|
Ireland
(Jurisdiction of
Incorporation or Organization) |
| |
7389
(Primary Standard Industrial
Classification Code Number) |
| |
Not applicable
(I.R.S. Employer
Identification Number) |
|
|
Gregg L. Katz, Esq.
John Mutkoski, Esq. William Schnoor, Esq. Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 (617)-570-1000 |
| |
Alan I. Annex, Esq.
Jason Simon, Esq. Greenberg Traurig, LLP 333 S.E. 2nd Avenue Miami, FL 33131 (305) 579-0500 |
|
|
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(1) |
| | |
Proposed
Maximum Offering Price per Share(2) |
| | |
Proposed Maximum
Aggregate Offering Price(2) |
| | |
Amount of
Registration Fee |
| ||||||||||||
Ordinary Shares, par value $0.001 per share(3)(4)
|
| | | | | 35,252,000 | | | | | | | 10.16 | | | | | | $ | 358,160,320 | | | | | | $ | 39,075.30 | | |
Warrants(5)(4) | | | | | | 14,176,000 | | | | | | | 1.76 | | | | | | $ | 25,019,931 | | | | | | $ | 2,729.70 | | |
Ordinary Shares issuable on exercise of Warrants(6)(4)
|
| | | | | 14,176,000 | | | | | | $ | 11.50 | | | | | | $ | 163,024,000 | | | | | | $ | 17,785.90 | | |
Total
|
| | | | | | | | | | | | | | | | | |
$
|
546,204,251
|
| | | | |
$
|
59,590.90
|
| |
| | | | By Order of the Board of Directors, | |
| [•], 2021 | | |
Jeff Tuder
|
|
| | | | Chief Executive Officer | |
| | | | | 1 | | | |
| | | | | 2 | | | |
| | | | | 6 | | | |
| | | | | 18 | | | |
| | | | | 31 | | | |
| | | | | 32 | | | |
| | | | | 95 | | | |
| | | | | 110 | | | |
| | | | | 116 | | | |
| | | | | 116 | | | |
| | | | | 131 | | | |
| | | | | 143 | | | |
| | | | | 145 | | | |
| | | | | 152 | | | |
| | | | | 168 | | | |
| | | | | 170 | | | |
| | | | | 171 | | | |
| | | | | 188 | | | |
| | | | | 202 | | | |
| | | | | 238 | | | |
| | | | | 252 | | | |
| | | | | 255 | | | |
| | | | | 258 | | | |
| | | | | 263 | | | |
| | | | | 278 | | | |
| | | | | 299 | | | |
| | | | | 301 | | | |
| | | | | 304 | | | |
| | | | | 305 | | | |
| | | | | 307 | | | |
| | | | | 308 | | | |
| | | | | F-1 | | | |
| | | | | A-1 | | | |
| | | | | B-1 | | | |
| | | | | C-1 | | | |
| | | | | D-1 | | | |
| | | | | E-1 | | | |
| | | | | F-1 | | |
| | |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| ||||||
Rollover of Circle’s vested options, warrants and certain SeedInvest convertible notes(1)
|
| | | $ | 276,443 | | | | | $ | 276,443 | | |
Topco Ordinary Shares to be issued at Closing
|
| | | | 5,316,677 | | | | | | 5,066,385 | | |
Total Consideration
|
| | | | 5,593,120 | | | | | | 5,342,828 | | |
| | |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| ||||||||||||||||||
In thousands
|
| |
Shares
|
| |
Ownership, %
|
| |
Shares
|
| |
Ownership, %
|
| ||||||||||||
Existing Circle Holders and convertible notes holders(1)
|
| | | | 454,916 | | | | | | 85.6% | | | | | | 454,916 | | | | | | 89.9% | | |
Concord Public Stockholders(2)
|
| | | | 27,600 | | | | | | 5.2% | | | | | | 2,571 | | | | | | 0.5% | | |
Sponsors and related parties
|
| | | | 7,652 | | | | | | 1.4% | | | | | | 7,652 | | | | | | 1.5% | | |
PIPE shareholders
|
| | | | 41,500 | | | | | | 7.8% | | | | | | 41,500 | | | | | | 8.1% | | |
Total Topco Ordinary Shares to be issued at Closing(3)
|
| | | | 531,668 | | | | | | 100.0% | | | | | | 506,639 | | | | | | 100.0% | | |
| | | | | | | | | | | | | | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||||||||
($ in thousands, except share and per share amounts)
|
| |
Concord
Historical |
| |
Circle
Historical |
| |
Transaction
Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| |
Additional
Transaction Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| ||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 952 | | | | | $ | 61,987 | | | | | $ | 276,030 | | | |
3a
|
| | | $ | 1,029,611 | | | | |
$
|
—
|
| | | | | | | $ | 779,289 | | |
| | | | | | | | | | | | | | | | | 415,000 | | | |
3b
|
| | | | | | | | |
|
—
|
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | (40,000) | | | |
3c
|
| | | | | | | | |
|
—
|
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | (1,544) | | | |
3d
|
| | | | | | | | |
|
—
|
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | (41,036) | | | |
3e
|
| | | | | | | | |
|
—
|
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | (14,080) | | | |
3f
|
| | | | | | | | |
|
—
|
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | 372,302 | | | |
3g
|
| | | | | | | | |
|
—
|
| | | | | | | | | | |
| | | | | | | | | | | | | | | | | — | | | | | | | | | | | | | | | (250,322) | | | |
3m
|
| | | | | | |
Securities held in trust account
|
| | | | 276,030 | | | | | | — | | | | | | (276,030) | | | |
3a
|
| | | | — | | | | |
|
—
|
| | | | | | | | — | | |
Cash segregated for benefit of customers and USDC holders
|
| | | | — | | | | | | 11,167,155 | | | | | | — | | | | | | | | | 11,167,155 | | | | |
|
—
|
| | | | | | | | 11,167,155 | | |
Equity securities, at fair value (Cost of $1,130 at March 31, 2021)
|
| | | | — | | | | | | 1,244 | | | | | | — | | | | | | | | | 1,244 | | | | | | — | | | | | | | | | 1,244 | | |
Accounts receivable
|
| | | | — | | | | | | 2,352 | | | | | | — | | | | | | | | | 2,352 | | | | |
|
—
|
| | | | | | | | 2,352 | | |
Divestment consideration receivable (current)
|
| | | | — | | | | | | 3,000 | | | | | | — | | | | | | | | | 3,000 | | | | |
|
—
|
| | | | | | | | 3,000 | | |
Prepaid expenses and other current assets
|
| | | | 402 | | | | | | 7,791 | | | | | | (1,544) | | | |
3d
|
| | | | 6,649 | | | | |
|
—
|
| | | | | | | | 6,649 | | |
Total current assets
|
| | | | 277,384 | | | | | | 11,243,529 | | | | | | 689,098 | | | | | | | | | 12,210,011 | | | | | | (250,322) | | | | | | | | | 11,959,689 | | |
Restricted cash for operations
|
| | | | — | | | | | | 20,967 | | | | | | — | | | | | | | | | 20,967 | | | | | | — | | | | | | | | | 20,967 | | |
Divestment consideration receivable, non-current
|
| | | | — | | | | | | 2,000 | | | | | | — | | | | | | | | | 2,000 | | | | | | — | | | | | | | | | 2,000 | | |
Fixed assets, net
|
| | | | — | | | | | | 462 | | | | | | — | | | | | | | | | 462 | | | | | | — | | | | | | | | | 462 | | |
Digital assets, net
|
| | | | | | | | | | 4,363 | | | | | | | | | | | | | | | 4,363 | | | | | | | | | | | | | | | 4,363 | | |
Intangible assets, net
|
| | | | — | | | | | | 3,297 | | | | | | — | | | | | | | | | 3,297 | | | | | | — | | | | | | | | | 3,297 | | |
Goodwill
|
| | | | — | | | | | | 24,014 | | | | | | — | | | | | | | | | 24,014 | | | | | | — | | | | | | | | | 24,014 | | |
Investment in affiliate, equity method
|
| | | | — | | | | | | 1,003 | | | | | | — | | | | | | | | | 1,003 | | | | | | — | | | | | | | | | 1,003 | | |
Total assets
|
| | | | 277,384 | | | | | | 11,299,635 | | | | | | 689,098 | | | | | | | | | 12,266,117 | | | | | | (250,322) | | | | | | | | | 12,015,795 | | |
Liabilities and stockholders’ equity | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | | 88 | | | | | | 38,948 | | | | | | 43,456 | | | |
3d, 3e
|
| | | | 82,492 | | | | | | — | | | | | | | | | 82,492 | | |
Deferred revenue
|
| | | | — | | | | | | 845 | | | | | | — | | | | | | | | | 845 | | | | | | — | | | | | | | | | 845 | | |
Deposits from customers and USDC holders
|
| | | | — | | | | | | 11,159,589 | | | | | | — | | | | | | | | | 11,159,589 | | | | | | — | | | | | | | | | 11,159,589 | | |
Total current liabilities
|
| | | | 88 | | | | | | 11,199,382 | | | | | | 43,456 | | | | | | | | | 11,242,926 | | | | | | — | | | | | | | | | 11,242,926 | | |
Long-term liabilities
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Deferred rent
|
| | | | — | | | | | | 390 | | | | | | — | | | | | | | | | 390 | | | | | | — | | | | | | | | | 390 | | |
Acquisition payables, non-current
|
| | | | — | | | | | | 6,062 | | | | | | — | | | | | | | | | 6,062 | | | | | | — | | | | | | | | | 6,062 | | |
Convertible debt, net of debt discount
|
| | | | — | | | | | | 83,489 | | | | | | (51,000) | | | |
3g
|
| | | | 32,489 | | | | | | — | | | | | | | | | 32,489 | | |
Loans payable, net of debt discount
|
| | | | — | | | | | | 24,829 | | | | | | — | | | | | | | | | 24,829 | | | | | | — | | | | | | | | | 24,829 | | |
| | | | | | | | | | | | | | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||||||||
($ in thousands, except share and per share amounts)
|
| |
Concord
Historical |
| |
Circle
Historical |
| |
Transaction
Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| |
Additional
Transaction Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| ||||||||||||||||||
Warrant liability
|
| | | | 12,766 | | | | | | 282 | | | | | | — | | | | | | | | | 13,048 | | | | | | — | | | | | | | | | 13,048 | | |
Earnout shares liability
|
| | | | — | | | | | | — | | | | | | 705,063 | | | |
3h
|
| | | | 705,063 | | | | | | — | | | | | | | | | 705,063 | | |
Total long-term liabilities
|
| | | | 12,766 | | | | | | 115,052 | | | | | | 654,063 | | | | | | | | | 781,881 | | | | | | — | | | | | | | | | 781,881 | | |
Total liabilities
|
| | |
|
12,854
|
| | | |
|
11,314,434
|
| | | |
|
697,519
|
| | | | | | |
|
12,024,807
|
| | | | | — | | | | | | | |
|
12,024,807
|
| |
Commitments | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Common stock subject to possible redemption
25,952,962 shares at redemption value |
| | | | 259,530 | | | | | | — | | | | | | (259,530) | | | |
3i
|
| | | | — | | | | | | — | | | | | | | | | — | | |
Redeemable preferred stock | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Series A redeemable convertible preferred stock
($0.0001 par value; 33,620,690 issued and outstanding at March 31,2021) |
| | | | | | | | | | 9,000 | | | | | | (9,000) | | | |
3j
|
| | | | | | | | | | | | | | | | | | | | | |
Series B redeemable convertible preferred stock
($0.0001 par value; 17,586,205 issued and outstanding at March 31,2021) |
| | | | | | | | | | 17,000 | | | | | | (17,000) | | | |
3j
|
| | | | | | | | | | | | | | | | | | | | | |
Series C redeemable convertible preferred stock
($0.0001 par value; 18,445,443 issued and outstanding at March 31,2021) |
| | | | | | | | | | 40,050 | | | | | | (40,050) | | | |
3j
|
| | | | | | | | | | | | | | | | | | | | | |
Series D redeemable convertible preferred stock
($0.0001 par value; 23,202,679 issued and outstanding at March 31,2021) |
| | | | | | | | | | 64,061 | | | | | | (64,061) | | | |
3j
|
| | | | | | | | | | | | | | | | | | | | | |
Series E redeemable convertible preferred stock
($0.0001 par value; 9,077,030 issued and outstanding at March 31,2021) |
| | | | | | | | | | 148,891 | | | | | | (148,891) | | | |
3j
|
| | | | | | | | | | | | | | | | | | | | | |
Stockholders’ equity: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Preferred stock, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | |
Ordinary Shares
|
| | | | — | | | | | | — | | | | | | 4 | | | |
3b
|
| | | | 53 | | | | | | — | | | | | | | | | 50 | | |
| | | | | — | | | | | | — | | | | | | 45 | | | |
3c
|
| | | | — | | | | | | — | | | | | | | | | — | | |
| | | | | — | | | | | | — | | | | | | 3 | | | |
3i
|
| | | | — | | | | | | — | | | | | | | | | — | | |
| | | | | — | | | | | | — | | | | | | 1 | | | |
3k
|
| | | | — | | | | | | — | | | | | | | | | — | | |
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | (3) | | | |
3m
|
| | | | — | | |
Class B common stock, $0.0001 par value; 20,000,000 shares authorized; 6,900,000 shares issued and outstanding
|
| | | | 1 | | | | | | — | | | | | | (1) | | | |
3k
|
| | | | — | | | | | | — | | | | | | | | | — | | |
Common stock ($0.0001 par value; 255,000,000
authorized; 44,008,122 issued and outstanding at March 31, 2021) |
| | | | — | | | | | | 4 | | | | | | (4) | | | |
3j
|
| | | | — | | | | | | — | | | | | | | | | — | | |
Treasury stock, at cost (4,960,362 shares held at
March 31, 2021) |
| | | | — | | | | | | (2,877) | | | | | | — | | | | | | | | | (2,877) | | | | | | — | | | | | | | | | (2,877) | | |
Additional paid-in capital
|
| | | | 6,241 | | | | | | 92,878 | | | | | | 414,996 | | | |
3b
|
| | | | 514,115 | | | | | | — | | | | | | | | | 514,115 | | |
| | | | | — | | | | | | — | | | | | | (40,045) | | | |
3c
|
| | | | (40,045) | | | | | | — | | | | | | | | | (40,045) | | |
| | | | | — | | | | | | — | | | | | | (1,544) | | | |
3d
|
| | | | (1,544) | | | | | | — | | | | | | | | | (1,544) | | |
| | | | | — | | | | | | — | | | | | | (86,036) | | | |
3e
|
| | | | (86,036) | | | | | | — | | | | | | | | | (86,036) | | |
| | | | | — | | | | | | — | | | | | | (14,080) | | | |
3f
|
| | | | (14,080) | | | | | | — | | | | | | | | | (14,080) | | |
