |
Average DPU
|
| | | | 34 | | | | | | 33 | | | | | | 1 | | | | | | 3.0% | | |
Average Daily Payer Conversion
|
| | | | 2.2% | | | | | | 2.0% | | | | | | 0.2pp | | | | | | 10.0% | | |
ARPDAU (in dollars)
|
| | | $ | 0.50 | | | | | $ | 0.39 | | | | | $ | 0.11 | | | | | | 28.2% | | |
pp = percentage points | | | | | | | | | | | | | | | | | | | | | | | | | |
| | |
Nine Months Ended
September 30, |
| | | | | | | | | | | | | |
% of Revenue
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
$ Change
|
| |
% Change
|
| |
2020
|
| |
2019
|
| ||||||||||||||||||
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenue
|
| | | $ | 70,199 | | | | | $ | 60,620 | | | | | | 9,579 | | | | | | 15.8% | | | | | | 34.1% | | | | | | 33.2% | | |
Research and development
|
| | | | 35,942 | | | | | | 31,085 | | | | | | 4,857 | | | | | | 15.6% | | | | | | 17.5% | | | | | | 17.0% | | |
Selling and marketing
|
| | | | 41,232 | | | | | | 45,855 | | | | | | (4,623) | | | | | | (10.1%) | | | | | | 20.0% | | | | | | 25.1% | | |
General and administrative
|
| | | | 13,883 | | | | | | 12,557 | | | | | | 1,326 | | | | | | 10.6% | | | | | | 6.7% | | | | | | 6.9% | | |
Depreciation and amortization
|
| | | | 16,405 | | | | | | 20,051 | | | | | | (3,646) | | | | | | (18.2%) | | | | | | 8.0% | | | | | | 11.0% | | |
Total operating expenses
|
| | | | 177,661 | | | | | | 170,168 | | | | | | 7,493 | | | | | | 4.4% | | | | | | 86.3% | | | | | | 93.1% | | |
| | |
Year Ended December 31,
|
| | | | | | | | | | | | | |||||||||
| | |
2019
|
| |
2018
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
Net revenue: | | | | | | | | | | | | | | | | | | | | | | | | | |
Virtual currency
|
| | | $ | 231,726 | | | | | $ | 193,849 | | | | | $ | 37,877 | | | | | | 19.5% | | |
Advertising
|
| | | | 383 | | | | | | 356 | | | | | | 27 | | | | | | 7.6% | | |
Other
|
| | | | 7,312 | | | | | | 1,294 | | | | | | 6,018 | | | | | | 465.1% | | |
Net revenue
|
| | | | 239,421 | | | | | | 195,499 | | | | | | 43,922 | | | | | | 22.5% | | |
Operating expenses
|
| | | | 222,284 | | | | | | 189,202 | | | | | | 33,082 | | | | | | 17.5% | | |
Operating income
|
| | | | 17,137 | | | | | | 6,297 | | | | | | 10,840 | | | | | | 172.1% | | |
Interest expense
|
| | | | (264) | | | | | | (284) | | | | | | 20 | | | | | | -7.0% | | |
Other income (expense), net
|
| | | | 716 | | | | | | (227) | | | | | | 943 | | | | | | -415.4% | | |
Provision for income taxes
|
| | | | (3,975) | | | | | | (2,964) | | | | | | (1,011) | | | | | | 34.1% | | |
Net income
|
| | | | 13,614 | | | | | | 2,822 | | | | | | 10,792 | | | | | | 382.4% | | |
AEBITDA before adjustment for the impact of capitalized software costs
|
| | | | 49,521 | | | | | | 37,331 | | | | | | 12,190 | | | | | | 32.7% | | |
AEBITDA
|
| | | | 28,525 | | | | | | 16,487 | | | | | | 12,038 | | | | | | 73.0% | | |
Margin as a % of revenue | | | | | | | | | | | | | | | | | | | | | | | | | |
Operating margin
|
| | | | 7.2% | | | | | | 3.2% | | | | | | 4.0pp | | | | | | 125.0% | | |
Net income margin
|
| | | | 5.7% | | | | | | 1.4% | | | | | | 4.3pp | | | | | | 307.1% | | |
AEBITDA margin before adjustment for the impact of capitalized software costs
|
| | | | 20.7% | | | | | | 19.1% | | | | | | 1.6pp | | | | | | 8.4% | | |
AEBITDA margin
|
| | | | 11.9% | | | | | | 8.4% | | | | | | 3.5pp | | | | | | 41.7% | | |
pp = percentage points | | | | | | | | | | | | | | | | | | | | | | | | | |
| | |
Year Ended December 31,
|
| | | | | | | | | | | | | |||||||||
| | |
2019
|
| |
2018
|
| |
Change
|
| |
% Change
|
| ||||||||||||
Average DAU
|
| | | | 1,635 | | | | | | 1,614 | | | | | | 21 | | | | | | 1.3% | | |
Average MAU
|
| | | | 4,813 | | | | | | 4,502 | | | | | | 311 | | | | | | 6.9% | | |
Average DPU
|
| | | | 33 | | | | | | 22 | | | | | | 11 | | | | | | 50% | | |
Average Daily Payer Conversion
|
| | | | 2.0% | | | | | | 1.4% | | | | | | 0.6pp | | | | | | 42.9% | | |
ARPDAU (in dollars)
|
| | | $ | 0.39 | | | | | $ | 0.33 | | | | | $ | 0.06 | | | | | | 18.2% | | |
pp = percentage points | | | | | | | | | | | | | | | | | | | | | | | | | |
| | |
Year Ended December 31,
|
| | | | | | | | | | | | | |
% of Revenue
|
| ||||||||||||||||||
| | |
2019
|
| |
2018
|
| |
$ Change
|
| |
% Change
|
| |
2019
|
| |
2018
|
| ||||||||||||||||||
Operating expenses: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cost of revenue
|
| | | | 80,267 | | | | | | 66,784 | | | | | | 13,483 | | | | | | 20.2% | | | | | | 33.5% | | | | | | 34.2% | | |
Research and development
|
| | | | 40,108 | | | | | | 30,484 | | | | | | 9,624 | | | | | | 31.6% | | | | | | 16.8% | | | | | | 15.6% | | |
Selling and marketing
|
| | | | 59,931 | | | | | | 54,068 | | | | | | 5,863 | | | | | | 10.8% | | | | | | 25.0% | | | | | | 27.7% | | |
General and administrative
|
| | | | 16,824 | | | | | | 21,620 | | | | | | (4,796) | | | | | | (22.2%) | | | | | | 7.0% | | | | | | 11.1% | | |
Depreciation and amortization
|
| | | | 25,154 | | | | | | 16,246 | | | | | | 8,908 | | | | | | 54.8% | | | | | | 10.5% | | | | | | 8.3% | | |
Total operating expenses
|
| | | | 222,284 | | | | | | 189,202 | | | | | | 33,082 | | | | | | 17.5% | | | | | | 92.8% | | | | | | 96.8% | | |
| | |
Nine Months Ended
September 30, |
| |
Year Ended
December 31, |
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2019
|
| |
2018
|
| ||||||||||||
Net cash provided by operating activities
|
| | | $ | 33,717 | | | | | $ | 22,349 | | | | | $ | 36,088 | | | | | $ | 36,728 | | |
Net cash used in investing activities
|
| | | | (19,573) | | | | | | (19,693) | | | | | | (25,292) | | | | | | (24,409) | | |
Net cash used in financing activities
|
| | | | (2,399) | | | | | | (5,950) | | | | | | (7,348) | | | | | | (4,133) | | |
Effect of exchange rate on cash and cash equivalents
|
| | | | 49 | | | | | | (50) | | | | | | (26) | | | | | | (343) | | |
Increase (decrease) in cash and cash equivalents
|
| | | | 11,794 | | | | | | (3,344) | | | | | | 3,422 | | | | | | 7,843 | | |
| | |
Payments Due by Period
|
| |||||||||||||||||||||||||||
| | |
Total
|
| |
Less than
1 year |
| |
1 – 3 years
|
| |
3 – 5 years
|
| |
More than
5 years |
| |||||||||||||||
Operating lease obligations(1)
|
| | | $ | 11,380 | | | | | | 4,418 | | | | | | 6,962 | | | | | | — | | | | | | — | | |
Minimum guaranteed royalties(2)
|
| | | | 1,600 | | | | | | 1,200 | | | | | | 400 | | | | | | — | | | | | | — | | |
Total contractual obligations
|
| | | | 12,980 | | | | | | 5,618 | | | | | | 7,362 | | | | | | — | | | | | | — | | |
Name
|
| |
Age
|
| |
Position
|
|
Andrew Pascal | | |
55
|
| | Co-Founder, Chairman and Chief Executive Officer | |
Paul Mathews | | |
56
|
| | Co-Founder & Executive Vice President | |
Scott Peterson | | |
54
|
| | Vice President, Chief Financial Officer | |
Joel Agena | | |
58
|
| | Vice President, Legal Counsel | |
Katie Bolich | | |
52
|
| | Co-Founder & Head of Product | |
Name and Principal Position
|
| |
Year
|
| |
Salary
($) |
| |
Bonus
($)(1) |
| |
All Other
Compensation ($) |
| |
Total ($)
|
| |||||||||||||||
Andrew Pascal, Chairman and CEO
|
| | | | 2020 | | | | | | 500,000 | | | | | | 225,000 | | | | | | 1,601 | | | | | | 726,601 | | |
Scott Peterson, VP, CFO
|
| | | | 2020 | | | | | | 250,000 | | | | | | 35,000 | | | | | | 161 | | | | | | 285,161 | | |
Joel Agena, VP Legal Counsel
|
| | | | 2020 | | | | | | 224,327 | | | | | | 15,000 | | | | | | 161 | | | | | | 239,488 | | |
| | |
Option Awards(1)
|
| | | | | | | | | | |||||||||||||||
Name
|
| |
Grant Date
|
| |
Number of
Securities Underlying Unexercised Options (#) Exercisable |
| |
Number of
Securities Underlying Unexercised Options (#) Unexercisable |
| |
Option
Exercise Price ($) |
| |
Option
Expiration Date |
| ||||||||||||
Andrew Pascal
|
| | | | 10/4/12 | | | | | | 1,405,200 | | | | | | — | | | | | | 0.0325 | | | |
10/4/22
|
|
| | | | | 4/17/17 | | | | | | 7,333,333 | | | | | | 666,667 | | | | | | 0.2350 | | | |
4/17/27
|
|
Scott Peterson
|
| | | | 6/29/17(2) | | | | | | 125,000 | | | | | | 166,667 | | | | | | 0.2350 | | | |
4/1/27
|
|
| | | | | 2/28/19(3) | | | | | | 31,250 | | | | | | 260,417 | | | | | | 0.3350 | | | |
1/1/29
|
|
Joel Agena
|
| | | | 12/22/15(4) | | | | | | 200,000 | | | | | | — | | | | | | 0.2100 | | | |
9/1/25
|
|
| | | | | 6/29/17(5) | | | | | | 358,333 | | | | | | 41,667 | | | | | | 0.2350 | | | |
5/1/27
|
|
| | | | | 2/28/19(3) | | | | | | 191,666 | | | | | | 208,334 | | | | | | 0.3350 | | | |
1/1/29
|
|
| | |
Pre-Business
Combination |
| |
Post-Business Combination
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
Assuming No Redemption
|
| |
Assuming Maximum Redemption
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Name and Address of
Beneficial Owner(1) |
| |
Number of
Ordinary Shares |
| |
% of
Acies Ordinary Shares |
| |
Number of
Shares of New PLAY STUDIOS Class A Common Stock |
| |
% of
New PLAY STUDIOS Class A Common Stock |
| |
Number of
Shares of New PLAY STUDIOS Class B Common Stock |
| |
% of New
PLAY STUDIOS Class B Common Stock |
| |
% of Total
Voting Power |
| |
Number of
Shares of New PLAY STUDIOS Class A Common Stock |
| |
% of New
PLAY STUDIOS Class A Common Stock |
| |
Number of
Shares of New PLAY STUDIOS Class B Common Stock |
| |
% of New
PLAY STUDIOS Class B Common Stock |
| |
% of
Total Voting Power |
| ||||||||||||||||||||||||||||||||||||
5% Holders of Acies | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Acies Acquisition LLC(2)
|
| | | | 5,381,250 | | | | | | 20.0% | | | | | | 3,631,250(3) | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | 2,824,062(3)(4) | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Millennium Management LLC(5)
|
| | | | 1,800,000 | | | | | | 6.7% | | | | | | 1,800,000 | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
5% Holders of PLAYSTUDIOS | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
MGM Resorts International
|
| | | | — | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Activision Publishing, Inc.
|
| | | | — | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Directors and Executive Officers Pre-Business
Combination |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
James Murren
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Daniel Fetters(2)
|
| | | | 5,381,250 | | | | | | 20.0% | | | | | | 3,631,250(3) | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | 2,824,062(3)(4) | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Edward King(2)
|
| | | | 5,381,250 | | | | | | 20.0% | | | | | | 3,631,250(3) | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | 2,824,062(3)(4) | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Christopher Grove
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Zach Leonsis
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Brisa Trinchero
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Andrew Zobler
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Sam Kennedy
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All Acies directors and executive officers as a
group (8 individuals) |
| | | | 5,381,250 | | | | | | 20.0% | | | | | | 3,631,250(3) | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | 2,824,062(3)(4) | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Directors and Executive Officers Post-Business Combination
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Andrew Pascal(6)
|
| | | | 522,843 | | | | | | 1.0% | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | | | |
Scott Peterson
|
| | | | — | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
Joel Agena
|
| | | | — | | | | | | — | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | | | | | | | | | | | | | | | | | — | | | | | | — | | | | | | | | |
James Murren
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All New PLAYSTUDIOS directors and executive officers as a group ( individuals)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
| | | |
Cayman Islands
|
| |
Delaware
|
|
|
Stockholder/Shareholder Approval of Business Combinations
|
| |
Mergers require a special resolution, and any other authorization as may be specified in the relevant articles of association. Parties holding certain security interests in the constituent companies must also consent.
All mergers (other than parent/subsidiary mergers) require shareholder approval—there is no exception for smaller mergers.
Where a bidder has acquired 90% or more of the shares in a Cayman Islands company, it can compel the acquisition of the shares of the remaining shareholders and thereby become the sole shareholder.
A Cayman Islands company may also be acquired through a “scheme of arrangement” sanctioned by a Cayman Islands court and approved by a majority in number and 75% in value of shareholders in attendance and voting at a shareholders’ meeting.
|
| |
Mergers generally require approval of a majority of all outstanding shares.
Mergers in which less than 20% of the acquirer’s stock is issued generally do not require acquirer stockholder approval.
Mergers in which one corporation owns 90% or more of a second corporation may be completed without the vote of the second corporation’s board of directors or stockholders.
|
|
| | | |
Cayman Islands
|
| |
Delaware
|
|
|
Stockholder/Shareholder Votes for Routine Matters
|
| | Under the Cayman Islands Companies Act and Acies’ memorandum and articles of association law, routine corporate matters may be approved by an ordinary resolution (being a resolution passed by a simple majority of the shareholders as being entitled to do so). | | |
Generally, approval of routine corporate matters that are put to a stockholder vote require the affirmative vote of the majority of shares present in person or represented by proxy at the meeting and entitled to vote on the subject matter while directors are elected by a plurality of the votes cast.
Holders of New PLAYSTUDIOS Class A common stock will be entitled to cast one vote per share of New PLAYSTUDIOS Class A common stock, while holders of New PLAYSTUDIOS Class B common stock will be entitled to cast 20 votes per share of New PLAYSTUDIOS Class B common stock. Except as otherwise provided by applicable law or the Proposed Certificate of Incorporation, holders of all classes of New PLAYSTUDIOS common stock vote together as a single class.
Prior to the first date on which the issued and outstanding shares of New PLAYSTUDIOS Class B common stock represents less than a majority of the total voting power of the then outstanding shares of capital stock of New PLAYSTUDIOS that would be entitled to vote in the election of directors at an annual meeting of stockholders (the “Voting Threshold Date”), any action required or permitted to be taken at any annual or special meeting of New PLAYSTUDIOS stockholders, may be taken by written consent. From and after the Voting Threshold Date, any such action must be effected at an annual or special meeting of the stockholders and may not be effected by written consent.
|
|
| | | |
Cayman Islands
|
| |
Delaware
|
|
|
Appraisal Rights
|
| | Minority shareholders that dissent from a merger are entitled to be paid the fair market value of their shares, which, if necessary, may ultimately be determined by the court. | | | Generally, a stockholder of a publicly traded corporation does not have appraisal rights in connection with a merger. Stockholders of a publicly traded corporation do, however, generally have appraisal rights in connection with a merger if they are required by the terms of a merger agreement to accept for their shares anything except: (a) shares or depository receipts of the corporation surviving or resulting from such merger; (b) shares of stock or depository receipts that will be either listed on a national securities exchange or held of record by more than 2,000 holders; or (c) cash in lieu of fractional shares or fractional depository receipts described in (a) and (b) above; or (d) any combination of the shares of stock, depository receipts and cash in lieu of fractional shares or fractional depositary receipts described in (a), (b) and (c) above. | |
|
Inspection of Books and Records
|
| | Shareholders generally do not have any rights to inspect or obtain copies of the register of shareholders or other corporate records of a company. | | | Any stockholder may inspect the corporation’s books and records for a proper purpose during the usual hours for business. | |
|
Stockholder/Shareholder Lawsuits
|
| | In the Cayman Islands, the decision to institute proceedings on behalf of a company is generally taken by the company’s board of directors. A shareholder may be entitled to bring a derivative action on behalf of the company, but only in certain limited circumstances. | | | A stockholder may bring a derivative suit subject to procedural requirements (including adopting Delaware as the exclusive forum as per Organizational Documents Proposal D). | |
| | | |
Cayman Islands
|
| |
Delaware
|
|
|
Election and Removal of Board of Directors
|
| |
Cayman Islands law permits a corporation to classify its board of directors into any number of classes with staggered terms of office pursuant to the provisions of its Articles of Association so long as the board of directors is comprised of at least one director. The provisions of Acies Articles of Association provides for the classification of the Acies’ board of directors into three separate classes, designated Class I, Class II and Class III, with only one class of directors being elected in each year and each class serving a three-year term, except with respect to the election of Class I who are appointed for a term expiring at Acies’ first annual general meeting.
The Articles of Association of Acies provides that prior to the closing of a Business Combination, Acies may by ordinary resolution of the holders of the Acies Class B ordinary shares appoint any person to be a director of Acies or may by ordinary resolution of the holders of the Acies Class B ordinary shares remove any director. For the avoidance of doubt, prior to the closing of a Business Combination, holders of Acies Class A ordinary shares shall have no right to vote on the appointment or removal of any Acies director.
|
| |
Delaware law permits a corporation to provide that all of the members of its board of directors will be elected each year for one-year terms.
There is no cumulative voting with respect to the election of directors.
Any director or the entire board may be removed from office with or without cause upon the affirmative vote of a majority of the voting power of the New PLAYSTUDIOS common stock, voting together as a single class.
|
|
|
Fiduciary Duties of Directors
|
| |
A director owes fiduciary duties to a company, including to exercise loyalty, honesty and good faith to the company as a whole.
In addition to fiduciary duties, directors owe a duty of care, diligence and skill. Such duties are owed to the company but may be owed direct to creditors or shareholders in certain limited circumstances.
|
| | Directors must exercise a duty of care and duty of loyalty and good faith to a corporation and its stockholders. | |
|
Indemnification of Directors and Officers
|
| | A Cayman Islands company generally may indemnify its directors or officers except with regard to actual fraud or willful default. | | | A corporation is generally permitted to indemnify its directors and officers acting in good faith. | |
| | | |
Cayman Islands
|
| |
Delaware
|
|
|
Limited Liability of Directors
|
| | Liability of directors may be limited, except with regard to their own actual fraud or willful default or willful neglect. | | | Permits limiting or eliminating the monetary liability of a director to a corporation or its stockholders, except with regard to breaches of duty of loyalty, intentional misconduct, unlawful repurchases or dividends, or improper personal benefit. | |
| | |
Page
|
| |||
Unaudited Condensed Financial Statements for the period from August 14, 2020 (inception) to September 30, 2020
|
| | | | | | |
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
Financial Statements (Audited) for the period from August 14, 2020 (inception) to September 15, 2020
|
| | | | | | |
| | | | F-17 | | | |
| | | | F-18 | | | |
| | | | F-19 | | | |
| | | | F-20 | | | |
| | | | F-21 | | | |
| | | | F-22 | | |
| | |
Page
|
| |||
Unaudited Consolidated Financial Statements of PlayStudios, Inc. | | | | | | | |
| | | | F-31 | | | |
| | | | F-32 | | | |
| | | | F-33 | | | |
| | | | F-34 | | | |
| | | | F-35 | | | |
| | | | F-36 | | | |
Audited Consolidated Financial Statements of PlayStudios, Inc. | | | | | | | |
| | | | F-59 | | | |
| | | | F-60 | | | |
| | | | F-61 | | | |
| | | | F-62 | | | |
| | | | F-63 | | | |
| | | | F-64 | | | |
| | | | F-65 | | |
| ASSETS | | | | | | | |
|
Current asset – cash
|
| | | $ | 143,032 | | |
|
Security deposit
|
| | | | 2,875 | | |
|
Deferred offering costs
|
| | | | 125,048 | | |
|
TOTAL ASSETS
|
| | | $ | 270,955 | | |
| LIABILITIES AND SHAREHOLDER’S EQUITY | | | | | | | |
| Current liabilities | | | | | | | |
|
Accrued offering costs
|
| | | $ | 5,000 | | |
|
Promissory note – related party
|
| | | | 257,694 | | |
|
Total Current Liabilities
|
| | | | 262,694 | | |
| Commitments | | | | | | | |
| Shareholder’s Equity | | | | | | | |
|
Preferred shares, $0.0001 par value; 5,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class A ordinary shares, $0.0001 par value; 500,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class B ordinary shares, $0.0001 par value; 50,000,000 shares authorized; 5,750,000 shares issued and outstanding(1)
|
| | | | 575 | | |
|
Additional paid-in capital
|
| | | | 24,425 | | |
|
Accumulated deficit
|
| | | | (16,739) | | |
|
Total Shareholder’s Equity
|
| | | | 8,261 | | |
|
TOTAL LIABILITIES AND SHAREHOLDER’S EQUITY
|
| | | $ | 270,955 | | |
|
Formation and operating costs
|
| | | $ | 16,739 | | |
|
Net Loss
|
| | | $ | (16,739) | | |
|
Weighted average shares outstanding, basic and diluted(1)
|
| | | | 5,000,000 | | |
|
Basic and diluted net loss per ordinary share
|
| | | $ | (0.00) | | |
| | |
Class B Ordinary Shares
|
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholder’s Equity |
| ||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||
Balance – August 14, 2020 (inception)
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B ordinary shares to Sponsor(1)
|
| | | | 5,750,000 | | | | | | 575 | | | | | | 24,425 | | | | | | — | | | | | | 25,000 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (16,739) | | | | | | (16,739) | | |
Balance – September 30, 2020
|
| | | | 5,750,000 | | | | | $ | 575 | | | | | $ | 24,425 | | | | | $ | (16,739) | | | | | $ | 8,261 | | |
| Cash Flows from Operating Activities: | | | | | | | |
|
Net loss
|
| | | $ | (16,739) | | |
|
Changes in operating assets and liabilities:
|
| | | | | | |
|
Security deposit
|
| | | | (2,875) | | |
|
Net cash used in operating activities
|
| | | | (19,614) | | |
| Cash Flows from Financing Activities: | | | | | | | |
|
Proceeds from issuance of Class B ordinary shares to Sponsor
|
| | | | 25,000 | | |
|
Proceeds from promissory note – related party
|
| | | | 257,694 | | |
|
Payment of offering costs
|
| | | | (120,048) | | |
|
Net cash provided by financing activities
|
| | | | 162,646 | | |
|
Net Change in Cash
|
| | | | 143,032 | | |
|
Cash – Beginning
|
| | | | — | | |
| Cash – Ending | | | | $ | 143,032 | | |
| Non-cash investing and financing activities: | | | | | | | |
|
Deferred offering costs included in accrued offering costs
|
| | | $ | 5,000 | | |
| ASSETS | | | | | | | |
|
Current assets- Cash
|
| | | $ | 25,000 | | |
|
Security deposit
|
| | | | 2,875 | | |
|
Deferred offering costs
|
| | | | 67,003 | | |
|
Total Assets
|
| | | $ | 94,878 | | |
| LIABILITIES AND SHAREHOLDER’S EQUITY | | | | | | | |
| Current liabilities | | | | | | | |
|
Accrued offering costs
|
| | | | 5,000 | | |
|
Promissory note – related party
|
| | | | 79,596 | | |
|
Total Liabilities
|
| | | | 84,596 | | |
| Commitments | | | | | | | |
| Shareholder’s Equity | | | | | | | |
|
Preferred stock, $0.0001 par value; 5,000,000 shares authorized, none issued and outstanding
|
| | | | — | | |
|
Class A ordinary shares, $0.0001 par value; 500,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class B ordinary shares, $0.0001 par value; 50,000,000 shares authorized; 5,750,000 shares issued and outstanding(1)
|
| | | | 575 | | |
|
Additional paid-in capital
|
| | | | 24,425 | | |
|
Accumulated deficit
|
| | | | (14,718) | | |
|
Total Shareholder’s Equity
|
| | | | 10,282 | | |
|
Total Liabilities and Shareholder’s Equity
|
| | | $ | 94,878 | | |
|
Formation costs
|
| | | $ | 14,718 | | |
|
Net loss
|
| | | $ | (14,718) | | |
|
Weighted average shares outstanding, basic and diluted(1)
|
| | | | 5,000,000 | | |
|
Basic and diluted net loss per ordinary share
|
| | | $ | (0.00) | | |
| | |
Class B Ordinary
Shares(1) |
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Shareholder’s
Equity |
| ||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||
Balance – August 14, 2020 (Inception)
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B ordinary shares to Sponsor(1)
|
| | | | 5,750,000 | | | | | | 575 | | | | | | 24,425 | | | | | | — | | | | | | 25,000 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | (14,718) | | | | | | (14,718) | | |
Balance – September 15, 2020
|
| | | | 5,750,000 | | | | | $ | 575 | | | | | $ | 24,425 | | | | | $ | (14,718) | | | | | $ | 10,282 | | |
| Cash flows from Operating Activities: | | | | | | | |
|
Net loss
|
| | | $ | (14,718) | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
|
Changes in operating assets and liabilities:
|
| | | | | | |
|
Security deposit
|
| | | | (2,875) | | |
|
Net cash used in operating activities
|
| | | | (17,593) | | |
| Cash Flows from Financing Activities: | | | | | | | |
|
Proceeds from issuance of Class B ordinary shares to Sponsor
|
| | | | 25,000 | | |
|
Proceeds from promissory note- related party
|
| | | | 79,596 | | |
|
Payment of offering costs
|
| | | | (62,003) | | |
|
Net cash provided by financing activities
|
| | | | 42,593 | | |
|
Net Change in Cash
|
| | | | 25,000 | | |
|
Cash – Beginning
|
| | | | — | | |
| Cash – Ending | | | | $ | 25,000 | | |
| Supplemental disclosure of non-cash investing and financing activities: | | | | | | | |
|
Offering costs included in accrued offering costs
|
| | | $ | 5,000 | | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 42,816 | | | | | $ | 31,022 | | |
Receivables
|
| | | | 23,571 | | | | | | 14,249 | | |
Prepaid expenses
|
| | | | 2,973 | | | | | | 2,341 | | |
Other current assets
|
| | | | 2,349 | | | | | | 2,440 | | |
Total current assets
|
| | | | 71,709 | | | | | | 50,052 | | |
Property and equipment, net
|
| | | | 6,515 | | | | | | 7,335 | | |
Internal-use software, net
|
| | | | 35,849 | | | | | | 30,994 | | |
Goodwill
|
| | | | 5,059 | | | | | | 5,059 | | |
Intangibles, net
|
| | | | 1,736 | | | | | | 2,322 | | |
Deferred income taxes
|
| | | | 2,252 | | | | | | 2,362 | | |
Other long-term assets
|
| | | | 1,908 | | | | | | 1,146 | | |
Total non-current assets
|
| | | | 53,319 | | | | | | 49,218 | | |
Total assets
|
| | | $ | 125,028 | | | | | $ | 99,270 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 3,622 | | | | | $ | 5,351 | | |
Accrued liabilities
|
| | | | 9,729 | | | | | | 6,517 | | |
Total current liabilities
|
| | | | 13,351 | | | | | | 11,868 | | |
Minimum guarantee liability
|
| | | | 350 | | | | | | 500 | | |
Deferred income taxes
|
| | | | 4,911 | | | | | | 5,791 | | |
Other long-term liabilities
|
| | | | 1,354 | | | | | | 798 | | |
Total non-current liabilities
|
| | | | 6,615 | | | | | | 7,089 | | |
Total liabilities
|
| | | $ | 19,966 | | | | | $ | 18,957 | | |
Commitments and contingencies (see Note 12) | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | |
Preferred stock, $0.00005 par value (168,637,840 shares authorized, 162,595,680 shares issued and outstanding as of September 30, 2020 and December 31, 2019; aggregate liquidation preference of $33,750 as of September 30, 2020 and December 31, 2019)
|
| | | | 8 | | | | | | 8 | | |
Common stock, $0.00005 par value (506,000,000 shares authorized, 224,658,423 and 225,490,157 shares issued and outstanding as of September 30, 2020 and December 31, 2019, respectively)
|
| | | | 11 | | | | | | 11 | | |
Additional paid-in capital
|
| | | | 70,282 | | | | | | 66,661 | | |
Retained earnings
|
| | | | 34,566 | | | | | | 13,535 | | |
Accumulated other comprehensive income/(loss)
|
| | | | 195 | | | | | | 98 | | |
Total stockholders’ equity
|
| | | | 105,062 | | | | | | 80,313 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 125,028 | | | | | $ | 99,270 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Net revenues
|
| | | $ | 205,883 | | | | | $ | 182,734 | | |
Operating expenses: | | | | | | | | | | | | | |
Cost of revenue(1)
|
| | | | 70,199 | | | | | | 60,620 | | |
Selling and marketing
|
| | | | 41,232 | | | | | | 45,855 | | |
General and administrative
|
| | | | 13,883 | | | | | | 12,557 | | |
Research and development
|
| | | | 35,942 | | | | | | 31,085 | | |
Depreciation and amortization
|
| | | | 16,405 | | | | | | 20,051 | | |
Total operating costs and expenses
|
| | | | 177,661 | | | | | | 170,168 | | |
Income from operations
|
| | | | 28,222 | | | | | | 12,566 | | |
Other income (expense), net: | | | | | | | | | | | | | |
Interest expense
|
| | | | (94) | | | | | | (140) | | |
Other income, net
|
| | | | 509 | | | | | | 608 | | |
Total other income, net
|
| | | | 415 | | | | | | 468 | | |
Income before income taxes
|
| | | | 28,637 | | | | | | 13,034 | | |
Provision for income taxes
|
| | | | (5,066) | | | | | | (4,781) | | |
Net income
|
| | | $ | 23,571 | | | | | $ | 8,253 | | |
Net income attributable to common stockholders: | | | | | | | | | | | | | |
Basic
|
| | | $ | 12,357 | | | | | $ | 3,273 | | |
Diluted
|
| | | $ | 13,152 | | | | | $ | 3,393 | | |
Net income attributable to common stockholders per share: | | | | | | | | | | | | | |
Basic
|
| | | $ | 0.05 | | | | | $ | 0.01 | | |
Diluted
|
| | | $ | 0.05 | | | | | $ | 0.01 | | |
Weighted average shares of common stock outstanding(2): | | | | | | | | | | | | | |
Basic
|
| | | | 235,958,921 | | | | | | 233,402,296 | | |
Diluted
|
| | | | 277,015,765 | | | | | | 255,452,195 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Net income
|
| | | $ | 23,571 | | | | | $ | 8,253 | | |
Other comprehensive income: | | | | | | | | | | | | | |
Change in foreign currency translation adjustment(1)
|
| | | | 97 | | | | | | 139 | | |
Total other comprehensive income
|
| | | | 97 | | | | | | 139 | | |
Comprehensive income
|
| | | $ | 23,668 | | | | | $ | 8,392 | | |
| | |
Preferred Stock
|
| |
Common Stock
|
| |
Additional
Paid-In Capital |
| |
Other
Comprehensive Income (loss) |
| |
Retained
Earnings |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||
Balance as of December 31, 2019
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 225,490 | | | | | $ | 11 | | | | | $ | 66,661 | | | | | $ | 98 | | | | | $ | 13,535 | | | | | $ | 80,313 | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 23,571 | | | | | | 23,571 | | |
Exercise of stock options
|
| | | | — | | | | | | — | | | | | | 2,786 | | | | | | — | | | | | | 622 | | | | | | — | | | | | | — | | | | | | 622 | | |
Stock-based compensation
expense |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,999 | | | | | | — | | | | | | — | | | | | | 2,999 | | |
Repurchase and retirement of common stock
|
| | | | — | | | | | | — | | | | | | (3,618) | | | | | | — | | | | | | — | | | | | | — | | | | | | (2,540) | | | | | | (2,540) | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 97 | | | | | | — | | | | | | 97 | | |
Balance as of September 30, 2020
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 224,658 | | | | | $ | 11 | | | | | $ | 70,282 | | | | | $ | 195 | | | | | $ | 34,566 | | | | | $ | 105,062 | | |
| | |
Preferred Stock(1)
|
| |
Common Stock(1)
|
| |
Additional
Paid-In Capital |
| |
Other
Comprehensive Income (loss) |
| |
Retained
Earnings |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||
Balance as of December 31, 2018
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 229,214 | | | | | $ | 11 | | | | | $ | 59,111 | | | | | $ | (81) | | | | | $ | 6,097 | | | | | $ | 65,146 | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 8,253 | | | | | | 8,253 | | |
Exercise of stock options
|
| | | | — | | | | | | — | | | | | | 5,266 | | | | | | — | | | | | | 695 | | | | | | — | | | | | | — | | | | | | 695 | | |
Stock-based compensation
expense |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 5,732 | | | | | | — | | | | | | — | | | | | | 5,732 | | |
Repurchase and retirement of common stock
|
| | | | — | | | | | | — | | | | | | (9,320) | | | | | | — | | | | | | — | | | | | | — | | | | | | (6,051) | | | | | | (6,051) | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 139 | | | | | | — | | | | | | 139 | | |
Balance as of September 30, 2019
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 225,160 | | | | | $ | 11 | | | | | $ | 65,538 | | | | | $ | 58 | | | | | $ | 8,299 | | | | | $ | 73,914 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Cash flows from operating activities: | | | | | | | | | | | | | |
Net income
|
| | | $ | 23,571 | | | | | $ | 8,253 | | |
Adjustments: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 16,405 | | | | | | 20,051 | | |
Amortization of loan costs
|
| | | | — | | | | | | 20 | | |
Stock-based compensation expense
|
| | | | 2,624 | | | | | | 5,029 | | |
Deferred income tax expense
|
| | | | (771) | | | | | | 34 | | |
(Gain)/loss on disposal of equipment
|
| | | | — | | | | | | 2 | | |
(Gain)/loss on foreign currency translation
|
| | | | (53) | | | | | | (286) | | |
Changes in operating assets and liabilities | | | | | | | | | | | | | |
Accounts receivable
|
| | | | (9,323) | | | | | | (5,453) | | |
Prepaid expenses and other current assets
|
| | | | 337 | | | | | | 1,190 | | |
Accounts payable & accrued liabilities
|
| | | | 1,688 | | | | | | 1,035 | | |
Deferred revenue
|
| | | | — | | | | | | (7,379) | | |
Other
|
| | | | (761) | | | | | | (147) | | |
Net cash provided by operating activities
|
| | | | 33,717 | | | | | | 22,349 | | |
Cash flows from investing activities: | | | | | | | | | | | | | |
Purchase of property and equipment
|
| | | | (1,457) | | | | | | (4,011) | | |
Additions to internal-use software
|
| | | | (18,116) | | | | | | (15,682) | | |
Net cash used in investing activities
|
| | | | (19,573) | | | | | | (19,693) | | |
Cash flows from financing activities: | | | | | | | | | | | | | |
Proceeds from option exercises
|
| | | | 622 | | | | | | 695 | | |
Repurchases of common stock for retirement
|
| | | | (2,540) | | | | | | (6,051) | | |
Payments for capitalized offering costs
|
| | | | (481) | | | | | | — | | |
Repayment of long-term debt
|
| | | | — | | | | | | (594) | | |
Net cash used in financing activities
|
| | | | (2,399) | | | | | | (5,950) | | |
Foreign currency translation
|
| | | | 49 | | | | | | (50) | | |
Net increase (decrease) in cash and cash equivalents
|
| | | | 11,794 | | | | | | (3,344) | | |
Cash and cash equivalents at beginning of period
|
| | | | 31,022 | | | | | | 27,600 | | |
Cash and cash equivalents at end of period
|
| | | $ | 42,816 | | | | | $ | 24,256 | | |
Supplemental Cash Flow Data: | | | | | | | | | | | | | |
Interest paid
|
| | | $ | 27 | | | | | $ | 125 | | |
Income taxes paid, net of refunds
|
| | | | 4,498 | | | | | | 2,136 | | |
Non-cash Investing and Financing Transactions: | | | | | | | | | | | | | |
Capitalization of stock-based compensation
|
| | | $ | 375 | | | | | $ | 703 | | |
| | |
Estimated Useful Life
|
|
Computer equipment
|
| |
3 years
|
|
Purchased software
|
| |
3 years
|
|
Furniture and fixtures
|
| |
7 years
|
|
Leasehold improvements
|
| |
Lesser of 10 years or
remaining lease term |
|
| | |
Estimated Useful Life
|
|
Licenses
|
| |
3 – 5 years
|
|
Trade names
|
| |
5 years
|
|
| | |
September 30,
2020 |
| |
December 31,
2019 |
| |
Financial Statement Line Item
|
| ||||||
Marketing Agreement – Intangible
|
| | | $ | 1,000 | | | | | $ | 1,000 | | | | Intangibles, net | |
Marketing Agreement – Profit Share
|
| | | $ | 308 | | | | | $ | — | | | | Accrued liabilities | |
| | |
Nine Months Ended September 30,
|
| |
Financial Statement Line Item
|
| |||||||||
| | |
2020
|
| |
2019
|
| |||||||||
King Agreement
|
| | | $ | — | | | | | $ | 7,312 | | | | Net revenues | |
Marketing Agreement – Profit Share
|
| | | $ | 627 | | | | | $ | — | | | | General and administrative | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
Computer equipment
|
| | | $ | 8,081 | | | | | $ | 7,176 | | |
Leasehold improvements
|
| | | | 6,082 | | | | | | 5,953 | | |
Furniture and fixtures
|
| | | | 2,172 | | | | | | 2,081 | | |
Construction in progress
|
| | | | 170 | | | | | | 14 | | |
Total property and equipment
|
| | | | 16,505 | | | | | | 15,224 | | |
Less: accumulated depreciation
|
| | | | (9,990) | | | | | | (7,889) | | |
Total property and equipment, net
|
| | | $ | 6,515 | | | | | $ | 7,335 | | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
United States
|
| | | $ | 2,321 | | | | | $ | 2,748 | | |
EMEA(1) | | | | | 3,411 | | | | | | 3,607 | | |
All other countries
|
| | | | 783 | | | | | | 980 | | |
Total property and equipment, net
|
| | | $ | 6,515 | | | | | $ | 7,335 | | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
Internal-use software