| | | | | — | | | | | | — | | | | | | 423,302 | | | |
3g
|
| | | | 423,302 | | | | | | — | | | | | | | | | 423,302 | | |
| | | | | | | | | | | | | | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||||||||
($ in thousands, except share and per share amounts)
|
| |
Concord
Historical |
| |
Circle
Historical |
| |
Transaction
Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| |
Additional
Transaction Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| ||||||||||||||||||
| | | | | — | | | | | | — | | | | | | (705,063) | | | |
3h
|
| | | | (705,063) | | | | | | — | | | | | | | | | (705,063) | | |
| | | | | — | | | | | | — | | | | | | 259,527 | | | |
3i
|
| | | | 259,527 | | | | | | — | | | | | | | | | 259,527 | | |
| | | | | — | | | | | | — | | | | | | 279,006 | | | |
3j
|
| | | | 279,006 | | | | | | — | | | | | | | | | 279,006 | | |
| | | | | — | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | (250,319) | | | |
3m
|
| | | | (250,319) | | |
| | | | | — | | | | | | — | | | | | | (1,242) | | | |
3l
|
| | | | (1,242) | | | | | | — | | | | | | | | | (1,242) | | |
Accumulated deficit
|
| | | | (1,242) | | | | | | (384,360) | | | | | | 1,242 | | | |
3l
|
| | | | (384,360) | | | | | | — | | | | | | | | | (384,360) | | |
Accumulated other comprehensive losses
|
| | | | — | | | | | | 554 | | | | | | — | | | | | | | | | 554 | | | | | | — | | | | | | | | | 554 | | |
Total stockholders’ equity (deficit)
|
| | | | 5,000 | | | | | | (293,801) | | | | | | 530,111 | | | | | | | | | 241,310 | | | | | | (250,322) | | | | | | | | | (9,012) | | |
Total liabilities, redeemable preferred stock and
stockholders’ equity |
| | | | 277,384 | | | | | | 11,299,635 | | | | | | 689,098 | | | | | | | | | 12,266,117 | | | | | | (250,322) | | | | | | | | | 12,015,795 | | |
|
| | | | | | | | | | | | | | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||||||||
($ in thousands, except share and per share amounts)
|
| |
Concord
Historical |
| |
Circle
Historical |
| |
Transaction
Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| |
Additional
Transaction Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| ||||||||||||||||||
Revenue and USDC interest income | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury services
|
| | | | — | | | | | | 11,465 | | | | | | — | | | | | | | | | 11,465 | | | | | | — | | | | | | | | | 11,465 | | |
USDC interest income
|
| | | | — | | | | | | 3,168 | | | | | | — | | | | | | | | | 3,168 | | | | | | — | | | | | | | | | 3,168 | | |
SeedInvest revenue
|
| | | | — | | | | | | 2,641 | | | | | | — | | | | | | | | | 2,641 | | | | | | — | | | | | | | | | 2,641 | | |
Total revenue and USDC interest income from continuing operations
|
| | | | — | | | | |
|
17,274
|
| | | | | — | | | | | | | |
|
17,274
|
| | | | | — | | | | | | | |
|
17,274
|
| |
Third-party transaction costs
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury services costs
|
| | | | — | | | | | | 6,951 | | | | | | — | | | | | | | | | 6,951 | | | | | | — | | | | | | | | | 6,951 | | |
USDC income sharing and transaction costs
|
| | | | — | | | | | | 2,024 | | | | | | — | | | | | | | | | 2,024 | | | | | | — | | | | | | | | | 2,024 | | |
Total third-party transaction costs
|
| | | | — | | | | |
|
8,975
|
| | | | | — | | | | | | | |
|
8,975
|
| | | | | — | | | | | | | |
|
8,975
|
| |
Operating expenses
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Compensation expenses
|
| | | | — | | | | | | 7,015 | | | | | | 1,350 | | | |
4a
|
| | | | 8,365 | | | | | | — | | | | | | | | | 8,365 | | |
General and administrative expenses
|
| | | | — | | | | | | 5,466 | | | | | | — | | | | | | | | | 5,466 | | | | | | — | | | | | | | | | 5,466 | | |
Depreciation and amortization expense
|
| | | | — | | | | | | 934 | | | | | | — | | | | | | | | | 934 | | | | | | — | | | | | | | | | 934 | | |
IT infrastructure costs
|
| | | | — | | | | | | 933 | | | | | | | | | | | | | | | 933 | | | | | | — | | | | | | | | | 933 | | |
Marketing and advertising expenses
|
| | | | — | | | | | | 229 | | | | | | — | | | | | | | | | 229 | | | | | | — | | | | | | | | | 229 | | |
Digital assets impairment
|
| | | | — | | | | | | 9 | | | | | | — | | | | | | | | | 9 | | | | | | — | | | | | | | | | 9 | | |
Operating costs
|
| | | | 181 | | | | | | — | | | | | | — | | | | | | | | | 181 | | | | | | — | | | | | | | | | 181 | | |
Total operating expenses
|
| | |
|
181
|
| | | |
|
14,586
|
| | | |
|
1,350
|
| | | | | | |
|
16,117
|
| | | | | — | | | | | | | |
|
16,117
|
| |
Operating loss from continuing operations
|
| | |
|
(181)
|
| | | |
|
(6,287)
|
| | | |
|
(1,350)
|
| | | | | | |
|
(7,818)
|
| | | | | — | | | | | | | |
|
(7,818)
|
| |
Other income/(expense) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Change in fair value of warrants liability
|
| | | | (853) | | | | | | — | | | | | | — | | | | | | | | | (853) | | | | | | — | | | | | | | | | (853) | | |
Interest income
|
| | | | 23 | | | | | | — | | | | | | (23) | | | |
4c
|
| | | | — | | | | | | — | | | | | | | | | — | | |
Other income, net
|
| | | | — | | | | | | 684 | | | | | | 61 | | | |
4d
|
| | | | 745 | | | | | | — | | | | | | | | | 745 | | |
Total other income/(expense)
|
| | | | (830) | | | | | | 684 | | | | | | 38 | | | | | | | | | (108) | | | | | | — | | | | | | | | | (108) | | |
Net loss before income taxes
|
| | | | (1,011) | | | | | | (5,603) | | | | | | (1,312) | | | | | | | | | (7,926) | | | | | | — | | | | | | | | | (7,926) | | |
Income tax expense/ (benefit for income taxes)
|
| | | | — | | | | | | 3,852 | | | | | | — | | | |
4e
|
| | | | 3,852 | | | | | | — | | | | | | | | | 3,852 | | |
Net loss from continuing operations
|
| | |
|
(1,011)
|
| | | |
|
(9,455)
|
| | | |
|
(1,312)
|
| | | | | | |
|
(11,778)
|
| | | | | — | | | | | | | |
|
(11,778)
|
| |
Net loss
|
| | |
|
(1,011)
|
| | | |
|
(9,455)
|
| | | |
|
(1,312)
|
| | | | | | |
|
(11,778)
|
| | | | | — | | | | | | | |
|
(11,778)
|
| |
Earnings (loss) per share: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic earnings (loss) per share
|
| | | $ | (0.11) | | | | | $ | (0.22) | | | | | | | | | | | | | | $ | (0.02) | | | | | $ | (0.02) | | | | | | | | | | | |
Diluted earnings (loss) per share
|
| | | $ | (0.11) | | | | | $ | (0.22) | | | | | | | | | | | | | | $ | (0.02) | | | | | $ | (0.02) | | | | | | | | | | | |
Weighted-average shares used to compute earnings (loss) per share:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | 9,194,954 | | | | | | 42,732,965 | | | | | | | | | | | | | | | 532,382,533 | | | | | | 507,353,333 | | | | | | | | | | | |
Diluted
|
| | | | 9,194,954 | | | | | | 42,732,965 | | | | | | | | | | | | | | | 532,382,533 | | | | | | 507,353,333 | | | | | | | | | | | |
Basic and diluted weighted average shares
outstanding, Class A common stock subject to possible redemption |
| | | | 26,054,085 | | | | | | n/a | | | | | | | | | | | | | | | n/a | | | | | | n/a | | | | | | | | | | | |
Basic and diluted net income per share,
Class A common stock subject to possible redemption |
| | | | 0.00 | | | | | | n/a | | | | | | | | | | | | | | | n/a | | | | | | n/a | | | | | | | | | | | |
| | | | | | | | | | | | | | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||||||||
($ in thousands, except share and per share
amounts) |
| |
Concord
Historical (As Restated) |
| |
Circle
Historical |
| |
Transaction
Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| |
Additional
Transaction Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| ||||||||||||||||||
Revenue and USDC interest income | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | $ | — | | | | | $ | 2,589 | | | | | $ | — | | | | | | | | $ | 2,589 | | | | | | — | | | | | | | | $ | 2,589 | | |
USDC interest income
|
| | | | — | | | | | | 4,435 | | | | | | — | | | | | | | | | 4,435 | | | | | | — | | | | | | | | | 4,435 | | |
SeedInvest revenue
|
| | | | — | | | | | | 8,417 | | | | | | — | | | | | | | | | 8,417 | | | | | | — | | | | | | | | | 8,417 | | |
Total revenue and USDC interest income from
continuing operations |
| | | | — | | | | | | 15,441 | | | | | | — | | | | | | | | | 15,441 | | | | | | — | | | | | | | | | 15,441 | | |
Third-party transaction costs | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury services costs
|
| | | | — | | | | | | 785 | | | | | | — | | | | | | | | | 785 | | | | | | — | | | | | | | | | 785 | | |
USDC income sharing and transaction costs
|
| | | | — | | | | | | 2,826 | | | | | | — | | | | | | | | | 2,826 | | | | | | — | | | | | | | | | 2,826 | | |
Total third-party transaction costs
|
| | | | — | | | | | | 3,611 | | | | | | — | | | | | | | | | 3,611 | | | | | | — | | | | | | | | | 3,611 | | |
Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Compensation expenses
|
| | | | — | | | | | | 18,932 | | | | | | 180,469 | | | |
4a
|
| | | | 199,401 | | | | | | — | | | | | | | | | 199,401 | | |
General and administrative expenses
|
| | | | — | | | | | | 13,916 | | | | | | — | | | | | | | | | 13,916 | | | | | | — | | | | | | | | | 13,916 | | |
Depreciation and amortization expense
|
| | | | — | | | | | | 4,500 | | | | | | — | | | | | | | | | 4,500 | | | | | | — | | | | | | | | | 4,500 | | |
IT infrastructure costs
|
| | | | — | | | | | | 3,716 | | | | | | | | | | | | | | | 3,716 | | | | | | — | | | | | | | | | 3,716 | | |
Digital assets impairment
|
| | | | — | | | | | | 1,256 | | | | | | — | | | | | | | | | 1,256 | | | | | | — | | | | | | | | | 1,256 | | |
Marketing and advertising expenses
|
| | | | — | | | | | | 400 | | | | | | — | | | | | | | | | 400 | | | | | | — | | | | | | | | | 400 | | |
Goodwill impairment
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | |
Formation and operating costs
|
| | | | 122 | | | | | | — | | | | | | — | | | | | | | | | 122 | | | | | | — | | | | | | | | | 122 | | |
Total operating expenses
|
| | | | 122 | | | | | | 42,720 | | | | | | 180,469 | | | | | | | | | 223,311 | | | | | | — | | | | | | | | | 223,311 | | |
Operating loss from continuing operations
|
| | | | (122) | | | | | | (30,890) | | | | | | (180,469) | | | | | | | | | (211,481) | | | | | | — | | | | | | | | | (211,481) | | |
Other income/(expense)
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Change in fair value of warrant liability
|
| | | | 139 | | | | | | — | | | | | | — | | | | | | | | | 139 | | | | | | — | | | | | | | | | 139 | | |
Transaction costs
|
| | | | (254) | | | | | | — | | | | | | (14,080) | | | |
4b
|
| | | | (14,334) | | | | | | — | | | | | | | | | (14,334) | | |
Interest income
|
| | | | 6 | | | | | | — | | | | | | (6) | | | |
4c
|
| | | | — | | | | | | — | | | | | | | | | — | | |
Other income, net
|
| | | | — | | | | | | 13,692 | | | | | | (1,779) | | | |
4d
|
| | | | 11,913 | | | | | | — | | | | | | | | | 11,913 | | |
Total other income/(expense)
|
| | | | (109) | | | | | | 13,692 | | | | | | (15,865) | | | | | | | | | (2,282) | | | | | | — | | | | | | | | | (2,282) | | |
Net loss before income taxes
|
| | | | (231) | | | | | | (17,198) | | | | | | (196,334) | | | | | | | | | (213,763) | | | | | | — | | | | | | | | | (213,763) | | |
Income tax expense/ (benefit for income
taxes) |
| | | | — | | | | | | 115 | | | | | | — | | | |
4e
|
| | | | 115 | | | | | | — | | | | | | | | | 115 | | |
Net loss from continuing operations
|
| | | | (231) | | | | | | (17,313) | | | | | | (196,334) | | | | | | | | | (213,878) | | | | | | — | | | | | | | | | (213,878) | | |
Net income (loss)
|
| | |
|
(231)
|
| | | |
|
(17,313)
|
| | | |
|
(196,334)
|
| | | | | | |
|
(213,878)
|
| | | | | — | | | | | | | |
|
(213,878)
|
| |
Earnings (loss) per share: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic earnings (loss) per share
|
| | | $ | (0.04) | | | | | $ | 0.00 | | | | | | | | | | | | | | $ | (0.42) | | | | | $ | (0.44) | | | | | | | | | | | |
Diluted earnings (loss) per share
|
| | | $ | (0.04) | | | | | $ | 0.00 | | | | | | | | | | | | | | $ | (0.42) | | | | | $ | (0.44) | | | | | | | | | | | |
Weighted-average shares used to compute earnings (loss) per share:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic
|
| | | | 6,505,401 | | | | | | 36,089,496 | | | | | | | | | | | | | | | 514,292,990 | | | | | | 489,263,790 | | | | | | | | | | | |
| | | | | | | | | | | | | | |
Assuming No Redemptions
|
| |
Assuming Maximum Redemptions
|
| ||||||||||||||||||
($ in thousands, except share and per share
amounts) |
| |
Concord
Historical (As Restated) |
| |
Circle
Historical |
| |
Transaction
Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| |
Additional
Transaction Accounting Adjustments |
| |
Note
|
| |
Pro
Forma |
| ||||||||||||
Diluted
|
| | | | 6,505,401 | | | | | | 51,850,396 | | | | | | | | | | | | 514,292,990 | | | | | | 489,263,790 | | | | | | | | |
Basic and diluted weighted average shares outstanding, Class A common stock subject to possible redemption
|
| | | | 4,113,335 | | | | | | n/a | | | | | | | | | | | | n/a | | | | | | n/a | | | | | | | | |
Basic and diluted net income per share,
Class A common stock subject to possible redemption |
| | | | 0.00 | | | | | | n/a | | | | | | | | | | | | n/a | | | | | | n/a | | | | | | | | |
| | |
For the three months ended
March 31, 2021 |
| |
For the year ended December 31, 2020
|
| ||||||||||||||||||
(In thousands, except per share data)
|
| |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| ||||||||||||
Numerator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Pro forma net income (loss) attributable to shareholders – basic
|
| | | $ | (11,778) | | | | | $ | (11,778) | | | | | $ | (213,878) | | | | | $ | (213,878) | | |
Pro forma net income (loss) attributable to shareholder – diluted
|
| | | | (11,778) | | | | | | (11,778) | | | | | | (213,878) | | | | | | (213,878) | | |
Denominator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Pro forma weighted average shares of common stock outstanding – basic
|
| | | | 532,382 | | | | | | 507,353 | | | | | | 514,293 | | | | | | 489,264 | | |
| | |
For the three months ended
March 31, 2021 |
| |
For the year ended December 31,
2020 |
| ||||||||||||||||||
(In thousands, except per share data)
|
| |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| ||||||||||||
Pro forma weighted average shares of common stock outstanding – diluted
|
| | | | 532,382 | | | | | | 507,353 | | | | | | 514,293 | | | | | | 489,264 | | |
Pro forma basic earnings (loss) per share
|
| | | $ | (0.02) | | | | | | (0.02) | | | | | | (0.42) | | | | | | (0.44) | | |
Pro forma diluted earnings (loss) per share
|
| | | $ | (0.02) | | | | |
|
(0.02)
|
| | | |
|
(0.42)
|
| | | |
|
(0.44)
|
| |
Pro forma basic weighted average shares | | | | | | | | | | | | | | | | | | | | | | | | | |
Existing Circle Holders and convertible notes holders
|
| | | | 455,630 | | | | | | 455,630 | | | | | | 437,541 | | | | | | 437,541 | | |
Concord Public Stockholders
|
| | | | 27,600 | | | | | | 2,571 | | | | | | 27,600 | | | | | | 2,571 | | |
Sponsors and related parties
|
| | | | 7,652 | | | | | | 7,652 | | | | | | 7,652 | | | | | | 7,652 | | |
PIPE shareholders
|
| | | | 41,500 | | | | | | 41,500 | | | | | | 41,500 | | | | | | 41,500 | | |
Total pro forma basic weighted average shares
|
| | | | 532,382 | | | | | | 507,353 | | | | | | 514,293 | | | | | | 489,264 | | |
|
| | |
For the three months ended
March 31, 2021 |
| |
For the year ended December 31, 2020
|
| ||||||||||||||||||
| | |
Assuming No
Redemptions |
| |
Assuming Maximum
Redemptions |
| |
Assuming No
Redemptions |
| |
Assuming
Maximum Redemptions |
| ||||||||||||
Circle options
|
| | | | 47,204,785 | | | | | | 47,204,785 | | | | | | 53,042,471 | | | | | | 53,042,471 | | |
Circle warrants
|
| | | | 4,179,661 | | | | | | 4,179,661 | | | | | | 4,179,661 | | | | | | 4,179,661 | | |
Circle SeedInvest convertible notes
|
| | | | 4,275,636 | | | | | | 4,275,636 | | | | | | 4,275,636 | | | | | | 4,275,636 | | |
Concord warrants(1)
|
| | | | 14,176,000 | | | | | | 14,176,000 | | | | | | 14,176,000 | | | | | | 14,176,000 | | |
| | | | | 69,836,082 | | | | | | 69,836,082 | | | | | | 75,673,768 | | | | | | 75,673,768 | | |
(USD in millions)
|
| |
2021E
|
| |
2022E
|
| |
2023E
|
| |||||||||
Total Revenue and USDC Interest Income
|
| | | $ | 115 | | | | | $ | 407 | | | | | $ | 886 | | |
Total Third-Party Transaction Costs
|
| | | $ | 52 | | | | | $ | 150 | | | | | $ | 273 | | |
Total Operating Expenses
|
| | | $ | 163 | | | | | $ | 420 | | | | | $ | 684 | | |
Adjusted EBITDA(1)
|
| | | $ | (76) | | | | | $ | (97) | | | | | $ | 76 | | |
Adjusted EBITDA Margin(2)
|
| | | | — | | | | | | — | | | | | | 10% | | |
Enterprise Value Multiple of
|
| |
High
|
| |
Mean
|
| |
Median
|
| |
Low
|
| ||||||||||||
2022E Revenue
|
| | | | 49.43x | | | | | | 25.00x | | | | | | 17.97x | | | | | | 8.44x | | |
2023E Revenue
|
| | | | 36.07x | | | | | | 19.21x | | | | | | 15.20x | | | | | | 7.07x | | |
Name and Principal Position
|
| |
Year
|
| |
Salary
($) |
| |
Bonus
($)(1) |
| |
Option
Awards ($)(2) |
| |
Total
($) |
| |||||||||||||||
Jeremy Allaire
Co-Founder and Chief Executive Officer |
| | | | 2020 | | | | | | 400,000 | | | | | | 100,000 | | | | | | 166,372(3) | | | | | | 666,372 | | |
Elisabeth Carpenter
Chief Operating Officer |
| | | | 2020 | | | | | | 350,000 | | | | | | 87,500 | | | | | | 1,622,943(3) | | | | | | 2,060,443 | | |
Flavia Naves
General Counsel(4) |
| | | | 2020 | | | | | | 91,250 | | | | | | 52,750 | | | | | | 573,132 | | | | | | 717,132 | | |
| | |
Severance Benefits –
Qualifying Termination* Not in Connection with a Change in Control |
| ||||||
| | |
Severance
|
| |
Company-Subsidized
Benefits Continuation |
| |
Post-Termination
Exercise Period |
|
CEO
|
| |
1.5x – annual base salary
plus annual target bonus |
| |
12 months
|
| |
N/A
|
|
Tier 2 Participants
(includes Ms. Carpenter) |
| |
1x – annual base salary
plus pro-rated annual target bonus |
| |
12 months
|
| |
9 months
|
|
Tier 3 Participants
(includes Ms. Naves) |
| |
0.75x – annual base
salary plus pro-rated annual target bonus |
| |
6 months
|
| |
6 months
|
|
| | |
Severance Benefits –
Qualifying Termination** in Connection with a Change in Control |
| |||||||||
| | |
Severance
|
| |
Company-Subsidized
Benefits Continuation |
| |
Equity
Acceleration *** |
| |
Post-Termination
Exercise Period |
|
CEO
|
| |
2x – annual base
salary plus pro- rated target bonus |
| |
24 months
|
| |
100%
|
| |
N/A
|
|
Tier 2 Participants
(includes Ms. Carpenter) |
| |
1.5x – annual base
salary plus pro -rated annual target bonus |
| |
18 months
|
| |
100%
|
| |
12 months
|
|
Tier 3 Participants
(includes Ms. Naves) |
| |
1x – annual base
salary plus pro- rated annual target bonus |
| |
12 months
|
| |
100%
|
| |
12 months
|
|
| | |
Option awards(1)
|
| |||||||||||||||||||||||||||
Name
|
| |
Grant date
|
| |
Vesting
commencement date |
| |
Number of
securities underlying unexercised options (#) exercisable |
| |
Number of
securities underlying unexercised options (#) unexercisable |
| |
Option
exercise price ($) |
| |
Option
expiration date |
| ||||||||||||
Jeremy Allaire
|
| |
9/11/2018
|
| |
9/11/2018
|
| | | | — | | | | | | 611,142(2) | | | | | | 0.08 | | | | | | 9/11/2028 | | |
| | |
1/16/2020
|
| |
1/1/2020
|
| | | | — | | | | | | 616,667(2) | | | | | | 0.08 | | | | | | 1/16/2030 | | |
Elisabeth Carpenter
|
| |
7/31/2017
|
| |
7/27/2017
|
| | | | 15,801 | | | | | | 110,603(2) | | | | | | 0.08 | | | | | | 7/31/2027 | | |
| | |
6/24/2019
|
| |
7/1/2019
|
| | | | — | | | | | | 187,292(2) | | | | | | 0.08 | | | | | | 6/24/2029 | | |
| | |
1/16/2020
|
| |
1/1/2020
|
| | | | — | | | | | | 693,750(2) | | | | | | 0.08 | | | | | | 1/16/2030 | | |
| | |
08/27/2020
|
| |
08/1/2020
|
| | | | — | | | | | | 2,277,207(2) | | | | | | 0.08 | | | | | | 8/27/2030 | | |
Flavia Naves
|
| |
11/5/2020
|
| |
9/21/2020
|
| | | | — | | | | | | 500,000(3) | | | | | | 0.08 | | | | | | 11/5/2030 | | |
Name
|
| |
Fees Earned or Paid in Cash ($)
|
| |
Option Awards ($)(1)
|
| |
All Other Compensation ($)
|
| |
Total ($)
|
| ||||||||||||
M. Michele Burns(2)
|
| | | | — | | | | | | 447,592(3) | | | | | | — | | | | | | 447,592 | | |
Raj Date(4)
|
| | | | 50,000 | | | | | | 429,535(3) | | | | | | — | | | | | | 479,535 | | |
P. Sean Neville(5)
|
| | | | — | | | | | | 288,313(3) | | | | | | — | | | | | | 288,313 | | |
David Orfao(6)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Quan Zhou(7)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
| Annual Retainer for Board Membership | | | | | | | |
|
Annual service on the board of directors
|
| | | $ | 50,000 | | |
|
Additional retainer for annual service as a lead director of the board of directors
|
| | | $ | 30,000 | | |
| Additional Annual Retainer for Committee Membership | | | | | | | |
|
Annual service as audit committee chairperson
|
| | | $ | 25,000 | | |
|
Annual service as member of the audit committee (other than chair)
|
| | | $ | 10,000 | | |
|
Annual service as compensation committee chairperson
|
| | | $ | 20,000 | | |
|
Annual service as member of the compensation committee (other than chair)
|
| | | $ | 7,500 | | |
|
Annual service as nominating and governance committee chairperson
|
| | | $ | 15,000 | | |
|
Annual service as member of the nominating and governance committee (other than chair)
|
| | | $ | 5,000 | | |
| | |
Year ended December 31,
|
| |
Three months ended March 31,
|
| ||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
2021
|
| |
2020
|
| ||||||||||||
| | |
(in thousands, except Total Circle Accounts and Transacting Circle API Customers)
|
| |||||||||||||||||||||
Key operating data: | | | | | | | | | | | | | | | | | | | | | | | | | |
USDC in Circulation
|
| | | | 4,008,397 | | | | | | 519,629 | | | | | | 11,141,404 | | | | | | 692,955 | | |
Total Transaction Volume
(combined on-chain and fiat) |
| | | $ | 10,080,936 | | | | | $ | 2,181,570 | | | | | $ | 44,798,667 | | | | | $ | 851,573 | | |
Total Circle Accounts
|
| | | | 714 | | | | | | 182 | | | | | | 1,062 | | | | | | 241 | | |
Transacting Circle API Customers
|
| | | | 32 | | | | | | — | | | | | | 46 | | | | | | — | | |
Closed Investment Volume (SI)
|
| | | $ | 74,387 | | | | | $ | 28,536 | | | | | $ | 24,304 | | | | | $ | 6,630 | | |
GAAP financial data: | | | | | | | | | | | | | | | | | | | | | | | | | |
Net income (loss)
|
| | | $ | 3,790 | | | | | $ | (178,565) | | | | | $ | (9,440) | | | | | $ | (106) | | |
Non-GAAP financial data: | | | | | | | | | | | | | | | | | | | | | | | | | |
Adjusted EBITDA
|
| | | $ | (15,709) | | | | | $ | (55,572) | | | | | $ | (3,242) | | | | | $ | (7,421) | | |
| | |
Three months ended March 31,
|
| |||||||||||||||||||||
| | |
2021
|
| |
2020
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
(in thousands, except percentages)
|
| |||||||||||||||||||||
Revenue and USDC interest income | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | $ | 11,465 | | | | | | — | | | | | $ | 11,465 | | | | | | n.m | | |
USDC interest income
|
| | | | 3,168 | | | | | | 1,289 | | | | | | 1,879 | | | | | | 145.8% | | |
SeedInvest revenue
|
| | | | 2,641 | | | | | | 813 | | | | | | 1,828 | | | | | | 224.8% | | |
Total revenue and USDC interest income from continuing operations
|
| | | | 17,274 | | | | | | 2,102 | | | | | | 15,172 | | | | | | 721.8% | | |
Third-party transaction costs | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury Services costs
|
| | | | 6,951 | | | | | | — | | | | | | 6,951 | | | | | | n.m | | |
USDC income sharing and transaction costs
|
| | | | 2,024 | | | | | | 601 | | | | | | 1,423 | | | | | | 236.8% | | |
Total third-party transaction costs
|
| | | | 8,975 | | | | | | 601 | | | | | | 8,374 | | | | | | n.m | | |
Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | |
Compensation expenses
|
| | | | 7,015 | | | | | | 5,342 | | | | | | 1,673 | | | | | | 31.3% | | |
General and administrative expenses
|
| | | | 5,466 | | | | | | 3,900 | | | | | | 1,566 | | | | | | 40.2% | | |
Depreciation and amortization expense
|
| | | | 934 | | | | | | 1,152 | | | | | | (218) | | | | | | -18.9% | | |
IT infrastructure costs
|
| | | | 933 | | | | | | 1,072 | | | | | | (139) | | | | | | -13.0% | | |
Marketing and advertising expenses
|
| | | | 229 | | | | | | 111 | | | | | | 118 | | | | | | 106.3% | | |
Digital assets impairment
|
| | | | 9 | | | | | | 151 | | | | | | (142) | | | | | | -94.0% | | |
Total operating expenses
|
| | | | 14,586 | | | | | | 11,728 | | | | | | 2,858 | | | | | | 24.4% | | |
Operating loss from continuing operations
|
| | | | (6,287) | | | | | | (10,227) | | | | | | 3,940 | | | | | | -38.5% | | |
| | |
Three months ended March 31,
|
| |||||||||||||||||||||
| | |
2021
|
| |
2020
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
(in thousands, except percentages)
|
| |||||||||||||||||||||
Other income, net
|
| | | | 684 | | | | | | 5,537 | | | | | | (4,853) | | | | | | -87.6% | | |
Net loss before income taxes
|