|
| | | $ | 94,459 | | | | | $ | 75,781 | | |
Less: accumulated amortization
|
| | | | (58,610) | | | | | | (44,787) | | |
Total internal-use software, net
|
| | | $ | 35,849 | | | | | $ | 30,994 | | |
| | |
September 30, 2020
|
| |
December 31, 2019
|
| ||||||||||||||||||||||||||||||
| | |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| ||||||||||||||||||
Amortizable intangible assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Licenses
|
| | | $ | 1,000 | | | | | $ | (450) | | | | | $ | 550 | | | | | $ | 3,500 | | | | | $ | (2,550) | | | | | $ | 950 | | |
Trade names
|
| | | | 1,240 | | | | | | (1,054) | | | | | | 186 | | | | | | 1,240 | | | | | | (868) | | | | | | 372 | | |
| | | | | 2,240 | | | | | | (1,504) | | | | | | 736 | | | | | | 4,740 | | | | | | (3,418) | | | | | | 1,322 | | |
Nonamortizable intangible assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Marketing Agreement with a related party
|
| | | | 1,000 | | | | | | — | | | | | | 1,000 | | | | | | 1,000 | | | | | | — | | | | | | 1,000 | | |
Total intangible assets
|
| | | $ | 3,240 | | | | | $ | (1,504) | | | | | $ | 1,736 | | | | | $ | 5,740 | | | | | $ | (3,418) | | | | | $ | 2,322 | | |
Year Ending December 31,
|
| |
Projected Amortization
Expense |
| |||
Remaining 2020
|
| | | $ | 112 | | |
2021
|
| | | | 324 | | |
2022
|
| | | | 200 | | |
2023
|
| | | | 100 | | |
2024
|
| | | | — | | |
2025
|
| | | | — | | |
Total
|
| | | $ | 736 | | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
Accrued payroll and vacation
|
| | | $ | 4,894 | | | | | $ | 2,915 | | |
Accrued royalties
|
| | | | 50 | | | | | | 1,389 | | |
Other accruals
|
| | | | 2,524 | | | | | | 1,013 | | |
Accrued advertising
|
| | | | 1,360 | | | | | | 297 | | |
Income taxes payable
|
| | | | 901 | | | | | | 707 | | |
Accrued property and equipment
|
| | | | — | | | | | | 196 | | |
Total accrued liabilities
|
| | | $ | 9,729 | | | | | $ | 6,517 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Virtual currency (over time)
|
| | | $ | 204,905 | | | | | $ | 175,150 | | |
Advertising (point in time)
|
| | | | 978 | | | | | | 272 | | |
Other (over time)(1)
|
| | | | — | | | | | | 7,312 | | |
Total net revenue
|
| | | $ | 205,883 | | | | | $ | 182,734 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
United States
|
| | | $ | 174,127 | | | | | $ | 153,603 | | |
All other countries
|
| | | | 31,756 | | | | | | 29,131 | | |
Total net revenue
|
| | | $ | 205,883 | | | | | $ | 182,734 | | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
Contract receivables, included in Receivables
|
| | | $ | 23,571 | | | | | $ | 14,249 | | |
| | |
September 30,
2020 |
| |
December 31,
2019 |
| ||||||
Accrued royalties(1)
|
| | | $ | 50 | | | | | $ | 1,100 | | |
Minimum guarantee liability
|
| | | | 350 | | | | | | 500 | | |
Total minimum guarantee obligations
|
| | | $ | 400 | | | | | $ | 1,600 | | |
Weighted-average remaining term (in years)
|
| | | | 2.75 | | | | | | 3.53 | | |
Year Ending December 31,
|
| |
Minimum Guarantee
Obligations |
| |||
Remaining 2020
|
| | | $ | — | | |
2021
|
| | | | 200 | | |
2022
|
| | | | 200 | | |
2023
|
| | | | — | | |
2024
|
| | | | — | | |
2025
|
| | | | — | | |
Total
|
| | | $ | 400 | | |
Year Ending December 31,
|
| |
Minimum Rental
Commitments |
| |||
Remaining 2020
|
| | | $ | 1,135 | | |
2021
|
| | | | 4,588 | | |
2022
|
| | | | 3,142 | | |
2023
|
| | | | 1,005 | | |
2024
|
| | | | 430 | | |
2025
|
| | | | — | | |
Total
|
| | | $ | 10,300 | | |
Series
|
| |
Shares
Outstanding (In Thousands) |
| |
Liquidation
Price Per Share |
| |
Conversion
Price Per Share |
| |
Annual
Noncumulative Dividend Rights Per Share |
| ||||||||||||
A
|
| | | | 80,800 | | | | | $ | 0.06 | | | | | $ | 0.06 | | | | | $ | 0.01 | | |
B
|
| | | | 41,348 | | | | | | 0.21 | | | | | | 0.21 | | | | | | 0.02 | | |
C-1
|
| | | | 13,556 | | | | | | 0.27 | | | | | | 0.27 | | | | | | 0.02 | | |
C
|
| | | | 26,892 | | | | | | 0.61 | | | | | | 0.61 | | | | | | 0.05 | | |
Total
|
| | | | 162,596 | | | | | | | | | | | | | | | | | | | | |
Warrant Series
|
| |
Warrants
Outstanding (In Thousands) |
| |
Exercise
Price |
| ||||||
A
|
| | | | 560 | | | | | $ | 0.06 | | |
B
|
| | | | 2,563 | | | | | | 0.21 | | |
C-1
|
| | | | 2,302 | | | | | | 0.27 | | |
C
|
| | | | 617 | | | | | | 0.61 | | |
Total
|
| | | | 6,042 | | | | | | | | |
| | |
Currency
Translation Adjustment |
| |
Total Accumulated
Other Comprehensive Income |
| ||||||
Balance as of December 31, 2019
|
| | | $ | 98 | | | | | $ | 98 | | |
Foreign currency translation gain
|
| | | | 97 | | | | | | 97 | | |
Balance as of September 30, 2020
|
| | | $ | 195 | | | | | $ | 195 | | |
| | |
Currency
Translation Adjustment |
| |
Total Accumulated
Other Comprehensive Income |
| ||||||
Balance as of December 31, 2018
|
| | | $ | (81) | | | | | $ | (81) | | |
Foreign currency translation gain
|
| | | | 139 | | | | | | 139 | | |
Balance as of September 30, 2019
|
| | | $ | 58 | | | | | $ | 58 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Selling and marketing
|
| | | $ | 71 | | | | | $ | 63 | | |
General and administrative
|
| | | | 802 | | | | | | 710 | | |
Research and development
|
| | | | 1,751 | | | | | | 4,256 | | |
Stock-based compensation expense
|
| | | $ | 2,624 | | | | | $ | 5,029 | | |
Capitalized stock-based compensation
|
| | | $ | 375 | | | | | $ | 703 | | |
| | |
No. of
Options |
| |
Weighted-Average
Exercise Price |
| |
Weighted-Average
Remaining Term (in Years) |
| |
Aggregate
Intrinsic Value |
| ||||||||||||
Outstanding – December 31, 2019
|
| | | | 91,300 | | | | | $ | 0.16 | | | | | | | | | | | | | | |
Granted
|
| | | | 6,739 | | | | | | 0.35 | | | | | | | | | | | | | | |
Exercised
|
| | | | (2,786) | | | | | | 0.22 | | | | | | | | | | | | | | |
Forfeited
|
| | | | (3,031) | | | | | | 0.33 | | | | | | | | | | | | | | |
Expired
|
| | | | (1,022) | | | | | | 0.18 | | | | | | | | | | | | | | |
Outstanding – September 30, 2020
|
| | | | 91,200 | | | | | | 0.17 | | | | | | 7.1 | | | | | $ | 81,218 | | |
Unvested – September 30, 2020
|
| | | | 43,590 | | | | | | 0.17 | | | | | | 8.5 | | | | | | 38,705 | | |
Exercisable – September 30, 2020
|
| | | | 47,610 | | | | | | 0.17 | | | | | | 5.9 | | | | | | 42,513 | | |
| | |
Nine Months Ended
September 30, |
| |||
| | |
2020
|
| |
2019
|
|
Expected term (in years)
|
| |
5.96
|
| |
5.91
|
|
Expected volatility
|
| |
59.98%
|
| |
69.79%
|
|
Risk-free interest rate range
|
| |
0.24% – 0.51%
|
| |
1.54% – 2.59%
|
|
Dividend yield
|
| |
0%
|
| |
0%
|
|
Grant-date fair value
|
| |
$0.60
|
| |
$0.28
|
|
| | |
Nine Months Ended
|
| |||||||||||||||||||||||||||||||||||||||||||||
| | |
September 30, 2020
|
| |
September 30, 2019
|
| ||||||||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Expensed
|
| |
Capitalized
|
| |
Total
|
| |
Shares
|
| |
Expensed
|
| |
Capitalized
|
| |
Total
|
| ||||||||||||||||||||||||
Shares repurchase through exercise of right of first refusal
|
| | | | 25 | | | | | $ | 25 | | | | | $ | — | | | | | $ | 25 | | | | | | 9,320 | | | | | $ | 2,790 | | | | | $ | 96 | | | | | $ | 2,886 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Net income attributable to common stockholders – basic | | | | | | | | | | | | | |
Net income
|
| | | $ | 23,571 | | | | | $ | 8,253 | | |
Income allocated to participating preferred stock
|
| | | | (11,214) | | | | | | (4,980) | | |
Net income attributable to common stockholders – basic
|
| | | $ | 12,357 | | | | | $ | 3,273 | | |
Net income attributable to common stockholders – diluted | | | | | | | | | | | | | |
Net income
|
| | | $ | 23,571 | | | | | $ | 8,253 | | |
Income allocated to participating preferred stock
|
| | | | (10,419) | | | | | | (4,860) | | |
Net income attributable to common stockholders – diluted
|
| | | $ | 13,152 | | | | | $ | 3,393 | | |
Weighted average shares of common stock outstanding | | | | | | | | | | | | | |
Basic weighted average shares of common stock outstanding
|
| | | | 235,958,921 | | | | | | 233,402,296 | | |
Dilutive effect of weighted average Series A warrants
|
| | | | 501,524 | | | | | | 466,040 | | |
Dilutive effect of weighted average Series B warrants
|
| | | | 862,917 | | | | | | 579,050 | | |
Dilutive effect of weighted average Series C-1 warrants
|
| | | | 1,263,608 | | | | | | 633,290 | | |
Dilutive effect of weighted average Series C warrants
|
| | | | 73,222 | | | | | | — | | |
Dilutive effect of weighted average stock options
|
| | | | 38,355,573 | | | | | | 20,371,519 | | |
Dilutive weighted average shares of common stock outstanding
|
| | | | 277,015,765 | | | | | | 255,452,195 | | |
Net income attributable to common stockholders per share | | | | | | | | | | | | | |
Basic
|
| | | $ | 0.05 | | | | | $ | 0.01 | | |
Diluted
|
| | | $ | 0.05 | | | | | $ | 0.01 | | |
| | |
Nine Months Ended
September 30, |
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Series C warrants
|
| | | | — | | | | | | 617,192 | | |
Series B warrants(1)
|
| | | | 1,231,872 | | | | | | 1,231,872 | | |
Stock options
|
| | | | 3,365,000 | | | | | | 26,214,518 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 31,022 | | | | | $ | 27,600 | | |
Receivables
|
| | | | 14,249 | | | | | | 13,732 | | |
Prepaid expenses
|
| | | | 2,341 | | | | | | 2,065 | | |
Other current assets
|
| | | | 2,440 | | | | | | 1,576 | | |
Total current assets
|
| | | | 50,052 | | | | | | 44,973 | | |
Property and equipment, net
|
| | | | 7,335 | | | | | | 5,470 | | |
Internal-use software, net
|
| | | | 30,994 | | | | | | 29,645 | | |
Goodwill
|
| | | | 5,059 | | | | | | 5,059 | | |
Intangibles, net
|
| | | | 2,322 | | | | | | 3,770 | | |
Deferred income taxes
|
| | | | 2,362 | | | | | | 2,417 | | |
Other long-term assets
|
| | | | 1,146 | | | | | | 1,009 | | |
Total non-current assets
|
| | | | 49,218 | | | | | | 47,370 | | |
Total assets
|
| | | $ | 99,270 | | | | | $ | 92,343 | | |
LIABILITIES AND STOCKHOLDERS’ EQUITY | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 5,351 | | | | | $ | 5,036 | | |
Accrued liabilities
|
| | | | 6,517 | | | | | | 7,684 | | |
Current portion of long-term debt
|
| | | | — | | | | | | 803 | | |
Deferred revenue
|
| | | | — | | | | | | 7,379 | | |
Total current liabilities
|
| | | | 11,868 | | | | | | 20,902 | | |
Long-term debt, excluding current portion
|
| | | | — | | | | | | 1,065 | | |
Minimum guarantee liability
|
| | | | 500 | | | | | | 950 | | |
Deferred income taxes
|
| | | | 5,791 | | | | | | 3,390 | | |
Other long-term liabilities
|
| | | | 798 | | | | | | 890 | | |
Total non-current liabilities
|
| | | | 7,089 | | | | | | 6,295 | | |
Total liabilities
|
| | | $ | 18,957 | | | | | $ | 27,197 | | |
Commitments and contingencies (see Note 12) | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | |
Preferred stock, $0.00005 par value (168,637,840 shares authorized, 162,595,680 shares issued and outstanding as of December 31, 2019 and 2018; aggregate liquidation preference of $33,750 as of December 31, 2019 and 2018)
|
| | | | 8 | | | | | | 8 | | |
Common stock, $0.00005 par value (506,000,000 shares authorized, 225,490,157 and 229,214,624 shares issued and outstanding as of December 31, 2019 and 2018)
|
| | | | 11 | | | | | | 11 | | |
Additional paid-in capital
|
| | | | 66,661 | | | | | | 59,111 | | |
Retained earnings
|
| | | | 13,535 | | | | | | 6,097 | | |
Accumulated other comprehensive income/(loss)
|
| | | | 98 | | | | | | (81) | | |
Total stockholders’ equity
|
| | | | 80,313 | | | | | | 65,146 | | |
Total liabilities and stockholders’ equity
|
| | | $ | 99,270 | | | | | $ | 92,343 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Net revenues
|
| | | $ | 239,421 | | | | | $ | 195,499 | | |
Operating expenses: | | | | | | | | | | | | | |
Cost of revenue(1)
|
| | | | 80,267 | | | | | | 66,784 | | |
Selling and marketing
|
| | | | 59,931 | | | | | | 54,068 | | |
General and administrative
|
| | | | 16,824 | | | | | | 21,620 | | |
Research and development
|
| | | | 40,108 | | | | | | 30,484 | | |
Depreciation and amortization
|
| | | | 25,154 | | | | | | 16,246 | | |
Total operating costs and expenses
|
| | | | 222,284 | | | | | | 189,202 | | |
Income from operations
|
| | | | 17,137 | | | | | | 6,297 | | |
Other income (expense), net: | | | | | | | | | | | | | |
Interest expense
|
| | | | (264) | | | | | | (284) | | |
Other income (expense), net
|
| | | | 716 | | | | | | (227) | | |
Total other income (expense), net
|
| | | | 452 | | | | | | (511) | | |
Income before income taxes
|
| | | | 17,589 | | | | | | 5,786 | | |
Provision for income taxes
|
| | | | (3,975) | | | | | | (2,964) | | |
Net income attributable to PLAYSTUDIOS, Inc.(2)
|
| | | $ | 13,614 | | | | | $ | 2,822 | | |
Net income attributable to common stockholders: | | | | | | | | | | | | | |
Basic
|
| | | $ | 6,440 | | | | | $ | 3,367 | | |
Diluted
|
| | | $ | 6,669 | | | | | $ | 3,477 | | |
Net income attributable to common stockholders per share: | | | | | | | | | | | | | |
Basic
|
| | | $ | 0.03 | | | | | $ | 0.01 | | |
Diluted
|
| | | $ | 0.03 | | | | | $ | 0.01 | | |
Weighted average shares of common stock outstanding(3): | | | | | | | | | | | | | |
Basic
|
| | | | 234,070,277 | | | | | | 229,409,649 | | |
Diluted
|
| | | | 255,453,583 | | | | | | 248,179,915 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Net income attributable to PLAYSTUDIOS, Inc.(1)
|
| | | $ | 13,614 | | | | | $ | 2,822 | | |
Other comprehensive income/(loss): | | | | | | | | | | | | | |
Change in foreign currency translation adjustment(2)
|
| | | | 179 | | | | | | (188) | | |
Total other comprehensive income/(loss)
|
| | | | 179 | | | | | | (188) | | |
Comprehensive income attributable to PLAYSTUDIOS, Inc.(1)
|
| | | $ | 13,793 | | | | | $ | 2,634 | | |
| | |
Preferred Stock(1)
|
| |
Common Stock(1)
|
| |
Additional
Paid-In Capital |
| |
Other
Comprehensive Income (loss) |
| |
Retained
Earnings |
| |
Total
PLAYSTUDIOS, Inc. Stockholders’ Equity |
| |
Non
controlling Interest |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||||||||||||||||||||
Balance as of December 31, 2017
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 223,122 | | | | | $ | 11 | | | | | $ | 40,254 | | | | | $ | 107 | | | | | $ | 4,679 | | | | | $ | 45,059 | | | | | $ | 8,000 | | | | | $ | 53,059 | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 2,822 | | | | | | 2,822 | | | | | | | | | | | | 2,822 | | |
Exercise of stock options
|
| | | | — | | | | | | — | | | | | | 5,362 | | | | | | — | | | | | | 550 | | | | | | — | | | | | | — | | | | | | 550 | | | | | | — | | | | | | 550 | | |
Stock-based compensation expense
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 11,752 | | | | | | — | | | | | | — | | | | | | 11,752 | | | | | | — | | | | | | 11,752 | | |
Repurchase and retirement of common stock
|
| | | | — | | | | | | — | | | | | | (2,130) | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,404) | | | | | | (1,404) | | | | | | — | | | | | | (1,404) | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (188) | | | | | | — | | | | | | (188) | | | | | | — | | | | | | (188) | | |
Restricted stock awards
|
| | | | — | | | | | | — | | | | | | 1,760 | | | | | | — | | | | | | 555 | | | | | | — | | | | | | — | | | | | | 555 | | | | | | — | | | | | | 555 | | |
Purchase of noncontrolling interest
|
| | | | — | | | | | | — | | | | | | 1,100 | | | | | | — | | | | | | 6,000 | | | | | | — | | | | | | — | | | | | | 6,000 | | | | | | (8,000) | | | | | | (2,000) | | |
Balance as of December 31, 2018
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 229,214 | | | | | $ | 11 | | | | | $ | 59,111 | | | | | $ | (81) | | | | | $ | 6,097 | | | | | $ | 65,146 | | | | | $ | — | | | | | $ | 65,146 | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 13,614 | | | | | | 13,614 | | | | | | — | | | | | | 13,614 | | |
Exercise of stock options
|
| | | | — | | | | | | — | | | | | | 5,846 | | | | | | — | | | | | | 754 | | | | | | — | | | | | | — | | | | | | 754 | | | | | | — | | | | | | 754 | | |
Stock-based compensation expense
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 6,796 | | | | | | — | | | | | | — | | | | | | 6,796 | | | | | | — | | | | | | 6,796 | | |
Repurchase and retirement of common stock
|
| | | | — | | | | | | — | | | | | | (9,570) | | | | | | — | | | | | | — | | | | | | — | | | | | | (6,176) | | | | | | (6,176) | | | | | | — | | | | | | (6,176) | | |
Other comprehensive income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 179 | | | | | | — | | | | | | 179 | | | | | | — | | | | | | 179 | | |
Balance as of December 31, 2019
|
| | | | 162,596 | | | | | $ | 8 | | | | | | 225,490 | | | | | $ | 11 | | | | | $ | 66,661 | | | | | $ | 98 | | | | | $ | 13,535 | | | | | $ | 80,313 | | | | | $ | — | | | | | $ | 80,313 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Cash flows from operating activities: | | | | | | | | | | | | | |
Net income
|
| | | $ | 13,614 | | | | | $ | 2,822 | | |
Adjustments: | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 25,154 | | | | | | 16,246 | | |
Amortization of loan costs
|
| | | | 59 | | | | | | 35 | | |
Stock-based compensation expense
|
| | | | 5,884 | | | | | | 10,902 | | |
Deferred income tax expense
|
| | | | 2,456 | | | | | | 1,884 | | |
(Gain)/loss on disposal of equipment
|
| | | | 28 | | | | | | 1,297 | | |
(Gain)/loss on foreign currency translation
|
| | | | (343) | | | | | | 503 | | |
Changes in operating assets and liabilities | | | | | | | | | | | | | |
Accounts receivable
|
| | | | (517) | | | | | | 893 | | |
Prepaid expenses and other current assets
|
| | | | (1,140) | | | | | | (2,028) | | |
Accounts payable & accrued liabilities
|
| | | | (1,591) | | | | | | 3,855 | | |
Deferred revenue
|
| | | | (7,379) | | | | | | 883 | | |
Other
|
| | | | (137) | | | | | | (564) | | |
Net cash provided by operating activities
|
| | | | 36,088 | | | | | | 36,728 | | |
Cash flows from investing activities: | | | | | | | | | | | | | |
Purchase of property and equipment
|
| | | | (4,296) | | | | | | (3,569) | | |
Additions to internal-use software
|
| | | | (20,996) | | | | | | (20,844) | | |
Other
|
| | | | — | | | | | | 4 | | |
Net cash used in investing activities
|
| | | | (25,292) | | | | | | (24,409) | | |
Cash flows from financing activities: | | | | | | | | | | | | | |
Proceeds from option exercises
|
| | | | 754 | | | | | | 550 | | |
Repurchases of common stock for retirement
|
| | | | (6,176) | | | | | | (1,404) | | |
Repayment of long-term debt
|
| | | | (1,926) | | | | | | (1,279) | | |
Purchase of noncontrolling interest
|
| | | | — | | | | | | (2,000) | | |
Net cash used in financing activities
|
| | | | (7,348) | | | | | | (4,133) | | |
Foreign currency translation
|
| | | | (26) | | | | | | (343) | | |
Net increase in cash and cash equivalents
|
| | | | 3,422 | | | | | | 7,843 | | |
Cash and cash equivalents at beginning of period
|
| | | | 27,600 | | | | | | 19,757 | | |
Cash and cash equivalents at end of period
|
| | | $ | 31,022 | | | | | $ | 27,600 | | |
Supplemental Cash Flow Data: | | | | | | | | | | | | | |
Interest paid
|
| | | $ | 233 | | | | | $ | 259 | | |
Income taxes paid, net of refunds
|
| | | | 2,046 | | | | | | 2,145 | | |
Non-cash Investing and Financing Activities: | | | | | | | | | | | | | |
Capitalization of stock-based compensation
|
| | | $ | 912 | | | | | $ | 1,405 | | |
Noncash additions to intangible assets related to license agreements
|
| | | | — | | | | | | 1,000 | | |
Purchases of property and equipment included in accrued liabilities
|
| | | | 196 | | | | | | — | | |
| | |
Estimated Useful Life
|
|
Computer equipment
|
| |
3 years
|
|
Purchased software
|
| |
3 years
|
|
Furniture and fixtures
|
| |
7 years
|
|
Leasehold improvements
|
| |
Lesser of 10 years or
remaining lease term
|
|
| | |
Estimated Useful Life
|
|
Licenses
|
| |
3 – 5 years
|
|
Trade names
|
| |
5 years
|
|
| | |
December 31,
|
| | | | |||||||||
| | |
2019
|
| |
2018
|
| |
Financial Statement Line Item
|
| ||||||
Marketing Agreement
|
| | | $ | 1,000 | | | | | $ | 1,000 | | | | Intangibles, net | |
King Agreement
|
| | | $ | — | | | | | $ | (7,379) | | | | Deferred revenue | |
| | |
Year Ended December 31,
|
| | | | |||||||||
| | |
2019
|
| |
2018
|
| |
Financial Statement Line Item
|
| ||||||
King Agreement
|
| | | $ | 7,312 | | | | | $ | 1,294 | | | | Net revenues | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Computer equipment
|
| | | $ | 7,176 | | | | | $ | 6,160 | | |
Leasehold improvements
|
| | | | 5,953 | | | | | | 3,718 | | |
Furniture and fixtures
|
| | | | 2,081 | | | | | | 1,674 | | |
Construction in progress
|
| | | | 14 | | | | | | 224 | | |
Total property and equipment
|
| | | | 15,224 | | | | | | 11,776 | | |
Less: accumulated depreciation
|
| | | | (7,889) | | | | | | (6,306) | | |
Total property and equipment, net
|
| | | $ | 7,335 | | | | | $ | 5,470 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
United States
|
| | |
$
|
2,748
|
| | | |
$
|
2,933
|
| |
EMEA(1) | | | | | 3,607 | | | | | | 2,099 | | |
All other countries
|
| | | | 980 | | | | | | 438 | | |
Total property and equipment, net
|
| | |
$
|
7,335
|
| | | |
$
|
5,470
|
| |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Internal-use software
|
| | | $ | 75,781 | | | | | $ | 63,689 | | |
Less: accumulated amortization
|
| | | | (44,787) | | | | | | (34,044) | | |
Total internal-use software, net
|
| | | $ | 30,994 | | | | | $ | 29,645 | | |
| | |
December 31, 2019
|
| |
December 31, 2018
|
| ||||||||||||||||||||||||||||||
| | |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net
Carrying Amount |
| ||||||||||||||||||
Amortizable intangible assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Licenses
|
| | | $ | 3,500 | | | | | $ | (2,550) | | | | | $ | 950 | | | | | $ | 3,500 | | | | | $ | (1,350) | | | | | $ | 2,150 | | |
Trade names
|
| | | | 1,240 | | | | | | (868) | | | | | | 372 | | | | | | 1,240 | | | | | | (620) | | | | | | 620 | | |
| | | | | 4,740 | | | | | | (3,418) | | | | | | 1,322 | | | | | | 4,740 | | | | | | (1,970) | | | | | | 2,770 | | |
Nonamortizable intangible assets: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Marketing Agreement with a related party
|
| | | | 1,000 | | | | | | — | | | | | | 1,000 | | | | | | 1,000 | | | | | | — | | | | | | 1,000 | | |
Total intangible assets
|
| | | $ | 5,740 | | | | | $ | (3,418) | | | | | $ | 2,322 | | | | | $ | 5,740 | | | | | $ | (1,970) | | | | | $ | 3,770 | | |
Year Ending December 31,
|
| |
Projected
Amortization Expense |
| |||
2020
|
| | | $ | 698 | | |
2021
|
| | | | 324 | | |
2022
|
| | | | 200 | | |
2023
|
| | | | 100 | | |
2024
|
| | | | — | | |
Total
|
| | | $ | 1,322 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Accrued payroll and vacation
|
| | | $ | 2,915 | | | | | $ | 2,153 | | |
Accrued royalties
|
| | | | 1,389 | | | | | | 2,133 | | |
Accrued termination fee
|
| | | | — | | | | | | 2,000 | | |
Other accruals
|
| | | | 1,013 | | | | | | 625 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Accrued advertising
|
| | | | 297 | | | | | | 510 | | |
Income taxes payable
|
| | | | 707 | | | | | | 263 | | |
Accrued property and equipment
|
| | | | 196 | | | | | | — | | |
Total accrued liabilities
|
| | | $ | 6,517 | | | | | $ | 7,684 | | |
|
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Virtual currency (over time)
|
| | | $ | 231,726 | | | | | $ | 193,849 | | |
Advertising (point in time)
|
| | | | 383 | | | | | | 356 | | |
Other (over time)(1)
|
| | | | 7,312 | | | | | | 1,294 | | |
Total net revenue
|
| | | $ | 239,421 | | | | | $ | 195,499 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
United States
|
| | | $ | 200,418 | | | | | $ | 162,135 | | |
All other countries
|
| | | | 39,003 | | | | | | 33,364 | | |
Total net revenue
|
| | | $ | 239,421 | | | | | $ | 195,499 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Contract receivables, included in Receivables
|
| | | $ | 14,249 | | | | | $ | 13,732 | | |
Deferred revenue
|
| | | $ | — | | | | | $ | 7,379 | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Growth capital loans
|
| | | $ | — | | | | | $ | 1,926 | | |
Less current portion
|
| | | | — | | | | | | (803) | | |
Long-term debt, excluding current portion
|
| | | | — | | | | | | 1,123 | | |
Unamortized debt issuance cost
|
| | | | — | | | | | | (58) | | |
Total long-term debt book value, net
|
| | | $ | — | | | | | $ | 1,065 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
United States
|
| | | $ | 11,164 | | | | | $ | 4,696 | | |
Foreign
|
| | | | 6,425 | | | | | | 1,090 | | |
Total
|
| | | $ | 17,589 | | | | | $ | 5,786 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Current tax expense: | | | | | | | | | | | | | |
Federal
|
| | | $ | 241 | | | | | $ | 708 | | |
State
|
| | | | 720 | | | | | | 90 | | |
Foreign
|
| | | | 665 | | | | | | 259 | | |
| | | | | 1,626 | | | | | | 1,057 | | |
Deferred tax expense (benefit): | | | | | | | | | | | | | |
Federal
|
| | | | 1,997 | | | | | | 1,527 | | |
State
|
| | | | 55 | | | | | | (322) | | |
Foreign
|
| | | | 297 | | | | | | 702 | | |
| | | | | 2,349 | | | | | | 1,907 | | |
Provision for income taxes
|
| | | $ | 3,975 | | | | | $ | 2,964 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Statutory Rate
|
| | | | 21.0% | | | | | | 21.0% | | |
Foreign provision
|
| | | | (6.5) | | | | | | 10.2 | | |
State/province income tax
|
| | | | 5.6 | | | | | | 5.6 | | |
Stock compensation
|
| | | | 7.6 | | | | | | 40.1 | | |
Research credit
|
| | | | (5.9) | | | | | | (24.1) | | |
Foreign-derived intangible income deduction (FDII)
|
| | | | (1.1) | | | | | | (3.4) | | |
Non-deductible expenses
|
| | | | 2.0 | | | | | | 3.6 | | |
Other
|
| | | | (0.1) | | | | | | (1.8) | | |
Effective tax rate
|
| | | | 22.6% | | | | | | 51.2% | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Deferred tax assets: | | | | | | | | | | | | | |
Tax credits
|
| | | $ | 3,856 | | | | | $ | 2,983 | | |
Accrued liabilities
|
| | | | 486 | | | | | | 826 | | |
Stock compensation
|
| | | | 365 | | | | | | 140 | | |
Deferred revenue
|
| | | | — | | | | | | 1,655 | | |
Intangibles
|
| | | | 40 | | | | | | 81 | | |
Deferred rent
|
| | | | 78 | | | | | | 80 | | |
Other
|
| | | | 234 | | | | | | 33 | | |
Total deferred tax assets
|
| | | | 5,059 | | | | | | 5,798 | | |
Deferred tax liabilities: | | | | | | | | | | | | | |
Property and equipment
|
| | | | 8,123 | | | | | | 6,448 | | |
Prepaid taxes
|
| | | | 365 | | | | | | 323 | | |
Total deferred tax liabilities
|
| | | | 8,488 | | | | | | 6,771 | | |
Deferred tax (liability), net
|
| | | $ | (3,429) | | | | | $ | (973) | | |
| | |
December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Accrued royalties(1)
|
| | | $ | 1,100 | | | | | $ | 1,850 | | |
Minimum guarantee liability
|
| | | | 500 | | | | | | 950 | | |
Total minimum guarantee obligations
|
| | | $ | 1,600 | | | | | $ | 2,800 | | |
Weighted-average remaining term (in years)
|
| | | | 3.53 | | | | | | 2.98 | | |
Year Ending December 31,
|
| |
Minimum
Guarantee Obligations |
| |||
2020
|
| | | $ | 1,200 | | |
2021
|
| | | | 200 | | |
2022
|
| | | | 200 | | |
2023
|
| | | | — | | |
2024
|
| | | | — | | |
Total
|
| | | $ | 1,600 | | |
Year Ending December 31,
|
| |
Minimum
Rental Commitments |
| |||
2020
|
| | | $ | 4,418 | | |
2021
|
| | | | 4,195 | | |
2022
|
| | | | 2,314 | | |
2023
|
| | | | 453 | | |
2024
|
| | | | — | | |
Total
|
| | | $ | 11,380 | | |
Series
|
| |
Shares
Outstanding (In Thousands) |
| |
Liquidation
Price Per Share |
| |
Conversion
Price Per Share |
| |
Annual
Noncumulative Dividend Rights Per Share |
| ||||||||||||
A
|
| | | | 80,800 | | | | | $ | 0.06 | | | | | $ | 0.06 | | | | | $ | 0.01 | | |
B
|
| | | | 41,348 | | | | | | 0.21 | | | | | | 0.21 | | | | | | 0.02 | | |
C-1
|
| | | | 13,556 | | | | | | 0.27 | | | | | | 0.27 | | | | | | 0.02 | | |
C
|
| | | | 26,892 | | | | | | 0.61 | | | | | | 0.61 | | | | | | 0.05 | | |
Total
|
| | | | 162,596 | | | | | | | | | | | | | | | | | | | | |
Warrant Series
|
| |
Warrants
Outstanding (In Thousands) |
| |
Exercise
Price |
| ||||||
A
|
| | | | 560 | | | | | $ | 0.06 | | |
B
|
| | | | 2,563 | | | | | | 0.21 | | |
C-1
|
| | | | 2,302 | | | | | | 0.27 | | |
C
|
| | | | 617 | | | | | | 0.61 | | |
Total
|
| | | | 6,042 | | | | | | | | |
| | |
Currency
Translation Adjustment |
| |
Total Accumulated
Other Comprehensive Income (Loss) |
| ||||||
Balance as of December 31, 2018
|
| | | $ | (81) | | | | | $ | (81) | | |
Foreign currency translation gain
|
| | | | 179 | | | | | | 179 | | |
Balance as of December 31, 2019
|
| | | $ | 98 | | | | | $ | 98 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Selling and marketing
|
| | | $ | 85 | | | | | $ | 442 | | |
General and administrative
|
| | | | 964 | | | | | | 7,328 | | |
Research and development
|
| | | | 4,835 | | | | | | 3,132 | | |
Stock-based compensation expense
|
| | | $ | 5,884 | | | | | $ | 10,902 | | |
Capitalized stock-based compensation expense
|
| | | $ | 912 | | | | | $ | 1,405 | | |
| | |
No. of
Options |
| |
Weighted-
Average Exercise Price |
| |
Weighted-
Average Remaining Term (in Years) |
| |
Aggregate
Intrinsic Value |
| ||||||||||||
Outstanding – December 31, 2018
|
| | | | 62,464 | | | | | $ | 0.18 | | | | | | | | | | | | | | |
Granted
|
| | | | 43,043 | | | | | | 0.17 | | | | | | | | | | | | | | |
Exercised
|
| | | | (5,846) | | | | | | 0.13 | | | | | | | | | | | | | | |
Forfeited
|
| | | | (7,245) | | | | | | 0.31 | | | | | | | | | | | | | | |
Expired
|
| | | | (1,116) | | | | | | 0.24 | | | | | | | | | | | | | | |
Outstanding – December 31, 2019
|
| | | | 91,300 | | | | | | 0.16 | | | | | | 7.6 | | | | | $ | 22,547 | | |
Unvested – December 31, 2019
|
| | | | 51,740 | | | | | | 0.18 | | | | | | 8.8 | | | | | | 12,040 | | |
Exercisable – December 31, 2019
|
| | | | 39,560 | | | | | | 0.14 | | | | | | 6.1 | | | | | | 10,507 | | |
| | |
Year Ended December 31,
|
| |||
| | |
2019
|
| |
2018
|
|
Expected term (in years)
|
| |
5.93
|
| |
5.99
|
|
Expected volatility
|
| |
70.00%
|
| |
63.12%
|
|
Risk-free interest rate range
|
| |
1.54% – 2.59%
|
| |
2.77% – 3.13%
|
|
Dividend yield
|
| |
0%
|
| |
0%
|
|
Grant-date fair value
|
| |
$0.27
|
| |
$0.19
|
|
| | |
Year Ended December 31, 2019
|
| |
Year Ended December 31, 2018
|
| ||||||||||||||||||||||||||||||||||||||||||
| | |
Shares
|
| |
Expensed
|
| |
Capitalized
|
| |
Total
|
| |
Shares
|
| |
Expensed
|
| |
Capitalized
|
| |
Total
|
| ||||||||||||||||||||||||
Secondary transaction between employees and MGM
|
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | | 10,050 | | | | | $ | 6,485 | | | | | $ | 349 | | | | | $ | 6,834 | | |
Secondary transaction between employees and existing investors
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 6,128 | | | | | | 2,040 | | | | | | 190 | | | | | | 2,230 | | |
Stock repurchase through exercise of right of first refusal
|
| | | | 9,570 | | | | | | 2,881 | | | | | | 119 | | | | | | 3,000 | | | | | | 2,130 | | | | | | 707 | | | | | | 148 | | | | | | 855 | | |
Total
|
| | | | | | | | | $ | 2,881 | | | | | $ | 119 | | | | | | 3,000 | | | | | | | | | | | $ | 9,232 | | | | | $ | 687 | | | | | $ | 9,919 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Net income attributable to common stockholders – basic | | | | | | | | | | | | | |
Net income
|
| | | $ | 13,614 | | | | | $ | 2,822 | | |
Deemed contribution related to redemption of preferred NCI(1)
|
| | | | — | | | | | | 5,632 | | |
Income allocated to participating preferred stock
|
| | | | (7,174) | | | | | | (5,087) | | |
Net income attributable to common stockholders – basic
|
| | | $ | 6,440 | | | | | $ | 3,367 | | |
Net income attributable to common stockholders – diluted | | | | | | | | | | | | | |
Net income
|
| | | $ | 13,614 | | | | | $ | 2,822 | | |
Deemed contribution related to redemption of preferred NCI(1)
|
| | | | — | | | | | | 5,632 | | |
Income allocated to participating preferred stock
|
| | | | (6,945) | | | | | | (4,977) | | |
Net income attributable to common stockholders – diluted
|
| | | $ | 6,669 | | | | | $ | 3,477 | | |
Weighted average shares of common stock outstanding | | | | | | | | | | | | | |
Basic weighted average shares of common stock outstanding
|
| | | | 234,070,277 | | | | | | 229,409,649 | | |
Dilutive effect of weighted average Series A warrants
|
| | | | 466,040 | | | | | | 452,308 | | |
Dilutive effect of weighted average Series B warrants
|
| | | | 579,050 | | | | | | 469,189 | | |
Dilutive effect of weighted average Series C-1 warrants
|
| | | | 633,290 | | | | | | 389,348 | | |
Dilutive effect of weighted average stock options
|
| | | | 19,704,926 | | | | | | 17,459,421 | | |
Dilutive weighted average shares of common stock outstanding
|
| | | | 255,453,583 | | | | | | 248,179,915 | | |
Net income attributable to common stockholders per share | | | | | | | | | | | | | |
Basic
|
| | | $ | 0.03 | | | | | $ | 0.01 | | |
Diluted
|
| | | $ | 0.03 | | | | | $ | 0.01 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2019
|
| |
2018
|
| ||||||
Series C warrants
|
| | | | 617,192 | | | | | | 617,192 | | |
Series B warrants(2)
|
| | | | 1,231,872 | | | | | | 1,231,872 | | |
Stock options
|
| | | | 27,796,684 | | | | | | 36,020,008 | | |
| | |
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| | | | A-67 | | | |
| | | | A-67 | | | |
| | | | A-68 | | | |
| | | | A-68 | | |
Term
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| |
Section
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$12.50 Earnout Shares | | | Annex I | |
$12.50 Share Price Milestone | | | Annex I | |
$12.50 Share Price Milestone Date | | | Annex I | |
$15.00 Earnout Shares | | | Annex I | |
$15.00 Share Price Milestone | | | Annex I | |
$15.00 Share Price Milestone Date | | | Annex I | |
A&R Registration Rights Agreement | | | Preamble | |
Acies | | | Preamble | |
Acies Affiliate Agreement | | | 5.23 | |
Acies Anti-Dilution Provisions | | | 2.01 | |
Acies Benefit Plans | | | 5.16 | |
Acies Board Recommendation | | | 5.03(b) | |
Acies Cure Period | | | 10.01(d)(i) | |
Acies SEC Documents | | | 5.07(a) | |
Acies Shareholder Approval | | | 5.03(a) | |
Aggregate Cash Election Amount | | | 3.05(a)(i) | |
Agreement | | | Preamble | |
Allocation Statement | | | 3.09(b) | |
Cash Electing Share | | | 3.05(a)(i) | |
Cash Election | | | 3.05(a)(i) | |
Cash Fraction | | | 3.05(a)(i) | |
Certificate of Merger | | | 3.01(b) | |
Chosen Courts | | | 11.10 | |
Closing | | | 3.01(a) | |
Closing Date | | | 3.01(a) | |
Code | | | Preamble | |
Company | | | Preamble | |
Company Affiliate Agreement | | | 4.12 | |
Company Audited Financial Statements | | | 4.07 | |
Company Benefit Plan | | | 4.17(a) | |
Company Cure Period | | | 10.01(c)(ii) | |
Company D&O Insurance | | | 8.06(b) | |
Company Designees | | | 3.04(a)(ii) | |
Company Financial Statements | | | 4.07(a) | |
Company Personal Information | | | 4.16(b) | |
Company Preferred Stock | | | 4.06(a) | |
Company Stock Certificates | | | 3.06(c) | |
Company Stockholder Approval | | | 4.03(a) | |
Company Stockholder Cash Consideration | | | 3.05(a) | |
Term
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| |
Section
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|
Company Stockholder Consideration | | | 3.05(a) | |
Company Stockholder Stock Consideration | | | 3.05(a) | |
Company Subsidiary Securities | | | 4.02(d) | |
Company Unaudited Financial Statements | | | 4.07(a) | |
Confidentiality Agreement | | | 11.08 | |
Converted Option | | | 3.07(a) | |
Data Partners | | | 4.16(b) | |
Dissenting Shares | | | 3.14 | |
Domestication Effective Time | | | 2.01 | |
Earnout Denominator | | | Annex I | |
Earnout Expiration Date | | | Annex I | |
Earnout Milestones | | | Annex I | |
Earnout Participant | | | Annex I | |
Earnout Pro Rata Portion | | | Annex I | |
Earnout Shares | | | Annex I | |
Earnout Strategic Transaction | | | Annex I | |
Effective Time | | | 3.01(b) | |
Election Time | | | 3.06(a) | |
End Date | | | 10.01(b) | |
ERISA | | | 4.17(a) | |
Exchange Agent | | | 3.10(a) | |
First Merger | | | Preamble | |
First Merger Sub | | | Preamble | |
Form of Election | | | 3.06(b) | |
Founder | | | Preamble | |
Funding Amount | | | 3.10(a) | |
Interim Period | | | 6.01 | |
Key Employee | | | 6.01(a)(xi) | |
JOBS Act | | | 7.04(d) | |
Lease | | | 4.13(c) | |
Letter of Transmittal | | | 3.10(b) | |
Material Contracts | | | 4.12(a) | |
Mergers | | | Preamble | |
Minimum Cash Condition | | | 9.03(e) | |
Multiemployer Plan | | | 4.17(e) | |
Offer | | | Preamble | |
Outstanding Acies Expenses | | | 3.09(a)(iii) | |
Outstanding Company Expenses | | | 3.09(a) | |
PIPE Financing | | | Preamble | |
PIPE Financing Amount | | | Preamble | |
Primary Capital Wire Amount | | | 3.09(b)(ii) | |
Privacy Commitments | | | 4.16(b) | |
Proposals | | | 8.02(a) | |
Term
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| |
Section
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Proxy Statement | | | 8.02(a) | |
PubCo | | | Preamble | |
PubCo Bylaws | | | Preamble | |
PubCo Charter | | | Preamble | |
PubCo Class A Common Warrant | | | 2.02(c) | |
PubCo Employee Stock Purchase Plan | | | Preamble | |
PubCo Equity Incentive Plan | | | Preamble | |
PubCo Fully Diluted Shares | | | 8.08(a) | |
Registration Rights Agreement | | | Preamble | |
Registration Statement | | | 8.02(a) | |
Second Certificate of Merger | | | 3.01(c) | |
Second Effective Time | | | 3.01(c) | |
Second Merger | | | Preamble | |
Second Merger Sub | | | Preamble | |
Security Incident | | | 4.16(e) | |
Series A Preferred | | | 4.06(a) | |