| | | | (5,603) | | | | | | (4,690) | | | | | | (913) | | | | | | 19.5% | | |
Income tax expense/(benefit for income taxes)
|
| | | | 3,852 | | | | | | (3,791) | | | | | | 7,643 | | | | | | -201.6% | | |
Net loss from continuing operations
|
| | | | (9,455) | | | | | | (899) | | | | | | (8,555) | | | | | | 951.4% | | |
Discontinued operations, net of taxes | | | | | | | | | | | | | | | | | | | | | | | | | |
Gain from operations of discontinued Circle Trade business
|
| | | | — | | | | | | 60 | | | | | | (60) | | | | | | n.m | | |
Gain from operations of discontinued Circle Invest business (including gain on disposal of $0.6 million for the three months ended March 31, 2020)
|
| | | | 15 | | | | | | 733 | | | | | | (718) | | | | | | -98.0% | | |
Net loss
|
| | | | (9,440) | | | | | | (106) | | | | | | (9,334) | | | | | | n.m. | | |
|
| | |
Year ended December 31,
|
| |||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
(in thousands, except percentages)
|
| |||||||||||||||||||||
Revenue and USDC interest income | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | $ | 2,589 | | | | | | — | | | | | $ | 2,589 | | | | | | n.m | | |
USDC interest income
|
| | | | 4,435 | | | | | | 6,232 | | | | | | (1,797) | | | | | | -28.8% | | |
SeedInvest revenue
|
| | | | 8,417 | | | | | | 3,191 | | | | | | 5,226 | | | | | | 163.8% | | |
Total revenue and USDC interest income from continuing operations
|
| | | | 15,441 | | | | | | 9,423 | | | | | | 6,018 | | | | | | 63.9% | | |
Third-party transaction costs | | | | | | | | | | | | | | | | | | | | | | | | | |
Transaction and Treasury Services costs
|
| | | | 785 | | | | | | — | | | | | | 785 | | | | | | n.m | | |
USDC income sharing and transaction costs
|
| | | | 2,826 | | | | | | 4,908 | | | | | | (2,082) | | | | | | -42.4% | | |
Total third-party transaction costs
|
| | | | 3,611 | | | | | | 4,908 | | | | | | (1,297) | | | | | | -26.4% | | |
Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | |
Compensation expenses
|
| | | | 18,932 | | | | | | 43,460 | | | | | | (24,528) | | | | | | -56.4% | | |
General and administrative expenses
|
| | | | 13,916 | | | | | | 19,120 | | | | | | (5,204) | | | | | | -27.2% | | |
Depreciation and amortization expense
|
| | | | 4,500 | | | | | | 4,495 | | | | | | 5 | | | | | | 0.1% | | |
IT infrastructure costs
|
| | | | 3,716 | | | | | | 5,823 | | | | | | (2,107) | | | | | | -36.2% | | |
Digital assets impairment
|
| | | | 1,256 | | | | | | — | | | | | | 1,256 | | | | | | n.m | | |
Marketing and advertising expenses
|
| | | | 400 | | | | | | 879 | | | | | | (479) | | | | | | -54.5% | | |
Goodwill impairment
|
| | | | — | | | | | | 13,947 | | | | | | (13,947) | | | | | | -100.0% | | |
Total operating expenses
|
| | | | 42,720 | | | | | | 87,724 | | | | | | (45,004) | | | | | | -51.3% | | |
| | |
Year ended December 31,
|
| |||||||||||||||||||||
| | |
2020
|
| |
2019
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
(in thousands, except percentages)
|
| |||||||||||||||||||||
Operating loss from continuing operations
|
| | | | (30,890) | | | | | | (83,209) | | | | | | 52,319 | | | | | | -62.9% | | |
Other income, net
|
| | | | 13,692 | | | | | | 64,660 | | | | | | (50,968) | | | | | | -78.8% | | |
Net loss before income taxes
|
| | | | (17,198) | | | | | | (18,549) | | | | | | 1,351 | | | | | | -7.3% | | |
Income tax expense/(benefit for income taxes)
|
| | | | 115 | | | | | | 7,731 | | | | | | (7,616) | | | | | | -98.5% | | |
Net loss from continuing operations
|
| | | | (17,313) | | | | | | (26,280) | | | | | | 8,967 | | | | | | -34.1% | | |
Discontinued operations, net of taxes | | | | | | | | | | | | | | | | | | | | | | | | | |
Gain (loss) from operations of discontinued Circle Trade business (including gain on disposal of $1.9 million and income tax expense of $0.9 million for the year ended December 31, 2019)
|
| | | | (58) | | | | | | 3,268 | | | | | | (3,326) | | | | | | -101.8% | | |
Gain (loss) from operations of discontinued Poloniex business
(including loss on disposal of $156.8 million for the year ended December 31, 2019) |
| | | | 20,431 | | | | | | (155,796) | | | | | | 176,227 | | | | | | -113.1% | | |
Gain from operations of discontinued Circle Invest business (including gain on disposal of $0.6 million for the year ended December 31, 2020 and income tax expense of $0 million for the year ended December 31, 2019)
|
| | | | 730 | | | | | | 243 | | | | | | 487 | | | | | | 200.4% | | |
Net Income (loss)
|
| | | | 3,790 | | | | | | (178,565) | | | | | | 182,355 | | | | | | -102.1% | | |
|
| | |
Three months ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Net loss from continuing operations
|
| | | $ | (9,455) | | | | | $ | (899) | | |
Adjusted for: | | | | | | | | | | | | | |
Depreciation and amortization expense
|
| | | | 934 | | | | | | 1,152 | | |
Interest expense, net of amortization of discounts and premiums
|
| | | | 1,268 | | | | | | 445 | | |
Interest income(1)
|
| | | | (3) | | | | | | (36) | | |
Income tax expense/(benefit for income taxes)
|
| | | | 3,852 | | | | | | (3,791) | | |
EBITDA
|
| | | | (3,404) | | | | | | (3,129) | | |
Adjusted for: | | | | | | | | | | | | | |
Stock compensation expense
|
| | | | 474 | | | | | | 699 | | |
Impairment of goodwill, intangible assets, and digital assets
|
| | | | 9 | | | | | | 151 | | |
Legal expense(2)
|
| | | | 829 | | | | | | 726 | | |
Realized and unrealized (gains) losses, net, on equity investments(3)
|
| | | | (12,394) | | | | | | 96 | | |
(Gain) loss on disposal of assets(4)
|
| | | | (5,525) | | | | | | 12 | | |
Unrealized (gains) losses on liabilities at fair value (convertible debt,
warrants)(5) |
| | | | 13,300 | | | | | | (5,409) | | |
| | |
Three months ended
March 31, |
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Foreign currency exchange (gain) loss
|
| | | | 175 | | | | | | (31) | | |
Transaction expenses(6)
|
| | | | 3,451 | | | | | | — | | |
Other miscellaneous income(7)
|
| | | | (157) | | | | | | (536) | | |
Adjusted EBITDA
|
| | | | (3,242) | | | | | | (7,421) | | |
|
| | |
Year ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Net loss from continuing operations
|
| | | $ | (17,313) | | | | | $ | (26,280) | | |
Adjusted for: | | | | | | | | | | | | | |
Depreciation and amortization expense
|
| | | | 4,500 | | | | | | 4,495 | | |
Interest expense, net of amortization of discounts and premiums
|
| | | | 3,363 | | | | | | 3,453 | | |
Interest income(1)
|
| | | | (199) | | | | | | (417) | | |
Income tax expense
|
| | | | 115 | | | | | | 7,731 | | |
EBITDA
|
| | | | (9,534) | | | | | | (11,018) | | |
Adjusted for: | | | | | | | | | | | | | |
Stock compensation expense
|
| | | | 3,583 | | | | | | 6,872 | | |
Impairment of goodwill, intangible assets, and digital assets
|
| | | | 1,256 | | | | | | 13,947 | | |
Legal expense(2)
|
| | | | 2,277 | | | | | | 511 | | |
Realized and unrealized gains, net, on equity investments(3)
|
| | | | (12,451) | | | | | | (2,000) | | |
(Gain) loss on disposal of assets(4)
|
| | | | (165) | | | | | | 6 | | |
Unrealized (gains) losses on liabilities at fair value (convertible debt, warrants)(5)
|
| | | | 3,624 | | | | | | (61,884) | | |
Foreign currency exchange (gain) loss
|
| | | | 138 | | | | | | (407) | | |
Other miscellaneous income(6)
|
| | | | (4,437) | | | | | | (1,599) | | |
Adjusted EBITDA
|
| | | | (15,709) | | | | | | (55,572) | | |
| | |
Three months ended March 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
| | |
(in thousands)
|
| |||||||||
Net cash (used in) operating activities
|
| | | $ | (3,537) | | | | | $ | (9,055) | | |
Net cash provided by (used in) investing activities
|
| | | | 24,785 | | | | | | 1,970 | | |
Net cash provided by financing activities
|
| | | | 7,176,735 | | | | | | 198,971 | | |
| | |
Year ended December 31,
|
| | |||||||||||
| | |
2020
|
| |
2019
|
| | ||||||||
| | |
(in thousands)
|
| | | | |||||||||
Net cash (used in) operating activities
|
| | | $ | (14,923) | | | | | $ | (59,701) | | | | ||
Net cash provided by (used in) investing activities
|
| | | | (17,934) | | | | | | 37,225 | | | | ||
Net cash provided by financing activities
|
| | | | 3,526,936 | | | | | | 242,657 | | | |
Participant
|
| |
Principal Amount of
Warrant ($) |
| |
Principal Amount of Note
($) |
| ||||||
General Catalyst Group VI, L.P.(1)
|
| | | | N/A | | | | | | 1,000,000 | | |
Breyer Capital L.L.C.(2)
|
| | | | 2,666,666.67 | | | | | | 4,000,000 | | |
Wide Palace Limited(3)
|
| | | | 30,000,000 | | | | | | 45,000,000 | | |
Accel XI L.P.(4)
|
| | | | N/A | | | | | | 846,500 | | |
Participant
|
| |
Series E
Preferred Shares Issued upon Conversion of Convertible Promissory Notes |
| |||
General Catalyst Group VI, L.P.(1)
|
| | | | 82,152 | | |
Breyer Capital L.L.C.(2)
|
| | | | 328,609 | | |
Wide Palace Limited(3)
|
| | | | 3,696,857 | | |
Accel XI L.P.(4)
|
| | | | 69,542 | | |
Name
|
| |
Age
|
| |
Title
|
|
Bob Diamond | | |
70
|
| | Chairman of the Board | |
Jeff Tuder | | |
48
|
| | Chief Executive Officer | |
Michele Cito | | |
32
|
| | Chief Financial Officer | |
David Schamis | | |
47
|
| | Director | |
Peter Ort | | |
50
|
| | Director | |
Thomas King | | |
60
|
| | Director | |
Larry Leibowitz | | |
61
|
| | Director | |
Name
|
| |
Age
|
| |
Position(s)
|
|
Executive Officers: | | | | | | | |
Jeremy Allaire | | | 50 | | | Chief Executive Officer, President and Director | |
Jeremy Fox-Geen | | | 48 | | | Chief Financial Officer | |
Elisabeth Carpenter | | | 55 | | | Chief Operating Officer | |
Flavia Naves | | | 47 | | | General Counsel | |
Dante Disparte | | | 44 | | | Chief Strategy Officer and Head of Global Policy | |
Directors: | | | | | | | |
M. Michele Burns | | | 63 | | | Director | |
Raj Date | | | 50 | | | Director | |
Bob Diamond | | | 70 | | | Director | |
P. Sean Neville | | | 50 | | | Director | |
|
Concord Stockholders
|
| |
Topco Shareholders
|
|
|
Authorized Capital
|
| |||
| Concord’s amended and restated certificate of incorporation authorizes 221,000,000 shares, par value US$0.0001 per share, consisting of 220,000,000 shares of Concord common stock, including 200,000,000 shares of Concord Class A Common Stock and 20,000,000 shares of Concord Class B Common Stock, and 1,000,000 shares of preferred stock, par value US$0.001 per share. | | | At Closing, Topco’s authorized share capital will be US$2,100,000 and €25,000 divided into 1,600,000,000 ordinary shares of US$0.001 each (nominal value) (i.e., the Topco Ordinary Shares), 500,000,000 preference shares of US$0.001 each (nominal value) and 25,000 euro deferred shares of €1.00 each (nominal value). | |
|
Voting Rights
|
| |||
| Concord’s amended and restated certificate of incorporation provides that except as otherwise required by law or such certificate of incorporation, the holders of shares of Concord common stock (including the Concord Class A Common Stock and the Concord Class B Common Stock) are entitled to one vote per share on each matter properly submitted to the stockholders on which such holders are entitled to vote. | | | The Topco Constitution provides that each Topco Ordinary Shareholder is entitled to one vote for each Topco Ordinary Share held by him or her on the record date of the relevant general meeting. | |
|
Quorum and Adjournment
|
| |||
| Concord’s bylaws provide that except otherwise provided by applicable law, Concord’s certificate of incorporation or specific provision of Concord’s bylaws, the presence, in person or by proxy, of the holders of shares of outstanding stock of Concord representing a majority of the voting power of all outstanding shares of stock of Concord entitled to vote at such meeting constitutes a quorum sufficient for the transaction of business at such meeting. | | | The Topco Constitution provides that no business shall be transacted at any general meeting unless a quorum is present when the meeting proceeds to business. A quorum comprises Topco shareholders, represented in person or by proxy, who together are entitled to cast at least the majority of the voting rights of all the Topco shareholders entitled to vote at the relevant general meeting on a poll. | |
|
Concord Stockholders
|
| |
Topco Shareholders
|
|
|
If a quorum is not present in person or by proxy at a meeting of stockholders of Concord, the chairman of the meeting may adjourn the meeting from time to time as provided in Concord’s bylaws until a quorum shall attend.