Series B Preferred | | | 4.06(a) | |
Series C Preferred | | | 4.06(a) | |
Series C-1 Preferred | | | 4.06(a) | |
Shareholder Action | | | 8.10 | |
Sponsor | | | Preamble | |
Sponsor Agreement | | | Preamble | |
Stock Electing Share | | | 3.05(a)(ii) | |
Stock Election | | | 3.05(a)(ii) | |
Subscription Agreement | | | Preamble | |
Surviving Corporation | | | Preamble | |
Surviving Entity | | | Preamble | |
Surviving Provisions | | | 10.02 | |
Terminating Acies Breach | | | 10.01(d) | |
Terminating Company Breach | | | 10.01(c)(ii) | |
Trust Account | | | 5.18(a) | |
Trust Agreement | | | 5.18(a) | |
Trustee | | | 5.18(a) | |
WARN Act | | | 4.18(b) | |
| | | | | | | ACIES ACQUISITION LLC | |
| | | | | ||||
| | | | By: | | |
/s/ Daniel Fetters
Name: Daniel Fetters
Title: Managing Member |
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| | | | By: | | |
/s/ Edward King
Name: Edward King
Title: Managing Member |
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| | | | | ||||
| | | | | | | ACIES ACQUISITION CORP. | |
| | | | | ||||
| | | | By: | | |
/s/ Daniel Fetters
Name: Daniel Fetters
Title: Co-Chief Executive Officer |
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| | | | By: | | |
/s/ Edward King
Name: Edward King
Title: Co-Chief Executive Officer |
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| | | | | | | PLAYSTUDIOS, INC. | |
| | | | | ||||
| | | | By: | | |
/s/ Andrew S. Pascal
Name: Andrew S. Pascal
Title: Chairman and CEO |
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| | | | ACIES | | ||||||
| | | | ACIES ACQUISITION CORP. | | ||||||
| | | | By: | | |
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| | | | | | | Name: | | | Edward King | |
| | | | | | | Title: | | |
Co-Chief Executive Officer
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| | | | | | | Name: | | | Daniel Fetters | |
| | | | | | | Title: | | |
Co-Chief Executive Officer
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| | | | COMPANY | | ||||||
| | | | PLAYSTUDIOS, INC. | | ||||||
| | | | By: | | |
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| | | | | | | Name: | | | Andrew S. Pascal | |
| | | | | | | Title: | | | Chairman and CEO | |
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Options to acquire Common Stock:
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Number of Subscribed Shares subscribed for:
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Price Per Subscribed Share:
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| | | $ | 10.00 | | |
Aggregate Purchase Price:
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By: |
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Address: |
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| “Affiliate” | | | in respect of a person, means any other person that, directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such person, and (a) in the case of a natural person, shall include, without limitation, such person’s spouse, parents, children, siblings, mother-in-law and father-in-law and brothers and sisters-in-law, whether by blood, marriage or adoption or anyone residing in such person’s home, a trust for the benefit of any of the foregoing, a company, partnership or any natural person or entity wholly or jointly owned by any of the foregoing and (b) in the case of an entity, shall include a partnership, a corporation or any natural person or entity which directly, or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with, such entity. | |
| “Applicable Law” | | | means, with respect to any person, all provisions of laws, statutes, ordinances, rules, regulations, permits, certificates, judgments, decisions, decrees or orders of any governmental authority applicable to such person. | |
| “Articles” | | | means these amended and restated articles of association of the Company. | |
| “Audit Committee” | | | means the audit committee of the board of directors of the Company established pursuant to the Articles, or any successor committee. | |
| “Auditor” | | | means the person for the time being performing the duties of auditor of the Company (if any). | |
| “Business Combination” | | | means a merger, share exchange, asset acquisition, share purchase, reorganisation or similar business combination involving the Company, with one or more businesses or entities (the “target business”), which Business Combination: (a) as long as the securities of the Company are listed on the Nasdaq Capital Market, must occur with one or more target businesses that together have an aggregate fair market value of at least 80 per cent of the assets held in the Trust Account (excluding the deferred underwriting commissions and taxes payable on the income earned on the Trust Account) at the time of the signing of the definitive agreement to enter into such Business Combination; and (b) must not be solely effectuated with another blank cheque company or a similar company with nominal operations. | |
| “business day” | | | means any day other than a Saturday, a Sunday or a legal holiday or a day on which banking institutions or trust companies are authorised or obligated by law to close in New York City. | |
| “Clearing House” | | | means a clearing house recognised by the laws of the jurisdiction in | |
| | | | which the Shares (or depositary receipts therefor) are listed or quoted on a stock exchange or interdealer quotation system in such jurisdiction. | |
| “Class A Share” | | | means a Class A ordinary share of a par value of US$0.0001 in the share capital of the Company. | |
| “Class B Share” | | | means a Class B ordinary share of a par value of US$0.0001 in the share capital of the Company. | |
| “Company” | | | means the above named company. | |
| “Company’s Website” | | | means the website of the Company and/or its web-address or domain name (if any). | |
| “Compensation Committee” | | | means the compensation committee of the board of directors of the Company established pursuant to the Articles, or any successor committee. | |
| “Designated Stock Exchange” | | | means any United States national securities exchange on which the securities of the Company are listed for trading, including the Nasdaq Capital Market. | |
| “Directors” | | | means the directors for the time being of the Company. | |
| “Dividend” | | | means any dividend (whether interim or final) resolved to be paid on Shares pursuant to the Articles. | |
| “Electronic Communication” | | | means a communication sent by electronic means, including electronic posting to the Company’s Website, transmission to any number, address or internet website (including the website of the Securities and Exchange Commission) or other electronic delivery methods as otherwise decided and approved by the Directors. | |
| “Electronic Record” | | | has the same meaning as in the Electronic Transactions Law. | |
| “Electronic Transactions Law” | | | means the Electronic Transactions Law (2003 Revision) of the Cayman Islands. | |
| “Equity-linked Securities” | | | means any debt or equity securities that are convertible, exercisable or exchangeable for Class A Shares issued in a financing transaction in connection with a Business Combination, including but not limited to a private placement of equity or debt. | |
| “Exchange Act” | | | means the United States Securities Exchange Act of 1934, as amended, or any similar U.S. federal statute and the rules and regulations of the Securities and Exchange Commission thereunder, all as the same shall be in effect at the time. | |
| “Founders” | | | means all Members immediately prior to the consummation of the IPO. | |
| “Independent Director” | | | has the same meaning as in the rules and regulations of the Designated Stock Exchange or in Rule 10A-3 under the Exchange Act, as the case may be. | |
| “IPO” | | | means the Company’s initial public offering of securities. | |
| “Member” | | | has the same meaning as in the Statute. | |
| “Memorandum” | | | means the amended and restated memorandum of association of the Company. | |
| “Officer” | | | means a person appointed to hold an office in the Company. | |
| “Ordinary Resolution” | | | means a resolution passed by a simple majority of the Members as, being entitled to do so, vote in person or, where proxies are allowed, by proxy at a general meeting, and includes a unanimous written resolution. In computing the majority when a poll is demanded regard | |
| | | | shall be had to the number of votes to which each Member is entitled by the Articles. | |
| “Over-Allotment Option” | | | means the option of the Underwriters to purchase up to an additional 15 per cent of the firm units (as described in the Articles) issued in the IPO at a price equal to US$10 per unit, less underwriting discounts and commissions. | |
| “Preference Share” | | | means a preference share of a par value of US$0.0001 in the share capital of the Company. | |
| “Public Share” | | | means a Class A Share issued as part of the units (as described in the Articles) issued in the IPO. | |
| “Redemption Notice” | | | means a notice in a form approved by the Company by which a holder of Public Shares is entitled to require the Company to redeem its Public Shares, subject to any conditions contained therein. | |
| “Register of Members” | | | means the register of Members maintained in accordance with the Statute and includes (except where otherwise stated) any branch or duplicate register of Members. | |
| “Registered Office” | | | means the registered office for the time being of the Company. | |
| “Representative” | | | means a representative of the Underwriters. | |
| “Seal” | | | means the common seal of the Company and includes every duplicate seal. | |
| “Securities and Exchange Commission” | | | means the United States Securities and Exchange Commission. | |
| “Share” | | | means a Class A Share, a Class B Share or a Preference Share and includes a fraction of a share in the Company. | |
| “Special Resolution” | | | subject to Article 29.4, has the same meaning as in the Statute, and includes a unanimous written resolution. | |
| “Sponsor” | | | means Acies Acquisition, LLC, a Cayman Islands limited liability company, and its successors or assigns. | |
| “Statute” | | | means the Companies Law (2020 Revision) of the Cayman Islands. | |
| “Treasury Share” | | | means a Share held in the name of the Company as a treasury share in accordance with the Statute. | |
| “Trust Account” | | | means the trust account established by the Company upon the consummation of its IPO and into which a certain amount of the net proceeds of the IPO, together with a certain amount of the proceeds of a private placement of warrants simultaneously with the closing date of the IPO, will be deposited. | |
| “Underwriter” | | | means an underwriter of the IPO from time to time and any successor underwriter. | |
|
Signature
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Title
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Date
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/s/ Edward King
Edward King
|
| |
Co-Chief Executive Officer (Principal Executive Officer)
|
| |
February 16, 2021
|
|
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/s/ Daniel Fetters
Daniel Fetters
|
| |
Co-Chief Executive Officer (Principal Financial and Accounting Officer)
|
| |
February 16, 2021
|
|
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/s/ James Murren
James Murren
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| |
Director
|
| |
February 16, 2021
|
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/s/ Zach Leonsis
Zach Leonsis
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| |
Director
|
| |
February 16, 2021
|
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/s/ Brisa Trinchero
Brisa Trinchero
|
| |
Director
|
| |
February 16, 2021
|
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/s/ Andrew Zobler
Andrew Zobler
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| |
Director
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| |
February 16, 2021
|
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/s/ Sam Kennedy
Sam Kennedy
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| |
Director
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| |
February 16, 2021
|
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Exhibit 4.1
SPECIMEN UNIT CERTIFICATE
NUMBER UNITS U-
Acies Acquisition Corp.
SEE REVERSE FOR
CERTAIN
DEFINITIONS
CUSIP [ ]
UNITS CONSISTING OF ONE CLASS A ORDINARY SHARE AND ONE-QUARTER OF ONE REDEEMABLE
WARRANT, EACH WHOLE WARRANT ENTITLING THE HOLDER TO PURCHASE ONE CLASS A ORDINARY SHARE
THIS CERTIFIES THAT is the owner of Units.
Each Unit (“Unit”) consists of one (1) Class A ordinary share, par value $0.0001 per share (“Ordinary Shares”), of Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”), and one-quarter (1/4) of one redeemable warrant (each whole warrant, a “Warrant”). Each Warrant entitles the holder to purchase one (1) Ordinary Share for $11.50 per share (subject to adjustment). Each Warrant will become exercisable on the later of (i) thirty (30) days after the Company’s completion of a merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more businesses (each, a “Business Combination”), and (ii) one year from the closing of the Company’s initial public offering, and will expire unless exercised before 5:00 p.m., New York City Time, on the date that is five (5) years after the date on which the Company completes its initial Business Combination, or earlier upon redemption or liquidation (the “Expiration Date”). The Ordinary Shares and Warrants comprising the Units represented by this certificate are not transferable separately prior to , 2020, unless J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC and Oppenheimer & Co. Inc. elect to allow earlier separate trading, subject to the Company’s filing with the Securities and Exchange Commission of a Current Report on Form 8-K containing an audited balance sheet reflecting the Company’s receipt of the gross proceeds of the initial public offering and issuing a press release announcing when separate trading will begin. No fractional warrants will be issued upon separation of the Units and only whole warrants are exercisable. The terms of the Warrants are governed by a Warrant Agreement, dated as of , 2020, between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Warrant Agent at 1 State Street, 30th Floor, New York, New York 10004, and are available to any Warrant holder on written request and without cost.
Upon the consummation of the Business Combination, the Units represented by this certificate will automatically separate into the Class A Ordinary Shares and Warrants comprising such Units.
This certificate is not valid unless countersigned by the Transfer Agent and Registrar of the Company.
This certificate shall be governed by and construed in accordance with the internal laws of the State of New York.
Witness the facsimile signatures of its duly authorized officers.
By | |||||||
Co-Chief Executive Officer | Co-Chief Executive Officer |
Acies Acquisition Corp.
The Company will furnish without charge to each unitholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations or restrictions of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM | — | as tenants in common | UNIF GIFT MIN ACT | — | Custodian | |||||||||
|
| |||||||||||||
(Cust) | (Minor) | |||||||||||||
TEN ENT | — | as tenants by the entireties | under Uniform Gifts to Minors Act | |||||||||||
| ||||||||||||||
(State) | ||||||||||||||
JT TEN | — | as joint tenants with right of survivorship and not as tenants in common |
Additional abbreviations may also be used though not in the above list.
For value received, hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Units represented by the within Certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said Units on the books of the within named Company with full power of substitution in the premises.
Dated | ||||
| ||||
Notice: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. | ||||
Signature(s) Guaranteed: | ||||
|
||||
THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 OR ANY SUCCESSOR RULES). |
In each case, as more fully described in the Company’s final prospectus dated , 2020, the holder(s) of this certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with the Company’s initial public offering only in the event that (i) the Company redeems the Ordinary Shares sold in its initial public offering and liquidates because it does not consummate an initial business combination within the period of time set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, (ii) the Company redeems the Ordinary Shares sold in its initial public offering in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial business combination or to redeem 100% of the Ordinary Shares if the Company does not complete its initial business combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Ordinary Shares, or (iii) if the holder(s) seek(s) to redeem for cash his, her or its respective Ordinary Shares in connection with a tender offer (or proxy solicitation, solely in the event the Company seeks shareholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.
Exhibit 4.2
SPECIMEN CLASS A ORDINARY SHARE CERTIFICATE
NUMBER | SHARES |
ACIES ACQUISITION CORP.
INCORPORATED UNDER THE LAWS OF THE CAYMAN ISLANDS
CLASS A ORDINARY SHARES
SEE REVERSE FOR
CERTAIN DEFINITIONS
CUSIP [ ]
This Certifies that is the owner of
FULLY PAID AND NON-ASSESSABLE CLASS A ORDINARY SHARES OF THE PAR VALUE OF
US$0.0001 EACH OF ACIES ACQUISITION CORP. (THE “COMPANY”)
subject to the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, and transferable on the books of the Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed.
The Company will be forced to redeem all of its Class A ordinary shares if it is unable to complete a business combination within the period set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, all as more fully described in the Company’s final prospectus dated , 2020.
This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile signatures of its duly authorized officers.
Dated: |
|
|||||
Co-Chief Executive Officer | Co-Chief Executive Officer | |||||
|
|
ACIES ACQUISITION CORP.
The Company will furnish without charge to each shareholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations, or restrictions of such preferences and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to all the provisions of the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, and resolutions of the Board of Directors providing for the issue of Class A ordinary shares (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate by acceptance hereof assents. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM | — | as tenants in common |
UNIF GIFT MIN ACT
|
— | Custodian | |||||||||
|
| |||||||||||||
(Cust) | (Minor) | |||||||||||||
TEN ENT | — | as tenants by the entireties | under Uniform Gifts to Minors Act | |||||||||||
| ||||||||||||||
(State) | ||||||||||||||
JT TEN | — | as joint tenants with right of survivorship and not as tenants in common |
Additional abbreviations may also be used though not in the above list.
For value received, hereby sells, assigns and transfers unto
(PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER(S) OF ASSIGNEE(S))
(PLEASE PRINT OR TYPEWRITE NAME(S) AND ADDRESS(ES), INCLUDING ZIP CODE, OF ASSIGNEE(S))
Shares represented by the within Certificate, and does hereby irrevocably constitute and appoint Attorney to transfer the said shares on the books of the within named Company with full power of substitution in the premises.
Dated |
|
Shareholder
|
NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. |
Signature(s) Guaranteed:
By: |
|
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 OR ANY SUCCESSOR RULE).
In each case, as more fully described in the Company’s final prospectus dated , 2020, the holder(s) of this certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with its initial public offering only in the event that (i) the Company redeems the Class A ordinary shares sold in its initial public offering and liquidates because it does not consummate an initial business combination within the period of time set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, (ii) the Company redeems the Class A ordinary shares sold in its initial public offering in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Class A ordinary shares the right to have their shares redeemed in connection with the Company’s initial business combination or to redeem 100% of the Class A ordinary shares if the Company does not complete its initial business combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Class A ordinary shares, or (iii) if the holder(s) seek(s) to redeem for cash his, her or its respective Class A ordinary shares in connection with a tender offer (or proxy solicitation, solely in the event the Company seeks shareholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.
Exhibit 4.3
[FACE]
Number |
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
Acies Acquisition Corp.
Incorporated Under the Laws of the Cayman Islands
CUSIP [•]
Warrant Certificate
This Warrant Certificate certifies that [ ], or registered assigns, is the registered holder of [ ] warrant(s) (the “Warrants” and each, a “Warrant”) to purchase Class A ordinary shares, $0.0001 par value (“Ordinary Shares”), of Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”). Each Warrant entitles the holder, upon exercise during the period set forth in the Warrant Agreement referred to below, to receive from the Company that number of fully paid and nonassessable Ordinary Shares as set forth below, at the exercise price (the “Exercise Price”) as determined pursuant to the Warrant Agreement, payable in lawful money (or through “cashless exercise” as provided for in the Warrant Agreement) of the United States of America upon surrender of this Warrant Certificate and payment of the Exercise Price at the office or agency of the Warrant Agent referred to below, subject to the conditions set forth herein and in the Warrant Agreement. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Each whole Warrant is initially exercisable for one fully paid and non-assessable Ordinary Share. Fractional shares shall not be issued upon exercise of any Warrant. If, upon the exercise of Warrants, a holder would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to the Warrant holder. The number of Ordinary Shares issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.
The initial Exercise Price per one Ordinary Share for any Warrant is equal to $11.50 per share. The Exercise Price is subject to adjustment upon the occurrence of certain events as set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Exercise Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become void. The Warrants may be redeemed, subject to certain conditions, as set forth in the Warrant Agreement.
Reference is hereby made to the further provisions of this Warrant Certificate set forth on the reverse hereof and such further provisions shall for all purposes have the same effect as though fully set forth at this place.
This Warrant Certificate shall not be valid unless countersigned by the Warrant Agent, as such term is used in the Warrant Agreement. This Warrant Certificate shall be governed by and construed in accordance with the internal laws of the State of New York.
ACIES ACQUISITION CORP. | ||
By: |
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Name: | ||
Title: Authorized Signatory | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, | ||
AS WARRANT AGENT | ||
By: |
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Name: | ||
Title: |
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive [ ] Ordinary Shares and are issued or to be issued pursuant to a Warrant Agreement dated as of , 2020 (the “Warrant Agreement”), duly executed and delivered by the Company to Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of Election to Purchase set forth hereon properly completed and executed, together with payment of the Exercise Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the issuance of the Ordinary Shares to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the Ordinary Shares is current, except through “cashless exercise” as provided for in the Warrant Agreement.
The Warrant Agreement provides that upon the occurrence of certain events the number of Ordinary Shares issuable upon exercise of the Warrants set forth on the face hereof may, subject to certain conditions, be adjusted. If, upon exercise of a Warrant, the holder thereof would be entitled to receive a fractional interest in an Ordinary Share, the Company shall, upon exercise, round down to the nearest whole number of Ordinary Shares to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent, a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.
Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive [ ] Ordinary Shares and herewith tenders payment for such Ordinary Shares to the order of Acies Acquisition Corp. (the “Company”) in the amount of $[ ] in accordance with the terms hereof. The undersigned requests that a certificate for such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Ordinary Shares be delivered to [ ] whose address is [ ]. If said [ ] number of Ordinary Shares is less than all of the Ordinary Shares purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Warrant Certificate be delivered to [ ], whose address is [ ].
In the event that the Warrant has been called for redemption by the Company pursuant to Section 6.2 of the Warrant Agreement and a holder thereof elects to exercise its Warrant pursuant to a Make-Whole Exercise, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) or Section 6.2 of the Warrant Agreement, as applicable.
In the event that the Warrant is a Private Placement Warrant that is to be exercised on a “cashless” basis pursuant to subsection 3.3.1(c) of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(c) of the Warrant Agreement.
In the event that the Warrant is to be exercised on a “cashless” basis pursuant to Section 7.4 of the Warrant Agreement, the number of Ordinary Shares that this Warrant is exercisable for shall be determined in accordance with Section 7.4 of the Warrant Agreement.
In the event that the Warrant may be exercised, to the extent allowed by the Warrant Agreement, through cashless exercise (i) the number of Ordinary Shares that this Warrant is exercisable for would be determined in accordance with the relevant section of the Warrant Agreement which allows for such cashless exercise and (ii) the holder hereof shall complete the following: The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, through the cashless exercise provisions of the Warrant Agreement, to receive Ordinary Shares. If said number of shares is less than all of the Ordinary Shares purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such Ordinary Shares be registered in the name of [ ], whose address is [ ] and that such Warrant Certificate be delivered to [ ], whose address is [ ].
[Signature Page Follows]
Date: [ ], 20
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(Address) |
(Tax Identification Number)
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Signature Guaranteed:
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THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
Exhibit 4.4
WARRANT AGREEMENT
ACIES ACQUISITION CORP.
and
CONTINENTAL STOCK TRANSFER & TRUST COMPANY
Dated October 22, 2020
THIS WARRANT AGREEMENT (this “Agreement”), dated October 22, 2020, is by and between Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (in such capacity, the “Warrant Agent”).
WHEREAS, it is proposed that the Company enter into that certain Private Placement Warrants Purchase Agreement with Acies Acquisition LLC, a Delaware limited liability company (the “Sponsor”), pursuant to which the Sponsor will purchase an aggregate of 4,333,333 warrants (or up to 4,733,333 warrants if the underwriters in the Public Offering (defined below) exercise their Over-allotment Option (as defined below) in full) simultaneously with the closing of the Offering (and the closing of the Over-allotment Option, if applicable), bearing the legend set forth in Exhibit B hereto (the “Private Placement Warrants”), at a purchase price of $1.50 per Private Placement Warrant. Each Private Placement Warrant entitles the holder thereof to purchase one Ordinary Share (as defined below) at a price of $11.50 per share, subject to adjustment as described herein; and
WHEREAS, in order to finance the Company’s transaction costs in connection with an intended initial merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “Business Combination”), the Sponsor or an affiliate of the Sponsor or certain of the Company’s officers and directors may, but are not obligated to, loan the Company funds as the Company may require, of which up to $1,500,000 of such loans may be convertible into up to an additional 1,000,000 Private Placement Warrants at a price of $1.50 per Private Placement Warrant; and
WHEREAS, the Company is engaged in an initial public offering (the “Offering”) of units of the Company’s equity securities, each such unit comprised of one Ordinary Share and one-third of one Public Warrant (as defined below) (the “Units”) and, in connection therewith, has determined to issue and deliver up to 6,666,667 redeemable warrants (including up to 1,000,000 redeemable warrants subject to the Over-allotment Option) to public investors in the Offering (the “Public Warrants” and, together with the Private Placement Warrants, the “Warrants”). Each whole Warrant entitles the holder thereof to purchase one Class A ordinary share of the Company, par value $0.0001 per share (“Ordinary Shares”), for $11.50 per share, subject to adjustment as described herein. Only whole Warrants are exercisable. A holder of the Public Warrants will not be able to exercise any fraction of a Warrant; and
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) registration statement on Form S-1, File No. 333-249297, and a prospectus (the “Prospectus”), for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, the Public Warrants and the Ordinary Shares included in the Units; and
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent (if a physical certificate is issued), as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1. Form of Warrant. Each Warrant shall initially be issued in registered form only.
2.2. Effect of Countersignature. If a physical certificate is issued, unless and until countersigned by the Warrant Agent pursuant to this Agreement, a certificated Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.3. Registration.
2.3.1. Warrant Register. The Warrant Agent shall maintain books (the “Warrant Register”), for the registration of original issuance and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants in book-entry form, the Warrant Agent shall issue and register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions delivered to the Warrant Agent by the Company. Ownership of beneficial interests in the Public Warrants shall be shown on, and the transfer of such ownership shall be effected through, records maintained by institutions that have accounts with The Depository Trust Company (the “Depositary”) (such institution, with respect to a Warrant in its account, a “Participant”).
If the Depositary subsequently ceases to make its book-entry settlement system available for the Public Warrants, the Company may instruct the Warrant Agent regarding making other arrangements for book-entry settlement. In the event that the Public Warrants are not eligible for, or it is no longer necessary to have the Public Warrants available in, book-entry form, the Warrant Agent shall provide written instructions to the Depositary to deliver to the Warrant Agent for cancellation each book-entry Public Warrant, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificates”) which shall be in the form annexed hereto as Exhibit A.
Physical certificates, if issued, shall be signed by, or bear the facsimile signature of, the Chairman of the Board, a Co-Chief Executive Officer, President, Chief Financial Officer, Chief Operating Officer, General Counsel, Secretary or other principal officer of the Company. In the event the person whose facsimile signature has been placed upon any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.3.2. Registered Holder. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and treat the person in whose name such Warrant is registered in the Warrant Register (the “Registered Holder”) as the absolute owner of such Warrant and of each Warrant represented thereby, for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4. Detachability of Warrants. The Ordinary Shares and Public Warrants comprising the Units shall begin separate trading on the 52nd day following the date of the Prospectus or, if such 52nd day is not on a day, other than a Saturday, Sunday or federal holiday, on which banks in New York City are generally open for normal business (a “Business Day”), then on the immediately succeeding Business Day following such date, or earlier (the “Detachment Date”) with the consent of J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC and Oppenheimer & Co. Inc., but in no event shall the Ordinary Shares and the Public Warrants comprising the Units be separately traded until (A) the Company has filed a Current Report on Form 8-K with the Commission containing an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Offering, including the proceeds then received by the Company from the exercise by the underwriters of their right to purchase additional Units in the Offering (the “Over-allotment Option”), if the Over-allotment Option is exercised prior to the filing of the Current Report on Form 8-K, and (B) the Company issues a press release announcing when such separate trading shall begin.
2.5. Fractional Warrants. The Company shall not issue fractional Warrants other than as part of the Units, each of which is comprised of one Ordinary Share and one-third of one whole Public Warrant. If, upon the detachment of Public Warrants from the Units or otherwise, a holder of Warrants would be entitled to receive a fractional Warrant, the Company shall round down to the nearest whole number the number of Warrants to be issued to such holder.
2.6. Private Placement Warrants.
2.6.1. The Private Placement Warrants shall be identical to the Public Warrants, except that so long as they are held by the Sponsor or any of its Permitted Transferees (as defined below) the Private Placement Warrants: (i) may be exercised for cash or on a “cashless basis,” pursuant to subsection 3.3.1(c) hereof, (ii) including the Ordinary Shares issuable upon exercise of the Private Placement Warrants, may not be transferred, assigned or sold until thirty (30) days after the completion by the Company of an initial Business Combination, (iii) shall not be redeemable by the Company pursuant to Section 6.1 hereof and (iv) shall only be redeemable by the Company pursuant to Section 6.2 if the Reference Value (as defined below) is less than $18.00 per share (subject to adjustment in compliance with Section 4 hereof); provided, however, that in the case of (ii), the Private Placement Warrants and any Ordinary Shares issued upon exercise of the Private Placement Warrants may be transferred by the holders thereof:
(a) to the Company’s officers or directors, any affiliates or family members of any of the Company’s officers or directors, any members or partners of the Sponsor or their affiliates, any affiliates of the Sponsor, or any employees of such affiliates;
(b) in the case of an individual, by gift to a member of one of the individual’s immediate family or to a trust, the beneficiary of which is a member of the individual’s immediate family, an affiliate of such person or to a charitable organization;
(c) in the case of an individual, by virtue of laws of descent and distribution upon death of the individual;
(d) in the case of an individual, pursuant to a qualified domestic relations order;
(e) by private sales or transfers made in connection with the consummation of the Company’s Business Combination at prices no greater than the price at which the Private Placement Warrants or Ordinary Shares, as applicable, were originally purchased;
(f) by virtue of the Sponsor’s organizational documents upon liquidation or dissolution of the Sponsor;
(g) to the Company for no value for cancellation in connection with the consummation of our initial Business Combination;
(h) in the event of the Company’s liquidation prior to the completion of its initial Business Combination; or
(i) in the event of the Company’s completion of a liquidation, merger, share exchange or other similar transaction which results in all of the public shareholders having the right to exchange their Ordinary Shares for cash, securities or other property subsequent to the completion of the Company’s initial Business Combination;
provided, however, that, in the case of clauses (a) through (f), these permitted transferees (the “Permitted Transferees”) must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.