Concord’s bylaws provide that notice of an adjourned meeting of Concord’s stockholders need not be given if the date, time and place, if any, thereof, and the means of remote communications, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjournment are announced at the meeting at which the adjournment is taken. If the adjournment is for more than 30 days, notice of the adjourned meeting is required to be given to each stockholder of record entitled to vote at the meeting. If, after adjournment, a new record date for stockholders entitled to vote is fixed for the adjourned meeting, Concord’s board of directors is required to fix a new record date for notice of such adjourned meeting and Concord is required to give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
At the adjourned meeting, any business which might have been transacted at the original meeting may be transacted.
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If a quorum is not present, the meeting, if convened on the requisition of Topco shareholders, shall be dissolved and, in any other case, shall stand adjourned to the same day in the next week or to such other time and place as the chairperson of the meeting may determine.
If a quorum is present, the chairperson of the meeting may, with the consent of the meeting, adjourn the meeting from time to time (or indefinitely).
No business may be transacted at any adjourned meeting other than the business which might have properly been transacted at the meeting from which the adjournment took place.
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Number of Directors and Composition of Board of Directors
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Concord’s certificate of incorporation provides that other than any directors who may be elected by the holders of one or more series of preferred stock of Concord, the number of directors shall be fixed from time to time exclusively by the Concord board of directors pursuant to a resolution adopted by a majority of the Concord board of directors.
The Concord amended and restated certificate of incorporation provides that the Concord board of directors shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. The Concord amended and restated certificate of incorporation provides that the Class I directors serve until the first annual meeting of stockholders following December 7, 2020, the Class II directors serve until the second annual meeting of stockholders following such date and the Class III directors serve until the third annual meeting of stockholders following such date.
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The Topco Constitution provides that the number of Topco directors shall be not more than 15 and not less than two, with the exact number of Topco directors, from time to time, determined solely by the Topco Board may determine from time to time. From Closing, there will be seven directors on the Topco Board.
The Topco Board shall be divided into three classes, designated Class I, Class II and Class III, with the directors of each class serving for staggered three-year terms. At Closing, Class I shall consist of two directors, Class II shall consist of three directors and Class III shall consist of two directors. The Class I directors shall be appointed to serve as directors until the conclusion of Topco’s 2022 annual general meeting, the Class II directors shall be appointed to serve as directors until the conclusion of Topco’s 2023 annual general meeting and Class III directors shall be appointed to serve as directors until the conclusion of Topco’s 2024 annual general meeting.
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Concord Stockholders
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Topco Shareholders
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| Concord’s certificate of incorporation provides that if the number of directors constituting the board of directors is changed, any increase or decrease shall be apportioned by the Concord board of directors among the classes so as to maintain the number of directors in each class as nearly equal as possible. Concord’s certificate of incorporation provides that no decrease in the number of directors constituting the board of directors is permitted to shorten the term of any incumbent director. | | | If the size of the Topco Board is changed, any increase or decrease shall be apportioned among the classes so as to maintain the number of Topco directors in each class as nearly equal as possible or as the chairperson of the Topco Board may otherwise direct, provided that a decrease will not shorten the term of any incumbent Topco director. | |
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Appointment of Directors
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Concord’s certificate of incorporation provides that, except as otherwise required by law or specific provision of such certificate of incorporation, the holders of the Concord Class A Common Stock and the holders of the Concord Class B Common Stock, voting together as a single class, have the exclusive right to vote for the election of directors.
Concord’s certificate of incorporation provides that, subject to the rights of any series of preferred stock of Concord, at all meetings of stockholders at which a quorum is present, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon.
Concord’s certificate of incorporation provides that notwithstanding any other provision of Concord’s certificate of incorporation, prior to the closing of Concord’s initial business combination, the holders of Concord Class B Common Stock have the exclusive right to elect, remove and replace any director, and the holders of Concord Class A Common Stock have no right to vote on the election, removal or replacement of any director.
Concord’s certificate of incorporation provides that, except for directors elected by one or more series of Concord preferred stock, voting separately as a single class or series, newly created directorships resulting from an increase in the number of directors and any vacancies on the Concord board of directors may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by the sole remaining director (and not by the stockholders).
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The Topco Constitution provides that the Topco directors may be appointed by ordinary resolution of the Topco shareholders in general meeting.
In the event of a contested election (i.e., where the number of Topco director nominees exceeds the number of Topco directors to be elected), each of those nominees shall be voted upon as a separate resolution and the Topco directors shall be elected by a plurality of the votes cast in person or by proxy at any such meeting. “Elected by a plurality” means the election of those Topco director nominees equaling in number the number of positions to be filled at the relevant general meeting that receive the highest number of votes.
The Topco Constitution also provides that the Topco Board may appoint any person who is willing to act as a Topco director, either to fill a vacancy or as an addition to the existing Topco Board or as a successor to a Topco director who is not re-elected at an annual general meeting
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Removal of Directors
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| Concord’s certificate of incorporation provides that other than directors elected by one or more series of Concord preferred stock, voting separately as a single class or series, any or all of the directors may be removed from office only for cause and only by the affirmative vote of the holders of a majority of | | | Under Irish law, Topco shareholders may remove a director without cause by ordinary resolution, provided that at least 28 clear days’ notice of the resolution is given to Topco, and the Topco shareholders comply with the relevant procedural requirements. Under Irish law, one or more | |
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Concord Stockholders
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Topco Shareholders
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the voting power of all of the then outstanding shares of stock of Concord entitled to vote generally in the election of directors, voting together as a single class.
Concord’s certificate of incorporation provides that notwithstanding any other provision of Concord’s certificate of incorporation, prior to the closing of Concord’s initial business combination, the holders of Concord Class B Common Stock have the exclusive right to remove any director, and the holders of Concord Class A Common Stock have no right to vote on the removal of any director.
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| | shareholders representing not less than 10% of the paid-up share capital of Topco carrying voting rights may requisition the holding of an extraordinary general meeting at which a resolution to remove a director and appoint another person in his or her place may be proposed. | |
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Fiduciary Duties of Directors
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Under Delaware law, the directors of Concord owe the fiduciary duties of loyalty (encompassing good faith) and care to all of Concord’s stockholders.
The DGCL permits a Delaware corporation to include in its certificate of incorporation to contain a provision limiting or eliminating the monetary liability of a director to a corporation or its stockholders, except with regard to breaches of duty of loyalty, acts or omissions not in good faith, involving intentional misconduct or a knowing violation of law, unlawful repurchases, redemptions or dividends, or transactions from which the director derived an improper personal benefit. Concord’s certificate of incorporation contains such provision.
The DGCL permits a Delaware corporation to renounce, in its certificate of incorporation, any interest or expectancy of the corporation in, or being offered an opportunity to participate in, specified business opportunities or specified classes or categories of business opportunities that are presented to the corporation or one or more of its officers, directors or stockholders. Concord’s certificate of incorporation provides that to the extent allowed by law, the corporate opportunity doctrine shall not apply to Concord or any of its officers or directors or any of their affiliates where the application of such doctrine would conflict with any fiduciary duties or contractual obligations such persons had as of December 7, 2021 and that Concord renounces any expectancy that any of Concord’s directors or officers will offer any such corporate opportunity of which he or she becomes aware to Concord, except that the corporate opportunity doctrine shall apply with respect to any of Concord’s directors or officers only with respect to a corporate opportunity that is offered to him or her solely in his or her capacity as a director or
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Under Irish law, a fiduciary relationship exists between the Topco directors and Topco, whereby the Topco directors serve as fiduciaries with respect to the care of the Topco’s property and interests. The Irish Companies Act sets out eight principal fiduciary duties for directors, derived from common law and equitable principles which have been developed by the courts in Ireland over many years. The eight principal fiduciary duties are:
(i)
to act in good faith in what the director considers to be the interests of the company;
(ii)
to act honestly and responsibly in relation to the conduct of the affairs of the company;
(iii)
to act in accordance with the company’s memorandum of association and articles of association and to exercise his or her powers only for the purposes allowed by law;
(iv)
not to use the company’s property, information or opportunities for his or her own benefit, or that of anyone else;
(v)
not to agree to restrict the director’s power to exercise an independent judgement;
(vi)
to avoid conflict of interest;
(vii)
to exercise due care, skill and diligence; and
(viii)
to have regard to the interests of the company’s employees in general and its shareholders.
Such duties are owed by the Topco directors to Topco (not to individual Topco shareholders or third parties) and only Topco may take an action for breach of duty against a Topco director. Upon liquidation, this power may be exercised by the liquidator. In limited situations, Topco shareholders may be able to bring a derivative action on behalf of Topco.
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Concord Stockholders
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Topco Shareholders
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officer of Concord and such opportunity is one Concord is legally and contractually permitted to undertake and would otherwise be reasonable for it to pursue and that the director or officer is permitted to refer that opportunity to Concord without violating any legal obligations.
In limited circumstances, Concord’s stockholders may be able to bring derivative actions on behalf of Concord.
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Director Nominations by Stockholders and Shareholders
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Concord’s bylaws provide that nominations of individuals for election to Concord’s board of directors at any annual meeting of stockholders or any special meeting of stockholders called for the purpose of electing directors may be made (i) by or at the direction of the board of directors or (ii) by any stockholder who complies with the nomination procedures established by Concord’s bylaws and who is a stockholder of record at appropriate time or times provided in Concord’s bylaws.
For a nomination to be made by a stockholder pursuant to Concord’s bylaws, the stockholder must give timely notice in proper written form to Concord’s secretary. To be timely, the notice must be delivered in accordance with Concord’s bylaws (i) in the case of an annual meeting of stockholders, not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders (provided that if the annual meeting is more than 30 days before or more than 70 days after such anniversary date, the stockholder’s notice must be delivered not earlier than the close of business on the 120th day before the meeting and not later than the later of either the close of business on the 90th day before the annual meeting or the close of business on the 10th day following the day on which pubic announcement of the date of the annual meeting was first made by Concord) and (ii) in the case of a special meeting called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by Concord.
The notice must set forth, among other things, the information relating to the nominee that would be required to be disclosed in a proxy statement or other filing filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange
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The Topco Constitution provides that, in the case of a resolution proposed to be moved at an annual general meeting (including a resolution to appoint a director), Topco Shareholders must deliver a request in writing to the secretary of Topco not earlier than the close of business on the 120th day nor later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (subject to adjustment if the date of the annual general meeting is more than 30 days before or more than 60 days after such anniversary, as provided for in the Topco Constitution).
The request shall set forth, amongst other requirements, all information related to the proposed nominee for director that is required to be disclosed in solicitations of proxies for election of directors, or is otherwise required by Regulation 14A of the Exchange Act, including the person’s written consent to being named in the proxy statement and to serving as director if elected.
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Concord Stockholders
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Topco Shareholders
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| Act and the rules and regulations promulgated thereunder and must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected. | | | | |
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Action by Stockholders and Shareholders
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Concord’s certificate of incorporation provides that, subject to the rights of any series of preferred stock of Concord, at all meetings of stockholders at which a quorum is present, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon.
Concord’s bylaws provide that all other matters presented to the stockholders at a meeting at which a quorum is present shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, Concord’s certificate of incorporation or bylaws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter.
Concord’s certificate of incorporation provides that other than directors elected by one or more series of Concord preferred stock, voting separately as a single class or series, any or all of the directors may be removed from office only for cause and only by the affirmative vote of the holders of a majority of the voting power of all of the then outstanding shares of stock of Concord entitled to vote generally in the election of directors, voting together as a single class.
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Except where a greater majority is required by the Irish Companies Act or otherwise prescribed by the Topco Constitution, any question, business or resolution proposed at any general meeting shall be decided by a resolution approved by a simple majority of votes cast, in person or by proxy, at a general meeting of Topco shareholders at which a quorum is present (referred to under Irish law as an “ordinary resolution”).
An ordinary resolution is needed, among other matters, to appoint a Topco director (where the appointment is by Topco shareholders), to remove a Topco director and to provide, vary or renew the Topco directors’ authority to allot relevant securities.
Irish law requires approval of certain matters by a resolution approved by not less than 75% of the votes cast, in person or by proxy, at a general meeting of shareholders at which a quorum is present (referred to under Irish law as a “special resolution”).
A special resolution is needed, among other matters, to amend the Topco Constitution, to dis-apply statutory pre-emption rights on the issuance of equity securities of Topco and to reduce Topco’s company capital.
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Dividends and Distributions
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Under the DGCL, the board of directors, subject to any restrictions in the corporation’s certificate of incorporation, may declare and pay dividends out of (i) surplus of the corporation, which is defined as net assets less capital (as each is defined in the DGCL), or (ii) if no surplus exists, out of the net profits of the corporation for the fiscal year in which the dividend is declared and/or the preceding fiscal year.
The DGCL also provides that if the capital of the corporation has been diminished by depreciation in the value of its property, or by losses, or otherwise, to an amount less than the aggregate amount of capital represented by the issued and outstanding stock of all classes having a preference upon the distribution of assets, the board of directors may not declare and pay dividends out of the
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Under Irish law, Topco may only pay dividends and make other distributions (and, generally, make share repurchases and redemptions) out of distributable profits.
In addition, no dividend may be paid or other distribution, share repurchase or redemption made by Topco unless the net assets of Topco are equal to, or exceed, the aggregate of Topco’s called-up share capital plus its un-distributable reserves and the dividend or other distribution, share repurchase or redemption does not reduce Topco’s net assets below such aggregate.
The Topco Constitution authorizes the Topco Board to pay such dividends as appears to the Topco Board to be justified by the profits of Topco.
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Concord Stockholders
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Topco Shareholders
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corporation’s net profits until the deficiency in the capital has been repaired.
Under the DGCL, a corporation may purchase or redeem its own shares, except that, generally, it may not purchase or redeem such shares if such repurchase or redemption would impair the capital of the corporation. A corporation may, however, purchase or redeem out of capital any of its own shares which are entitled upon any distribution of its assets to a preference over another class or series of its stock if such shares will be retired and the capital reduced as provided in the DGCL.
Concord’s certificate of incorporation provides that Concord will provide all Public Stockholders with the opportunity to have their Public Shares redeemed in connection with the Business Combination, subject to the limitations set forth therein, for cash equal to the applicable redemption price per share; provided, however, that Concord will not redeem Public Shares to the extent that such redemption would result in Concord’s failure to have net tangible assets of at least $5,000,001 immediately prior to or upon the consummation of the Business Combination or any greater net tangible asset or cash requirement which may be contained in the Business Combination Agreement.
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Stockholder and Shareholder Proposals
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Concord’s bylaws provide that no business (other than nominations of individuals for election as directors) may be transacted at an annual meeting of stockholders other than business that is either (i) specified in Concord’s notice of the meeting (or any supplement thereto), (ii) otherwise brought before the annual meeting by or at the direction of Concord’s board of directors or (iii) otherwise properly brought before the annual meeting by a stockholder who complies with the procedures established by Concord’s bylaws and who is a stockholder of record at appropriate time or times provided in Concord’s bylaws.
For a business (other than nominations) to be brought before an annual meeting by a stockholder pursuant to Concord’s bylaws, the stockholder must give timely notice in proper written form to Concord’s secretary and such business must otherwise be a proper matter for stockholder action. To be timely, the notice must be delivered in accordance with Concord’s bylaws not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding
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The Topco Constitution provides that, in the case of a resolution proposed to be moved at an annual general meeting (including a resolution to appoint a director), Topco Shareholders must deliver a request in writing to the secretary of Topco not earlier than the close of business on the 120th day nor later than the close of business on the 90th day prior to the first anniversary of the preceding year’s annual meeting (subject to adjustment if the date of the annual general meeting is more than 30 days before or more than 60 days after such anniversary, as provided for in the Topco Constitution).
In a request, other than for the nomination of directors, the relevant Topco shareholder must, among other matters, provide a comprehensive description of the business to be brought at the meeting, the reasons for conducting such business at the meeting, the complete text of any proposed resolution and a declaration of any material interest in such business by the shareholder and any associated persons.
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Concord Stockholders
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Topco Shareholders
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annual meeting of stockholders (provided that if the annual meeting is more than 30 days before or more than 70 days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day before the meeting and not later than the later of the close of business on the 90th day before the meeting or the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by Concord).
The notice must set forth, among other things, a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend Concord’s bylaws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting. The notice must also set forth any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business.
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Amendments to Governing Documents
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Under the DGCL, a certificate of incorporation may be amended if (i) the board of directors adopts resolutions setting forth the proposed amendment, declaring the advisability of the amendment and directing that the amendment be submitted to a vote at a meeting of stockholders and (ii) the holders of at least a majority of shares of stock entitled to vote, voting as a single class, approve the amendment, unless the certificate of incorporation requires the vote of a greater number of shares.
In addition, under the DGCL, class voting rights exist with respect to amendments to the certificate of incorporation that increase or decrease the aggregate number of authorized shares of a class of stock, increase or decrease the par value of the shares of a class or stock or that alter or changes the powers, preferences or special rights of the shares of a class so as to affect them adversely. Class voting rights do not exist as to other matters, unless the certificate of incorporation expressly provides otherwise.
Article IX of Concord’s certificate of incorporation — captioned “Business Combination Requirements; Existence” — provides that no amendment to such article shall be effective prior to the consummation of Concord’s initial business combination unless approved by the affirmative vote
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| | Under Irish law, a special resolution of the shareholders is required to amend any provision of the Topco Constitution. The Topco Board does not have the power to amend the Topco Constitution. | |
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Concord Stockholders
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Topco Shareholders
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of the holders of at least 662∕3% of all then outstanding shares of Concord common stock.
Under the DGCL, the board of directors may amend a corporation’s bylaws if so empowered in the certificate of incorporation. Concord’s certificate of incorporation empowers Concord’s board of directors to amend Concord’s bylaws by the affirmative vote of a majority of the board of directors. The stockholders of a Delaware corporation also have the power to amend bylaws.
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Special Meetings of Stockholders and Shareholders
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Under the DGCL, meetings of stockholders may be called by or in the manner provided in the certificate of incorporation or the bylaws or, if not so provided, by the board of directors.
Concord’s certificate of incorporation and bylaws provide that, subject to the rights of the holders of any series of preferred stock of Concord, a special meeting of the stockholders may be called only by the chairman of the board of directors, the chief executive officer or Concord’s board of directors pursuant to a resolution adopted by a majority of the board of directors, and may not be called by any other person.
Concord’s bylaws provide that only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to Concord’s notice of meeting.
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Under Irish law, all general meetings other than annual general meetings are called extraordinary general meetings.
As provided under Irish law and the Topco Constitution, extraordinary general meetings may be convened: (i) by the Topco Board whenever it thinks fit, (ii) by the Topco Board on the requisition of Topco shareholders holding not less than 10% of the paid-up share capital of Topco carrying voting rights, and, if the Topco Board defaults, by the requisitioning shareholders themselves and (iii) in exceptional cases, by order of the High Court of Ireland.
No business may be transacted at an extraordinary general meeting other than business that: (i) is proposed by, or at the direction of the Topco directors, (ii) is proposed by the requisitioning shareholders in accordance with the Irish Companies Act, (iii) is proposed at the direction of the High Court of Ireland or (iv) the chairperson of the general meeting determines in his, or her, sole and absolute discretion may properly be regarded as within the scope of the meeting.
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Notice of Meetings of Stockholders and Shareholders
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Concord’s bylaws provide that the annual meeting of stockholders shall be called by the board of directors.
Concord’s bylaws require notice of a meeting of stockholders to be given not less than 10 nor more than 60 days before the date of the meeting unless otherwise provided by the DGCL.
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The Topco Constitution requires that an annual general meeting shall be convened by not less than twenty-one clear days’ and no more than sixty clear days’ notice.
The Topco Constitution requires that, subject to the Irish Companies Act, all extraordinary general meetings shall be convened by not less than fourteen clear days’ and no more than sixty clear days’ notice. Under the Irish Companies Act, at least 21 clear days’ notice is required to convene an extraordinary general meeting at which a special resolution is to be proposed.
“Clear days” means calendar days and excludes: (i) the day when the notice is given or deemed to be given and the day for which it is given or on which it is to take effect
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Concord Stockholders
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Topco Shareholders
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Proxies
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| The DGCL permits each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action by consent in lieu of a meeting to authorize another person or persons to act for such stockholder by proxy. The DGCL also provides that no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. | | | The Topco Constitution provides that every Topco shareholder entitled to attend and vote at a general meeting may appoint a proxy to attend, speak and vote on his or her behalf and may appoint more than one proxy to attend, speak and vote at the same meeting. Under Irish law, proxies must be deposited at the registered office of Topco or as it directs not later than 48 hours before the relevant meeting (or such later time as determined by the Topco Board pursuant to the Topco Constitution). | |
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Mergers and Acquisitions
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Generally, under the DGCL, the consummation of a merger, consolidation, dissolution, or the sale, lease, or exchange of substantially all of a corporation’s assets requires approval by the board of directors and by the holders of a majority (unless the certificate of incorporation requires a higher percentage) of the outstanding shares of stock of the corporation entitled to vote.
Concord’s certificate of incorporation requires Concord’ initial business combination to be approved by the affirmative vote of a majority of the board of directors, which must include a majority of Concord’s independent directors.
Under the DGCL, mergers in which one corporation owns 90% or more of each class of the outstanding voting stock of a second corporation may be consummated with approval of the first corporation’s board of directors and without the vote of the second corporation’s board of directors or stockholders.
Section 203 of the DGCL provides that a corporation may not engage in any business combination with any “interested stockholder” for a period of three years following the time that such stockholder became an “interested stockholder” unless (i) prior to such time the corporation’s board of directors approved either the business combination or the transaction which resulted in the stockholder becoming an “interested stockholder,” (ii) upon consummation of the transaction which resulted in the stockholder becoming an “interested stockholder,” the “interested stockholder” owned at least 85% of the voting stock of the corporation outstanding at the time the transaction commenced, excluding for purposes of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares owned (x) by persons who are directors and also officers and (y) employee stock plans in which
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Under Irish law but subject to applicable U.S. securities laws and NYSE rules and regulations, where Topco proposes to acquire another company, the approval of Topco’s shareholders is generally not required unless: (i) the acquisition is effected as a direct domestic merger by Topco under Part 17 of the Irish Companies Act or a direct cross-border merger with another company incorporated in the European Economic Area under the European Communities (Cross Border Merger) Regulations 2008 of Ireland, as amended, (ii) the acquisition involves the issuance of new Topco shares or other securities carrying voting rights, which would otherwise trigger the mandatory bid requirements under the Irish Takeover Rules as further described in the section of this document entitled “Description of Topco’s Securities” under the heading “The Irish Takeover Rules and the Substantial Acquisition Rules”) or would constitute a “reverse takeover” under the Irish Takeover Rules or (iii) the acquisition involves the issuance of new Topco shares or rights to subscribe for, or convert another security into, Topco shares and Topco has insufficient headroom in its authorized share capital or its directors do not have sufficient general shareholder authority to issue such shares or rights free from statutory pre-emption rights. A “reverse takeover” means a transaction whereby Topco acquires securities of another company or a business or assets of any kind and pursuant to which it is, or may be, obliged to increase by more than 100%, its then existing issued share capital carrying voting rights.
Under Irish law, where another company proposes to acquire Topco, the requirement of the approval of Topco Shareholders will depend on the method of acquisition, as described below.
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Concord Stockholders
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Topco Shareholders
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employee participants do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange offer, or (iii) at or subsequent to such time, the business combination is approved by the board of directors and authorized at an annual or special meeting of stockholders, and not by consent in lieu of a meeting, by the affirmative vote of at least 662∕3% of the outstanding voting stock which is not owned by the “interested stockholder.”
Generally, Section 203 defines an “interested stockholder” as any person (other than the corporation and any direct or indirect majority-owned subsidiary of the corporation) that (i) is the owner of 15% or more of the outstanding voting stock of the corporation or (ii) is an affiliate or associate of the corporation and was the owner of 15% or more of the outstanding voting stock of the corporation at any time within the three-year period immediately prior to the date on which it is sought to be determined whether such person is an “interested stockholder,” and the affiliates and associates of such person.