3. Terms and Exercise of Warrants.
3.1. Warrant Price. Each whole Warrant shall entitle the Registered Holder thereof, subject to the provisions of such Warrant and of this Agreement, to purchase from the Company the number of Ordinary Shares stated therein, at the price of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1. The term “Warrant Price” as used in this Agreement shall mean the price per share (including in cash or by payment of Warrants pursuant to a “cashless exercise,” to the extent permitted hereunder) described in the prior sentence at which Ordinary Shares may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than twenty Business Days (unless otherwise required by the Commission, any national securities exchange on which the Warrants are listed or applicable law); provided that the Company shall provide at least five days’ prior written notice of such reduction to Registered Holders of the Warrants; and provided further, that any such reduction shall be identical among all of the Warrants.
3.2. Duration of Warrants. A Warrant may be exercised only during the period (the “Exercise Period”) (A) commencing on the later of: (i) the date that is thirty (30) days after the first date on which the Company completes a Business Combination, and (ii) the date that is twelve (12) months from the date of the closing of the Offering, and (B) terminating at the earliest to occur of (x) 5:00 p.m., New York City time on the date that is five (5) years after the date on which the Company completes its initial Business Combination, (y) the liquidation of the Company in accordance with the Company’s amended and restated memorandum and articles of association, as amended from time to time, if the Company fails to complete a Business Combination, and (z) other than with respect to the Private Placement Warrants then held by the Sponsor or its Permitted Transferees with respect to a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof, 5:00 p.m., New York City time on the Redemption Date (as defined below) as provided in Section 6.3 hereof (the “Expiration Date”); provided, however, that the exercise of any Warrant shall be subject to the satisfaction of any applicable conditions, as set forth in subsection 3.3.2 below, with respect to an effective registration statement or a valid exemption therefrom being available. Except with respect to the right to receive the Redemption Price (as defined below) (other than with respect to a Private Placement Warrant then held by the Sponsor or its Permitted Transferees in connection with a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof) in the event of a redemption (as set forth in Section 6 hereof), each Warrant (other than a Private Placement Warrant then held by the Sponsor or its Permitted Transferees in the event of a redemption pursuant to Section 6.1 hereof or, if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), Section 6.2 hereof) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided that the Company shall provide at least twenty (20) days prior written notice of any such extension to Registered Holders of the Warrants and, provided further that any such extension shall be identical in duration among all the Warrants.
3.3. Exercise of Warrants.
3.3.1. Payment. Subject to the provisions of the Warrant and this Agreement, a Warrant may be exercised by the Registered Holder thereof by delivering to the Warrant Agent at its corporate trust department (i) the Definitive Warrant Certificate evidencing the Warrants to be exercised, or, in the case of a Warrant represented by a book-entry, the Warrants to be exercised (the “Book-Entry Warrants”) on the records of the Depositary to an account of the Warrant Agent at the Depositary designated for such purposes in writing by the Warrant Agent to the Depositary from time to time, (ii) an election to purchase (“Election to Purchase”) any Ordinary Shares pursuant to the exercise of a Warrant, properly completed and executed by the Registered Holder on the reverse of the Definitive Warrant Certificate or, in the case of a Book-Entry Warrant, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) the payment in full of the Warrant Price for each Ordinary Share as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the Ordinary Shares and the issuance of such Ordinary Shares, as follows:
(a) in lawful money of the United States, in good certified check or good bank draft payable to the order of the Warrant Agent;
(b) [Reserved];
(c) with respect to any Private Placement Warrant, so long as such Private Placement Warrant is held by the Sponsor or a Permitted Transferee, by surrendering the Warrants for that number of Ordinary Shares equal to (i) if in connection with a redemption of Private Placement Warrants pursuant to Section 6.2 hereof, as provided in Section 6.2 hereof with respect to a Make-Whole Exercise and (ii) in all other scenarios the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Sponsor Exercise Fair Market Value” (as defined in this subsection 3.3.1(c)) less the Warrant Price by (y) the Sponsor Exercise Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Sponsor Fair Market Value” shall mean the average last reported sale price of the Ordinary Shares for the ten (10) trading days ending on the third (3rd) trading day prior to the date on which notice of exercise of the Private Placement Warrant is sent to the Warrant Agent;
(d) as provided in Section 6.2 hereof with respect to a Make-Whole Exercise; or
(e) as provided in Section 7.4 hereof.
3.3.2. Issuance of Ordinary Shares on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to subsection 3.3.1(a)), the Company shall issue to the Registered Holder of such Warrant a book-entry position or certificate, as applicable, for the number of Ordinary Shares to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it on the register of members of the Company, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any Ordinary Shares pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the Ordinary Shares underlying the Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4 or a valid exemption from registration is available. No Warrant shall be exercisable and the Company shall not be obligated to issue Ordinary Shares upon exercise of a Warrant unless the Ordinary Shares issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants. Subject to Section 4.6 of this Agreement, a Registered Holder of Warrants may exercise its Warrants only for a whole number of Ordinary Shares. The Company may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to Section 7.4. If, by reason of any exercise of Warrants on a “cashless basis”, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in an Ordinary Share, the Company shall round down to the nearest whole number, the number of Ordinary Shares to be issued to such holder.
3.3.3. Valid Issuance. All Ordinary Shares issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and nonassessable.
3.3.4. Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for Ordinary Shares is issued and who is registered in the register of members of the Company shall for all purposes be deemed to have become the holder of record of such Ordinary Shares on the date on which the Warrant, or book-entry position representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members of the Company or book-entry system of the Warrant Agent are closed, such person shall be deemed to have become the holder of such shares at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.
3.3.5. Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection 3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “Maximum Percentage”) of the Ordinary Shares outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of Ordinary Shares beneficially owned by such person and its affiliates shall include the number of Ordinary Shares issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude Ordinary Shares that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preferred shares or warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of outstanding Ordinary Shares, the holder may rely on the number of outstanding Ordinary Shares as reflected in (1) the Company’s most recent Annual Report on Form 10-K, Quarterly Report on Form 10-Q, Current Report on Form 8-K or other public filing with the Commission as the case may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer & Trust Company, as transfer agent (in such capacity, the “Transfer Agent”), setting forth the number of Ordinary Shares outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2) Business Days, confirm orally and in writing to such holder the number of Ordinary Shares then outstanding. In any case, the number of issued and outstanding Ordinary Shares shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and its affiliates since the date as of which such number of issued and outstanding Ordinary Shares was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
4. Adjustments.
4.1. Share Capitalizations.
4.1.1. Sub-Divisions. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of issued and outstanding Ordinary Shares is increased by a capitalization or share dividend of Ordinary Shares, or by a sub-division of Ordinary Shares or other similar event, then, on the effective date of such share capitalization, sub-division or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be increased in proportion to such increase in the issued and outstanding Ordinary Shares. A rights offering made to all or substantially all holders of Ordinary Shares entitling holders to purchase Ordinary Shares at a price less than the “Historical Fair Market Value” (as defined below) shall be deemed a capitalization of a number of Ordinary Shares equal to the product of (i) the number of Ordinary Shares actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Ordinary Shares) multiplied by (ii) one (1) minus the quotient of (x) the price per Ordinary Share paid in such rights offering divided by (y) the Historical Fair Market Value. For purposes of this subsection 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for Ordinary Shares, in determining the price payable for Ordinary Shares, there shall be taken into account any consideration received for such rights, as well as any additional amount payable upon exercise or conversion and (ii) “Historical Fair Market Value” means the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the first date on which the Ordinary Shares trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights. No Ordinary Shares shall be issued at less than their par value.
4.1.2. Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, pays to all or substantially all of the holders of the Ordinary Shares a dividend or make a distribution in cash, securities or other assets on account of such Ordinary Shares (or other shares into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a proposed initial Business Combination, (d) to satisfy the redemption rights of the holders of the Ordinary Shares in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (i) to modify the substance or timing of the Company’s obligation to provide holders of Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial Business Combination or to redeem 100% of the Company’s public shares if it does not complete its initial Business Combination within the time period required by the Company’s Amended and Restated Memorandum and Articles of Association, as amended from time to time, or (ii) with respect to any other provision relating to the rights of holders of Ordinary Shares, (e) as a result of the repurchase of Ordinary Shares by the Company if a proposed initial Business Combination is presented to the shareholders of the Company for approval or (f) in connection with the redemption of public shares upon the failure of the Company to complete its initial Business Combination and any subsequent distribution of its assets upon its liquidation (any such non-excluded event being referred to herein as an “Extraordinary Dividend”), then the Warrant Price shall be decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and/or the fair market value (as determined by the Company’s board of directors (the “Board”), in good faith) of any securities or other assets paid on each Ordinary Share in respect of such Extraordinary Dividend. For purposes of this subsection 4.1.2, “Ordinary Cash Dividends” means any cash dividend or cash distribution which, when combined on a per share basis, with the per share amounts of all other cash dividends and cash distributions paid on the Ordinary Shares during the 365-day period ending on the date of declaration of such dividend or distribution to the extent it does not exceed $0.50 (which amount shall be adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of Ordinary Shares issuable on exercise of each Warrant).
4.2. Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding Ordinary Shares is decreased by a consolidation, combination, reverse share split or reclassification of Ordinary Shares or other similar event, then, on the effective date of such consolidation, combination, reverse share split, reclassification or similar event, the number of Ordinary Shares issuable on exercise of each Warrant shall be decreased in proportion to such decrease in issued and outstanding Ordinary Shares.
4.3. Adjustments in Exercise Price. Whenever the number of Ordinary Shares purchasable upon the exercise of the Warrants is adjusted, as provided in subsection 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of Ordinary Shares purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of Ordinary Shares so purchasable immediately thereafter.
4.4. Raising of the Capital in Connection with the Initial Business Combination. If (x) the Company issues additional Ordinary Shares or equity-linked securities for capital raising purposes in connection with the closing of its initial Business Combination at an issue price or effective issue price of less than $9.20 per Ordinary Share (with such issue price or effective issue price to be determined in good faith by the Board and, in the case of any such issuance to the Sponsor or its affiliates, without taking into account any Class B ordinary shares, par value $0.0001 per share, of the Company held by the Sponsor or such affiliates, as applicable, prior to such issuance) (the “Newly Issued Price”), (y) the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for the funding of the Company’s initial Business Combination on the date of the completion of the Company’s initial Business Combination (net of redemptions), and (z) the volume-weighted average trading price of Ordinary Shares during the twenty (20) trading day period starting on the trading day prior to the day on which the Company consummates its initial Business Combination (such price, the “Market Value”) is below $9.20 per share, the Warrant Price shall be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, the $18.00 per share redemption trigger price described in Section 6.1 and Section 6.2 shall be adjusted (to the nearest cent) to be equal to 180% of the higher of the Market Value and the Newly Issued Price and the $10.00 per share redemption trigger price described in Section 6.2 shall be adjusted (to the nearest cent) to be equal to the higher of the Market Value and the Newly Issued Price.
4.5. Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the issued and outstanding Ordinary Shares (other than a change under Section 4.1 or Section 4.2 hereof or that solely affects the par value of such Ordinary Shares), or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the issued and outstanding Ordinary Shares), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the holders of the Warrants shall thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and in lieu of the Ordinary Shares of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares or stock or other securities or property (including cash) receivable upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer, that the holder of the Warrants would have received if such holder had exercised his, her or its Warrant(s) immediately prior to such event (the “Alternative Issuance”); provided, however, that (i) if the holders of the Ordinary Shares were entitled to exercise a right of election as to the kind or amount of securities, cash or other assets receivable upon such consolidation or merger, then the kind and amount of securities, cash or other assets constituting the Alternative Issuance for which each Warrant shall become exercisable shall be deemed to be the weighted average of the kind and amount received per share by the holders of the Ordinary Shares in such consolidation or merger that affirmatively make such election, and (ii) if a tender, exchange or redemption offer shall have been made to and accepted by the holders of the Ordinary Shares (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by shareholders of the Company as provided for in the Company’s amended and restated memorandum and articles of association or as a result of the repurchase of Ordinary Shares by the Company if a proposed initial Business Combination is presented to the shareholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act) of which such maker is a part, and together with any affiliate or associate of such maker (within the meaning of Rule 12b-2 under the Exchange Act) and any members of any such group of which any such affiliate or associate is a part, own beneficially (within the meaning of Rule 13d-3 under the Exchange Act) more than 50% of the issued and outstanding Ordinary Shares, the holder of a Warrant shall be entitled to receive as the Alternative Issuance, the highest amount of cash, securities or other property to which such holder would actually have been entitled as a shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the Ordinary Shares held by such holder had been purchased pursuant to such tender or exchange offer, subject to adjustments (from and after the consummation of such tender or exchange offer) as nearly equivalent as possible to the adjustments provided for in this Section 4; provided further that if less than 70% of the consideration receivable by the holders of the Ordinary Shares in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within thirty (30) days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (i) the Warrant Price in effect prior to such reduction minus (ii) (A) the Per Share Consideration (as defined below) (but in no event less than zero) minus (B) the Black-Scholes Warrant Value (as defined below). The “Black-Scholes Warrant Value” means the value of a Warrant immediately prior to the consummation of the applicable event based on the Black-Scholes Warrant Model for a Capped American Call on Bloomberg Financial Markets (assuming zero dividends) (“Bloomberg”). For purposes of calculating such amount, (i) Section 6 of this Agreement shall be taken into account, (ii) the price of each Ordinary Share shall be the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (iii) the assumed volatility shall be the 90 day volatility obtained from the HVT function on Bloomberg determined as of the trading day immediately prior to the day of the announcement of the applicable event and (iv) the assumed risk-free interest rate shall correspond to the U.S. Treasury rate for a period equal to the remaining term of the Warrant. “Per Share Consideration” means (i) if the consideration paid to holders of the Ordinary Shares consists exclusively of cash, the amount of such cash per Ordinary Share, and (ii) in all other cases, the volume weighted average price of the Ordinary Shares during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event. If any reclassification or reorganization also results in a change in Ordinary Shares covered by subsection 4.1.1, then such adjustment shall be made pursuant to subsection 4.1.1 or Sections 4.2, 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers. In no event shall the Warrant Price be reduced to less than the par value per share issuable upon exercise of such Warrant.
4.6. Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant, the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, the Company shall give written notice of the occurrence of such event to each holder of a Warrant, at the last address set forth for such holder in the Warrant Register, of the record date or the effective date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.7. No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares upon the exercise of Warrants. If, by reason of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant, to receive a fractional interest in a share, the Company shall, upon such exercise, round down to the nearest whole number the number of Ordinary Shares to be issued to such holder.
4.8 Form of Warrant. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued pursuant to this Agreement; provided, however, that the Company may at any time in its sole discretion make any change in the form of Warrant that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned, whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
5. Transfer and Exchange of Warrants.
5.1. Registration of Transfer. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants shall be issued and the old Warrant shall be cancelled by the Warrant Agent. In the case of certificated Warrants, the Warrants so cancelled shall be delivered by the Warrant Agent to the Company from time to time upon request.
5.2. Procedure for Surrender of Warrants. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the Registered Holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that except as otherwise provided herein or with respect to any Book-Entry Warrant, each Book-Entry Warrant may be transferred only in whole and only to the Depositary, to another nominee of the Depositary, to a successor depository, or to a nominee of a successor depository; provided further, however that in the event that a Warrant surrendered for transfer bears a restrictive legend (as in the case of the Private Placement Warrants), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3. Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange which shall result in the issuance of a warrant certificate or book-entry position for a fraction of a warrant, except as part of the Units.
5.4. Service Charges. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5. Warrant Execution and Countersignature. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever required by the Warrant Agent, shall supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6. Transfer of Warrants. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.6 shall have no effect on any transfer of Warrants on and after the Detachment Date.
6. Redemption.
6.1. Redemption of Warrants for Cash. Subject to Section 6.5 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.3 below, at a Redemption Price of $0.01 per Warrant, provided that (a) the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof) and (b) there is an effective registration statement covering the issuance of the Ordinary Shares issuable upon exercise of the Warrants, and a current prospectus relating thereto, available throughout the 30-day Redemption Period (as defined in Section 6.3 below).
6.2. Redemption of Warrants for Ordinary Shares. Subject to Section 6.5 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time during the Exercise Period, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.3 below, at a Redemption Price of $0.10 per Warrant, provided that (i) the Reference Value equals or exceeds $10.00 per share (subject to adjustment in compliance with Section 4 hereof) and (ii) if the Reference Value is less than $18.00 per share (subject to adjustment in compliance with Section 4 hereof), the Private Placement Warrants are also concurrently called for redemption on the same terms as the outstanding Public Warrants. During the 30-day Redemption Period in connection with a redemption pursuant to this Section 6.2, Registered Holders of the Warrants may elect to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1 and receive a number of Ordinary Shares determined by reference to the table below, based on the Redemption Date (calculated for purposes of the table as the period to expiration of the Warrants) and the “Redemption Fair Market Value” (as such term is defined in this Section 6.2) (a “Make-Whole Exercise”). Solely for purposes of this Section 6.2, the “Redemption Fair Market Value” shall mean the volume weighted average price of the Ordinary Shares for the ten (10) trading days immediately following the date on which notice of redemption pursuant to this Section 6.2 is sent to the Registered Holders. In connection with any redemption pursuant to this Section 6.2, the Company shall provide the Registered Holders with the Redemption Fair Market Value no later than one (1) Business Day after the ten (10) trading day period described above ends.
Redemption Fair Market Value of Ordinary Shares (period to expiration of warrants) |
||||||||||||||||||||||||||||||||||||
Redemption Date |
£ 10.00 | 11.00 | 12.00 | 13.00 | 14.00 | 15.00 | 16.00 | 17.00 | ³ 18.00 | |||||||||||||||||||||||||||
60 months | 0.261 | 0.281 | 0.297 | 0.311 | 0.324 | 0.337 | 0.348 | 0.358 | 0.361 | |||||||||||||||||||||||||||
57 months | 0.257 | 0.277 | 0.294 | 0.310 | 0.324 | 0.337 | 0.348 | 0.358 | 0.361 | |||||||||||||||||||||||||||
54 months | 0.252 | 0.272 | 0.291 | 0.307 | 0.322 | 0.335 | 0.347 | 0.357 | 0.361 | |||||||||||||||||||||||||||
51 months | 0.246 | 0.268 | 0.287 | 0.304 | 0.320 | 0.333 | 0.346 | 0.357 | 0.361 | |||||||||||||||||||||||||||
48 months | 0.241 | 0.263 | 0.283 | 0.301 | 0.317 | 0.332 | 0.344 | 0.356 | 0.361 | |||||||||||||||||||||||||||
45 months | 0.235 | 0.258 | 0.279 | 0.298 | 0.315 | 0.330 | 0.343 | 0.356 | 0.361 | |||||||||||||||||||||||||||
42 months | 0.228 | 0.252 | 0.274 | 0.294 | 0.312 | 0.328 | 0.342 | 0.355 | 0.361 | |||||||||||||||||||||||||||
39 months | 0.221 | 0.246 | 0.269 | 0.290 | 0.309 | 0.325 | 0.340 | 0.354 | 0.361 | |||||||||||||||||||||||||||
36 months | 0.213 | 0.239 | 0.263 | 0.285 | 0.305 | 0.323 | 0.339 | 0.353 | 0.361 | |||||||||||||||||||||||||||
33 months | 0.205 | 0.232 | 0.257 | 0.280 | 0.301 | 0.320 | 0.337 | 0.352 | 0.361 | |||||||||||||||||||||||||||
30 months | 0.196 | 0.224 | 0.250 | 0.274 | 0.297 | 0.316 | 0.335 | 0.351 | 0.361 | |||||||||||||||||||||||||||
27 months | 0.185 | 0.214 | 0.242 | 0.268 | 0.291 | 0.313 | 0.332 | 0.350 | 0.361 | |||||||||||||||||||||||||||
24 months | 0.173 | 0.204 | 0.233 | 0.260 | 0.285 | 0.308 | 0.329 | 0.348 | 0.361 | |||||||||||||||||||||||||||
21 months | 0.161 | 0.193 | 0.223 | 0.252 | 0.279 | 0.304 | 0.326 | 0.347 | 0.361 | |||||||||||||||||||||||||||
18 months | 0.146 | 0.179 | 0.211 | 0.242 | 0.271 | 0.298 | 0.322 | 0.345 | 0.361 | |||||||||||||||||||||||||||
15 months | 0.130 | 0.164 | 0.197 | 0.230 | 0.262 | 0.291 | 0.317 | 0.342 | 0.361 | |||||||||||||||||||||||||||
12 months | 0.111 | 0.146 | 0.181 | 0.216 | 0.250 | 0.282 | 0.312 | 0.339 | 0.361 | |||||||||||||||||||||||||||
9 months | 0.090 | 0.125 | 0.162 | 0.199 | 0.237 | 0.272 | 0.305 | 0.336 | 0.361 | |||||||||||||||||||||||||||
6 months | 0.065 | 0.099 | 0.137 | 0.178 | 0.219 | 0.259 | 0.296 | 0.331 | 0.361 | |||||||||||||||||||||||||||
3 months | 0.034 | 0.065 | 0.104 | 0.150 | 0.197 | 0.243 | 0.286 | 0.326 | 0.361 | |||||||||||||||||||||||||||
0 months | — | — | 0.042 | 0.115 | 0.179 | 0.233 | 0.281 | 0.323 | 0.361 |
The exact Redemption Fair Market Value and Redemption Date may not be set forth in the table above, in which case, if the Redemption Fair Market Value is between two values in the table or the Redemption Date is between two redemption dates in the table, the number of Ordinary Shares to be issued for each Warrant exercised in a Make-Whole Exercise shall be determined by a straight-line interpolation between the number of shares set forth for the higher and lower Redemption Fair Market Values and the earlier and later redemption dates, as applicable, based on a 365- or 366-day year, as applicable.
The share prices set forth in the column headings of the table above shall be adjusted as of any date on which the number of shares issuable upon exercise of a Warrant or the Exercise Price is adjusted pursuant to Section 4 hereof. If the number of shares issuable upon exercise of a Warrant is adjusted pursuant to Section 4 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment, multiplied by a fraction, the numerator of which is the number of shares deliverable upon exercise of a Warrant immediately prior to such adjustment and the denominator of which is the number of shares deliverable upon exercise of a Warrant as so adjusted. The number of shares in the table above shall be adjusted in the same manner and at the same time as the number of shares issuable upon exercise of a Warrant. If the Exercise Price of a warrant is adjusted, (a) in the case of an adjustment pursuant to Section 4.4 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment multiplied by a fraction, the numerator of which is the higher of the Market Value and the Newly Issued Price and the denominator of which is $10.00 and (b) in the case of an adjustment pursuant to Section 4.1.2 hereof, the adjusted share prices in the column headings shall equal the share prices immediately prior to such adjustment less the decrease in the Exercise Price pursuant to such Exercise Price adjustment. In no event shall the number of shares issued in connection with a Make-Whole Exercise exceed 0.361 Ordinary Shares per Warrant (subject to adjustment)
6.3. Date Fixed for, and Notice of, Redemption; Redemption Price; Reference Value. In the event that the Company elects to redeem the Warrants pursuant to Sections 6.1 or 6.2, the Company shall fix a date for the redemption (the “Redemption Date”). Notice of redemption shall be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date (the “30-day Redemption Period”) to the Registered Holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the Registered Holder received such notice. As used in this Agreement, (a) “Redemption Price” shall mean the price per Warrant at which any Warrants are redeemed pursuant to Sections 6.1 or 6.2 and (b) “Reference Value” shall mean the last reported sales price of the Ordinary Shares for any twenty (20) trading days within the thirty (30) trading-day period ending on the third trading day prior to the date on which notice of the redemption is given.
6.4. Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 6.2 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.3 hereof and prior to the Redemption Date. On and after the Redemption Date, the record holder of the Warrants shall have no further rights except to receive, upon surrender of the Warrants, the Redemption Price.
6.5. Exclusion of Private Placement Warrants. The Company agrees that (a) the redemption rights provided in Section 6.1 hereof shall not apply to the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor or its Permitted Transferees and (b) if the Reference Value equals or exceeds $18.00 per share (subject to adjustment in compliance with Section 4 hereof), the redemption rights provided in Section 6.2 hereof shall not apply to the Private Placement Warrants if at the time of the redemption such Private Placement Warrants continue to be held by the Sponsor or its Permitted Transferees. However, once such Private Placement Warrants are transferred (other than to Permitted Transferees in accordance with Section 2.6 hereof), the Company may redeem the Private Placement Warrants pursuant to Section 6.1 or 6.2 hereof, provided that the criteria for redemption are met, including the opportunity of the holder of such Private Placement Warrants to exercise the Private Placement Warrants prior to redemption pursuant to Section 6.4 hereof. Private Placement Warrants that are transferred to persons other than Permitted Transferees shall upon such transfer cease to be Private Placement Warrants and shall become Public Warrants under this Agreement, including for purposes of Section 9.8 hereof.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1. No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of the meetings of shareholders or the election of directors of the Company or any other matter.
7.2. Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3. Reservation of Ordinary Shares. The Company shall at all times reserve and keep available a number of its authorized but unissued Ordinary Shares that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
7.4. Registration of Ordinary Shares; Cashless Exercise at Company’s Option.
7.4.1. Registration of the Ordinary Shares. The Company agrees that as soon as practicable, but in no event later than twenty (20) Business Days after the closing of its initial Business Combination, it shall use its commercially reasonable efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Warrants. The Company shall use its commercially reasonable efforts to cause the same to become effective within sixty (60) Business Days following the closing of its initial Business Combination and to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration or redemption of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been declared effective by the sixtieth (60th) Business Day following the closing of the Business Combination, holders of the Warrants shall have the right, during the period beginning on the sixty-first (61st) Business Day after the closing of the Business Combination and ending upon such registration statement being declared effective by the Commission, and during any other period when the Company shall fail to have maintained an effective registration statement covering the issuance of the Ordinary Shares issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act or another exemption) for that number of Ordinary Shares equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number of Ordinary Shares underlying the Warrants, multiplied by the excess of the “Fair Market Value” (as defined below) less the Warrant Price by (y) the Fair Market Value and (B) 0.361. Solely for purposes of this subsection 7.4.1, “Fair Market Value” shall mean the volume-weighted average price of the Ordinary Shares as reported during the ten (10) trading day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of “cashless exercise” is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a “cashless basis” in accordance with this subsection 7.4.1 is not required to be registered under the Securities Act and (ii) the Ordinary Shares issued upon such exercise shall be freely tradable under United States federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144 under the Securities Act) of the Company and, accordingly, shall not be required to bear a restrictive legend. Except as provided in subsection 7.4.2, for the avoidance of doubt, unless and until all of the Warrants have been exercised or have expired, the Company shall continue to be obligated to comply with its registration obligations under the first three sentences of this subsection 7.4.1.
7.4.2. Cashless Exercise at Company’s Option. If the Ordinary Shares are at the time of any exercise of a Public Warrant not listed on a national securities exchange such that they satisfy the definition of a “covered security” under Section 18(b)(1) of the Securities Act, the Company may, at its option, (i) require holders of Public Warrants who exercise Public Warrants to exercise such Public Warrants on a “cashless basis” in accordance with Section 3(a)(9) of the Securities Act as described in subsection 7.4.1 and (ii) in the event the Company so elects, the Company shall (x) not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the Ordinary Shares issuable upon exercise of the Public Warrants, notwithstanding anything in this Agreement to the contrary, and (y) use its commercially reasonable efforts to register or qualify for sale the Ordinary Shares issuable upon exercise of the Public Warrant under applicable blue sky laws to the extent an exemption is not available.
8. Concerning the Warrant Agent and Other Matters.
8.1. Payment of Taxes. The Company shall from time to time promptly pay all taxes and charges that may be imposed upon the Company or the Warrant Agent in respect of the issuance or delivery of Ordinary Shares upon the exercise of the Warrants, but the Company shall not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
8.2. Resignation, Consolidation, or Merger of Warrant Agent.
8.2.1. Appointment of Successor Warrant Agent. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder of a Warrant (who shall, with such notice, submit his, her or its Warrant for inspection by the Company), then the holder of any Warrant may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation or other entity organized and existing under the laws of the State of New York, in good standing and having its principal office in the United States of America, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2. Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Ordinary Shares not later than the effective date of any such appointment.
8.2.3. Merger or Consolidation of Warrant Agent. Any entity into which the Warrant Agent may be merged or with which it may be consolidated or any entity resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3. Fees and Expenses of Warrant Agent.
8.3.1. Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and shall, pursuant to its obligations under this Agreement, reimburse the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2. Further Assurances. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged, and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for the carrying out or performing of the provisions of this Agreement.
8.4. Liability of Warrant Agent.
8.4.1. Reliance on Company Statement. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder, such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively proved and established by a statement signed by any Co-Chief Executive Officer, the President, the Chief Financial Officer, Chief Operating Officer, the General Counsel, the Secretary or the Chairman of the Board of the Company and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith by it pursuant to the provisions of this Agreement.
8.4.2. Indemnity. The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct, fraud or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, out-of-pocket costs and reasonable outside counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement, except as a result of the Warrant Agent’s gross negligence, willful misconduct, fraud or bad faith.
8.4.3. Exclusions. The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or execution of any Warrant (except its countersignature thereof). The Warrant Agent shall not be responsible for any breach by the Company of any covenant or condition contained in this Agreement or in any Warrant. The Warrant Agent shall not be responsible to make any adjustments required under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation or warranty as to the authorization or reservation of any Ordinary Shares to be issued pursuant to this Agreement or any Warrant or as to whether any Ordinary Shares shall, when issued, be valid and fully paid and nonassessable.
8.5. Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of Ordinary Shares through the exercise of the Warrants.
8.6. Waiver. The Warrant Agent has no right of set-off or any other right, title, interest or claim of any kind (“Claim”) in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of the date hereof, by and between the Company and Continental Stock Transfer & Trust Company as trustee thereunder) and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Warrant Agent hereby waives any and all Claims against the Trust Account and any and all rights to seek access to the Trust Account.
9. Miscellaneous Provisions.
9.1. Successors. All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure to the benefit of their respective successors and assigns.
9.2. Notices. Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Company with the Warrant Agent), as follows:
Acies Acquisition Corp. | ||
1219 Morningside Drive, Suite 110 | ||
Manhattan Beach, CA 90266 | ||
Attention: | Daniel Fetters | |
Edward King |
with a copy to: | ||
Ellenoff Grossman & Schole LLP | ||
1345 Avenue of the Americas | ||
New York, New York 10105 | ||
Attention: | Benjamin Reichel |
Any notice, statement or demand authorized by this Agreement to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as follows:
Continental Stock Transfer & Trust Company | |
One State Street, 30th Floor | |
New York, NY 10004 | |
Attention: Compliance Department |
9.3. Applicable Law and Exclusive Forum. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects by the laws of the State of New York. Subject to applicable law, the Company hereby agrees that any action, proceeding or claim against it arising out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall be exclusive forum for any such action, proceeding or claim. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient forum. Notwithstanding the foregoing, the provisions of this paragraph will not apply to suits brought to enforce any liability or duty created by the Exchange Act or any other claim for which the federal district courts of the United States of America are the sole and exclusive forum.
Any person or entity purchasing or otherwise acquiring any interest in the Warrants shall be deemed to have notice of and to have consented to the forum provisions in this Section 9.3. If any action, the subject matter of which is within the scope the forum provisions above, is filed in a court other than a court located within the State of New York or the United States District Court for the Southern District of New York (a “foreign action”) in the name of any warrant holder, such warrant holder shall be deemed to have consented to: (x) the personal jurisdiction of the state and federal courts located within the State of New York or the United States District Court for the Southern District of New York in connection with any action brought in any such court to enforce the forum provisions (an “enforcement action”), and (y) having service of process made upon such warrant holder in any such enforcement action by service upon such warrant holder’s counsel in the foreign action as agent for such warrant holder.
9.4. Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person, corporation or other entity other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
9.5. Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the United States of America, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.
9.6. Counterparts. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7. Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8. Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder for the purpose of (i) curing any ambiguity or to correct any mistake, including to conform the provisions hereof to the description of the terms of the Warrants and this Agreement set forth in the Prospectus, or defective provision contained herein, (ii) amending the definition of “Ordinary Cash Dividend” as contemplated by and in accordance with the second sentence of subsection 4.1.2 or (iii) adding or changing any provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the rights of the Registered Holders under this Agreement. All other modifications or amendments, including any modification or amendment to increase the Warrant Price or shorten the Exercise Period and any amendment to the terms of only the Private Placement Warrants, shall require the vote or written consent of the Registered Holders of 65% of the then-outstanding Public Warrants and, solely with respect to any amendment to the terms of the Private Placement Warrants or any provision of this Agreement with respect to the Private Placement Warrants, 65% of the then-outstanding Private Placement Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the Registered Holders.
9.9. Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
ACIES ACQUISITION CORP. | |||
By: | /s/ Edward King | ||
Name: Edward King | |||
Title: Co-Chief Executive Officer | |||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, | |||
as Warrant Agent | |||
By: | /s/ Stacy Aqui | ||
Name: Stacy Aqui | |||
Title: Vice President |
[Signature Page to Warrant Agreement]
EXHIBIT A
SPECIMEN UNIT CERTIFICATE
NUMBER UNITS U-
Acies Acquisition Corp.
SEE REVERSE FOR
CERTAIN
DEFINITIONS
CUSIP G0103T 121
UNITS CONSISTING OF ONE CLASS A ORDINARY SHARE AND ONE-THIRD OF ONE REDEEMABLE
WARRANT, EACH WHOLE WARRANT ENTITLING THE HOLDER TO PURCHASE ONE CLASS A ORDINARY SHARE
THIS CERTIFIES THAT is the owner of Units.
Each Unit (“Unit”) consists of one (1) Class A ordinary share, par value $0.0001 per share (“Ordinary Shares”), of Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”), and one-third (1/3) of one redeemable warrant (each whole warrant, a “Warrant”). Each Warrant entitles the holder to purchase one (1) Ordinary Share for $11.50 per share (subject to adjustment). Each Warrant will become exercisable on the later of (i) thirty (30) days after the Company’s completion of a merger, share exchange, asset acquisition, share purchase, reorganization or other similar business combination with one or more businesses (each, a “Business Combination”), and (ii) one year from the closing of the Company’s initial public offering, and will expire unless exercised before 5:00 p.m., New York City Time, on the date that is five (5) years after the date on which the Company completes its initial Business Combination, or earlier upon redemption or liquidation (the “Expiration Date”). The Ordinary Shares and Warrants comprising the Units represented by this certificate are not transferable separately prior to , 2020, unless J.P. Morgan Securities LLC, Morgan Stanley & Co. LLC and Oppenheimer & Co. Inc. elect to allow earlier separate trading, subject to the Company’s filing with the Securities and Exchange Commission of a Current Report on Form 8-K containing an audited balance sheet reflecting the Company’s receipt of the gross proceeds of the initial public offering and issuing a press release announcing when separate trading will begin. No fractional warrants will be issued upon separation of the Units and only whole warrants are exercisable. The terms of the Warrants are governed by a Warrant Agreement, dated as of , 2020, between the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained therein, all of which terms and provisions the holder of this certificate consents to by acceptance hereof. Copies of the Warrant Agreement are on file at the office of the Warrant Agent at 1 State Street, 30th Floor, New York, New York 10004, and are available to any Warrant holder on written request and without cost.
Upon the consummation of the Business Combination, the Units represented by this certificate will automatically separate into the Class A Ordinary Shares and Warrants comprising such Units.
This certificate is not valid unless countersigned by the Transfer Agent and Registrar of the Company.
This certificate shall be governed by and construed in accordance with the internal laws of the State of New York.
Witness the facsimile signatures of its duly authorized officers.
By | |||||||
Co-Chief Executive Officer | Co-Chief Executive Officer |
Acies Acquisition Corp.
The Company will furnish without charge to each unitholder who so requests, a statement of the powers, designations, preferences and relative, participating, optional or other special rights of each class of shares or series thereof of the Company and the qualifications, limitations or restrictions of such preferences and/or rights.
The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations:
TEN COM | — | as tenants in common | UNIF GIFT MIN ACT | — | Custodian | |||||||||
|
| |||||||||||||
(Cust) | (Minor) | |||||||||||||
TEN ENT | — | as tenants by the entireties | under Uniform Gifts to Minors Act | |||||||||||
| ||||||||||||||
(State) | ||||||||||||||
JT TEN | — | as joint tenants with right of survivorship and not as tenants in common |
Additional abbreviations may also be used though not in the above list.
For value received, hereby sells, assigns and transfers unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
Units represented by the within Certificate, and do hereby irrevocably constitute and appoint Attorney to transfer the said Units on the books of the within named Company with full power of substitution in the premises.
Dated | ||||
| ||||
Notice: The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever. | ||||
Signature(s) Guaranteed: | ||||
|
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 OR ANY SUCCESSOR RULES). |
In each case, as more fully described in the Company’s final prospectus dated , 2020, the holder(s) of this certificate shall be entitled to receive a pro-rata portion of certain funds held in the trust account established in connection with the Company’s initial public offering only in the event that (i) the Company redeems the Ordinary Shares sold in its initial public offering and liquidates because it does not consummate an initial business combination within the period of time set forth in the Company’s amended and restated memorandum and articles of association, as the same may be amended from time to time, (ii) the Company redeems the Ordinary Shares sold in its initial public offering in connection with a shareholder vote to amend the Company’s amended and restated memorandum and articles of association (A) that would modify the substance or timing of the Company’s obligation to provide holders of the Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial business combination or to redeem 100% of the Ordinary Shares if the Company does not complete its initial business combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Ordinary Shares, or (iii) if the holder(s) seek(s) to redeem for cash his, her or its respective Ordinary Shares in connection with a tender offer (or proxy solicitation, solely in the event the Company seeks shareholder approval of the proposed initial business combination) setting forth the details of a proposed initial business combination. In no other circumstances shall the holder(s) have any right or interest of any kind in or to the trust account.
EXHIBIT B
LEGEND
THE SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION, SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE LETTER AGREEMENT BY AND AMONG ACIES ACQUISITION CORP. (THE “COMPANY”), ACIES ACQUISITION LLC AND THE OTHER PARTIES THERETO, THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED PRIOR TO THE DATE THAT IS THIRTY (30) DAYS AFTER THE DATE UPON WHICH THE COMPANY COMPLETES ITS INITIAL BUSINESS COMBINATION (AS DEFINED IN SECTION 3 OF THE WARRANT AGREEMENT REFERRED TO HEREIN) EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 2 OF THE WARRANT AGREEMENT) WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.
SECURITIES EVIDENCED BY THIS CERTIFICATE AND CLASS A ORDINARY SHARES OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.
Exhibit B
Exhibit 10.5
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Investment Management Trust Agreement (this “Agreement”) is made effective as of October 22, 2020 by and between Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”).
WHEREAS, the Company’s registration statement on Form S-1, File No. 333-249297 (the “Registration Statement”) and prospectus (the “Prospectus”) for the initial public offering of the Company’s units (the “Units”), each of which consists of one of the Company’s Class A ordinary shares, par value $0.0001 per share (the “Ordinary Shares”), and one-third of one redeemable warrant, each whole warrant entitling the holder thereof to purchase one Ordinary Share (such initial public offering hereinafter referred to as the “Offering”), has been declared effective as of the date hereof by the U.S. Securities and Exchange Commission; and
WHEREAS, the Company has entered into an Underwriting Agreement (the “Underwriting Agreement”) with Morgan Stanley & Co. LLC, J.P. Morgan Securities LLC and Oppenheimer & Co. Inc., as representatives (the “Representatives”) to the several underwriters (the “Underwriters”) named therein; and
WHEREAS, as described in the Prospectus, $200,000,000 of the gross proceeds of the Offering and sale of the Private Placement Warrants (as defined in the Underwriting Agreement) (or $230,000,000 if the Underwriters’ option to purchase additional units is exercised in full) will be delivered to the Trustee to be deposited and held in a segregated trust account located at all times in the United States (the “Trust Account”) for the benefit of the Company and the holders of the Ordinary Shares included in the Units issued in the Offering as hereinafter provided (the amount to be delivered to the Trustee (and any interest subsequently earned thereon) is referred to herein as the “Property,” the shareholders for whose benefit the Trustee shall hold the Property will be referred to as the “Public Shareholders,” and the Public Shareholders and the Company will be referred to together as the “Beneficiaries”); and
WHEREAS, pursuant to the Underwriting Agreement, a portion of the Property equal to $7,000,000, or $8,050,000 if the Underwriters’ option to purchase additional units is exercised in full, is attributable to deferred underwriting discounts and commissions that will be payable by the Company to the Underwriters upon the consummation of the Business Combination (as defined below) (the “Deferred Discount”); and
WHEREAS, the Company and the Trustee desire to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property.
NOW THEREFORE, IT IS AGREED:
1. Agreements and Covenants of Trustee. The Trustee hereby agrees and covenants to:
(a) Hold the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in the Trust Account established by the Trustee in the United States, maintained by Trustee and at a brokerage institution selected by the Trustee that is reasonably satisfactory to the Company;
(b) Manage, supervise and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In a timely manner, upon the written instruction of the Company, invest and reinvest the Property in United States government securities within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended (or any successor rule), which invest only in direct U.S. government treasury obligations, as determined by the Company; the Trustee may not invest in any other securities or assets, it being understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s instructions hereunder and the Trustee may earn bank credits or other consideration;
(d) Collect and receive, when due, all principal, interest or other income arising from the Property, which shall become part of the “Property,” as such term is used herein;
(e) Promptly notify the Company and the Representative of all communications received by the Trustee with respect to any Property requiring action by the Company;
(f) Supply any necessary information or documents as may be requested by the Company (or its authorized agents) in connection with the Company’s preparation of the tax returns relating to assets held in the Trust Account;
(g) Participate in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as and when instructed by the Company to do so;
(h) Render to the Company monthly written statements of the activities of, and amounts in, the Trust Account reflecting all receipts and disbursements of the Trust Account;
(i) Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by a Co-Chief Executive Officer, Chief Financial Officer or other authorized officer of the Company, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to us to pay our income taxes (less up to $100,000 of interest to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is the later of (1) 24 months after the closing of the Offering, or 27 months from the closing of the Offering if a letter of intent, agreement in principle or definitive agreement for an initial business combination is executed within 24 months from the closing of the Offering; and (2) such later date as may be approved by the Company’s shareholders in accordance with the Company’s amended and restated memorandum and articles of association, if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its income taxes (less up to $100,000 of interest to pay dissolution expenses), shall be distributed to the Public Shareholders of record as of such date. It is acknowledged and agreed that there should be no reduction in the principal amount per share initially deposited in the Trust Account;
(j) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit C (a “Tax Payment Withdrawal Instruction”), withdraw from the Trust Account and distribute to the Company the amount of interest earned on the Property requested by the Company to cover any tax obligation owed by the Company as a result of assets of the Company or interest or other income earned on the Property, which amount shall be delivered directly to the Company by electronic funds transfer or other method of prompt payment, and the Company shall forward such payment to the relevant taxing authority, so long as there is no reduction in the principal amount initially deposited in the Trust Account; provided, however, that to the extent there is not sufficient cash in the Trust Account to pay such tax obligation, the Trustee shall liquidate such assets held in the Trust Account as shall be designated by the Company in writing to make such distribution (it being acknowledged and agreed that any such amount in excess of interest income earned on the Property shall not be payable from the Trust Account). The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to said funds, and the Trustee shall have no responsibility to look beyond said request;
(k) Upon written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto as Exhibit D (a “Shareholder Redemption Withdrawal Instruction”), the Trustee shall distribute to the remitting brokers on behalf of Public Shareholders redeeming Ordinary Shares the amount required to pay redeemed Ordinary Shares from Public Shareholders pursuant to the Company’s amended and restated memorandum and articles of association. The written request of the Company referenced above shall constitute presumptive evidence that the Company is entitled to distribute said funds, and the Trustee shall have no responsibility to look beyond said request; and
(l) Not make any withdrawals or distributions from the Trust Account other than pursuant to Section 1(i), (j) or (k) above.
2. Agreements and Covenants of the Company. The Company hereby agrees and covenants to:
(a) Give all instructions to the Trustee hereunder in writing, signed by the Company’s Co-Chief Executive Officer, Chief Financial Officer or other authorized officer of the Company. In addition, except with respect to its duties under Sections 1(i), (j) or (k) hereof, the Trustee shall be entitled to rely on, and shall be protected in relying on, any verbal or telephonic advice or instruction which it, in good faith and with reasonable care, believes to be given by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such instructions in writing;
(b) Subject to Section 4 hereof, hold the Trustee harmless and indemnify the Trustee from and against any and all expenses, including reasonable counsel fees and disbursements, or losses suffered by the Trustee in connection with any action taken by it hereunder and in connection with any action, suit or other proceeding brought against the Trustee involving any claim, or in connection with any claim or demand, which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the Property or any interest earned on the Property, except for expenses and losses resulting from the Trustee’s gross negligence, fraud or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement of any action, suit or proceeding, pursuant to which the Trustee intends to seek indemnification under this Section 2(b), it shall notify the Company in writing of such claim (hereinafter referred to as the “Indemnified Claim”). The Trustee shall have the right to conduct and manage the defense against such Indemnified Claim; provided that the Trustee shall obtain the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee may not agree to settle any Indemnified Claim without the prior written consent of the Company, which such consent shall not be unreasonably withheld. The Company may participate in such action with its own counsel;
(c) Pay the Trustee the fees set forth on Schedule A hereto, including an initial acceptance fee, annual administration fee, and transaction processing fee which fees shall be subject to modification by the parties from time to time. It is expressly understood that the Property shall not be used to pay such fees unless and until it is distributed to the Company pursuant to Sections 1(i) through 1(k) hereof. The Company shall pay the Trustee the initial acceptance fee and the first annual administration fee at the consummation of the Offering. The Trustee shall refund to the Company the annual administration fee (on a pro rata basis) with respect to any period after the liquidation of the Trust Account. The Company shall not be responsible for any other fees or charges of the Trustee except as set forth in this Section 2(c) and as may be provided in Section 2(b) hereof;
(d) In connection with any vote of the Company’s shareholders regarding a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination involving the Company and one or more businesses (the “Business Combination”), provide to the Trustee an affidavit or certificate of the inspector of elections for the shareholder meeting verifying the vote of such shareholders regarding such Business Combination;
(e) Provide the Representative with a copy of any Termination Letter(s) and/or any other correspondence that is sent to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after it issues the same;
(f) Unless otherwise agreed between the Company and the Representative, ensure that any Instruction Letter (as defined in Exhibit A) delivered in connection with a Termination Letter in the form of Exhibit A expressly provides that the Deferred Discount is paid directly to the account or accounts directed by the Representative on behalf of the Underwriters prior to any transfer of the funds held in the Trust Account to the Company or any other person;
(g) Instruct the Trustee to make only those distributions that are permitted under this Agreement, and refrain from instructing the Trustee to make any distributions that are not permitted under this Agreement;
(h) If the Company seeks to amend any provisions of its amended and restated memorandum and articles of association (A) to modify the substance or timing of the Company’s obligation to provide holders of the Ordinary Shares the right to have their shares redeemed in connection with the Company’s initial Business Combination or to redeem 100% of the Ordinary Shares if the Company does not complete its initial Business Combination within the time period set forth therein or (B) with respect to any other provision relating to the rights of holders of the Ordinary Shares (in each case, an “Amendment”), the Company will provide the Trustee with a letter (an “Amendment Notification Letter”) in the form of Exhibit D providing instructions for the distribution of funds to Public Shareholders who exercise their redemption option in connection with such Amendment; and
(i) Within five (5) business days after the Underwriters exercise their option to purchase additional units (or any unexercised portion thereof) or such option to purchase additional units expires, provide the Trustee with a notice in writing of the total amount of the Deferred Discount.
3. Limitations of Liability. The Trustee shall have no responsibility or liability to:
(a) Imply obligations, perform duties, inquire or otherwise be subject to the provisions of any agreement or document other than this Agreement and that which is expressly set forth herein;
(b) Take any action with respect to the Property, other than as directed in Section 1 hereof, and the Trustee shall have no liability to any third party except for liability arising out of the Trustee’s gross negligence, fraud or willful misconduct;
(c) Institute any proceeding for the collection of any principal and income arising from, or institute, appear in or defend any proceeding of any kind with respect to, any of the Property unless and until it shall have received written instructions from the Company given as provided herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(d) Change the investment of any Property, other than in compliance with Section 1 hereof;
(e) Refund any depreciation in principal of any Property;
(f) Assume that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(g) The other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted, in good faith and in the Trustee’s best judgment, except for the Trustee’s gross negligence, fraud or willful misconduct. The Trustee may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion or advice of counsel (including counsel chosen by the Trustee, which counsel may be the Company’s counsel), statement, instrument, report or other paper or document (not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained) which the Trustee believes, in good faith and with reasonable care, to be genuine and to be signed or presented by the proper person or persons. The Trustee shall not be bound by any notice or demand, or any waiver, modification, termination or rescission of this Agreement or any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee, signed by the proper party or parties and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(h) Verify the accuracy of the information contained in the Registration Statement;
(i) Provide any assurance that any Business Combination entered into by the Company or any other action taken by the Company is as contemplated by the Registration Statement;
(j) File information returns with respect to the Trust Account with any local, state or federal taxing authority or provide periodic written statements to the Company documenting the taxes payable by the Company, if any, relating to any interest income earned on the Property;
(k) Prepare, execute and file tax reports, income or other tax returns and pay any taxes with respect to any income generated by, and activities relating to, the Trust Account, regardless of whether such tax is payable by the Trust Account or the Company, including, but not limited to, income tax obligations, except pursuant to Section 1(j) hereof; or
(l) Verify calculations, qualify or otherwise approve the Company’s written requests for distributions pursuant to Sections 1(i), 1(j) or 1(k) hereof.
4. Trust Account Waiver. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“Claim”) to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including, without limitation, under Section 2(b) or Section 2(c) hereof, the Trustee shall pursue such Claim solely against the Company and its assets outside the Trust Account and not against the Property or any monies in the Trust Account.
5. Termination. This Agreement shall terminate as follows:
(a) If the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable efforts to locate a successor trustee, pending which the Trustee shall continue to act in accordance with this Agreement. At such time that the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement shall terminate; provided, however, that in the event that the Company does not locate a successor trustee within ninety (90) days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited with any court in the State of New York or with the United States District Court for the Southern District of New York and upon such deposit, the Trustee shall be immune from any liability whatsoever; or
(b) At such time that the Trustee has completed the liquidation of the Trust Account and its obligations in accordance with the provisions of Section 1(i) hereof and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate except with respect to Section 2(b).
6. Miscellaneous.
(a) The Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe unauthorized persons may have obtained access to such confidential information, or of any change in its authorized personnel. In executing funds transfers, the Trustee shall rely upon all information supplied to it by the Company, including, account names, account numbers, and all other identifying information relating to a Beneficiary, Beneficiary’s bank or intermediary bank. Except for any liability arising out of the Trustee’s gross negligence, fraud or willful misconduct, the Trustee shall not be liable for any loss, liability or expense resulting from any error in the information or transmission of the funds.
(b) This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. This Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument.
(c) This Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except for Section 1(i), 1(j) and 1(k) hereof (which sections may not be modified, amended or deleted without the affirmative vote of at least sixty-five percent (65%) of the then voted Ordinary Shares and Class B ordinary shares, par value $0.0001 per share, of the Company, voting together as a single class; provided that no such amendment will affect any Public Shareholder who has properly elected to redeem his or her Ordinary Shares in connection with a shareholder vote to amend this Agreement to modify the substance or timing of the Company’s obligation to provide for the redemption of the Ordinary Shares in connection with an initial Business Combination or an Amendment or to redeem 100% of its Ordinary Shares if the Company does not complete its initial Business Combination within the time frame specified in the Company’s amended and restated memorandum and articles of association), this Agreement or any provision hereof may only be changed, amended or modified (other than to correct a typographical error) by a writing signed by each of the parties hereto.
(d) The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, State of New York, for purposes of resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
(e) Any notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery or by electronic mail:
if to the Trustee, to:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: | Francis E. Wolf, Jr. & Celeste Gonzalez |
Email: | fwolf@continentalstock.com | |
cgonzalez@continentalstock.com |
if to the Company, to:
Acies Acquisition Corp.
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
Attn: | Daniel Fetters | |
Edward King |
Email: | dan.fetters@aciesacq.com | |
edward.king@aciesacq.com |
in each case, with copies to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
Attn: | Benjamin Reichel |
E-mail: | breichel@egsllp.com |
and
Morgan Stanley & Co. LLC
1585 Broadway, 36th Floor
New York, NY 10036
Attn: | Jon Sierant |
E-mail: | jon.sierant@morganstanley.com |
and
J.P. Morgan Securities LLC
383 Madison Avenue
New York, New York 10179
Attn: | Eddy Allegaert |
E-mail: | eddy.allegaert@jpmorgan.com |
and
Oppenheimer & Co. Inc.
85 Broad Street
New York, New York 10004
Attn: | Lewis Silberman |
E-mail: | lewis.silberman@opco.com |
and
Skadden, Arps, Slate, Meagher & Flom LLP
One Manhattan West
New York, New York 10001
Attn: | David J. Goldschmidt |
E-mail: | david.goldschmidt@skadden.com |
(f) Each of the Company and the Trustee hereby represents that it has the full right and power and has been duly authorized to enter into this Agreement and to perform its respective obligations as contemplated hereunder. The Trustee acknowledges and agrees that it shall not make any claims or proceed against the Trust Account, including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.
(g) This Agreement is the joint product of the Trustee and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto.
(h) This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile or electronic transmission shall constitute valid and sufficient delivery thereof.
(i) Each of the Company and the Trustee hereby acknowledges and agrees that the Representative on behalf of the Underwriters is a third-party beneficiary of this Agreement.
(j) Except as specified herein, no party to this Agreement may assign its rights or delegate its obligations hereunder to any other person or entity.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have duly executed this Investment Management Trust Agreement as of the date first written above.
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, | ||||
as Trustee | ||||
By: | /s/ Francis Wolf | |||
Name: | Francis Wolf | |||
Title: | Vice President | |||
ACIES ACQUISITION CORP. | ||||
By: | /s/ Daniel Fetters | |||
Name: | Daniel Fetters | |||
Title: | Co-Chief Executive Officer |
SCHEDULE A
Fee Item |
Time and method of payment | Amount | ||
Initial acceptance fee | Initial closing of IPO by wire transfer | $3,500 | ||
Annual fee
|
First year, initial closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer or check | $10,000 | ||
Transaction processing fee for disbursements to Company under Sections 1(i),(j), and (k) | Billed by Trustee to Company under Section 1 | $250 | ||
Paying Agent services as required pursuant to Section 1(i) and 1(k) |
Billed to Company upon delivery of service pursuant to Section 1(i) and 1(k) | Prevailing rates |
EXHIBIT A
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Francis Wolf & Celeste Gonzalez
Re: | Trust Account Termination Letter |
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Acies Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of [•], 2020 (the “Trust Agreement”), this is to advise you that the Company has entered into an agreement with (the “Target Business”) to consummate a business combination with Target Business (the “Business Combination”) on or about [insert date]. The Company shall notify you at least seventy-two (72) hours in advance of the actual date (or such shorter time period as you may agree) of the consummation of the Business Combination (the “Consummation Date”). Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to commence to liquidate all of the assets of the Trust Account, and to transfer the proceeds into the trust operating account at J.P. Morgan Chase Bank, N.A. to the effect that, on the Consummation Date, all of the funds held in the Trust Account will be immediately available for transfer to the account or accounts that the Representative (with respect to the Deferred Discount) and the Company shall direct on the Consummation Date. It is acknowledged and agreed that while the funds are on deposit in said trust operating account at J.P. Morgan Chase Bank, N.A. awaiting distribution, neither the Company nor the Representative will earn any interest or dividends.
On the Consummation Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated, or will be consummated substantially concurrently with your transfer of funds to the accounts as directed by the Company (the “Notification”), and (ii) the Company shall deliver to you (a) a certificate of a Co-Chief Executive Officer, the Chief Financial Officer or other authorized officer of the Company, which verifies that the Business Combination has been approved by a vote of the Company’s shareholders, if a vote is held and (b) joint written instruction signed by the Company and the Representative with respect to the transfer of the funds held in the Trust Account, including payment of the Deferred Discount from the Trust Account (the “Instruction Letter”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your receipt of the Notification and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify the Company in writing of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and be distributed after the Consummation Date to the Company. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated.
In the event that the Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on or before the original Consummation Date of a new Consummation Date, then upon receipt by the Trustee of written instructions from the Company, the funds held in the Trust Account shall be reinvested as provided in Section 1(c) of the Trust Agreement on the business day immediately following the Consummation Date as set forth in such notice as soon thereafter as possible.
Very truly yours, | ||||
Acies Acquisition Corp. | ||||
By: | ||||
Name: | Daniel Fetters | |||
Title: | Co-Chief Executive Officer |
By: | ||||
Name: | Edward King | |||
Title: | Co-Chief Executive Officer |
cc: | Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC |
EXHIBIT B
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Francis Wolf & Celeste Gonzalez
Re: | Trust Account Termination Letter |
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Acies Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of [•], 2020 (the “Trust Agreement”), this is to advise you that the Company has been unable to effect a business combination with a Target Business (the “Business Combination”) within the time frame specified in the Company’s Amended and Restated Memorandum and Articles of Association, as described in the Company’s Prospectus relating to the Offering. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all of the assets in the Trust Account and to transfer the total proceeds into the trust operating account at J.P. Morgan Chase Bank, N.A. to await distribution to the Public Shareholders. The Company has selected as the effective date for the purpose of determining when the Public Shareholders will be entitled to receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation proceeds while on deposit in the trust operating account. You agree to be the Paying Agent of record and, in your separate capacity as Paying Agent, agree to distribute said funds directly to the Company’s Public Shareholders in accordance with the terms of the Trust Agreement and the Amended and Restated Memorandum and Articles of Association of the Company. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated, except to the extent otherwise provided in Section 1(j) of the Trust Agreement.
Very truly yours, | ||||
Acies Acquisition Corp. | ||||
By: | ||||
Name: | ||||
Title: | Co-Chief Executive Officer |
cc: | Morgan Stanley & Co. LLC
J.P. Morgan Securities LLC |
EXHIBIT C
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Francis Wolf & Celeste Gonzalez
Re: | Trust Account Tax Payment Withdrawal Instruction |
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(j) of the Investment Management Trust Agreement between Acies Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of [•], 2020 (the “Trust Agreement”), the Company hereby requests that you deliver to the Company $ of the interest income earned on the Property as of the date hereof. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
The Company needs such funds to pay for the tax obligations as set forth on the attached tax return or tax statement. In accordance with the terms of the Trust Agreement, you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
Very truly yours, | ||||
Acies Acquisition Corp. | ||||
By: | ||||
Name: | ||||
Title: |
cc: | Morgan Stanley & Co. LLC J.P. Morgan Securities LLC Oppenheimer & Co. LLC |
EXHIBIT D
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Francis Wolf & Celeste Gonzalez
Re: | Trust Account Shareholder Redemption Withdrawal Instruction |
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(k) of the Investment Management Trust Agreement between Acies Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of [•], 2020 (the “Trust Agreement”), the Company hereby requests that you deliver to the Company’s shareholders $ of the principal and interest income earned on the Property as of the date hereof. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
Pursuant to Section 1(k) of the Trust Agreement, this is to advise you that the Company has sought an Amendment. Accordingly, in accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate a sufficient portion of the Trust Account and to transfer $[•] of the proceeds of the Trust Account to the trust operating account at J.P. Morgan Chase Bank, N.A. for distribution to the shareholders that have requested redemption of their shares in connection with such Amendment.
Very truly yours, | ||||
Acies Acquisition Corp. | ||||
By: | ||||
Name: | ||||
Title: | Co-Chief Executive Officer |
cc: | Morgan Stanley & Co. LLC J.P. Morgan Securities LLC Oppenheimer & Co. LLC |
Exhibit 10.8
Acies Acquisition Corp.
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
September 4, 2020
Acies Acquisition LLC
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
RE: Securities Subscription Agreement
Gentlemen:
This agreement (this “Agreement”) is entered into on September 4, 2020 by and between Acies Acquisition LLC, a Delaware limited liability company (the “Subscriber” or “you”), and Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”). Pursuant to the terms hereof, the Company hereby accepts the offer the Subscriber has made to subscribe for and purchase 8,625,000 Class B ordinary shares, $0.0001 par value per share (the “Shares”), up to 1,125,000 of which are subject to surrender and cancellation by you if the underwriters of the initial public offering (“IPO”) of units (“Units”) of the Company do not fully exercise their over-allotment option (the “Over-allotment Option”). The Company and the Subscriber’s agreements regarding such Shares are as follows:
1. | Purchase of Securities. |
1.1. | Subscription and Purchase of Shares. For the sum of $25,000 (the “Purchase Price”), which the Company acknowledges receiving in cash, the Company hereby issues the Shares to the Subscriber, and the Subscriber hereby subscribes for and purchases the Shares from the Company, 1,125,000 of which are subject to surrender and cancellation, on the terms and subject to the conditions set forth in this Agreement. All references in this Agreement to shares of the Company being surrendered and canceled shall take effect as surrenders and cancellations for no consideration of such shares as a matter of Cayman Islands law. |
1.2. | Surrender of Subscriber Share. On the issuance of the Shares, the Subscriber hereby surrenders for no consideration the one Class B ordinary share, $0.0001 par value, that the Subscriber holds in the Company. |
2. | Representations, Warranties and Agreements. |
2.1. | Subscriber’s Representations, Warranties and Agreements. To induce the Company to issue the Shares to the Subscriber, the Subscriber hereby represents and warrants to the Company and agrees with the Company as follows: |
2.1.1. | No Government Recommendation or Approval. The Subscriber understands that no federal or state agency has passed upon or made any recommendation or endorsement of the offering of the Shares. |
2.1.2. | No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Subscriber of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the formation and governing documents of the Subscriber, (ii) any agreement, indenture or instrument to which the Subscriber is a party or (iii) any law, statute, rule or regulation to which the Subscriber is subject, or any agreement, order, judgment or decree to which the Subscriber is subject. |
2.1.3. | Organization. The Subscriber is a Delaware limited liability company, validly existing and in good standing under the laws of Delaware and possesses all requisite power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by you, this Agreement will be a legal, valid and binding agreement of Subscriber, enforceable against Subscriber in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). |
2.1.4. | Experience, Financial Capability and Suitability. Subscriber is: (i) sophisticated in financial matters and is able to evaluate the risks and benefits of the investment in the Shares and (ii) able to bear the economic risk of its investment in the Shares for an indefinite period of time because the Shares have not been registered under the Securities Act (as defined below) and therefore cannot be sold unless subsequently registered under the Securities Act or an exemption from such registration is available. Subscriber is capable of evaluating the merits and risks of its investment in the Company and has the capacity to protect its own interests. Subscriber must bear the economic risk of this investment until the Shares are sold pursuant to: (i) an effective registration statement under the Securities Act or (ii) an exemption from registration available with respect to such sale. Subscriber is able to bear the economic risks of an investment in the Shares and to afford a complete loss of Subscriber’s investment in the Shares. |
2.1.5. | Access to Information; Independent Investigation. Prior to the execution of this Agreement, the Subscriber has had the opportunity to ask questions of and receive answers from representatives of the Company concerning an investment in the Company, as well as the finances, operations, business and prospects of the Company, and the opportunity to obtain additional information to verify the accuracy of all information so obtained. In determining whether to make this investment, Subscriber has relied solely on Subscriber’s own knowledge and understanding of the Company and its business based upon Subscriber’s own due diligence investigation and the information furnished pursuant to this paragraph. Subscriber understands that no person has been authorized to give any information or to make any representations which were not furnished pursuant to this Section 2 and Subscriber has not relied on any other representations or information in making its investment decision, whether written or oral, relating to the Company, its operations and/or its prospects. |
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2.1.6. | Regulation D Offering. Subscriber represents that it is an “accredited investor” as such term is defined in Rule 501(a) of Regulation D under the Securities Act of 1933, as amended (the “Securities Act”) and acknowledges the sale contemplated hereby is being made in reliance on a private placement exemption to “accredited investors” within the meaning of Section 501(a) of Regulation D under the Securities Act or similar exemptions under federal and state law. |
2.1.7. | Investment Purposes. The Subscriber is purchasing the Shares solely for investment purposes, for the Subscriber’s own account and not for the account or benefit of any other person, and not with a view towards the distribution or dissemination thereof. The Subscriber did not decide to enter into this Agreement as a result of any general solicitation or general advertising within the meaning of Rule 502 of Regulation D under the Securities Act. |
2.1.8. | Restrictions on Transfer; Shell Company. Subscriber understands the Shares are being offered in a transaction not involving a public offering within the meaning of the Securities Act. |
Subscriber understands the Shares will be “restricted securities” within the meaning of Rule 144(a)(3) under the Securities Act, and Subscriber understands that the certificates or book entries representing the Shares will contain a legend in respect of such restrictions. If in the future the Subscriber decides to offer, resell, pledge or otherwise transfer the Shares, such Shares may be offered, resold, pledged or otherwise transferred only pursuant to: (i) registration under the Securities Act, or (ii) an available exemption from registration. Subscriber agrees that if any transfer of its Shares or any interest therein is proposed to be made, as a condition precedent to any such transfer, Subscriber may be required to deliver to the Company an opinion of counsel satisfactory to the Company. Absent registration or an exemption, the Subscriber agrees not to resell the Shares. Subscriber further acknowledges that because the Company is a shell company, Rule 144 may not be available to the Subscriber for the resale of the Shares until one year following consummation of the initial business combination of the Company, despite technical compliance with the requirements of Rule 144 and the release or waiver of any contractual transfer restrictions.
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2.1.9. | No Governmental Consents. No governmental, administrative or other third party consents or approvals are required or necessary on the part of Subscriber in connection with the transactions contemplated by this Agreement. |
2.2. | Company’s Representations, Warranties and Agreements. To induce the Subscriber to subscribe for and purchase the Shares, the Company hereby represents and warrants to the Subscriber and agrees with the Subscriber as follows: |
2.2.1. | Incorporation and Corporate Power. The Company is a Cayman Islands exempted company and is qualified to do business in every jurisdiction in which the failure to so qualify would reasonably be expected to have a material adverse effect on the financial condition, operating results or assets of the Company. The Company possesses all requisite corporate power and authority necessary to carry out the transactions contemplated by this Agreement. Upon execution and delivery by the Company, this Agreement will be a legal, valid and binding agreement of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by applicable bankruptcy, insolvency, fraudulent conveyance or similar laws affecting the enforcement of creditors’ rights generally and subject to general principles of equity (regardless of whether enforcement is sought in a proceeding at law or in equity). |
2.2.2. | No Conflicts. The execution, delivery and performance of this Agreement and the consummation by the Company of the transactions contemplated hereby do not violate, conflict with or constitute a default under (i) the memorandum and articles of association of the Company, (ii) any agreement, indenture or instrument to which the Company is a party or (iii) any law, statute, rule or regulation to which the Company is subject, or any agreement, order, judgment or decree to which the Company is subject. |
2.2.3. | Title to Securities. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the memorandum and articles of association of the Company, and registration in the Company’s register of members, the Shares will be duly and validly issued as fully paid and nonassessable. Upon issuance in accordance with, and payment pursuant to, the terms hereof and the memorandum and articles of association of the Company, and registration in the Company’s register of members, the Subscriber will have or receive good title to the Shares, free and clear of all liens, claims and encumbrances of any kind, other than (a) transfer restrictions hereunder and other agreements to which the Shares may be subject, (b) transfer restrictions under federal and state securities laws, and (c) liens, claims or encumbrances imposed due to the actions of the Subscriber. |
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2.2.4. | No Adverse Actions. There are no actions, suits, investigations or proceedings pending, threatened against or affecting the Company which: (i) seek to restrain, enjoin, prevent the consummation of or otherwise affect the transactions contemplated by this Agreement or (ii) question the validity or legality of any transactions or seeks to recover damages or to obtain other relief in connection with any transactions. |
3. | Surrender and Cancellation of Shares. |
3.1. | Partial or No Exercise of the Over-allotment Option. In the event the Over-allotment Option granted to the representative(s) of the underwriters of the Company’s IPO is not exercised in full, the Subscriber acknowledges and agrees that it shall surrender for cancellation any and all rights to such number of Shares (up to an aggregate of 1,125,000 Shares and pro rata based upon the percentage of the Over-allotment Option exercised) such that immediately following such surrender, the Subscriber (and all other initial shareholders prior to the IPO, if any) will own an aggregate number of Shares (not including ordinary shares issuable upon exercise of any warrants or any ordinary shares subscribed for and purchased by Subscriber in the Company’s IPO or in the aftermarket) equal to 20% of the issued and outstanding ordinary shares of the Company immediately following the IPO. |
3.2. | Termination of Rights as Shareholder. If any of the Shares are surrendered and cancelled in accordance with this Section 3, then after such time the Subscriber (or successor in interest), shall no longer have any rights as a holder of such Shares, and the Company shall take such action as is appropriate to cancel such Shares. |
4. | Waiver of Liquidation Distributions; Redemption Rights. In connection with the Shares subscribed for and purchased pursuant to this Agreement, the Subscriber hereby waives any and all right, title, interest or claim of any kind in or to any distributions by the Company from the trust account which will be established for the benefit of the Company’s public shareholders and into which substantially all of the proceeds of the IPO will be deposited (the “Trust Account”), in the event of a liquidation of the Company upon the Company’s failure to timely complete an initial business combination. For purposes of clarity, in the event the Subscriber purchases ordinary shares in the IPO or in the aftermarket, any additional Shares so purchased shall be eligible to receive any liquidating distributions by the Company. However, in no event will the Subscriber have the right to redeem any ordinary shares into funds held in the Trust Account upon the successful completion of an initial business combination. |
5. | Restrictions on Transfer. |
5.1. | Securities Law Restrictions. In addition to any restrictions to be contained in that certain letter agreement (commonly known as an “Insider Letter”) to be dated as of the closing of the IPO by and between Subscriber and the Company, Subscriber agrees not to sell, transfer, pledge, hypothecate or otherwise dispose of all or any part of the Shares unless, prior thereto (a) a registration statement on the appropriate form under the Securities Act and applicable state securities laws with respect to the Shares proposed to be transferred shall then be effective or (b) the Company has received an opinion from counsel reasonably satisfactory to the Company, that such registration is not required because such transaction is exempt from registration under the Securities Act and the rules promulgated by the Securities and Exchange Commission thereunder and with all applicable state securities laws. |
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5.2. | Lock-Up. Subscriber acknowledges that the Securities will be subject to lock-up provisions (the “Lock-Up”) contained in the Insider Letter. |
5.3. | Restrictive Legends. Any certificates representing the Shares shall have endorsed thereon legends substantially as follows: |
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS AND NEITHER THE SECURITIES NOR ANY INTEREST THEREIN MAY BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH ACT OR SUCH LAWS OR AN EXEMPTION FROM REGISTRATION UNDER SUCH ACT AND SUCH LAWS WHICH, IN THE OPINION OF COUNSEL, IS AVAILABLE.”
“THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO LOCKUP PROVISIONS AND MAY NOT BE OFFERED, SOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED DURING THE TERM OF THE LOCKUP.”
5.4. | Additional Shares or Substituted Securities. In the event of the declaration of a share capitalization, the declaration of an extraordinary dividend payable in a form other than Shares, a spin-off, a share sub-division, an adjustment in conversion ratio, a recapitalization or a similar transaction affecting the Company’s outstanding Shares without receipt of consideration, any new, substituted or additional securities or other property which are by reason of such transaction distributed with respect to any Shares subject to this Section 5 or into which such Shares thereby become convertible shall immediately be subject to this Section 5 and Section 3. Appropriate adjustments to reflect the distribution of such securities or property shall be made to the number and/or class of Shares subject to this Section 5 and Section 3. |
5.5. | Registration Rights. Subscriber acknowledges that the Shares are being subscribed for and purchased pursuant to an exemption from the registration requirements of the Securities Act and will become freely tradable only after certain conditions are met or they are registered pursuant to a Registration and Shareholder Rights Agreement to be entered into with the Company prior to the closing of the IPO. |
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6. | Other Agreements. |
6.1. | Further Assurances. Subscriber agrees to execute such further instruments and to take such further action as may reasonably be necessary to carry out the intent of this Agreement. |
6.2. | Notices. All notices, statements or other documents which are required or contemplated by this Agreement shall be: (i) in writing and delivered personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party and (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail. |
6.3. | Entire Agreement. This Agreement, together with the Insider Letter and the Registration and Shareholder Rights Agreement, substantially in the forms to be filed as an exhibit to the Registration Statement on Form S-1 associated with the Company’s IPO, embodies the entire agreement and understanding between the Subscriber and the Company with respect to the subject matter hereof and supersedes all prior oral or written agreements and understandings relating to the subject matter hereof. No statement, representation, warranty, covenant or agreement of any kind not expressly set forth in this Agreement shall affect, or be used to interpret, change or restrict, the express terms and provisions of this Agreement. |
6.4. | Modifications and Amendments. The terms and provisions of this Agreement may be modified or amended only by written agreement executed by all parties hereto. |
6.5. | Waivers and Consents. The terms and provisions of this Agreement may be waived, or consent for the departure therefrom granted, only by a written document executed by the party entitled to the benefits of such terms or provisions. No such waiver or consent shall be deemed to be or shall constitute a waiver or consent with respect to any other terms or provisions of this Agreement, whether or not similar. Each such waiver or consent shall be effective only in the specific instance and for the purpose for which it was given, and shall not constitute a continuing waiver or consent. |
6.6. | Assignment. The rights and obligations under this Agreement may not be assigned by either party hereto without the prior written consent of the other party. |
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6.7. | Benefit. All statements, representations, warranties, covenants and agreements in this Agreement shall be binding on the parties hereto and shall inure to the benefit of the respective successors and permitted assigns of each party hereto. Nothing in this Agreement shall be construed to create any rights or obligations except among the parties hereto, and no person or entity shall be regarded as a third-party beneficiary of this Agreement. |
6.8. | Governing Law. This Agreement and the rights and obligations of the parties hereunder shall be construed in accordance with and governed by the laws of New York applicable to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof. |
6.9. | Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Agreement shall nevertheless remain in full force and effect. |
6.10. | No Waiver of Rights, Powers and Remedies. No failure or delay by a party hereto in exercising any right, power or remedy under this Agreement, and no course of dealing between the parties hereto, shall operate as a waiver of any such right, power or remedy of such party. No single or partial exercise of any right, power or remedy under this Agreement by a party hereto, nor any abandonment or discontinuance of steps to enforce any such right, power or remedy, shall preclude such party from any other or further exercise thereof or the exercise of any other right, power or remedy hereunder. The election of any remedy by a party hereto shall not constitute a waiver of the right of such party to pursue other available remedies. No notice to or demand on a party not expressly required under this Agreement shall entitle the party receiving such notice or demand to any other or further notice or demand in similar or other circumstances or constitute a waiver of the rights of the party giving such notice or demand to any other or further action in any circumstances without such notice or demand. |
6.11. | Survival of Representations and Warranties. All representations and warranties made by the parties hereto in this Agreement or in any other agreement, certificate or instrument provided for or contemplated hereby, shall survive the execution and delivery hereof and any investigations made by or on behalf of the parties. |
6.12. | No Broker or Finder. Each of the parties hereto represents and warrants to the other that no broker, finder or other financial consultant has acted on its behalf in connection with this Agreement or the transactions contemplated hereby in such a way as to create any liability on the other. Each of the parties hereto agrees to indemnify and save the other harmless from any claim or demand for commission or other compensation by any broker, finder, financial consultant or similar agent claiming to have been employed by or on behalf of such party and to bear the cost of legal expenses incurred in defending against any such claim. |
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6.13. | Headings and Captions. The headings and captions of the various subdivisions of this Agreement are for convenience of reference only and shall in no way modify or affect the meaning or construction of any of the terms or provisions hereof. |
6.14. | Counterparts. This Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof. |
6.15. | Construction. The parties hereto have participated jointly in the negotiation and drafting of this Agreement. If an ambiguity or question of intent or interpretation arises, this Agreement will be construed as if drafted jointly by the parties hereto and no presumption or burden of proof will arise favoring or disfavoring any party hereto because of the authorship of any provision of this Agreement. The words “include,” “includes,” and “including” will be deemed to be followed by “without limitation.” Pronouns in masculine, feminine, and neuter genders will be construed to include any other gender, and words in the singular form will be construed to include the plural and vice versa, unless the context otherwise requires. The words “this Agreement,” “herein,” “hereof,” “hereby,” “hereunder,” and words of similar import refer to this Agreement as a whole and not to any particular subdivision unless expressly so limited. The parties hereto intend that each representation, warranty, and covenant contained herein will have independent significance. If any party hereto has breached any representation, warranty, or covenant contained herein in any respect, the fact that there exists another representation, warranty or covenant relating to the same subject matter (regardless of the relative levels of specificity) which such party hereto has not breached will not detract from or mitigate the fact that such party hereto is in breach of the first representation, warranty, or covenant. |
6.16. | Mutual Drafting. This Agreement is the joint product of the Subscriber and the Company and each provision hereof has been subject to the mutual consultation, negotiation and agreement of such parties and shall not be construed for or against any party hereto. |
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7. | Voting and Redemption of Shares. Subscriber agrees to vote the Shares in favor of an initial business combination that the Company negotiates and submits for approval to the Company’s shareholders and shall not seek redemption or repurchase with respect to such Shares. Additionally, the Subscriber agrees not to tender any Shares in connection with a tender offer presented to the Company’s shareholders in connection with an initial business combination negotiated by the Company. |
8. | Indemnification. Each party shall indemnify the other against any loss, cost or damages (including reasonable attorney’s fees and expenses) incurred as a result of such party’s breach of any representation, warranty, covenant or agreement in this Agreement. |
[Signature Page Follows]
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If the foregoing accurately sets forth our understanding and agreement, please sign the enclosed copy of this Agreement and return it to us.