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Takeover Offer
Under a takeover offer, the bidder will make a general offer to the target company shareholders to acquire their shares. The offer must be conditional on the bidder acquiring, or having agreed to acquire (pursuant to the offer, or otherwise) securities conferring more than 50% of the voting rights of the target company, albeit the percentage will typically be set higher to enable the bidder to trigger statutory squeeze-out rights under Irish law and require any non-accepting shareholders to sell and transfer their shares to the bidder on the terms of the offer.
Statutory Scheme of Arrangement
Under Irish law, a scheme of arrangement under chapter 1 of part 9 of the Irish Companies Act is a procedure whereby the target company makes a proposal (i.e., the scheme) to its shareholders to: (i) transfer their shares to the bidder or (ii) cancel their shares, in each case in exchange for the relevant consideration to be provided by the bidder, with the result that the bidder will become the 100% owner of the target company. A scheme requires the approval of a majority in number of the registered shareholders of each class of the target company’s shares affected, representing at least 75% of the shares of each class, present and voting, in person or by proxy, at a meeting of shareholders, together with the sanction of the High Court of Ireland. Once approved by the requisite shareholder majority and sanctioned by the High Court of Ireland, all target company shareholders are bound by the terms of the scheme.
Statutory Merger
It is possible for Topco to be acquired by way of a direct domestic merger or direct cross-border merger, as described above. Such mergers must be approved by a special resolution of Topco shareholders and sanctioned by the High Court of Ireland.
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Rights of Dissenting Stockholders and Shareholders
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| Under the DGCL, a stockholder of a corporation who did not vote in favor or consent to a merger and whose shares are converted in a merger may, in certain circumstances, be entitled to appraisal rights pursuant to which the stockholder may, subject to taking certain prescribed actions and a proceeding in the Court of Chancery of the State of Delaware, receive cash in the amount determined by the Court | | |
Irish law provides for dissenters’ rights in the event of certain mergers and acquisitions.
Takeover Offer
In the case of a takeover offer for Topco, where a bidder has acquired or contracted to acquire not less than 80% of the Topco shares (or relevant class of Topco shares) to which the offer relates, the
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Concord Stockholders
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Topco Shareholders
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| of Chancery of the State of Delaware to be the fair value of such stockholder’s shares in lieu of the consideration such stockholder would otherwise receive in the merger. | | |
bidder may, under Irish law, require any non-accepting Topco shareholders to sell and transfer their Topco shares of the same class on the terms of the offer. In such circumstances, a non-accepting shareholder has the right to apply to the High Court of Ireland for an order permitting him, or her, to retain his, or her, shares or to vary the terms of the offer as they pertain to him or her (including a variation such as to require payment of a cash consideration).
Statutory Scheme of Arrangement
In the case of a takeover by statutory scheme of arrangement under chapter 1 of part 9 of the Irish Companies Act which has been approved by the requisite majority of shareholders, dissenting shareholders have the right to appear at the High Court of Ireland sanction hearing and make representations in objection to the scheme.
Statutory Merger
In the case of a direct domestic merger or direct cross-border merger, which has been approved by the requisite majority of Topco shareholders, if the consideration that is proposed to be paid to Topco shareholders is not all in the form of cash, dissenting Topco shareholders may be entitled to require that their Topco shares be acquired for cash.
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Forum Selection
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| Concord’s certificate of incorporation provides that unless Concord consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of Concord, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of Concord to Concord or its stockholders, (iii) any action asserting a claim against Concord, its directors, officers or employees arising pursuant to any provision of the DGCL or Concord’s certificate of incorporation or bylaws or (iv) any action asserting a claim against Concord, its directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive | | | The Topco Constitution provides that the Courts of Ireland shall have exclusive jurisdiction to determine any dispute related to or connected with (i) any derivative claim in respect of a cause of action vested in Topco or seeking relief on behalf of Topco, (ii) any action asserting a claim of breach of a fiduciary or other duty owed by any director, officer or other employee of Topco to Topco or Topco shareholders or (iii) any action asserting a claim against Topco or any director, officer or other employee of Topco arising under the laws of Ireland or pursuant to any provision of the Topco Constitution. | |
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Concord Stockholders
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Topco Shareholders
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| jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. | | | | |
| Concord’s certificate of incorporation provides that the foregoing exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act, the Securities Act or any other claims for which the federal courts have jurisdiction. | | | ||
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Limitations on Enforcement of Civil Liabilities under U.S. Federal or State Securities Laws
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| As a company listed on the NYSE, Concord and its directors and officers are subject to U.S. federal and state securities laws, and investors may initiate civil lawsuits in the United States against Concord and its directors and officers for breaches of such laws. | | |
As a company listed on the NYSE, Topco and its directors and officers will be subject to U.S. federal and state securities laws, and investors could initiate civil lawsuits in the United States against Topco and its directors and officers for breaches of such laws.
There is some uncertainty as to whether the courts of Ireland would recognize or enforce judgments of U.S. courts obtained against Topco or its directors or officers based on the civil liabilities provisions of the U.S. federal or state securities laws or hear actions against Topco or those persons based on those laws. The U.S. and Ireland do not currently have a treaty providing for the reciprocal recognition and enforcement of judgments (other than arbitration awards) in civil and commercial matters, and, accordingly, common law rules apply in determining whether a judgment of obtained in a U.S. court is enforceable in Ireland. Although there are processes under Irish law for enforcing a judgment of a U.S. court, including by seeking summary judgment in a new action in Ireland, those processes are subject to certain established principles and conditions, and there can be no assurance that an Irish court would enforce a judgment of a U.S. court in this way and thereby impose civil liberty on Topco or its directors or officers.
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Indemnification of Directors and Officers
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The DGCL permits a Delaware corporation to include in its certificate of incorporation to contain a provision limiting or eliminating the monetary liability of a director to a corporation or its stockholders, except with regard to breaches of duty of loyalty, acts or omissions not in good faith, involving intentional misconduct or a knowing violation of law, unlawful repurchases, redemptions or dividends or transactions from which the director derived an improper personal benefit. Concord’s certificate of incorporation contains such provision.
The DGCL permits a corporation to purchase and maintain insurance on behalf of any person who is
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Subject to exceptions, the Irish Companies Act does not permit a company to exempt a director or certain officers from, or indemnify a director against, liability in connection with any negligence, default, breach of duty or breach of trust by a director in relation to the company.
The exceptions, which are provided for in the Topco Constitution, allow a company to (i) purchase and maintain director and officer insurance against any liability attaching in connection with any negligence, default, breach of duty or breach of trust owed to the company and (ii) indemnify a director or other officer against any liability incurred in defending
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Concord Stockholders
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Topco Shareholders
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or was a director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under the DGCL.
The DGCL generally permits a corporation to indemnify its directors and officers against expenses, judgments, fines and amounts paid in settlement actually and reasonably incurred in connection with a third-party action, other than a derivative action, and against expenses actually and reasonably incurred in the defense or settlement of a derivative action, provided that it is determined that the individual acted in good faith and in a manner reasonably believed to be in or not opposed to the best interests of the corporation. Unless otherwise ordered by a court, such determination shall be made, in the case of an individual who is a director or officer at the time of the determination, (i) by a majority vote of the directors who are not parties to the relevant action, even though less than a quorum, (ii) by a committee of such directors designated by a majority vote of such directors, even though less than a quorum, (iii) by independent legal counsel, if there are no such directors or if such directors direct, or (iv) by the stockholders.
The DGCL requires the corporation to indemnify a present or former director of the corporation who has been successful on the merits or otherwise in defense of any action, suit or proceeding for which such director may be indemnified under the DGCL, or in defense of any claim, issue or matter therein, against expenses (including attorneys’ fees) actually and reasonably incurred in connection therewith.
Without court approval, however, no indemnification may be made in respect of any derivative action in which an individual is adjudged liable to the corporation unless and only to the extent that the Court of Chancery of Chancery of the State of Delaware or the court in which such action was brought determines upon application that, despite the adjudication of liability but in view of all the circumstances of the case, such individual is fairly and reasonably entitled to indemnity for such expenses which such court deems proper.
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proceedings, whether civil or criminal (a) in which judgement is given in his or her favor or in which he or she is acquitted or (b) in respect of which an Irish court grants him or her relief from any such liability on the grounds that he or she acted honestly and reasonably and that, having regard to all the circumstances of the case, he or she ought fairly to be excused for the wrong concerned.
Additionally, subject to the Irish Companies Act, the Topco Constitution provides that Topco shall indemnify any current or former executive officer of Topco (excluding directors and secretaries) or any person serving at the request of Topco as a director or executive officer of another company, joint venture, trust or other enterprise against expenses, judgments, fines and settlement amounts actually and reasonably incurred in connection with threatened and actual legal proceedings by reason of his or her role, save for liability arising out of the covered person’s fraud or dishonesty or conscious, intentional or willful breach of his or her obligation to act honestly in good faith with a view to the best interests of Topco.
Any determination of entitlement to indemnification shall be made by any person or persons given authority by the Topco Board to act on the matter on behalf of Topco.
In addition to the provisions of the Topco Constitution, at, or prior to Closing, Topco will enter into separate deeds of indemnity with its directors and certain officers to indemnity them against claims brought by third parties (including on behalf of Topco) to the fullest extent permitted by law, except in the case of fraud or dishonesty proved against the indemnitee.
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Concord Stockholders
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Topco Shareholders
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Stockholder/Shareholder Rights’ Plan
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| Under the DGCL, the certificate of incorporation of a corporation may expressly authorize the board of directors to create one or more series preferred stock with voting, conversion, dividend distribution and other rights to be determined by the board of directors at the time of issuance, the creation and issuance. In addition, Delaware law does not prohibit a corporation from adopting a stockholder rights plan, or “poison pill.” | | |
Subject to applicable law, the Topco Constitution provides the Topco Board with the power to adopt a shareholder rights’ plan upon such terms as the Topco directors deem expedient in the best interests of Topco, and to exercise any power of Topco to grant rights (including approving the execution of any documents relating to the grant of such rights) to subscribe for Topco Ordinary Shares or preference shares in the capital of Topco in accordance with the terms of such rights’ plan.
Topco’s ability to adopt a rights’ plan or to take other anti-takeover measures after the Topco Board has received an approach which may lead to an offer or has reason to believe an offer is, or may be, imminent would be restricted by the frustrating actions’ prohibition of the Irish Takeover Rules. A number of Irish companies have pre-existing rights’ plans which automatically trigger in specified circumstances without the need for a target board decision (other than a decision to disarm), although the validity of these plans has not been tested with the Irish Takeover Panel or in the Irish courts.