Very truly yours, | |||
Acies Acquisition Corp. | |||
By: | /s/ Daniel C. Fetters | ||
Name: | Daniel C. Fetters | ||
Title: | Co-Chief Executive Officer |
Accepted and agreed as of the date first written above. |
Acies Acquisition LLC |
By: | /s/ Daniel C. Fetters | ||
Name: | Daniel C. Fetters | ||
Title: | Managing Member |
[Signature Page to Subscription Agreement]
Exhibit 10.9
INDEMNITY AGREEMENT
THIS INDEMNITY AGREEMENT (this “Agreement”) is made as of , 2020, by and between Acies Acquisition Corp., a Cayman Islands exempted company (the “Company”), and (“Indemnitee”).
WHEREAS, highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of such corporations;
WHEREAS, the Board of Directors of the Company (the “Board”) has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. The amended and restated memorandum and articles of association of the Company (the “Articles”) provide for the indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to applicable Cayman Islands law. The Articles provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the Board, officers and other persons with respect to indemnification, hold harmless, exoneration, advancement and reimbursement rights;
WHEREAS, the uncertainties relating to such insurance and to indemnification have increased the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company’s shareholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, hold harmless, exonerate and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so protected against liabilities;
WHEREAS, this Agreement is a supplement to and in furtherance of the Articles of the Company and any resolutions adopted pursuant thereto, and shall not be deemed a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee may not be willing to serve as an officer or director without adequate protection, and the Company desires Indemnitee to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that he or she be so indemnified.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein and subject to the provisions of the letter agreement dated as of , the Company and Indemnitee do hereby covenant and agree as follows:
1. | SERVICES TO THE COMPANY |
In consideration of the Company’s covenants and obligations hereunder, Indemnitee will serve or continue to serve as an officer, director, advisor, key employee or in any other capacity of the Company, as applicable, for so long as Indemnitee is duly elected or appointed or retained or until Indemnitee tenders his or her resignation or until Indemnitee is removed. The foregoing notwithstanding, this Agreement shall continue in full force and effect after Indemnitee has ceased to serve as a director, officer, advisor, key employee or in any other capacity of the Company, as provided in Section 17. This Agreement, however, shall not impose any obligation on Indemnitee or the Company to continue Indemnitee’s service to the Company beyond any period otherwise required by law or by other agreements or commitments of the parties, if any.
2. | DEFINITIONS |
As used in this Agreement:
(a) | References to “agent” shall mean any person who is or was a director, officer or employee of the Company or a subsidiary of the Company or other person authorized by the Company to act for the Company, to include such person serving in such capacity as a director, officer, employee, advisor, fiduciary or other official of another corporation, partnership, limited liability company, joint venture, trust or other enterprise at the request of, for the convenience of, or to represent the interests of the Company or a subsidiary of the Company. |
(b) | The terms “Beneficial Owner” and “Beneficial Ownership” shall have the meanings set forth in Rule 13d-3 promulgated under the Exchange Act as in effect on the date hereof. |
(c) | “Delaware Court” shall mean the Court of Chancery of the State of Delaware. |
(d) | A “Change in Control” shall be deemed to occur upon the earliest to occur after the date of this Agreement of any of the following events: |
(i) | Acquisition of Shares by Third Party. Other than an affiliate of Acies Acquisition LLC (the “Sponsor”), any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company representing fifteen percent (15%) or more of the combined voting power of the Company’s then outstanding securities entitled to vote generally in the election of directors, unless (1) the change in the relative Beneficial Ownership of the Company’s securities by any Person results solely from a reduction in the aggregate number of outstanding shares of securities entitled to vote generally in the election of directors, or (2) such acquisition was approved in advance by the Continuing Directors and such acquisition would not constitute a Change in Control under part (iii) of this definition; |
(ii) | Change in Board of Directors. Individuals who, as of the date hereof, constitute the Board, and any new director whose election by the Board or nomination for election by the Company’s shareholders was approved by a vote of at least two thirds of the directors then still in office who were directors on the date hereof or whose election or nomination for election was previously so approved (collectively, the “Continuing Directors”), cease for any reason to constitute at least a majority of the members of the Board; |
(iii) | Corporate Transactions. The effective date of a merger, share exchange, asset acquisition, share purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “Business Combination”), in each case, unless, following such Business Combination: (1) all or substantially all of the individuals and entities who were the Beneficial Owners of securities entitled to vote generally in the election of directors immediately prior to such Business Combination beneficially own, directly or indirectly, more than 51% of the combined voting power of the then outstanding securities of the Company entitled to vote generally in the election of directors resulting from such Business Combination (including, without limitation, a corporation which as a result of such transaction owns the Company or all or substantially all of the Company’s assets either directly or through one or more Subsidiaries) in substantially the same proportions as their ownership immediately prior to such Business Combination, of the securities entitled to vote generally in the election of directors; (2) other than an affiliate of the Sponsor, no Person (excluding any corporation resulting from such Business Combination) is the Beneficial Owner, directly or indirectly, of 15% or more of the combined voting power of the then outstanding securities entitled to vote generally in the election of directors of the surviving corporation except to the extent that such ownership existed prior to the Business Combination; and (3) at least a majority of the board of directors of the corporation resulting from such Business Combination were Continuing Directors at the time of the execution of the initial agreement, or of the action of the Board, providing for such Business Combination; |
(iv) | Liquidation. The approval by the shareholders of the Company of a complete liquidation of the Company or an agreement or series of agreements for the sale or disposition by the Company of all or substantially all of the Company’s assets, other than factoring the Company’s current receivables or escrows due (or, if such approval is not required, the decision by the Board to proceed with such a liquidation, sale, or disposition in one transaction or a series of related transactions); or |
(v) | Other Events. There occurs any other event of a nature that would be required to be reported in response to Item 6(e) of Schedule 14A of Regulation 14A (or a response to any similar item on any similar schedule or form) promulgated under the Exchange Act, whether or not the Company is then subject to such reporting requirement. |
(e) | “Corporate Status” describes the status of a person who is or was a director, officer, trustee, general partner, manager, managing member, fiduciary, employee or agent of the Company or of any other Enterprise which such person is or was serving at the request of the Company. |
(f) | “Disinterested Director” shall mean a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee. |
(g) | “Enterprise” shall mean the Company and any other corporation, constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger to which the Company (or any of its wholly owned subsidiaries) is a party, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise of which Indemnitee is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent. |
(h) | “Exchange Act” shall mean the Securities Exchange Act of 1934, as amended. |
(i) | “Expenses” shall include all direct and indirect costs, fees and expenses of any type or nature whatsoever, including, without limitation, all reasonable attorneys’ fees and costs, retainers, court costs, transcript costs, fees of experts, witness fees, travel expenses, fees of private investigators and professional advisors, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, fax transmission charges, secretarial services and all other disbursements, obligations or expenses in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, settlement or appeal of, or otherwise participating in, a Proceeding, including reasonable compensation for time spent by the Indemnitee for which he or she is not otherwise compensated by the Company or any third party. Expenses also shall include Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the principal, premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent. Expenses, however, shall not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee. |
(j) | References to “fines” shall include any excise tax assessed on Indemnitee with respect to any employee benefit plan. |
(k) | References to “serving at the request of the Company” shall include any service as a director, officer, employee, agent or fiduciary of the Company which imposes duties on, or involves services by, such director, officer, employee, agent or fiduciary with respect to an employee benefit plan, its participants or beneficiaries; and if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan, Indemnitee shall be deemed to have acted in a manner “not opposed to the best interests of the Company” as referred to in this Agreement. |
(l) | “Independent Counsel” shall mean a law firm or a member of a law firm with significant experience in matters of corporate law and that neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements); or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” shall not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement. |
(m) | The term “Person” shall have the meaning as set forth in Sections 13(d) and 14(d) of the Exchange Act as in effect on the date hereof; provided, however, that “Person” shall exclude: (i) the Company; (ii) any Subsidiaries of the Company; (iii) any employment benefit plan of the Company or of a Subsidiary of the Company or of any corporation owned, directly or indirectly, by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company; and (iv) any trustee or other fiduciary holding securities under an employee benefit plan of the Company or of a Subsidiary of the Company or of a corporation owned directly or indirectly by the shareholders of the Company in substantially the same proportions as their ownership of shares of the Company. |
(n) | The term “Proceeding” shall include any threatened, pending or completed action, suit, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil (including intentional or unintentional tort claims), criminal, administrative or investigative or related nature, in which Indemnitee was, is, will or might be involved as a party or otherwise by reason of the fact that Indemnitee is or was a director or officer of the Company, by reason of any action (or failure to act) taken by him or her or of any action (or failure to act) on his or her part while acting as a director or officer of the Company, or by reason of the fact that he or she is or was serving at the request of the Company as a director, officer, trustee, general partner, managing member, fiduciary, employee or agent of any other Enterprise, in each case whether or not serving in such capacity at the time any liability or expense is incurred for which indemnification, reimbursement, or advancement of expenses can be provided under this Agreement. |
(o) | The term “Subsidiary,” with respect to any Person, shall mean any corporation, limited liability company, partnership, joint venture, trust or other entity of which a majority of the voting power of the voting equity securities or equity interest is owned, directly or indirectly, by that Person. |
(p) | The phrase “to the fullest extent permitted by applicable law” shall include, but not be limited to: (a) to the fullest extent authorized or permitted by the provision of applicable Cayman Islands law that authorizes or contemplates additional indemnification by agreement, or the corresponding provision of any amendment to or replacement of applicable Cayman Islands law, and (b) to the fullest extent authorized or permitted by any amendments to or replacements of applicable Cayman Islands law adopted after the date of this Agreement that increase the extent to which a corporation may indemnify its officers and directors. |
3. | INDEMNITY IN THIRD-PARTY PROCEEDINGS |
To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 3 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 3, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually, and reasonably incurred by Indemnitee or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding, had no reasonable cause to believe that his or her conduct was unlawful; provided, in no event shall Indemnitee be entitled to be indemnified, held harmless or advanced any amounts hereunder in respect of any Expenses, judgments, liabilities, fines, penalties and amounts paid in settlement (if any) that Indemnitee may incur by reason of his or her own actual fraud or intentional misconduct. Indemnitee shall not be found to have committed actual fraud or intentional misconduct for any purpose of this Agreement unless or until a court of competent jurisdiction shall have made a finding to that effect.
4. | INDEMNITY IN PROCEEDINGS BY OR IN THE RIGHT OF THE COMPANY |
To the fullest extent permitted by applicable law, the Company shall indemnify, hold harmless and exonerate Indemnitee in accordance with the provisions of this Section 4 if Indemnitee was, is, or is threatened to be made, a party to or a participant (as a witness, deponent or otherwise) in any Proceeding by or in the right of the Company to procure a judgment in its favor by reason of Indemnitee’s Corporate Status. Pursuant to this Section 4, Indemnitee shall be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner he or she reasonably believed to be in or not opposed to the best interests of the Company. No indemnification, hold harmless or exoneration for Expenses shall be made under this Section 4 in respect of any claim, issue or matter as to which Indemnitee shall have been finally adjudged by a court of competent jurisdiction to be liable to the Company, unless and only to the extent that any court in which the Proceeding was brought or the Delaware Court shall determine upon application that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification, to be held harmless or to exoneration.
5. | INDEMNIFICATION FOR EXPENSES OF A PARTY WHO IS WHOLLY OR PARTLY SUCCESSFUL |
Notwithstanding any other provisions of this Agreement, but subject to Section 27, to the extent that Indemnitee was or is, by reason of Indemnitee’s Corporate Status, a party to (or a participant in) and is successful, on the merits or otherwise, in any Proceeding or in defense of any claim, issue or matter therein, in whole or in part, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him or her in connection therewith. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection with each successfully resolved claim, issue or matter. If Indemnitee is not wholly successful in such Proceeding, the Company also shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee against all Expenses reasonably incurred in connection with a claim, issue or matter related to any claim, issue, or matter on which Indemnitee was successful. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, shall be deemed to be a successful result as to such claim, issue or matter.
6. | INDEMNIFICATION FOR EXPENSES OF A WITNESS |
Notwithstanding any other provision of this Agreement, but subject to Section 27, to the extent that Indemnitee is, by reason of his or her Corporate Status, a witness or deponent in any Proceeding to which Indemnitee is not a party or threatened to be made a party, he or she shall, to the fullest extent permitted by applicable law, be indemnified, held harmless and exonerated against all Expenses actually and reasonably incurred by him or her or on his or her behalf in connection therewith.
7. | ADDITIONAL INDEMNIFICATION, HOLD HARMLESS AND EXONERATION RIGHTS |
Notwithstanding any limitation in Sections 3, 4 or 5, but subject to Section 27, the Company shall, to the fullest extent permitted by applicable law, indemnify, hold harmless and exonerate Indemnitee if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor) against all Expenses, judgments, fines, penalties and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines, penalties and amounts paid in settlement) actually and reasonably incurred by Indemnitee in connection with the Proceeding. No indemnification, hold harmless or exoneration rights shall be available under this Section 7 on account of Indemnitee’s conduct which constitutes a breach of Indemnitee’s duty of loyalty to the Company or its shareholders or is an act or omission not in good faith or which involves intentional misconduct or a knowing violation of the law.
8. | CONTRIBUTION IN THE EVENT OF JOINT LIABILITY |
(a) | To the fullest extent permissible under applicable law, if the indemnification, hold harmless and/or exoneration rights provided for in this Agreement are unavailable to Indemnitee in whole or in part for any reason whatsoever, the Company, in lieu of indemnifying, holding harmless or exonerating Indemnitee, shall pay, in the first instance, the entire amount incurred by Indemnitee, whether for judgments, liabilities, fines, penalties, amounts paid or to be paid in settlement and/or for Expenses, in connection with any Proceeding without requiring Indemnitee to contribute to such payment, and the Company hereby waives and relinquishes any right of contribution it may have at any time against Indemnitee. |
(b) | The Company shall not enter into any settlement of any Proceeding in which the Company is jointly liable with Indemnitee (or would be if joined in such Proceeding) unless such settlement provides for a full and final release of all claims asserted against Indemnitee. |
(c) | The Company hereby agrees to fully indemnify, hold harmless and exonerate Indemnitee from any claims for contribution which may be brought by officers, directors or employees of the Company other than Indemnitee who may be jointly liable with Indemnitee. Indemnitee shall seek payments or advances from the Company only to the extent that such payments or advances are unavailable from any insurance policy of the Company covering Indemnitee. |
9. | EXCLUSIONS |
Notwithstanding any provision in this Agreement, but subject to Section 27, the Company shall not be obligated under this Agreement to make any indemnification, advance Expenses, hold harmless or exoneration payment in connection with any claim made against Indemnitee:
(a) | for which payment has actually been received by or on behalf of Indemnitee under any insurance policy or other indemnity or advancement provision, except with respect to any excess beyond the amount actually received under any insurance policy, contract, agreement, other indemnity or advancement provision or otherwise; |
(b) | for an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act (or any successor rule) or similar provisions of state statutory law or common law; or |
(c) | except as otherwise provided in Sections 14(f) and (g) hereof, prior to a Change in Control, in connection with any Proceeding (or any part of any Proceeding) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (ii) the Company provides the indemnification, hold harmless or exoneration payment, in its sole discretion, pursuant to the powers vested in the Company under applicable law. |
10. | ADVANCES OF EXPENSES; DEFENSE OF CLAIM |
(a) | Notwithstanding any provision of this Agreement to the contrary, but subject to Section 27, and to the fullest extent not prohibited by applicable law, the Company shall pay the Expenses incurred by Indemnitee (or reasonably expected by Indemnitee to be incurred by Indemnitee within three months) in connection with any Proceeding within ten (10) days after the receipt by the Company of a statement or statements requesting such advances from time to time, prior to the final disposition of any Proceeding. Advances shall, to the fullest extent permitted by law, be unsecured and interest free. Advances shall, to the fullest extent permitted by law, be made without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to be indemnified, held harmless or exonerated under the other provisions of this Agreement. Advances shall include any and all reasonable Expenses incurred pursuing a Proceeding to enforce this right of advancement, including Expenses incurred preparing and forwarding statements to the Company to support the advances claimed. To the fullest extent required by applicable law, such payments of Expenses in advance of the final disposition of the Proceeding shall be made only upon the Company’s receipt of an undertaking, by or on behalf of Indemnitee, to repay the advanced amounts to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company under the provisions of this Agreement, the Articles, applicable law or otherwise. If it shall be determined by a final judgment or other final adjudication that Indemnitee was not so entitled to indemnification, any advancement shall be returned to the Company (without interest) by the Indemnitee. This Section 10(a) shall not apply to any claim made by Indemnitee for which an indemnification, hold harmless or exoneration payment is excluded pursuant to Section 9, but shall apply to any Proceeding referenced in Section 9(b) prior to a final determination that Indemnitee is liable therefor. |
(b) | The Company will be entitled to participate in the Proceeding at its own expense. |
(c) | The Company shall not settle any action, claim or Proceeding (in whole or in part) which would impose any Expense, judgment, fine, penalty or limitation on Indemnitee without Indemnitee’s prior written consent. |
11. | PROCEDURE FOR NOTIFICATION AND APPLICATION FOR INDEMNIFICATION |
(a) | Indemnitee agrees to notify promptly the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding, claim, issue or matter therein which may be subject to indemnification, hold harmless or exoneration rights, or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company shall not relieve the Company of any obligation which it may have to Indemnitee under this Agreement, or otherwise. |
(b) | Indemnitee may deliver to the Company a written application to indemnify, hold harmless or exonerate Indemnitee in accordance with this Agreement. Such application(s) may be delivered from time to time and at such time(s) as Indemnitee deems appropriate in his or her sole discretion. Following such a written application for indemnification by Indemnitee, Indemnitee’s entitlement to indemnification shall be determined according to Section 12(a) of this Agreement. |
12. | PROCEDURE UPON APPLICATION FOR INDEMNIFICATION |
(a) | A determination, if required by applicable law, with respect to Indemnitee’s entitlement to indemnification shall be made in the specific case by one of the following methods, which shall be at the election of Indemnitee: (i) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board, (ii) by a committee of such directors designated by majority vote of such directors, (iii) if there are no Disinterested Directors or if such directors so direct, by Independent Counsel in a written opinion to the Board, a copy of which shall be delivered to Indemnitee, or (iv) by vote of the shareholders by ordinary resolution. The Company promptly will advise Indemnitee in writing with respect to any determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied. If it is so determined that Indemnitee is entitled to indemnification, payment to Indemnitee shall be made within ten (10) days after such determination. Indemnitee shall reasonably cooperate with the person, persons or entity making such determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. Any costs or Expenses (including reasonable attorneys’ fees and disbursements) incurred by Indemnitee in so cooperating with the person, persons or entity making such determination shall be borne by the Company (irrespective of the determination as to Indemnitee’s entitlement to indemnification) and the Company hereby agrees to indemnify and to hold Indemnitee harmless therefrom. |
(b) | In the event the determination of entitlement to indemnification is to be made by Independent Counsel pursuant to Section 12(a) hereof, the Independent Counsel shall be selected as provided in this Section 12(b). The Independent Counsel shall be selected by Indemnitee (unless Indemnitee shall request that such selection be made by the Board), and Indemnitee shall give written notice to the Company advising it of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. If the Independent Counsel is selected by the Board, the Company shall give written notice to Indemnitee advising him or her of the identity of the Independent Counsel so selected and certifying that the Independent Counsel so selected meets the requirements of “Independent Counsel” as defined in Section 2 of this Agreement. In either event, Indemnitee or the Company, as the case may be, may, within ten (10) days after such written notice of selection shall have been received, deliver to the Company or to Indemnitee, as the case may be, a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection shall set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected shall act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or a court of competent jurisdiction has determined that such objection is without merit. If, within twenty (20) days after submission by Indemnitee of a written request for indemnification pursuant to Section 11(b) hereof, no Independent Counsel shall have been selected and not objected to, either the Company or Indemnitee may petition the Delaware Court for resolution of any objection which shall have been made by the Company or Indemnitee to the other’s selection of Independent Counsel and/or for the appointment as Independent Counsel of a person selected by the Delaware Court, and the person with respect to whom all objections are so resolved or the person so appointed shall act as Independent Counsel under Section 12(a) hereof. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel shall be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing). |
(c) | The Company agrees to pay the reasonable fees and expenses of Independent Counsel and to indemnify and hold harmless such Independent Counsel fully against any and all Expenses, claims, liabilities and damages arising out of or relating to this Agreement or its engagement pursuant hereto. |
13. | PRESUMPTIONS AND EFFECT OF CERTAIN PROCEEDINGS |
(a) | In making a determination with respect to entitlement to indemnification hereunder, the person, persons or entity making such determination shall presume that Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(b) of this Agreement, and the Company shall have the burden of proof to overcome that presumption in connection with the making by any person, persons or entity of any determination contrary to that presumption. Neither the failure of the Company (including by the Disinterested Directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by the Disinterested Directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, shall be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct. |
(b) | If the person, persons or entity empowered or selected under Section 12 of this Agreement to determine whether Indemnitee is entitled to indemnification shall not have made a determination within thirty (30) days after receipt by the Company of the request therefor, the requisite determination of entitlement to indemnification shall, to the fullest extent permitted by law, be deemed to have been made and Indemnitee shall be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a final judicial determination that any or all such indemnification is expressly prohibited under applicable law; provided, however, that such 30-day period may be extended for a reasonable time, not to exceed an additional fifteen (15) days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto. |
(c) | The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, shall not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which he or she reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that his or her conduct was unlawful. |
(d) | For purposes of any determination of good faith, Indemnitee shall be deemed to have acted in good faith if Indemnitee’s action is based on the records or books of account of the Enterprise, including financial statements, or on information supplied to Indemnitee by the directors, manager, or officers of the Enterprise in the course of their duties, or on the advice of legal counsel for the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, or on information or records given or reports made to the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member, by an independent certified public accountant or by an appraiser or other expert selected by the Enterprise, its Board, any committee of the Board or any director, trustee, general partner, manager or managing member. The provisions of this Section 13(d) shall not be deemed to be exclusive or to limit in any way the other circumstances in which Indemnitee may be deemed or found to have met the applicable standard of conduct set forth in this Agreement. |
(e) | The knowledge and/or actions, or failure to act, of any other director, officer, trustee, partner, manager, managing member, fiduciary, agent or employee of the Enterprise shall not be imputed to Indemnitee for purposes of determining the right to indemnification under this Agreement. |
14. | REMEDIES OF INDEMNITEE |
(a) | In the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) advancement of Expenses, to the fullest extent permitted by applicable law, is not timely made pursuant to Section 10 of this Agreement, (iii) no determination of entitlement to indemnification shall have been made pursuant to Section 12(a) of this Agreement within thirty (30) days after receipt by the Company of the request for indemnification, (iv) payment of indemnification is not made pursuant to Sections 5, 6, 7 or the last sentence of Section 12(a) of this Agreement within ten (10) days after receipt by the Company of a written request therefor, (v) a contribution payment is not made in a timely manner pursuant to Section 8 of this Agreement, (vi) payment of indemnification pursuant to Section 3 or 4 of this Agreement is not made within ten (10) days after a determination has been made that Indemnitee is entitled to indemnification, or (vii) payment to Indemnitee pursuant to any hold harmless or exoneration rights under this Agreement or otherwise is not made in accordance with this Agreement within ten (10) days after receipt by the Company of a written request therefor, Indemnitee shall be entitled to an adjudication by the Delaware Court to such indemnification, hold harmless, exoneration, contribution or advancement rights. Alternatively, Indemnitee, at his or her option, may seek an award in arbitration to be conducted by a single arbitrator pursuant to the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association. Except as set forth herein, the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association shall apply to any such arbitration. The Company shall not oppose Indemnitee’s right to seek any such adjudication or award in arbitration. |
(b) | In the event that a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 shall be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee shall not be prejudiced by reason of that adverse determination. |
(c) | In any judicial proceeding or arbitration commenced pursuant to this Section 14, Indemnitee shall be presumed to be entitled to be indemnified, held harmless, exonerated to receive advancement of Expenses under this Agreement and the Company shall have the burden of proving Indemnitee is not entitled to be indemnified, held harmless, exonerated and to receive advancement of Expenses, as the case may be, and the Company may not refer to or introduce into evidence any determination pursuant to Section 12(a) of this Agreement adverse to Indemnitee for any purpose. If Indemnitee commences a judicial proceeding or arbitration pursuant to this Section 14, Indemnitee shall not be required to reimburse the Company for any advances pursuant to Section 10 until a final determination is made with respect to Indemnitee’s entitlement to indemnification (as to which all rights of appeal have been exhausted or lapsed). |
(d) | If a determination shall have been made pursuant to Section 12(a) of this Agreement that Indemnitee is entitled to indemnification, the Company shall be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. |
(e) | The Company shall be precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and shall stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement. |
(f) | The Company shall indemnify and hold harmless Indemnitee to the fullest extent permitted by law against all Expenses and, if requested by Indemnitee, shall (within ten (10) days after the Company’s receipt of such written request) pay to Indemnitee, to the fullest extent permitted by applicable law, such Expenses which are incurred by Indemnitee in connection with any judicial proceeding or arbitration brought by Indemnitee: (i) to enforce his or her rights under, or to recover damages for breach of, this Agreement or any other indemnification, hold harmless, exoneration, advancement or contribution agreement or provision of the Articles now or hereafter in effect; or (ii) for recovery or advances under any insurance policy maintained by any person for the benefit of Indemnitee, regardless of the outcome and whether Indemnitee ultimately is determined to be entitled to such indemnification, hold harmless or exoneration right, advancement, contribution or insurance recovery, as the case may be (unless such judicial proceeding or arbitration was not brought by Indemnitee in good faith). |
(g) | Interest shall be paid by the Company to Indemnitee at the legal rate under New York law for amounts which the Company indemnifies, holds harmless or exonerates, or advances, or is obliged to indemnify, hold harmless or exonerate or advance for the period commencing with the date on which Indemnitee requests indemnification, to be held harmless, exonerated, contribution, reimbursement or advancement of any Expenses and ending with the date on which such payment is made to Indemnitee by the Company. |
15. | SECURITY |
Notwithstanding anything herein to the contrary, but subject to Section 27, to the extent requested by Indemnitee and approved by the Board, the Company may at any time and from time to time provide security to Indemnitee for the Company’s obligations hereunder through an irrevocable bank line of credit, funded trust or other collateral. Any such security, once provided to Indemnitee, may not be revoked or released without the prior written consent of Indemnitee.
16. | NON-EXCLUSIVITY; SURVIVAL OF RIGHTS; INSURANCE; SUBROGATION; PRIORITY OF OBLIGATIONS |
(a) | The rights of Indemnitee as provided by this Agreement shall not be deemed exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Articles, any agreement, a vote of shareholders or a resolution of directors, or otherwise. No amendment, alteration or repeal of this Agreement or of any provision hereof shall limit or restrict any right of Indemnitee under this Agreement in respect of any Proceeding (regardless of when such Proceeding is first threatened, commenced or completed) or claim, issue or matter therein arising out of, or related to, any action taken or omitted by such Indemnitee in his or her Corporate Status prior to such amendment, alteration or repeal. To the extent that a change in applicable law, whether by statute or judicial decision, permits greater indemnification, hold harmless or exoneration rights or advancement of Expenses than would be afforded currently under the Articles or this Agreement, then this Agreement (without any further action by the parties hereto) shall automatically be deemed to be amended to require that the Company indemnifies the Indemnitee to the fullest extent permitted by law. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy shall be cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, shall not prevent the concurrent assertion or employment of any other right or remedy. |
(b) | The Articles permit the Company to purchase and maintain insurance or furnish similar protection or make other arrangements including, but not limited to, providing a trust fund, letter of credit, or surety bond (“Indemnification Arrangements”) on behalf of Indemnitee against any liability asserted against him or her or incurred by or on behalf of him or in such capacity as a director, officer, employee or agent of the Company, or arising out of his or her status as such, whether or not the Company would have the power to indemnify him or her against such liability under the provisions of this Agreement and the Articles. The purchase, establishment, and maintenance of any such Indemnification Arrangement shall not in any way limit or affect the rights and obligations of the Company or of Indemnitee under this Agreement except as expressly provided herein, and the execution and delivery of this Agreement by the Company and Indemnitee shall not in any way limit or affect the rights and obligations of the Company or the other party or parties thereto under any such Indemnification Arrangement. |
(c) | To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, trustees, partners, managers, managing members, fiduciaries, employees, or agents of the Company or of any other Enterprise which such person serves at the request of the Company, Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director, officer, trustee, partner, managers, managing member, fiduciary, employee or agent under such policy or policies. If, at the time the Company receives notice from any source of a Proceeding as to which Indemnitee is a party or a participant (as a witness, deponent or otherwise), the Company has director and officer liability insurance in effect, the Company shall give prompt notice of such Proceeding to the insurers in accordance with the procedures set forth in the respective policies. The Company shall thereafter use commercially reasonable efforts to cause such insurers to pay, on behalf of Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. |
(d) | In the event of any payment under this Agreement, the Company, to the fullest extent permitted by law, shall be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee, who shall execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights. No such payment by the Company shall be deemed to relieve any insurer of its obligations. |
(e) | The Company’s obligation to indemnify, hold harmless, exonerate or advance Expenses hereunder to Indemnitee who is or was serving at the request of the Company as a director, officer, trustee, partner, manager, managing member, fiduciary, employee or agent of any other Enterprise shall be reduced by any amount Indemnitee has actually received as indemnification, hold harmless or exoneration payments or advancement of expenses from such Enterprise. Notwithstanding any other provision of this Agreement to the contrary, but subject to Section 27, (i) Indemnitee shall have no obligation to reduce, offset, allocate, pursue or apportion any indemnification, hold harmless, exoneration, advancement, contribution or insurance coverage among multiple parties possessing such duties to Indemnitee prior to the Company’s satisfaction and performance of all its obligations under this Agreement, and (ii) the Company shall perform fully its obligations under this Agreement without regard to whether Indemnitee holds, may pursue or has pursued any indemnification, advancement, hold harmless, exoneration, contribution or insurance coverage rights against any person or entity other than the Company. |
(f) | Notwithstanding anything contained herein, the Company is the primary indemnitor, and any indemnification or advancement obligation of the Sponsor or its affiliates or members or any other Person is secondary. |
17. | DURATION OF AGREEMENT |
All agreements and obligations of the Company contained herein shall continue during the period Indemnitee serves as a director or officer of the Company or as a director, officer, trustee, partner, manager, managing member, fiduciary, employee or agent of any other corporation, partnership, joint venture, trust, employee benefit plan or other Enterprise which Indemnitee serves at the request of the Company and shall continue thereafter so long as Indemnitee shall be subject to any possible Proceeding (including any rights of appeal thereto and any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement) by reason of his or her Corporate Status, whether or not he or she is acting in any such capacity at the time any liability or expense is incurred for which indemnification or advancement can be provided under this Agreement.
18. | SEVERABILITY |
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall not in any way be affected or impaired thereby and shall remain enforceable to the fullest extent permitted by law; (b) such provision or provisions shall be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section, paragraph or sentence of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested thereby.
19. | ENFORCEMENT AND BINDING EFFECT |
(a) | The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director, officer or key employee of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving as a director, officer or key employee of the Company. |
(b) | Without limiting any of the rights of Indemnitee under the Articles of the Company as they may be amended from time to time, this Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof. |
(c) | The indemnification, hold harmless, exoneration and advancement of expenses rights provided by or granted pursuant to this Agreement shall be binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business and/or assets of the Company), shall continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or a director, officer, trustee, general partner, manager, managing member, fiduciary, employee or agent of any other Enterprise at the Company’s request, and shall inure to the benefit of Indemnitee and his or her spouse, assigns, heirs, devisees, executors and administrators and other legal representatives. |
(d) | The Company shall require and cause any successor (whether direct or indirect by purchase, merger, consolidation or otherwise) to all, substantially all or a substantial part, of the business and/or assets of the Company, by written agreement in form and substance satisfactory to Indemnitee, expressly to assume and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform if no such succession had taken place. |
(e) | The Company and Indemnitee agree herein that a monetary remedy for breach of this Agreement, at some later date, may be inadequate, impracticable and difficult of proof, and further agree that such breach may cause Indemnitee irreparable harm. Accordingly, the parties hereto agree that Indemnitee may, to the fullest extent permitted by law, enforce this Agreement by seeking, among other things, injunctive relief and/or specific performance hereof, without any necessity of showing actual damage or irreparable harm and that by seeking injunctive relief and/or specific performance, Indemnitee shall not be precluded from seeking or obtaining any other relief to which he or she may be entitled. The Company and Indemnitee further agree that Indemnitee shall, to the fullest extent permitted by law, be entitled to such specific performance and injunctive relief, including temporary restraining orders, preliminary injunctions and permanent injunctions, without the necessity of posting bonds or other undertaking in connection therewith. The Company acknowledges that in the absence of a waiver, a bond or undertaking may be required of Indemnitee by a court of competent jurisdiction, and the Company hereby waives any such requirement of such a bond or undertaking to the fullest extent permitted by law. |
20. | MODIFICATION AND WAIVER |
No supplement, modification or amendment of this Agreement shall be binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement shall be deemed or shall constitute a waiver of any other provisions of this Agreement nor shall any waiver constitute a continuing waiver.
21. | NOTICES |
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given (i) if delivered by hand and receipted for by the party to whom said notice or other communication shall have been directed, or (ii) if mailed by certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed:
(a) | If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee shall provide in writing to the Company. |
(b) | If to the Company, to: |
Acies Acquisition Corp.
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
Attn: | Daniel Fetters | |
Edward King |
With a copy, which shall not constitute notice, to:
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, New York 10105
Attn: | Benjamin Reichel |
or to any other address as may have been furnished to Indemnitee in writing by the Company.
22. | APPLICABLE LAW AND CONSENT TO JURISDICTION |
This Agreement and the legal relations among the parties shall be governed by, and construed and enforced in accordance with, the laws of the State of New York, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, to the fullest extent permitted by law, the Company and Indemnitee hereby irrevocably and unconditionally: (a) agree that any action or proceeding arising out of or in connection with this Agreement shall be brought only in the Delaware Court and not in any other state or federal court in the United States of America or any court in any other country; (b) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or proceeding arising out of or in connection with this Agreement; (c) waive any objection to the laying of venue of any such action or proceeding in the Delaware Court; and (d) waive, and agree not to plead or to make, any claim that any such action or proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum, or is subject (in whole or in part) to a jury trial. To the fullest extent permitted by law, the parties hereby agree that the mailing of process and other papers in connection with any such action or proceeding in the manner provided by Section 21 or in such other manner as may be permitted by law, shall be valid and sufficient service thereof.
23. | IDENTICAL COUNTERPARTS |
This Agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
24. | MISCELLANEOUS |
The headings of the paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute part of this Agreement or to affect the construction thereof.
25. | PERIOD OF LIMITATIONS |
No legal action shall be brought and no cause of action shall be asserted by or in the right of the Company against Indemnitee, Indemnitee’s spouse, heirs, executors or personal or legal representatives after the expiration of two years from the date of accrual of such cause of action, and any claim or cause of action of the Company shall be extinguished and deemed released unless asserted by the timely filing of a legal action within such two-year period; provided, however, that if any shorter period of limitations is otherwise applicable to any such cause of action such shorter period shall govern.
26. | ADDITIONAL ACTS |
If for the validation of any of the provisions in this Agreement any act, resolution, approval or other procedure is required to the fullest extent permitted by law, the Company undertakes to cause such act, resolution, approval or other procedure to be affected or adopted in a manner that will enable the Company to fulfill its obligations under this Agreement.
27. | WAIVER OF CLAIMS TO TRUST ACCOUNT |
Notwithstanding anything contained herein to the contrary, Indemnitee hereby agrees that it does not have any right, title, interest or claim of any kind (each, a “Claim”) in or to any monies in the trust account established in connection with the Company’s initial public offering for the benefit of the Company and holders of shares issued in such offering, and hereby waives any Claim it may have in the future as a result of, or arising out of, any services provided to the Company and will not seek recourse against such trust account for any reason whatsoever. Accordingly, Indemnitee acknowledges and agrees that any indemnification provided hereto will only be able to be satisfied by the Company if (i) the Company has sufficient funds outside of the Trust Account to satisfy its obligations hereunder or (ii) the Company consummates a Business Combination.
28. | MAINTENANCE OF INSURANCE |
The Company shall use commercially reasonable efforts to obtain and maintain in effect during the entire period for which the Company is obligated to indemnify the Indemnitee under this Agreement, one or more policies of insurance with reputable insurance companies to provide the officers/directors of the Company with coverage for losses from wrongful acts and omissions and to ensure the Company’s performance of its indemnification obligations under this Agreement. The Indemnitee shall be covered by such policy or policies in accordance with its or their terms to the maximum extent of the coverage available for any such director or officer under such policy or policies. In all such insurance policies, the Indemnitee shall be named as an insured in such a manner as to provide the Indemnitee with the same rights and benefits as are accorded to the most favorably insured of the Company’s directors and officers.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties hereto have caused this Indemnity Agreement to be signed as of the day and year first above written.
ACIES ACQUISITION CORP. | ||||
By: | ||||
Name: | ||||
Title: | Co-Chief Executive Officer |
INDEMNITEE | ||
Name: | ||
Title: |
Exhibit 10.10
ACIES ACQUISITION CORP.
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
October 22, 2020
Acies Acquisition LLC
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
Ladies and Gentlemen:
This letter agreement by and between Acies Acquisition Corp. (the “Company”) and Acies Acquisition LLC (“Sponsor”), dated as of the date hereof, will confirm our agreement that, commencing on the date the Registration Statement on Form S-1 and prospectus filed with the U.S. Securities and Exchange Commission (File No. 333-249297) (the “Registration Statement”) for the initial public offering (the “IPO”) of the securities of Acies Acquisition Corp. (the “Company”) is declared effective (the “Effective Date”) and continuing until the earlier of (i) the consummation by the Company of an initial business combination and (ii) the Company’s liquidation (in each case as described in the Registration Statement) (such earlier date hereinafter referred to as the “Termination Date”), the Sponsor shall take steps directly or indirectly to make available to the Company certain office space, secretarial and administrative services as may be required by the Company from time to time, situated at 1219 Morningside Drive, Suite 110, Manhattan Beach, CA 90266 (or any successor location). In exchange therefore, the Company shall pay the Sponsor a sum of $10,000 per month on the Effective Date and continuing monthly thereafter until the Termination Date. The Sponsor hereby agrees that it does not have and irrevocably waives any and all right, title, interest, cause of action or claim of any kind (a “Claim”) in or to any monies that may be set aside in a trust account (the “Trust Account”) that may be established upon the consummation of the IPO and hereby irrevocably waives any Claim it may have in the future as a result of, or arising out of, any negotiations, contracts or agreements with the Company and will not seek recourse against the Trust Account for any reason whatsoever.
This letter agreement constitutes the entire agreement and understanding of the parties hereto in respect of its subject matter and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.
This letter agreement may not be amended, modified or waived as to any particular provision, except by a written instrument executed by the parties hereto.
No party may assign this letter agreement or any of its rights, interests, or obligations hereunder without the prior written approval of the other party. Any purported assignment in violation of this paragraph shall be void and ineffectual and shall not operate to transfer or assign any interest or title to the purported assignee.
This letter agreement shall be governed by, construed in accordance with, and interpreted pursuant to the laws of the State of New York, without giving effect to its choice of laws principles that will apply the laws of another jurisdiction.
This letter agreement may be executed in one or more counterparts, each of which shall for all purposes be deemed to be an original but all of which together shall constitute one and the same agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this letter agreement.
[Signature Page Follows]
Very truly yours, | ||
ACIES ACQUISITION CORP. | ||
By: | /s/ Edward King | |
Name: | Edward King | |
Title: | Co-Chief Executive Officer |
AGREED TO AND ACCEPTED BY: | ||
ACIES ACQUISITION LLC | ||
By: | /s/ Daniel Fetters | |
Name: | Daniel Fetters | |
Title: | Managing Member |
[Signature Page to Administrative Services Agreement]
Exhibit 10.12
PLAYSTUDIOS, INC.
(fka incuBET, Inc.)
2011 OMNIBUS STOCK AND INCENTIVE PLAN
EFFECTIVE DATE: July 13, 2011
AS AMENDED THROUGH: February 27, 2019
TERMINATION DATE: July 13, 2021
ARTICLE 1
BACKGROUND AND PURPOSE
1.1 PURPOSE. The purpose of the Plan is to promote the success and enhance the value of PlayStudios, Inc. (fka incuBET, Inc.) (the “Company”) and its Subsidiaries by linking the personal interests of the Participants to those of Company stockholders and by providing the Participants with an incentive for outstanding performance to generate superior returns to Company stockholders. The Plan is further intended to provide flexibility to the Company in its ability to motivate, attract, and retain the services of the Participants upon whose judgment, interest and special effort the successful conduct of the Company’s operation is largely dependent.
ARTICLE 2
EFFECTIVE DATE AND EXPIRATION DATE
2.1 EFFECTIVE DATE. The Plan is effective as of the date the Plan is approved by the Company’s stockholders as described in Section 2.2 (the “Effective Date”). The Committee may nonetheless make contingent Awards after the date on which the Plan is approved by the Board of Directors of the Company and before the Effective Date provided that the vesting, exercise or payment of such Awards is expressly conditioned on stockholder approval and the Awards are void if the stockholders do not approve the Plan.
2.2 APPROVAL OF STOCKHOLDERS. As noted in Section 2.1, Awards may be made following the adoption of the Plan by the Board, but the Plan (and any grants of Awards made prior to the stockholder approval mentioned herein) shall be subject to ratification by the stockholders in accordance with the Company’s Bylaws, which ratification must occur within 12 months of the date that the Plan is adopted by the Board. In the event that the stockholders of the Company do not ratify the Plan, the Plan and all rights hereunder shall immediately terminate and no Participant (or any permitted transferee thereof) shall have any remaining rights under the Plan or any Award Agreement entered into in connection herewith
2.3 EXPIRATION DATE. The Plan will expire on, and no Award may be granted under the Plan after, the tenth anniversary of the Effective Date. Any Awards that are outstanding on the tenth anniversary of the Effective Date shall remain in force according to the terms of the Plan and the Award Agreement.
ARTICLE 3
DEFINITIONS AND CONSTRUCTION
3.1 DEFINITIONS. For purposes of the Plan, the following terms shall have the following meanings:
(a) “Affiliate” shall mean (i) a corporation other than the Company that is a member of a “controlled group of corporations” (within the meaning of Section 414(b) of the Code as modified by Section 415(h) of the Code) or (ii) a group of trades or businesses under common control (within the meaning of Section 414(c) of the Code as modified by Section 415(h) of the Code), which in the case of either clause (i) or (ii) also includes the Company as a member. For purposes of determining whether an event constitutes a Change of Control within the meaning of Section 3.1(g), “Affiliate” status shall be determined on the day immediately preceding the date of the transaction or event.
(b) “Assignee Stockholder” has the meaning ascribed to it in Section 15.2(b).
(c) “Award” means any Option, Stock Appreciation Right, Restricted Stock, Restricted Stock Unit, Performance Share or Other Stock-Based Award or Other Cash-Based Award granted under the Plan.
(d) “Award Agreement” means any written agreement, contract, or other instrument or document evidencing an Award.
(e) “Base Value” means the per share amount set forth in an Award Agreement relating to an SAR. The Base Value is used to determine the amount payable to a Participant in connection with the exercise of an SAR, as further set forth in the Award Agreement.
(f) “Beneficiary” means the person, persons, trust or trusts which have been designated by a Participant in his or her most recent written beneficiary designation filed with the Company to receive the benefits specified under the plan upon his or her death, or, if there is no designated Beneficiary or surviving designated Beneficiary, then the person, persons, trust or trusts entitled by will or the laws of descent and distribution to receive such benefits.
(g) “Board” means the Board of Directors of the Company.
(h) “Change of Control” means and includes each of the following events:
(1) The date that any one person, or more than one person acting as a “Group” (as defined below), acquires ownership of stock of the Company that, together with stock held by such person or Group, constitutes more than 50% of the total fair market value or total voting power of the stock of the Company. If any one person or more than one person acting as a Group is considered to own more than 50% of the total fair market value or total voting power of the stock of the Company, the acquisition of additional stock by the same person or persons will not be considered to be a “Change of Control.” In addition, the acquisition of stock by a “Permitted Transferee” (as defined below) will be disregarded for purposes of this paragraph (1) and will not be treated as a Change of Control. This paragraph (1) only applies when there is a transfer of stock of the Company (or issuance of stock of the Company) and stock in the Company remains outstanding after the transaction.
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(2) The date any one person or more than one person acting as a Group (as defined below) acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) ownership of stock of the Company possessing 30% or more of the total voting power of the stock of the Company. If any one person or more than one person acting as a Group is considered to own more than 30% of the total voting power of the stock of the Company, the acquisition of additional stock by the same person or persons will not be considered to be a “Change of Control.”
(3) The date a majority of members of the Company’s Board is replaced during any 12-month period by directors whose appointment or election is not endorsed by a majority of the members of the Company’s Board before the date of the appointment or election.
(4) The date that any one person, or more than one person acting as a Group, acquires (or has acquired during the 12-month period ending on the date of the most recent acquisition by such person or persons) assets from the Company that have a total “Gross Fair Market Value” equal to or more than 40% of the total Gross Fair Market Value of all of the assets of the Company immediately prior to such acquisition or acquisitions. For this purpose, “Gross Fair Market Value” means the value of the assets of the Company, or the value of the assets being disposed of, determined without regard to any liabilities associated with such assets. This clause (3) shall not apply to any transfer to an entity that is controlled by the stockholders of the Company immediately after the transfer. In addition, a transfer of assets by the Company shall be disregarded if the assets are transferred to: (i) a stockholder of the Company immediately before the asset transfer in exchange for or with respect to its stock; (ii) an entity, 50% or more of the total value or voting power of which is owned, directly or indirectly, by the Company; (iii) a person, or more than one person acting as a Group, that owns, directly or indirectly, 50% or more of the total value or voting power of all of the outstanding stock of the Company; (iv) an entity, at least 50% of the total value or voting power of which is owned, directly or indirectly, by a person described in clause (iii); or (v) a Permitted Transferee, as defined below. For purposes of this section, a person’s status is determined immediately after the transfer of the assets. A transfer to an entity shall be disregarded for purposes of this Section, and will not be treated as a Change of Control, if immediately after such transfer Permitted Transferees own a majority of each and every class of outstanding stock or other ownership interest of the entity to which the assets are transferred.
For purposes of this Section 3.1(g), persons will be considered to be acting as a “Group” if they are owners of a corporation that enters into a merger, consolidation, purchase or acquisition of stock (in the case of a transaction described in clause (1)) or assets (in the case of a transaction described in clause (4)), or a similar business transaction with the Company. If a person, including an entity, owns stock in both corporations that enter into a merger, consolidation, purchase or acquisition of stock, or similar transaction, such stockholder is considered to be acting as a Group with other stockholders in a corporation prior to the transaction giving rise to the change and not with respect to the ownership interest in the other corporation. Persons will not be considered to be acting as a Group solely because they purchase or own stock of the same corporation at the same time, or as a result of the same public offering.
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The transfer of stock or assets of the Company in connection with a bankruptcy filing by or against the Company under Title 11 of the United States Code will not be considered to be a Change of Control for purposes of this Plan.
(i) “Change of Control Price” means the highest price per share paid in any transaction constituting a Change of Control.
(j) “Code” means the Internal Revenue Code of 1986, as amended from time to time.
(k) “Committee” means the Board or the committee of the Board described in Section 4.1.
(l) “Company” means PlayStudios, Inc., a corporation organized under the laws of the State of Delaware, or any successor corporation.
(m) “Disability” means the inability of a Participant to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. The permanence and degree of impairment shall be supported by medical evidence.
(n) “Donee” has the meaning ascribed to it in Section 15.2
(o) “Fair Market Value means, as of any given date, the fair market value of the Stock determined by such methods or procedures as may be established in good faith and from time to time by the Committee. The Committee’s determinations of Fair Market Value shall be made in compliance with Section 409A of the Code and the regulations issued thereunder.
(p) “Grantor” has the meaning ascribed to it in Section 15.3.
(q) “Incentive Stock Option” or “ISO” means any Option intended to be and designated as an incentive stock option within the meaning of Section 422 of the Code.
(r) “Non-qualified Stock Option” or “NQSO” means any Option that is not intended to be an ISO.
(s) “Offer” has the meaning ascribed to it in Section 15.2.
(t) “Offeror” has the meaning ascribed to it in Section 15.2.
(u) “Option” means a right, granted to a Participant under Article 7, to purchase shares of Stock at a specified price during specified time periods. An Option may be either an ISO or an NQSO.
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(v) “Other Cash-Based Award” means cash awarded under Article 10, including cash awarded as a bonus or upon the attainment of specified performance criteria or otherwise as permitted under the Plan.
(w) “Other Stock-Based Award” means a right or other interest granted to a Participant under Article 10 that may be denominated or payable in, valued in whole or in part by reference to, or otherwise based on, or related to, Stock, including, but not limited to (1) unrestricted Stock awarded as a bonus or upon the attainment of specified performance criteria or otherwise as permitted under the Plan, and (2) a right granted to a Participant to acquire Stock from the Company for cash.
(x) “Participant” means a person who has been granted an Award under the Plan.
(y) “Performance Share” means an Award of shares of Stock to a Participant under Article 10 that is subject to restrictions based upon the attainment of specified performance criteria.
(z) “Permitted Transferees” means any existing stockholder or stockholders acting as a Group who own 5% or more of the Company’s stock.
(aa) “Plan” means this PlayStudios, Inc. 2011 Omnibus Stock and Incentive Plan, as amended from time to time.
(bb) “Purchase Option” has the meaning ascribed to it in Section 15.3.
(cc) “Purchasable Shares” has the meaning ascribed to it in Section 15.3.
(dd) “Qualifying Public Offering” means a firm commitment underwritten public offering of Stock for cash where the shares of Stock registered under the Securities Act are listed on a national securities exchange or the NASDAQ National Market System.
(ee) “Restricted Stock” means an Award of shares of Stock to a Participant under Article 9 that is subject to certain restrictions and to a risk of forfeiture.
(ff) “Restricted Stock Unit” means a right granted to a Participant under Article 10 to receive Stock or cash at the end of a specified deferral period, which right may be conditioned on the satisfaction of specified performance or other criteria.
(gg) “Right” has the meaning ascribed to it in Section 15.2(b).
(hh) “Securities Act” means the Securities Act of 1933, as amended from time to time, and as now or hereafter construed, interpreted and applied by regulations, rulings and cases.
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(ii) “Separation from Service” means the following:
(1) A Participant who is an employee of the Company or any Subsidiary has a Separation from Service when the Participant dies, retires, or otherwise has a termination of employment with the Company or any Subsidiary. The employment relationship is treated as continuing intact while the Participant is on military leave, sick leave, or other bona fide leave of absence, if the period of leave does not exceed six months or, if longer, as long as the Participant’s right to reemployment with the Company or any Subsidiary is provided by statute or contract. A leave of absence is bona fide only if there is a reasonable expectation that the Participant will return to perform services for the Company or any Subsidiary. If the period of leave exceeds six months and the Participant’s right to reemployment is not provided by statute or by contract, the employment relationship is deemed to terminate on the first day immediately following the six month period;
(2) A non-employee member of the Board has a Separation from Service when he or she ceases to be a member of the Board. A non-employee independent contractor or consultant providing services to Company or any Subsidiary has a Separation from Service upon the expiration of the contract, and if there is more than one contract, all contracts under which the individual performs services as long as the expiration is a good faith and complete termination of the contractual relationship; and
(3) If a Participant performs services in more than one capacity, the Participant must have a Separation from Service in all capacities as an employee, member of the Board, independent contractor or consultant to have a Separation from Service. Notwithstanding the foregoing, if a Participant provides services both as an employee and a non-employee, (i) the services provided as a non-employee are not taken into account in determining whether the Participant has a Separation from Service as an employee under a nonqualified deferred compensation plan in which the Participant participates as an employee and that is not aggregated under Code Section 409A with any plan in which the Participant participates as a non-employee, and (ii) the services provided as an employee are not taken into account in determining whether the Participant has a Separation from Service as a non-employee under a nonqualified deferred compensation plan in which the Participant participates as a non-employee and that is not aggregated under Code Section 409A with any plan in which the Participant participates as an employee.
(jj) “Statement” has the meaning ascribed to it in Section 15.2(a).
(kk) “Statement Date” has the meaning ascribed to it in Section 15.2(a).
(ll) “Stock” means shares of the common stock of the Company or any security that may be substituted for Stock or into which Stock may be changed pursuant to Section 13.1.
(mm) “Stock Appreciation Right” or “SAR” means the right, granted to a Participant under Article 8, to be paid an amount equal to the Fair Market Value of one share of Stock on the date of exercise of the SAR minus the Base Value specified in the SAR Award Agreement, with payment to be made in cash, Stock, or property as specified in the Award Agreement or determined by the Committee.
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(nn) “Subsidiary” means any corporation in an unbroken chain of corporations beginning with the Company if, at the time of granting of an Award, each of the corporations (other than the last corporation in the unbroken chain) owns stock possessing 50% or more of the total combined voting power of all classes of stock in one of the other corporations in the chain.
ARTICLE 4
ADMINISTRATION
4.1 COMMITTEE. The Plan shall be administered by the Board or a Committee of the Board appointed by the Board. If the Board does not appoint a Committee, references in this Plan to the Committee shall refer to the Board.
4.2 ACTION BY THE COMMITTEE. The Committee may appoint a chairperson and a secretary and may make such rules and regulations for the conduct of its business as it shall deem advisable, and shall keep minutes of its meetings. A majority of the Committee shall constitute a quorum. The acts of a majority of the members present at any meeting at which a quorum is present, and acts approved by the unanimous written consent of the Committee, in lieu of a meeting, shall be deemed acts of the Committee. The Committee may employ one or more persons, including the Company’s certified public accountants, any executive compensation consultant or any other professional the Committee deems necessary, to render advice with respect to any responsibility the Committee may have under the Plan.
4.3 DELEGATION OF AUTHORITY BY COMMITTEE. The Committee is authorized to delegate in writing to the Chief Executive Officer of the Company ("CEO") the authority to grant Awards to Participants in accordance with such instructions and limitations as may be set forth in the delegation. Such delegation may include by way of example, but not limitation, the classes of Participants (e.g., non-officers) to whom the CEO may grant Awards, the number of shares of Stock the CEO is authorized to grant (either in total or per Participant), the type of Awards that may be granted, any limitations on the terms and conditions of the grants, and the expiration date of the Committee’s delegation of authority. All grants made by the CEO shall otherwise be subject to the terms and conditions set forth in the Plan. The Committee's delegation to the CEO may be terminated or rescinded by the Committee at any time by notice (written or otherwise) to the CEO
4.4 AUTHORITY OF COMMITTEE. Subject to any specific designation in the Plan, the Committee has the exclusive power, authority and discretion to:
(a) administer the Plan and to exercise all the powers and authorities either specifically granted to it under the Plan or necessary or advisable in the administration of the Plan, including, without limitation, the authority to grant Awards;
(b) determine the persons to whom and the time or times at which Awards shall be granted;
(c) determine the type and number of Awards to be granted and the number of shares of Stock to which an Award may relate;
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(d) determine the terms and conditions of any Award granted pursuant to the Plan, including, but not limited to, the exercise price, grant price, or purchase price, any restrictions or limitations on the Award, any schedule for lapse of forfeiture restrictions or restrictions on the exercisability of an Award, and accelerations or waivers thereof, based in each case on such considerations as the Committee in its sole discretion determines; provided, however, that the Committee shall not take any action or fail to take any action with respect to the operation of the Plan that would cause all or part of the payment under any Award to be subject to the additional tax under Section 409A of the Code;
(e) determine whether, to what extent, and under what circumstances an Award may be settled in, or the exercise price of an award may be paid in, cash, Stock, or other Awards or other property, or an Award may be cancelled, forfeited, exchanged, or surrendered;
(f) make adjustments in the terms and conditions of, and the criteria and performance objectives (if any) included in, Awards in recognition of unusual or non-recurring events affecting the Company or any Subsidiary or Affiliate or the financial statements of the Company or any Subsidiary or Affiliate, or in response to changes in applicable laws, regulations, or accounting principles;
(g) construe and interpret the terms of any matter arising pursuant to, the Plan and any Award; to prescribe, amend and rescind rules and regulations relating to the Plan;
(h) prescribe the form of each Award Agreement and to determine the terms and provisions of the Award Agreements (which need not be identical for each Participant) and to decide all other matters that must be determined in connection with an Award; and
(i) make all other decisions and determinations that may be required pursuant to the Plan or an Award Agreement as the Committee deems necessary or advisable for the administration of the Plan.
4.5 DECISIONS BINDING. The Committee’s interpretation of the Plan, any Awards granted pursuant to the Plan, or any Award Agreement and all decisions, determinations and interpretations of the Committee with respect to the Plan, any Award or any Award Agreement shall be final, binding and conclusive on all persons, including the Company, and any Subsidiary or Participant (or any person claiming any rights under the Plan from or through any Participant) and any stockholder.
4.6 LIMITATION OF LIABILITY. No member of the Board or Committee shall be liable for any action taken or determination made in good faith with respect to the Plan or any Award granted hereunder.
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ARTICLE 5
ELIGIBILITY AND PARTICIPATION
5.1 ELIGIBILITY. Persons eligible to participate in the Plan include members of the Board, employees and officers of the Company or a Subsidiary and consultants and advisors providing services to the Company or a Subsidiary, all as determined by the Committee. Prospective members of the Board, employees or officers of, and consultants and advisors to, the Company or a Subsidiary to whom Awards are granted in connection with written offers of a directorship or an employment, consulting or advisory relationship with the Company or a Subsidiary also may be granted Awards by the Committee. The provisions of any Award granted to a prospective member of the Board, employee, officer, consultant, or advisor must specifically provide that no portion of the Award will vest, become exercisable or be issued or paid prior to the date on which such individual begins providing services to the Company or any Subsidiary.
5.2 ACTUAL PARTICIPATION. Subject to the provisions of the Plan, the Committee may, from time to time, select from among all eligible individuals, those to whom Awards shall be granted and shall determine the nature and amount of each Award. No individual shall have any right to be granted an Award pursuant to this Plan.
ARTICLE 6
STOCK SUBJECT TO THE PLAN
6.1 NUMBER OF SHARES. The maximum number of shares of Stock reserved for the grant of Awards under the Plan shall be One Hundred Forty-Nine Million One Hundred Fifty Thousand (149,150,000) shares of Stock (subject to adjustment as provided in Section 13.1). No more than 100% of the total shares available for grant may be awarded to a single individual in a single year. If any shares subject to an Award are forfeited, cancelled, exchanged or surrendered or if an Award otherwise terminates or expires without a distribution of shares to the Participant, the shares of stock with respect to such Award shall, to the extent of any such forfeiture, cancellation, exchange, surrender, termination or expiration, again be available for Awards under the Plan; provided that, in the case of forfeiture, cancellation, exchange or surrender of shares of Restricted Stock or Restricted Stock Units with respect to which dividends have been paid or accrued, the number of shares with respect to such Awards shall not be available for Awards hereunder unless, in the case of shares with respect to which dividends were accrued but unpaid, such dividends are also forfeited, cancelled, exchanged or surrendered. Upon the exercise of any Award granted in tandem with any other Awards, such related Awards shall be cancelled to the extent of the number of shares of Stock as to which the Award is exercised and, notwithstanding the foregoing, such number of shares shall no longer be available for Awards under the Plan.
6.2 STOCK DISTRIBUTED. Any Stock distributed pursuant to any Award may consist, in whole or in part, of authorized and unissued Stock, treasury Stock or Stock purchased on the open market.
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ARTICLE 7
STOCK OPTIONS
7.1 GENERAL. The Committee is authorized to grant Options to Participants on the following terms and conditions:
(a) EXERCISE PRICE. The exercise price per share of Stock pursuant to an Option shall be determined by the Committee and set forth in the Award Agreement.
(b) TERM AND EXERCISABILITY OF OPTIONS. Unless otherwise provided in an Award Agreement, the date on which the Committee adopts a resolution expressly granting an Option shall be considered the day on which such Option is granted. Options shall be exercisable over the exercise period (which shall not exceed ten years from the date of grant), at such times and upon such conditions as the Committee may determine, as reflected in the Award Agreement; provided that the Committee shall have the authority to accelerate the exercisability of any outstanding Option at such time and under such circumstances as it, in its sole discretion, deems appropriate. An Option may be exercised to the extent of any or all full shares of Stock as to which the Option has become exercisable by giving written notice of such exercise to the Committee or its designated agent. The Committee also shall determine the performance or other conditions, if any, that must be satisfied before all or a part of an Option may be exercised.
(c) PAYMENT. The Committee shall determine the methods by which the exercise price of an Option may be paid, the form of payment, including, without limitation, cash, shares of Stock held for longer than six months (through actual tender or by attestation), or other property acceptable to the Committee and the methods by which shares of Stock shall be delivered or deemed to be delivered to Participants.
(d) EVIDENCE OF GRANT. All Options granted under the Plan shall be evidenced by a written Award Agreement which shall designate the Option as an ISO or an NQSO. The Award Agreement shall reflect the Committee’s determinations regarding the exercise price, time and conditions of exercise, and forms of payment for the Option and such additional provisions as may be specified by the Committee.
(e) SEPARATION FROM SERVICE. An Option may not be exercised unless the Participant is then in the employ of, or then maintains an independent contractor relationship with, the Company or a Subsidiary or an Affiliate (or a company or a parent or subsidiary company of such company issuing or assuming the Option in a transaction to which Section 424(a) of the Code applies), and unless the Participant has remained continuously so employed, or continuously maintained such relationship, since the date of grant of the Option; provided that, the Award Agreement may contain provisions extending the exercisability of Options, in the event of specified terminations, to a date not later than the expiration date of such Option.
(f) OTHER PROVISIONS. Options may be subject to such other conditions including, but not limited to, restrictions on transferability of the shares acquired upon exercise of such Options, as the Committee may prescribe in its discretion or as may be required by the Plan or applicable law.
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(g) REPRICING OF OPTIONS. The Committee shall not reprice any Options previously granted under the Plan.
7.2 INCENTIVE STOCK OPTIONS. Incentive Stock Options shall be granted only to employees and the terms of any Incentive Stock Options granted pursuant to the Plan must comply with the following additional provisions of this Section 7.2:
(a) EXERCISE PRICE. The exercise price per share of Stock shall be set by the Committee, provided that (subject to (e) below), the exercise price for any Incentive Stock Option may not be less than the Fair Market Value as of the date of the grant.
(b) EXERCISE. In no event may any Incentive Stock Option be exercisable for more than ten years from the date of its grant.
(c) LAPSE OF OPTION. An Incentive Stock Option shall lapse in the following circumstances.
(1) The Incentive Stock Option shall lapse ten years from the date it is granted, unless an earlier time is set in the Award Agreement.
(2) The Incentive Stock Option shall lapse upon a Separation from Service for any reason other than death or Disability, unless otherwise provided in the Award Agreement.
(3) If the Participant incurs a Separation from Service on account of Disability or death before the Option lapses pursuant to paragraph (1) or (2) above, the Incentive Stock Option shall lapse, unless it is previously exercised, on the earlier of (i) the scheduled termination date of the Option; or (ii) no more than 12 months after the date of the Participant’s Separation from Service on account of Disability or death. Upon the Participant’s Disability or death, any Incentive Stock Options exercisable at the Participant’s Disability or death may be exercised by the Participant’s legal representative or representatives, by the person or persons entitled to do so pursuant to the Participant’s last will and testament, or, if the Participant fails to make testamentary disposition of such Incentive Stock Option or dies intestate, by the person or persons entitled to receive the Incentive Stock Option pursuant to the applicable laws of descent and distribution.
(d) INDIVIDUAL DOLLAR LIMITATION. The aggregate Fair Market Value (determined as of the time an Award is made) of all shares of Stock with respect to which Incentive Stock Options are first exercisable by a Participant in any calendar year may not exceed $100,000.00 or such other limitation as may be imposed by Section 422(d) of the Code, or any successor provision. To the extent that Incentive Stock Options are first exercisable by a Participant in excess of such limitation, the excess shall be considered Non-Qualified Stock Options.
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(e) TEN PERCENT OWNERS. An Incentive Stock Option shall be granted to any individual who, at the date of grant, owns stock possessing more than ten percent of the total combined voting power of all classes of Stock of the Company only if such Option is granted at a price that is not less than 110% of Fair Market Value on the date of grant and the Option is exercisable for no more than five years from the date of grant.
(f) EXPIRATION OF INCENTIVE STOCK OPTIONS. No Award of an Incentive Stock Option may be made pursuant to this Plan after the tenth anniversary of the Effective Date.
(g) RIGHT TO EXERCISE. Except as provided in Section 7.2(c)(3) and in Section 12.4, during a Participant’s lifetime, an Incentive Stock Option may be exercised only by the Participant.
(h) SHARES AVAILABLE FOR ISO. 100% of the total shares available for grant may be awarded as Incentive Stock Options.
ARTICLE 8
STOCK APPRECIATION RIGHTS
8.1 SARS. The Committee is authorized to grant SARs to Participants on the following terms and conditions:
(a) IN GENERAL. SARs may be granted independently or in tandem with an Option. Unless the Committee determines otherwise, an SAR (1) granted in tandem with an NQSO may be granted at the time of grant of the related NQSO or at any time thereafter or (2) granted in tandem with an ISO may only be granted at the time of grant of the related ISO. An SAR granted in tandem with an Option shall be exercisable only to the extent the underlying Option is exercisable.
(b) SARs. An SAR shall confer on the Participant a right to receive an amount with respect to each share subject thereto, upon exercise thereof, equal to the excess of (1) the Fair Market Value of one share of Stock on the date of exercise over (2) the Base Value for the SAR as determined by the Committee and set forth in the Award Agreement. The Base Value shall not be less than, but may exceed, the Fair Market Value of a share of Stock on the date of grant.
(c) OTHER TERMS. All grants of SARs will be evidenced by an Award Agreement. The terms, methods of exercise, methods of settlement, and any other terms and conditions of any SAR will be determined by the Committee at the time of the grant of the Award and will be set forth in the Award Agreement. The form of consideration payable in settlement of an SAR shall be Stock or cash as specified in the Award Agreement.
ARTICLE 9
RESTRICTED STOCK AWARDS
9.1 RESTRICTED STOCK. The Committee is authorized to grant Restricted Stock to Participants in such amounts and subject to the terms and conditions as may be determined by the Committee. All Restricted Stock Awards shall be evidenced by a written Restricted Stock Award Agreement.
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9.2 Issuance and Restrictions. Restricted Stock shall be subject to such restrictions on transferability and other restrictions as the Committee may impose at the date of grant or thereafter, which restrictions may lapse separately or in combination at such times, under such circumstances, in such installments, or otherwise, as the Committee may determine. Such restrictions may include, but are not limited to, factors relating to the increase in the value of the Stock or to individual or Company performance such as the attainment of certain specified individual, divisional or Company-wide performance goals, sales volume increases or increases in earnings per share. Except to the extent restricted under the Restricted Stock Award Agreement, a Participant granted Restricted Stock shall have all of the rights of a stockholder including, without limitation, the right to vote the Restricted Stock and the right to receive dividends thereon.
9.3 Forfeiture. Upon a Separation from Service from the Company during the applicable restriction period (which is the period prior to the lapse of the restrictions), Restricted Stock and any accrued but unpaid dividends that are at that time subject to restrictions shall be forfeited; provided however, that the Committee may provide, by rule or regulation or in any Restricted Stock Award Agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to Restricted Stock will be waived in whole or in part in the event of terminations resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of Restricted Stock.
9.4 Certificates for Stock. Restricted Stock granted under the Plan may be evidenced in such manner as the Committee shall determine. If certificates representing Restricted Stock are registered in the name of the Participant, such certificates shall bear an appropriate legend referring to the terms, conditions, and restrictions applicable to such Restricted Stock, and the Company shall retain physical possession of the certificate until such time as all applicable restrictions lapse.
ARTICLE 10
OTHER TYPES OF AWARDS
10.1 OTHER TYPES OF AWARDS IN GENERAL. The Committee also is authorized to grant the following types of Awards to Participants in such amounts and subject to such terms and conditions as may be determined by the Committee and as may be set forth in the applicable Award Agreement:
(a) RESTRICTED STOCK UNITS. Restricted Stock Unit Awards will grant the Participant the right to receive a specified number of shares of Stock, or a cash payment equal to the Fair Market Value (determined as of a specified date) of a specified number of shares of Stock, subject to any vesting or other restrictions deemed appropriate to the Committee. These restrictions may lapse separately or in combination at such times, pursuant to such circumstances, in such installments, or otherwise, as the Committee determines at the time of the grant of the Award or thereafter. Such restrictions may include, but are not limited to, factors relating to the increase in the value of the Stock or to individual or Company performance such as the attainment of certain specified individual, divisional or Company-wide performance goals, sales volume increases or increases in earnings per share. Except as otherwise determined by the Committee at the time of the grant of the Award or thereafter, upon Separation from Service during the applicable restriction period, or upon failure to satisfy any other conditions precedent to the delivery of Stock or cash to which such Restricted Stock Units relate, the Restricted Stock Units that are at that time subject to restrictions shall be forfeited. Notwithstanding the foregoing, the Committee may provide, by rule or regulation or in any Award Agreement, or may determine in any individual case, that restrictions or forfeiture conditions relating to Restricted Stock Units will be waived in whole or in part in the event of termination resulting from specified causes, and the Committee may in other cases waive in whole or in part the forfeiture of Restricted Stock Units. The Restricted Stock Units shall be settled in Stock or cash as specified in the Award Agreement.
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(b) STOCK AWARDS IN LIEU OF CASH AWARDS. The Committee is authorized to grant Stock as a bonus, or to grant other Awards, in lieu of Company commitments to pay cash under other plans or compensatory arrangements. Stock or Awards granted hereunder shall have such other terms as shall be determined by the Committee.
(c) PERFORMANCE SHARES AND OTHER STOCK OR CASH-BASED AWARDS. The Committee is authorized to grant to Participants Performance Shares and/or Other Stock-Based Awards or Other Cash-Based Awards (either independently or as an element of or supplement to any other Award under the Plan), as deemed by the Committee to be consistent with the purposes of the Plan. Such Awards may be granted with value and payment contingent upon performance of the Company or any other factors designated by the Committee, or valued by reference to the performance of specified Subsidiaries. The Committee shall determine the terms and conditions of such Awards at the date of grant. Such performance objectives may be expressed in terms of one or more financial or other objective goals. Financial goals may be expressed, for example, in terms of sales, earnings per share, stock price, return on equity, net earnings growth, net earnings, related return ratios, cash flow, earnings before interest, taxes, depreciation and amortization (EBITDA), return on assets or total stockholder return. Other objective goals may include, but are not limited to, the attainment of various productivity and long-term growth objectives, including, without limitation reductions in the Company's overhead ratio and expense to sales ratios. Any criteria may be measured in absolute terms or as compared to another corporation or corporations.
10.2 COMPLIANCE WITH SECTION 409A. Some of the Awards that may be granted pursuant to the Plan (including, but not necessarily limited to, Performance Share Awards, Other Stock or Cash-Based Awards and Restricted Stock Unit Awards) may be considered to be “non-qualified deferred compensation” subject to Section 409A of the Code. If an Award is subject to Section 409A, the Award Agreement and this Plan are intended to comply fully with and meet all of the requirements of Section 409A and the Award Agreement shall include such provisions as may be necessary to assure compliance with Section 409A. An Award subject to Section 409A also shall be administered in good faith compliance with the provisions of Section 409A as well as applicable guidance issued by the Internal Revenue Service and the Department of Treasury. To the extent necessary to comply with Section 409A, any Award that is subject to Section 409A may be modified, replaced or terminated in the discretion of the Committee. Notwithstanding any provision of this Plan or any Award Agreement to the contrary, in the event that the Committee determines that any Award is or may become subject to Section 409A, the Company may adopt such amendments to the Plan and the related Award Agreements, without the consent of the Participant, or adopt other policies and procedures (including amendments, policies and procedures with retroactive effective dates), or take any other action that the Committee determines to be necessary or appropriate to either comply with Section 409A or to exclude or exempt the Plan or any Award from the requirements of Section 409A.
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ARTICLE 11
CHANGE OF CONTROL PROVISIONS
11.1 ACCELERATION UPON A CHANGE OF CONTROL. The Committee or the Board may provide, either at the time of the grant of an Award or at any time prior to the occurrence of a Change of Control, for any or all of the following provisions to apply to an Award upon or in anticipation of a Change of Control:
(a) any Award carrying a right to exercise that was not previously exercisable and vested shall become fully exercisable and vested;
(b) the restrictions and forfeiture conditions applicable to any other Award granted under the Plan shall lapse and such Awards shall be deemed fully vested, and any performance conditions imposed with respect to Awards shall be deemed to be fully achieved;
(c) the value of all outstanding Awards shall, to the extent determined by the Committee at or after grant, be cashed out on the basis of the Change of Control Price as of the date the Change of Control occurs or such other date as the Committee may determine prior to the Change of Control.
ARTICLE 12
PROVISIONS APPLICABLE TO AWARDS
12.1 TERM OF AWARD. The term of each Award shall be for the period determined by the Committee, provided that in no event shall the term of any Option or Stock Appreciation Right granted in tandem with an Incentive Stock Option exceed a period of ten years from the date of its grant.
12.2 AWARD AGREEMENT. Awards under the Plan shall be evidenced by Award Agreements that set forth the terms, conditions and limitations for each Award, including, but not limited to, the term of the Award, the provisions applicable in the event the Participant’s employment or service terminates and the Company’s authority to unilaterally or bilaterally amend, modify, suspend, cancel or rescind an Award.
12.3 FORM OF PAYMENT FOR AWARDS. Subject to the terms of the Plan and any applicable law or Award Agreement, payments or transfers to be made by the Company or a Subsidiary on the grant, exercise or settlement of an Award may be made in such forms as the Committee determines at or after the time of grant, including, without limitation, cash, Stock held for more than six months, other Awards, or other property, or any combination, and may be made in a single payment or transfer, in installments, or on a deferred basis, provided that such deferral complies with Section 409A of the Code, if applicable, in each case determined in accordance with rules adopted by, and at the discretion of, the Committee.
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12.4 LIMITS ON TRANSFER.
(a) GENERAL. Except as provided in Section 12.4(b) or Section 12.5, no right or interest of a Participant in any Award may be pledged, encumbered, or hypothecated to, or in favor of, any party other than the Company or a Subsidiary, or shall be subject to any lien, obligation, or liability of such Participant to any other party other than the Company or a Subsidiary. Except as provided in Section 12.4(b) or Section 12.5, and except as otherwise provided by the Committee, no Award shall be assigned, transferred, or otherwise disposed of by a Participant other than pursuant to the terms of a domestic relations order issued by a court of competent jurisdiction or by will or the laws of descent and distribution.
(b) TRANSFERS TO FAMILY MEMBERS. The Committee shall have the authority, in its discretion, to grant (or to sanction by way of amendment to an existing Award) Awards which may be transferred by the Participant during his or her lifetime to any “family member” (as defined below). A transfer of an Award pursuant hereto may only be effected by the Company at the written request of the Participant. In the event an Award is transferred as contemplated herein, such transferred Award may not be subsequently transferred by the transferee (other than another transfer meeting the conditions herein) except by will or the laws of descent and distribution. A transferred Award shall continue to be governed by and subject to the terms and limitations of the Plan and relevant Award Agreement, and the transferee shall be entitled to the same rights as the Participant, as if the transfer had not taken place. For purposes of this Section 12.4(b), the term “family member” means a Participant’s spouse and any parent, stepparent, grandparent, child, stepchild, or grandchild, including adoptive relationships or a trust or any other entity in which these persons (or the Participant) have more than 50% of the beneficial interest.
12.5 BENEFICIARIES. Notwithstanding Section 12.4, a Participant may, in the manner determined by the Committee, designate a beneficiary to exercise the rights of the Participant and to receive any distribution with respect to any Award upon the Participant’s death, and, in accordance with Section 7.2(c)(3) in the case of an ISO, upon the Participant’s Disability. A beneficiary, legal guardian, legal representative, or other person claiming any rights pursuant to the Plan is subject to all terms and conditions of the Plan and any Award Agreement applicable to the Participant, except to the extent the Plan and Award Agreement otherwise provide, and to any additional restrictions deemed necessary or appropriate by the Committee. If the Participant is married and resides in a community property state, a designation of a person other than the Participant’s spouse as his beneficiary with respect to more than 50% of the Participant’s interest in the Award shall not be effective without the prior written consent of the Participant’s spouse. If no beneficiary has been designated or survives the Participant, payment shall be made to the person entitled thereto pursuant to the Participant’s will or the laws of descent and distribution. Subject to the foregoing, a beneficiary designation may be changed or revoked by a Participant at any time provided the change or revocation is provided to the Committee.
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12.6 STOCK CERTIFICATES. Notwithstanding anything herein to the contrary, the Company shall not be required to issue or deliver any certificates evidencing shares of Stock pursuant to the exercise of any Award, unless and until the Board has determined, with advice of counsel, that the issuance and delivery of such certificates is in compliance with all applicable laws, regulations of governmental authorities and, if applicable, the requirements of any exchange or quotation system on which the shares of Stock are listed, quoted or traded. All Stock certificates delivered pursuant to the Plan are subject to any stop-transfer orders and other restrictions as the Committee deems necessary or advisable to comply with Federal, state, or foreign jurisdiction, securities or other laws, rules and regulations and the rules of any national securities exchange or automated quotation system on which the Stock is listed, quoted, or traded. The Committee may place legends on any Stock certificate to reference restrictions applicable to the Stock. In addition to the terms and conditions provided herein, the Board may require that a Participant make such reasonable covenants, agreements, and representations as the Board, in its discretion, deems advisable in order to comply with any such laws, regulations, or requirements.
12.7 “MARKET STAND-OFF” AGREEMENT. Each Award Agreement will contain a provision pursuant to which the Participant agrees that in connection with any Qualifying Public Offering by the Company, during the period of duration (not to exceed 180 days or such longer period, not to exceed eighteen (18) days after the expiration of the 180-day period, as the Company or such underwriters shall request in order to facilitate compliance with NASD Rule 2711)) specified by the Company and an underwriter of Stock of the Company following the effective date of a registration statement of the Company filed under the Securities Act with respect to such offering, he or she will not, to the extent requested by the Company and such underwriter, directly or indirectly sell, offer to sell, contract to sell (including, without limitation, any short sale), grant any option to purchase, pledge or otherwise transfer or dispose of (other than to donees who agree to be similarly bound) any securities of the Company held by him or her at any time during such period except Stock included in such registration, and if requested by such underwriter, agrees to execute a lock-up agreement in such form as the underwriter may reasonably propose.
ARTICLE 13
CHANGES IN CAPITAL STRUCTURE
13.1 ADJUSTMENTS. If there shall occur any merger, consolidation, liquidation, issuance of rights or warrants to purchase securities, recapitalization, reclassification, stock dividend, spin-off, split-off, stock split, reverse stock split or other distribution with respect to the shares of Stock, or any similar corporate transaction or event in respect of the Stock, then the Committee shall, in the manner and to the extent that it deems appropriate and equitable to the Participants and consistent with the terms of this Plan, cause a proportionate adjustment to be made in (i) the maximum numbers and kind of shares provided in Section 6.1 hereof, (ii) the number and kind of shares of Stock, share units, or other rights subject to the then-outstanding Awards, (iii) the price for each share or unit or other right subject to then outstanding Awards without change in the aggregate purchase price or value as to which such Awards remain exercisable or subject to restrictions, and (iv) any other terms of an Award that are affected by the event. Moreover, in the event of any such transaction or event, the Committee, in its discretion, may provide in substitution for any or all outstanding Awards under the Plan such alternative consideration (including cash) as it, in good faith, may determine to be equitable under the circumstances and may require in connection therewith the surrender of all Awards so replaced. Notwithstanding the foregoing, any such adjustments shall be made in a manner consistent with the requirements of Section 409A of the Code and, in the case of Incentive Stock Options, any such adjustments shall be made in a manner consistent with the requirements of Section 424(a) of the Code.
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13.2 NO OTHER RIGHTS. Except as expressly provided in the Plan, no Participant shall have any rights by reason of any merger, consolidation, liquidation, issuance of rights or warrants to purchase securities, recapitalization, reclassification, stock dividend, spin-off, split-off, stock split, reverse stock split or other distribution with respect to the shares of Stock, or any similar corporate transaction or event in respect of the Stock. Except as expressly provided in the Plan, no issuance by the Company of shares of stock of any class, or securities convertible into shares of stock of any class, shall affect, and no adjustment by reason thereof shall be made with respect to, the number of shares of Stock subject to an Award or the exercise price of any Award.
ARTICLE 14
AMENDMENT, MODIFICATION AND TERMINATION
14.1 AMENDMENT, MODIFICATION, AND TERMINATION. With the approval of the Board, at any time and from time to time, the Committee may terminate, amend or modify the Plan; provided, however, that to the extent necessary to comply with any applicable law, regulation, or stock exchange rule, the Company shall obtain stockholder approval of any Plan amendment in such a manner and to such a degree as required. Stockholder approval also is required for any amendment to the Plan that (a) increases the number of shares available under the Plan (other than any adjustment as provided by Article 13), (b) permits the Committee to grant Options with an exercise price that is below Fair Market Value on the date of grant, (c) permits the Committee to extend the exercise period for an Option beyond ten years from the date of grant, or (d) amends Section 7.1(g) to permit the Committee to reprice previously granted Options. In addition, no such action shall be taken that would cause all or part of the payment under any Award to be subject to the additional tax under Section 409A of the Code. Additional rules relating to amendments to the Plan or any Award Agreement to assure compliance with Section 409A of the Code are set forth in Section 10.2.
14.2 AWARDS PREVIOUSLY GRANTED. Except as otherwise provided in Section 10.2 or pursuant to Section 11.1, no termination, amendment, or modification of the Plan shall adversely affect in any material way any Award previously granted pursuant to the Plan without the prior written consent of the Participant.
ARTICLE 15
GENERAL PROVISIONS
15.1 RESTRICTED SECURITIES. Prior to a Qualifying Public Offering, the Stock to be issued under this Plan, which is issued in reliance on the exemption from registration set forth in Rule 701, shall be deemed to be “restricted securities” as defined in Rule 144, promulgated by the Securities and Exchange Commission under the Securities Act as from time to time in effect and applicable to the Plan and Participants. Resales of such Stock by the holder thereof shall be in compliance with the Securities Act or an exemption therefrom. Such Stock may bear a legend if determined necessary by the Committee in substantially the following form:
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“THE SHARES OF STOCK REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THE SHARES MAY NOT BE OFFERED FOR SALE, SOLD, PLEDGED, TRANSFERRED, OR OTHERWISE DISPOSED OF UNTIL THE HOLDER HEREOF PROVIDES EVIDENCE SATISFACTORY TO PLAYSTUDIOS, Inc., (WHICH, IN THE DISCRETION OF PLAYSTUDIOS, Inc., MAY INCLUDE AN OPINION OF COUNSEL SATISFACTORY TO PLAYSTUDIOS, Inc.,) THAT SUCH OFFER, SALE, PLEDGE, TRANSFER, OR OTHER DISPOSITION WILL NOT VIOLATE APPLICABLE FEDERAL OR STATE LAWS.”
15.2 RIGHT OF FIRST REFUSAL. If any Participant (“Transferor”), regardless of whether such Participant is the original holder of the Award contemplated in this Section 15.2; proposes to sell, transfer, assign, hypothecate, make gifts of or in any manner dispose of, encumber, or alienate (each individually constituting a “Transfer”) to a transferee, any Stock, obtained in connection with any Award held by such Transferor, either pursuant to a bona fide offer (“Offer”) from a potential transferee (“Offeror”) or by effecting a gift of the Stock (“Gift”) to a donee (“Donee”) without consideration, then the Transferor must comply with the provisions of this Section 15.2 including, without limitation, acknowledging and allowing the applicable time periods to lapse with respect to the rights of the Company as provided herein, before accepting any such Offer or otherwise affecting the Transfer of any Stock pursuant to such Offer, or affecting any such Gift.
(a) Statement of Offer. Before accepting any Offer or affecting any Gift, the Transferor shall obtain from the Offeror or Donee, as the case may be, a statement (“Statement”) in writing addressed to the Transferor and signed by the Offeror or Donee, setting forth: (A) the date of the Statement (the “Statement Date”); (B) the number of shares of Stock covered by the Offer or Gift and, in the case of an Offer, the price per share to be paid by the Offeror and the terms of payment of such price; (C) the Offeror’s or Donee’s willingness to be bound by the terms of this Section 15.2 and execute and deliver to the Company such documentation as required under this Section 15.2; (D) the Offeror’s or Donee’s name, address and telephone number; and (E) the Offeror’s or Donee’s willingness to supply any additional information about himself or herself as may be reasonably requested by the Company. Promptly upon receipt of a Statement, and before accepting the Offer or affecting the Gift to which the Statement relates, the Transferor shall deliver to the Company (1) a copy of the Statement, and (2) in the case of an Offer, evidence reasonably satisfactory to the Company as to the Offeror’s financial ability to consummate the proposed purchase.
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(b) Company Rights. Subject to the provisions of Section 15.2(a), upon receipt of a copy of the Statement, the Company shall have the exclusive right and option (the “Right”), but not the obligation, to purchase all of the shares of Stock that the Offeror proposes to purchase from the Transferor or, in the case of a Gift, that the Transferor proposes to give to the Donee (collectively, “Subject Securities”) (A) in the case of an Offer, for the per share price and on the terms as set forth in the Statement; provided, however, that if the purchase price is payable in whole or in part in property (which term shall include the securities of any issuer other than the Company) other than cash, the Company may pay, in lieu of such property, a sum of cash equal to the fair market value of such property as determined by the Transferor and the Company in good faith or, if the Transferor and the Company do not agree on the fair market value of such property within five days after the Company delivers written notice (as described below) of its intention to exercise the Right, then the Transferor and the Company shall select one independent appraiser (with each of the Transferor and the Company jointly bearing one-half of the expense of the appraiser) to determine the fair market value of that property and the appraised fair market value of that property as determined by such appraiser shall be deemed the fair market value of that property for purposes of this Section 15.2(b) or (B) in the case of a Gift, the Fair Market Value of the Subject Securities, as determined in good faith by the Company; provided that the Transferor may elect to retain the Subject Securities rather than sell the Subject Securities at the Fair Market Value as determined by the Company by giving written notice thereof to the Company within five days after such determination by the Company is received in writing by the Transferor. The Company shall exercise the Right by giving written notice thereof to the Transferor. Upon exercising the Right, the Company shall have the obligation, to the extent it lawfully may do so, to purchase the Subject Securities within 30 days after the date of the Company’s receipt of its copy of the Statement on and subject to the terms and conditions hereof. If the terms of the purchase include the Transferor’s release of any pledge or encumbrance on the Subject Securities and the Transferor shall have failed to obtain the release of the pledge or encumbrance by the purchase date, at the Company’s option the purchase shall occur on the scheduled date with the purchase price reduced to the extent of all unpaid indebtedness for which the Subject Securities are then pledged or encumbered. Failure by the Company to exercise the Right, or failure by the Company to otherwise perform its obligations under this Section 15.2(b), within the 30 day period herein prescribed shall be deemed an election by the Company not to exercise the Right. If the Company exercises the Right and is unable for any reason to perform its obligations thereunder in accordance with this Section 15.2, the Company may assign all or a portion of its rights under the Right to any one or more of the Company’s stockholders (other than the Transferor) (“Assignee Stockholder”), as the Board shall determine, in its sole and absolute discretion.
(c) Purchase of Less Than All Shares. Anything in Section 15.2 to the contrary notwithstanding, the Company and any Assignee Stockholder individually may, pursuant to the exercise of the Right, purchase fewer than all of the Subject Securities provided that such Persons in the aggregate purchase all, and not less than all, of the Subject Securities, and it shall be a condition precedent to the obligation of any of such Persons to purchase any Subject Securities, that all, and not less than all, of the Subject Securities have been elected to be purchased pursuant to the exercise of the Right.
(d) Failure to Exercise Right or Consummate Transaction. If the Company elects not to exercise the Right, or if the Right is exercised and the obligations to be performed thereunder by the Company are not performed in accordance with this Section 15.2, or if the Company’s rights are assigned to an Assignee Stockholder and such Assignee Stockholder fails to perform his or her obligations under the assigned Right in accordance with this Section 15.2, then, subject to the application of any applicable state or federal securities laws, the Transferor may dispose of all of the Subject Securities within 90 days after the date of the Statement at the per share price and on the terms, if any, as set forth in the Statement free and clear of the terms of this Section 15.2; provided, however, that (A) any subsequent transfer by the Offeror or Donee, as applicable, shall once again be subject to this Section 15.2 and (B) if the sale or gift of the Subject Securities is not consummated within such 90-day period, then the Transfer of any such Stock shall once again be subject to the terms of this Section 15.2.
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(e) Legend. To assure the enforceability of the Company’s rights under this Section 15.2, until the date of a Qualifying Public Offering, each certificate or instrument representing Stock or an Award held by him, her, or it may, in the Committee’s discretion, bear a conspicuous legend in substantially the following form:
“THE SHARES [REPRESENTED BY THIS CERTIFICATE] [ISSUABLE PURSUANT TO THIS AGREEMENT] ARE SUBJECT TO THE COMPANY’S RIGHT OF FIRST REFUSAL IN THE CASE OF A TRANSFER AS PROVIDED UNDER THE COMPANY’S 2011 OMNIBUS STOCK AND INCENTIVE PLAN AN AWARD AGREEMENT ENTERED INTO PURSUANT THERETO. COPIES OF SUCH PLAN AND AWARD AGREEMENT ARE AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.”
(f) Expiration. The rights and obligations pursuant to this Section 15.2 hereof will terminate upon the date of a Qualifying Public Offering.
15.3 PURCHASE OPTION. Except as otherwise expressly provided in any particular Award, (A) if a Participant ceases to be employed by or perform services for the Company or its Subsidiaries for any reason at any time or (B) upon the occurrence of a Change in Control, the Company (and/or its designee(s)) shall have the option (the “Purchase Option”) to purchase, and the Participant (or the Participant’s executor or the administrator of the Participant’s estate in the event of the Participant’s death, or the transferee of the Stock or Award in the case of any disposition, or the Participant’s legal representative in the event of the Participant’s incapacity) (hereinafter, collectively with such Participant, the “Grantor”) shall sell to the Company and/or its designee(s), all or any portion (at the Company’s option) of the shares of Stock issued pursuant to this Plan and held by the Grantor (such shares of Stock herein referred to as the “Purchasable Shares”).
(a) The Company shall give notice in writing to the Grantor of the exercise of the Purchase Option within one year of the date of the termination of the Participant’s employment or service relationship or the date of the Change in Control. Such notice shall state the number of Purchasable Shares to be purchased and the determination of the Board of the Fair Market Value per share of such Purchasable Shares, or the Change in Control Price, if applicable. If no notice is given within the time limit specified above, the Purchase Option shall terminate.
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(b) The purchase price to be paid for the Purchasable Shares purchased pursuant to the Purchase Option shall be, the Fair Market Value per share, or the Change in Control Price if applicable, as of the date of the notice of exercise of the Purchase Option times the number of shares being purchased. The purchase price shall be paid in cash. The closing of such purchase shall take place at the Company’s principal executive offices within ten (10) days after the purchase price has been determined. At such closing, the Grantor shall deliver to the purchasers the certificates or instruments evidencing the Purchasable Shares being purchased free and clear of all liens and encumbrances (if any), duly endorsed (or accompanied by duly executed stock powers) and otherwise in good form for delivery, against payment of the purchase price by check of the purchasers. In the event that, notwithstanding the foregoing, the Grantor shall have failed to obtain the release of any pledge or other encumbrance on any Purchasable Shares by the scheduled closing date, at the option of the purchasers, the closing shall nevertheless occur on such scheduled closing date, with the cash purchase price being reduced to the extent of all unpaid indebtedness for which such Purchasable Shares are then pledged or encumbered.
(c) To assure the enforceability of the Company’s rights under this Section 15.3, until the date of a Qualifying Public Offering, each certificate or instrument representing Stock or an Award held by him, her, or it may, in the Committee’s discretion, bear a conspicuous legend in substantially the following form:
“THE SHARES [REPRESENTED BY THIS CERTIFICATE] [ISSUABLE PURSUANT TO THIS AGREEMENT] ARE SUBJECT TO AN OPTION TO REPURCHASE PROVIDED UNDER THE PROVISIONS OF THE COMPANY’S 2011 OMNIBUS STOCK AND INCENTIVE PLAN AND/OR AN AWARD AGREEMENT ENTERED INTO PURSUANT THERETO. COPIES OF SUCH PLAN AND AWARD AGREEMENT ARE AVAILABLE UPON WRITTEN REQUEST TO THE COMPANY AT ITS PRINCIPAL EXECUTIVE OFFICES.”
(d) The Company’s rights under this Section 15.3 shall terminate upon the date of a Qualifying Public Offering.
15.4 NO RIGHT TO CONTINUED EMPLOYMENT, ETC. Nothing in the Plan or in any Award granted or any Award Agreement or other agreement entered into pursuant hereto shall confer upon any Participant the right to continue in the employ of or to continue as an independent contractor of the Company, any Subsidiary or any Affiliate or to be entitled to any remuneration or benefits not set forth in the Plan or such Award Agreement or other agreement or to interfere with or limit in any way the right of the Company or any such Subsidiary or Affiliate to terminate such Participant's employment or independent contractor relationship.
15.5 WITHHOLDING. The Company or any Subsidiary shall have the authority and the right to deduct or withhold, or require a Participant to remit to the Company, an amount sufficient to satisfy Federal, state, and local taxes (including the Participant’s FICA obligation) required by law to be withheld with respect to any taxable event concerning a Participant arising as a result of this Plan. With the Committee’s consent as expressed in an Award Agreement or in any policy adopted by the Committee, a Participant may elect to (a) have the Company withhold from those shares of Stock that would otherwise be received upon the exercise of any Option, a number of shares having a Fair Market Value equal to the minimum statutory amount necessary to satisfy the Company’s applicable federal, state, local or foreign income and employment tax withholding obligations with respect to such Participant, or (b) tender previously-owned shares of Stock held by the Participant for six months or longer to satisfy the Company’s applicable federal, state, local, or foreign income and employment tax withholding obligations with respect to the Participant.
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15.6 NO RIGHTS TO AWARDS OR LOANS; NO STOCKHOLDER RIGHTS. No Participant shall have any claim to be granted any Award under the Plan, and there is no obligation for uniformity of treatment of Participants. Except as provided specifically herein, a Participant or a transferee of an Award shall have no rights as a stockholder with respect to any shares covered by the Award until the date of the issuance of a stock certificate to him for such shares.
15.7 UNFUNDED STATUS OF AWARDS. The Plan is intended to constitute an "unfunded" plan for incentive and deferred compensation. With respect to any payments not yet made to a Participant pursuant to an Award, nothing contained in the Plan or any Award shall give any such Participant any rights that are greater than those of a general creditor of the Company.
15.8 NO FRACTIONAL SHARES. No fractional shares of Stock shall be issued or delivered pursuant to the Plan or any Award. The Committee shall determine whether cash, other Awards, or other property shall be issued or paid in lieu of such fractional shares or whether such fractional shares or any rights thereto shall be forfeited or otherwise eliminated.
15.9 RELATIONSHIP TO OTHER BENEFITS. No payment under the Plan will be taken into account in determining any benefits under any pension, retirement, savings, profit sharing, group insurance, welfare or other benefit plan of the Company or any Subsidiary.
15.10 EXPENSES. The expenses of administering the Plan will be paid by the Company and its Subsidiaries.
15.11 GOVERNING LAW. The Plan and all determinations made and actions taken pursuant hereto shall be governed by the laws of the State of Delaware without giving effect to the conflict of laws principles thereof.
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Exhibit 21.1
Subsidiaries of Acies
Name | State of Organization | Percentage Ownership | ||||
Catalyst Merger Sub I, Inc. | DE | 100 | % | |||
Catalyst Merger Sub II, LLC | DE | 100 | % |
Exhibit 23.1
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of Acies Acquisition Corp. (the “Company”) on Form S-4 of our report dated September 21, 2020, except for the first paragraph of Note 5, the third paragraph of Note 7 and the second paragraph of Note 8 as to which the date is October 20, 2020, which includes an explanatory paragraph as to the Company’s ability to continue as a going concern, with respect to our audit of the financial statements of Acies Acquisition Corp. as of September 15, 2020 and for the period from August 14, 2020 (inception) through September 15, 2020, which report appears in the Prospectus, which is part of this Registration Statement. We also consent to the reference to our Firm under the heading “Experts” in such Prospectus.
/s/ Marcum llp
Marcum llp
New York, NY
February 16, 2021
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in this Registration Statement on Form S-4 of our report dated February 16, 2021, relating to the financial statements of PLAYSTUDIOS, Inc. We also consent to the reference to us under the heading "Experts" in such Registration Statement.
/s/ Deloitte & Touche
Las Vegas, NV
February 16, 2021
1
Exhibit 99.1
FOR THE EXTRAORDINARY GENERAL MEETING
OF SHAREHOLDERS OF
ACIES Acquisition Corp.
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
P
C
|
The undersigned hereby appoints Edward King and Daniel Fetters (the “Proxies”), and each of them independently, with full power of substitution, as proxies to vote the shares that the undersigned is entitled to vote (the “Shares”) at the extraordinary general meeting of Acies Acquisition Corp., a Cayman Islands exempted company (“Acies”) to be held at , Eastern time on , 2021, at the offices of Latham & Watkins LLP, located at 10250 Constellation Blvd., Suite 1100, Los Angeles, California 90067, and also virtually via live webcast at: https://www.cstproxy.com/aciesacq/sm2021, and at any adjournments thereof. The Shares shall be voted as indicated with respect to the proposals listed below hereof and in the Proxies’ discretion on such other matters as may properly come before the extraordinary general meeting or any adjournments thereof.
The undersigned acknowledges receipt of the accompanying proxy statement/prospectus and revokes all prior proxies for said extraordinary general meeting.
THE SHARES REPRESENTED BY THIS PROXY WHEN PROPERLY EXECUTED WILL BE VOTED IN THE MANNER DIRECTED HEREIN BY THE UNDERSIGNED STOCKHOLDER. IF NO SPECIFIC DIRECTION IS GIVEN AS TO THE PROPOSALS, THIS PROXY WILL BE VOTED “FOR” EACH OF PROPOSAL NOS. 1, 2, 3 (INCLUDING EACH OF THE SUB-PROPOSALS), 4, 5, 6, 7, 8 AND 9.
The notice of the extraordinary general meeting and accompanying proxy statement are available at https://www.cstproxy.com/aciesacq/sm2021. The proxy statement contains important information regarding each of the proposals listed below. You are encouraged to read the proxy statement carefully. PLEASE MARK, SIGN, DATE AND RETURN THE PROXY CARD PROMPTLY. |
ACIES Acquisition Corp. – THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” PROPOSAL NOS. 1, 2, 3 (including each of the sub-proposals), 4, 5, 6, 7, 8 and 9. | Please mark vote as indicated in this ☒ example | |||
(1) | The Business Combination Proposal—to consider and vote upon a proposal to approve by ordinary resolution and adopt the agreement and plan of merger, dated as of February 1, 2021 (as may be amended and/or restated from time to time, the “Merger Agreement”), by and among Acies, PlayStudios, Inc., a Delaware corporation (“PLAYSTUDIOS”), Catalyst Merger Sub I, Inc., a Delaware corporation (“First Merger Sub”), and Catalyst Merger Sub II, LLC, a Delaware limited liability company (“Second Merger Sub”), a copy of which is attached to the proxy statement/prospectus as Annex A. The Merger Agreement provides for, among other things, the merger of First Merger Sub with and into PLAYSTUDIOS, (“First Merger”) with PLAYSTUDIOS surviving the First Merger as a wholly owned subsidiary of Acies (“Surviving Corporation”), and immediately following the First Merger, the Surviving Corporation will merge with and into the Second Merger Sub (the “Second Merger”, and together with the First Merger, the “Mergers”), with Second Merger Sub being the surviving entity of the Second Merger, in accordance with the terms and subject to the conditions of the Merger Agreement as more fully described elsewhere in the accompanying proxy statement/prospectus (the “Business Combination Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
(2) | The Domestication Proposal—to consider and vote upon a proposal to approve by special resolution, the change of Acies’ jurisdiction of incorporation by deregistering as an exempted company in the Cayman Islands and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication”, and together with the Mergers, and the other transactions contemplated by the Merger Agreement and the documents related thereto, the “Business Combination”) (the “Domestication Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
(3) | The Organizational Documents Proposals—to consider and vote upon the following four separate proposals (collectively, the “Organizational Documents Proposals”) to approve by ordinary resolutions, save for the Organization Documents Proposal D, which requires a special resolution, the following material differences between Acies’ Amended and Restated Memorandum and Articles of Association (as may be amended from time to time, the “Cayman Constitutional Documents”) and the proposed new certificate of incorporation (“Proposed Certificate of Incorporation”) and the proposed new bylaws (“Proposed Bylaws”) of Acies Acquisition Corp. (a corporation incorporated in the State of Delaware, and upon the filing with and acceptance by the Secretary of State of Delaware of the certificate of domestication in accordance with Section 388 of the Delaware General Corporation Law (the “DGCL”)), which will be renamed “PLAYSTUDIOS, Inc.” in connection with the Business Combination (Acies after the Domestication, including after such change of name, is referred to herein as “New PLAYSTUDIOS”): | |||
(a) to authorize the change in the authorized share capital of Acies from 500,000,000 Class A ordinary shares, par value $0.0001 per share (the “Acies Class A ordinary shares”) and 50,000,000 Class B ordinary shares, par value $0.0001 per share (the “Acies Class B ordinary shares” and, together with the Class A ordinary shares the “ordinary shares”), to shares of Class A common stock of New PLAYSTUDIOS, par value $0.0001 per share (the “New PLAYSTUDIOS Class A common stock”) shares of Class B common stock of New PLAYSTUDIOS, par value $0.0001 per share (the “New PLAYSTUDIOS Class B common stock”, and together with the New PLAYSTUDIOS Class A common stock, the “New PLAYSTUDIOS common stock”) and shares of preferred stock of New PLAYSTUDIOS (the “New PLAYSTUDIOS preferred stock”) (the “Organizational Documents Proposal A”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ | |
(b) to authorize the board of directors of New PLAYSTUDIOS (the “New PLAYSTUDIOS Board of Directors”) to issue any or all shares of New PLAYSTUDIOS preferred stock in one or more classes or series, with such terms and conditions as may be expressly determined by New PLAYSTUDIOS Board of Directors and as may be permitted by the DGCL (the “Organizational Documents Proposal B”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ | |
(c) to provide that New PLAYSTUDIOS Board of Directors be declassified with all directors being elected each year for one-year terms (the “Organizational Documents Proposal C”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ | |
(d) to authorize, by way of special resolution, all other changes in connection with the amendment, restatement and replacement of the Cayman Constitutional Documents with the Proposed Certificate of Incorporation and Proposed Bylaws as part of the Domestication (copies of which are attached to the proxy statement/prospectus as Annex I and Annex J, respectively), including (1) changing the corporate name from “Acies Acquisition Corp.” to “PLAYSTUDIOS, Inc.,” (2) making New PLAYSTUDIOS’ corporate existence perpetual, (3) adopting Delaware as the exclusive forum for certain stockholder litigation and the federal district courts of the United States of America the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act and the federal district courts for certain litigation under the Securities Act, and (4) removing certain provisions related to Acies’ status as a blank check company that will no longer be applicable upon consummation of the Business Combination, all of which the board of directors of Acies believes is necessary to adequately address the needs of New PLAYSTUDIOS after the Business Combination (the “Organizational Documents Proposal D”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ | |
(4) | The Director Election Proposal—to consider and vote upon a proposal to approve by ordinary resolution, to elect seven directors who, upon consummation of the Business Combination, will be the directors of New PLAYSTUDIOS (the “Director Election Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
(5) | The Stock Issuance Proposal—to consider and vote upon a proposal to approve by ordinary resolution, for the purposes of complying with the applicable provisions of Nasdaq Listing Rule 5635, the issuance of (x) shares of New PLAYSTUDIOS pursuant to the terms of the Merger Agreement and (y) shares of New PLAYSTUDIOS to certain institutional investors (the “PIPE Investors”) in connection with certain subscription agreements to which the PIPE Investors are parties, plus any additional shares pursuant to subscription agreements we may enter into prior to the closing of the Mergers (the “Stock Issuance Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
(6) | The Incentive Award Plan Proposal—to consider and vote upon a proposal to approve by ordinary resolution, the New PLAYSTUDIOS 2021 Equity Incentive Plan (the “Incentive Plan”), a copy of which is attached to the proxy statement/prospectus as Annex F, including the authorization of the initial share reserve under the Incentive Plan (the “Incentive Plan Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
2
(7) | The ESPP Proposal—to consider and vote upon a proposal to approve by ordinary resolution, the New PLAYSTUDIOS Employee Stock Purchase Plan (the “ESPP”), a copy of which is attached to the proxy statement/prospectus as Annex G, including the authorization of the initial share reserve under the ESPP (the “ESPP Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
(8) | The Auditor Ratification Proposal—to consider and vote upon a proposal to approve by ordinary resolution, the ratification of the appointment of Marcum LLP as the independent registered public accountants of Acies to audit and report upon Acies’ consolidated financial statements for the fiscal year ending December 31, 2021 (the “Auditor Ratification Proposal”); | FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
(9) |
The Adjournment Proposal—to consider and vote upon a proposal to approve the adjournment of the extraordinary general meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of one or more proposals at the extraordinary general meeting (the “Adjournment Proposal”). |
FOR ☐ |
AGAINST ☐ |
ABSTAIN ☐ |
Dated: , 2021 | |
(Signature) | |
(Signature if held Jointly) | |
When shares are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporate name by president or other authorized officer. If a partners, please sign in partnership name by an authorized person. |
3
Exhibit 99.2
CONSENT OF HOULIHAN LOKEY CAPITAL, INC.
February 16, 2021
Acies Acquisition Corp.
1219 Morningside Drive, Suite 110
Manhattan Beach, CA 90266
Attn: Board of Directors
RE: | Proxy Statement / Prospectus of Acies Acquisition Corp. (“Acies”) which forms part of the Registration Statement on Form S-4 of Acies (the “Registration Statement”). |
Dear Members of the Board of Directors:
Reference is made to our opinion letter (“opinion”), dated January 31, 2021, to the Board of Directors (the “Board”) of Acies. We understand that Acies has determined to include our opinion in the Proxy Statement / Prospectus of Acies (the “Proxy Statement/Prospectus”) included in the above referenced Registration Statement.
Our opinion was provided for the Board (in its capacity as such) in connection with its consideration of the transaction contemplated therein and may not be used, circulated, quoted or otherwise referred to for any other purpose, nor is it to be filed with, included in or referred to in whole or in part in any registration statement, proxy statement or any other document, except, in each instance, in accordance with our prior written consent. In that regard, we hereby consent to the reference to our opinion in the Proxy Statement/Prospectus included in the Registration Statement filed with the Securities and Exchange Commission as of the date hereof under the captions “SUMMARY OF THE PROXY STATEMENT/PROSPECTUS—Opinion of the Financial Advisor to Acies,” “BUSINESS COMBINATION PROPOSAL—Background to the Business Combination,” “BUSINESS COMBINATION PROPOSAL—Acies Board of Directors’s Reasons for the Business Combination” and “BUSINESS COMBINATION PROPOSAL—Opinion of the Financial Advisor to Acies” and to the inclusion of our opinion as Annex K to the Proxy Statement / Prospectus. Notwithstanding the foregoing, it is understood that this consent is being delivered solely in connection with the filing of the above-mentioned Registration Statement as of the date hereof and that our opinion is not to be filed with, included in or referred to in whole or in part in any registration statement (including any amendments to the above-mentioned Registration Statement), proxy statement or any other document, except, in each instance, in accordance with our prior written consent.
In giving such consent, we do not thereby admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “expert” as used in, or that we come within the category of persons whose consent is required under, the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder.
Very truly yours,
HOULIHAN LOKEY CAPITAL, INC.
/s/ Houlihan Lokey Capital, Inc.
Exhibit 99.3
CONSENT TO BE NAMED AS A DIRECTOR NOMINEE
In connection with the filing by Acies Acquisition Corp. of the Registration Statement on Form S-4, and in all subsequent amendments and post-effective amendments or supplements thereto (together with all such amendments and supplements, the “Registration Statement”), with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), I hereby consent, pursuant to Rule 438 of the Securities Act, to being named in the Registration Statement as a person who has agreed to serve as a director of New PLAYSTUDIOS (as defined in the Registration Statement), and to the inclusion of my biographical information in the Registration Statement. I also consent to the filing of this consent as an exhibit to the Registration Statement.
/s/ Andrew Pascal | ||
Andrew Pascal | ||
Date: | February 16, 2021 |
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