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Redemption Date
(period to expiration of warrants) |
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Fair Market Value of Class A Common Stock
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≤$10.00
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$11.00
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$12.00
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$13.00
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$14.00
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$15.00
|
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$16.00
|
| |
$17.00
|
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≥$18.00
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60 months
|
| |
0.261
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| |
0.281
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| |
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
|
|
| | | | | | | | | | | | | | | | | | | | |
After Business Combination
|
| |||||||||||||||||||||
| | |
Prior to Business
Combination(2) |
| |
Assuming No
Redemptions(3) |
| |
Assuming Maximum
Redemptions(4) |
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Name and Address of Beneficial
Owners(1) |
| |
Number of
Class A Common Stock |
| |
Number of
Class B Common Stock |
| |
% of Voting
Power |
| |
Number of
Shares |
| |
% of Voting
Power |
| |
Number of
Shares |
| |
% of Voting
Power |
| |||||||||||||||||||||
Directors and officers prior to the Business Combination:
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Bob Diamond(5)(18)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Jeff Tuder(5)(18)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Michele Cito(5)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
David
Schamis(5)(18) |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | * | | | | | | — | | | | | | * | | |
Peter Ort(5)
|
| | | | — | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | |
Thomas King(5)
|
| | | | — | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | |
Larry Leibowitz(5)
|
| | | | — | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | | | | | 30,000 | | | | | | * | | |
| | | | | | | | | | | | | | | | | | | | |
After Business Combination
|
| |||||||||||||||||||||
| | |
Prior to Business
Combination(2) |
| |
Assuming No
Redemptions(3) |
| |
Assuming Maximum
Redemptions(4) |
| |||||||||||||||||||||||||||||||||
Name and Address of Beneficial
Owners(1) |
| |
Number of
Class A Common Stock |
| |
Number of
Class B Common Stock |
| |
% of Voting
Power |
| |
Number of
Shares |
| |
% of Voting
Power |
| |
Number of
Shares |
| |
% of Voting
Power |
| |||||||||||||||||||||
All directors and officers prior to the Business Combination (seven persons)
|
| | | | — | | | | | | 90,000 | | | | | | * | | | | | | 90,000 | | | | | | * | | | | | | 90,000 | | | | | | * | | |
Directors and officers after
the Business Combination: |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Jeremy Allaire(6)
|
| | | | — | | | | | | — | | | | | | — | | | | | | [•] | | | | | | [•]% | | | | | | [•] | | | | | | [•]% | | |
M. Michele
Burns(7) |
| | | | — | | | | | | — | | | | | | — | | | | | | [•] | | | | | | * | | | | | | [•] | | | | | | * | | |
Raj Date(8)
|
| | | | — | | | | | | — | | | | | | — | | | | | | [•] | | | | | | * | | | | | | [•] | | | | | | * | | |
P. Sean Neville(9)
|
| | | | — | | | | | | — | | | | | | — | | | | | | [•] | | | | | | [•]% | | | | | | [•] | | | | | | [•]% | | |
Bob Diamond(10)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Jeremy
Fox-Geen(11) |
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Elisabeth Carpenter(12)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Flavia Naves(13)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Dante Disparte(14)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
[•](15)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | |
All directors and officers after the Business Combination as a group ([10] persons)
|
| | | | — | | | | | | — | | | | | | — | | | | | | [•] | | | | | | [•]% | | | | | | [•] | | | | | | [•]% | | |
Five Percent Holders: | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accel XI L.P.(16)
|
| | | | — | | | | | | [•] | | | | | | [•]% | | | | | | [•] | | | | | | [•]% | | | | | | [•] | | | | | | [•]% | | |
Breyer Capital
L.L.C.(17) |
| | | | — | | | | | | — | | | | | | — | | | | | | [•] | | | | | | [•]% | | | | | | [•] | | | | | | [•]% | | |
Concord Sponsor Group
LLC(18) |
| | | | 510,289 | | | | | | 5,430,000 | | | | | | 16.9% | | | | | | 5,940,289 | | | | | | [•] | | | | | | 5,940,289 | | | | | | [•] | | |
General Catalyst Group VI, LP(19)
|
| | | | — | | | | | | — | | | | | | [•]% | | | | | | [•] | | | | | | * | | | | | | [•] | | | | | | * | | |
Oak Investment Partners
XIII, LP(20) |
| | | | [•] | | | | | | — | | | | | | [•]% | | | | | | [•] | | | | | | * | | | | | | [•] | | | | | | * | | |
Wide Palace Limited (IDG China)(21)
|
| | | | [•] | | | | | | — | | | | | | [•]% | | | | | | [•] | | | | | | * | | | | | | [•] | | | | | | * | | |
Trading Date
|
| |
Concord Class A common
stock (Concord) |
| |||
July 7, 2021
|
| | | $ | 9.89 | | |
, 2021
|
| | | $ | | | |
| | |
Page
|
| |||
Condensed Consolidated Financial Statements as of March 31, 2021 and December 31, 2020, and for the Three Months Ended March 31, 2021 and March 31, 2020 (Unaudited)
|
| | |||||
| | | | F-3 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | | |
| | | | F-8 | | | |
| | | | F-10 | | | |
| | | | F-40 | | | |
Consolidated Financial Statements as of, and for the years ended, December 31, 2020 and December 31, 2019
|
| | | | | | |
| | | | F-42 | | | |
| | | | F-44 | | | |
| | | | F-46 | | | |
| | | | F-47 | | | |
| | | | F-48 | | | |
| | | | F-50 | | |
|
Financial Statements as of March 31, 2021 and December 31, 2020, and for the Three Months Ended
March 31, 2021 (Unaudited) |
| | | | | | |
| | | | | F-91 | | | |
| | | | | F-92 | | | |
| | | | | F-93 | | | |
| | | | | F-94 | | | |
| | | | | F-95 | | | |
| | | | | F-108 | | | |
|
Financial Statements as of December 31, 2020 and for the Period from August 20, 2020 (Inception) to December 31, 2020
|
| | | | | | |
| | | | | F-109 | | | |
| | | | | F-110 | | | |
| | | | | F-111 | | | |
| | | | | F-112 | | | |
| | | | | F-113 | | |
| Condensed Consolidated Financial Statements (unaudited) | | | | | | | |
| | | | | F-3 | | | |
| | | | | F-5 | | | |
| | | | | F-6 | | | |
| | | | | F-7 | | | |
| | | | | F-8 | | | |
| | | | | F-10 | | |
(In thousands, except share information)
|
| |
March 31, 2021
(unaudited) |
| |
December 31, 2020
|
| ||||||
Assets | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 61,987 | | | | | $ | 26,421 | | |
Cash segregated for benefit of customers and USDC holders
|
| | | | 11,167,155 | | | | | | 4,024,735 | | |
Equity securities, at fair value (cost of $1,130 and $1,486 at March 31,
2021 and December 31, 2020, respectively) |
| | | | 1,244 | | | | | | 14,707 | | |
Accounts receivable
|
| | | | 2,352 | | | | | | 1,590 | | |
Divestment consideration receivable, current
|
| | | | 3,000 | | | | | | 3,000 | | |
Prepaid expenses and other current assets
|
| | | | 7,791 | | | | | | 5,922 | | |
Total current assets
|
| | | | 11,243,529 | | | | | | 4,076,375 | | |
Restricted cash for operations
|
| | | | 20,967 | | | | | | 961 | | |
Divestment consideration receivable, non-current
|
| | | | 2,000 | | | | | | 2,000 | | |
Fixed assets, net
|
| | | | 462 | | | | | | 443 | | |
Digital assets, net
|
| | | | 4,363 | | | | | | 4,675 | | |
Intangible assets, net
|
| | | | 3,297 | | | | | | 3,462 | | |
Goodwill
|
| | | | 24,014 | | | | | | 24,014 | | |
Investment in affiliate, equity method
|
| | | | 1,003 | | | | | | 1,231 | | |
Total assets
|
| | | | 11,299,635 | | | | | | 4,113,161 | | |
Liabilities and stockholders’ equity | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | | 38,948 | | | | | | 23,678 | | |
Deferred revenue
|
| | | | 845 | | | | | | 888 | | |
Loans payable
|
| | | | — | | | | | | 1,758 | | |
Convertible debt, net of debt discount
|
| | | | — | | | | | | 10,740 | | |
Acquisition payables, current
|
| | | | — | | | | | | 2,371 | | |
Deposits from customers and USDC holders
|
| | | | 11,159,589 | | | | | | 4,021,302 | | |
Total current liabilities
|
| | | $ | 11,199,382 | | | | | $ | 4,060,737 | | |
Long-term liabilities | | | | | | | | | | | | | |
Deferred rent
|
| | | | 390 | | | | | | 411 | | |
Deferred tax liabilities
|
| | | | — | | | | | | 4,733 | | |
Acquisition payables, non-current
|
| | | | 6,062 | | | | | | 9,905 | | |
Convertible debt, net of debt discount
|
| | | | 83,489 | | | | | | 19,874 | | |
Loans payable, net of debt discount
|
| | | | 24,829 | | | | | | 24,800 | | |
Warrant liability
|
| | | | 282 | | | | | | 212 | | |
Total long-term liabilities
|
| | | | 115,052 | | | | | | 59,935 | | |
Total liabilities
|
| | | $ | 11,314,434 | | | | | $ | 4,120,672 | | |
(In thousands, except share information)
|
| |
March 31, 2021
(unaudited) |
| |
December 31, 2020
|
| ||||||
Commitments and contingencies (see Note 20) | | | | | | | | | | | | | |
Redeemable convertible preferred stock | | | | | | | | | | | | | |
Series A redeemable convertible preferred stock ($0.0001 par value;
33,620,690 issued and outstanding; $9,078 liquidation preference at March 31, 2021 and December 31, 2020, respectively) |
| | | | 9,000 | | | | | | 9,000 | | |
Series B redeemable convertible preferred stock ($0.0001 par value; 17,586,205 issued and outstanding; $17,059 liquidation preference at March 31, 2021 and December 31, 2020, respectively)
|
| | | | 17,000 | | | | | | 17,000 | | |
Series C redeemable convertible preferred stock ($0.0001 par value; 18,445,443 issued and outstanding; $30,034 liquidation preference at March 31, 2021 and December 31, 2020, respectively)
|
| | | | 40,050 | | | | | | 40,050 | | |
Series D redeemable convertible preferred stock ($0.0001 par value; 23,202,679 issued and outstanding; $64,039 liquidation preference at March 31, 2021 and December 31, 2020, respectively)
|
| | | | 64,061 | | | | | | 64,061 | | |
Series E redeemable convertible preferred stock ($0.0001 par value; 9,077,030 issued and outstanding; $147,320 liquidation preference at March 31, 2021 and December 31, 2020, respectively)
|
| | | | 148,891 | | | | | | 148,891 | | |
Stockholders’ equity | | | | | | | | | | | | | |
Common Stock ($0.0001 par value; 255,000,000 authorized; 44,008,122 issued and outstanding at March 31, 2021 and 41,449,497 at December 31, 2020)
|
| | | | 4 | | | | | | 4 | | |
Treasury stock, at cost (4,960,362 shares held at March 31, 2021 and December 31, 2020)
|
| | | | (2,877) | | | | | | (2,877) | | |
Additional paid-in capital
|
| | | | 92,878 | | | | | | 91,798 | | |
Accumulated deficit
|
| | | | (384,360) | | | | | | (374,920) | | |
Accumulated other comprehensive losses
|
| | | | 554 | | | | | | (518) | | |
Total stockholders’ equity (deficit)
|
| | |
|
(293,801)
|
| | | |
|
(286,513)
|
| |
Total liabilities, redeemable preferred stock and stockholders’ equity
|
| | | $ | 11,299,635 | | | | | $ | 4,113,161 | | |
|
| | |
Three months ended March 31,
|
| |||||||||
(In thousands, except share and per share information)
|
| |
2021
|
| |
2020
|
| ||||||
Revenue and USDC interest income | | | | | | | | | | | | | |
Transaction and Treasury services
|
| | | | 11,465 | | | | | | — | | |
USDC interest income
|
| | | | 3,168 | | | | | | 1,289 | | |
SeedInvest revenue
|
| | | | 2,641 | | | | | | 813 | | |
Total revenue and USDC interest income from continuing operations
|
| | | | 17,274 | | | | | | 2,102 | | |
Third-party transaction costs | | | | | | | | | | | | | |
Transaction and Treasury services costs
|
| | | | 6,951 | | | | | | — | | |
USDC income sharing and transaction costs
|
| | | | 2,024 | | | | | | 601 | | |
Total third-party transaction costs
|
| | | | 8,975 | | | | | | 601 | | |
Operating expenses | | | | | | | | | | | | | |
Compensation expenses
|
| | | | 7,015 | | | | | | 5,342 | | |
General and administrative expenses
|
| | | | 5,466 | | | | | | 3,900 | | |
Depreciation and amortization expense
|
| | | | 934 | | | | | | 1,152 | | |
IT infrastructure costs
|
| | | | 933 | | | | | | 1,072 | | |
Marketing and advertising expenses
|
| | | | 229 | | | | | | 111 | | |
Digital assets impairment
|
| | | | 9 | | | | | | 151 | | |
Total operating expenses
|
| | | | 14,586 | | | | | | 11,728 | | |
Operating loss from continuing operations
|
| | | | (6,287) | | | | | | (10,227) | | |
Other income, net
|
| | | | 684 | | | | | | 5,537 | | |
Net loss before income taxes
|
| | | | (5,603) | | | | | | (4,690) | | |
Income tax expense/(benefit for income taxes)
|
| | | | 3,852 | | | | | | (3,791) | | |
Net loss from continuing operations
|
| | | | (9,455) | | | | | | (899) | | |
Discontinued operations, net of taxes | | | | | | | | | | | | | |
Gain from operations of discontinued Circle Trade business
|
| | | | — | | | | | | 60 | | |
Gain from operations of discontinued Circle Invest business (including gain on disposal of $0.6 million for the three months ended March 31, 2020)
|
| | | | 15 | | | | | | 733 | | |
Net loss
|
| | | | (9,440) | | | | | | (106) | | |
Earnings (loss) per share: | | | | | | | | | | | | | |
Basic earnings (loss) per share: | | | | | | | | | | | | | |
Continuing operations
|
| | | | (0.22) | | | | | | (0.03) | | |
Discontinued operations
|
| | | | 0.00 | | | | | | 0.02 | | |
Basic earnings (loss) per share
|
| | | | (0.22) | | | | | | (0.01) | | |
Diluted earnings (loss) per share: | | | | | | | | | | | | | |
Continuing operations
|
| | | | (0.22) | | | | | | (0.04) | | |
Discontinued operations
|
| | | | 0.00 | | | | | | 0.02 | | |
Diluted earnings (loss) per share
|
| | | | (0.22) | | | | | | (0.02) | | |
Weighted-average shares used to compute earnings (loss) per share: | | | | | | | | | | | | | |
Basic
|
| | | | 42,732,965 | | | | | | 35,188,607 | | |
Diluted
|
| | | | 42,732,965 | | | | | | 36,667,832 | | |
| | |
Three months ended March 31,
|
| |||||||||
(in thousands)
|
| |
2021
|
| |
2020
|
| ||||||
Other comprehensive income (loss): | | | | | | | | | | | | | |
Foreign currency translation adjustment, net of tax
|
| | | | 9 | | | | | | (96) | | |
Unrealized gain on convertible notes – credit risk, net of tax
|
| | | | 1,063 | | | | | | — | | |
Total other comprehensive income (loss), net of tax
|
| | | | 1,072 | | | | | | (96) | | |
Comprehensive loss
|
| | | $ | (8,368) | | | | | $ | (202) | | |
| | |
Temporary Equity
|
| | |
Permanent Equity
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| | |
Preferred
Stock Series A Redeemable Convertible |
| |
Preferred
Stock Series B Redeemable Convertible |
| |
Preferred
Stock Series C Redeemable Convertible |
| |
Preferred
Stock Series D Redeemable Convertible |
| |
Preferred
Stock Series E Redeemable Convertible |
| |
Total
Redeemable Convertible Preferred Stock |
| | |
Common stock
|
| |
Treasury Stock
|
| |
Additional
paid-in capital |
| |
Accumulated
deficit |
| |
Accumulated
other comprehensive losses |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(In thousands, except
share information) |
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Balance, January 1, 2020
|
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 18,445,443 | | | | | | 40,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 279,002 | | | | | | | 35,188,607 | | | | | | 4 | | | | | | — | | | | | | — | | | | | | 87,527 | | | | | | (378,710) | | | | | | (683) | | | | | | (291,862) | | |
Issuance of common
stock |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 40,075 | | | | | | — | | | | | | | | | | | | | | | | | | (20) | | | | | | | | | | | | | | | | | | (20) | | |
Cancellation of options
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Share based compensation
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 699 | | | | | | | | | | | | | | | | | | 699 | | |
Warrants and discount on
debts |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | — | | |
Other comprehensive
loss |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (96) | | | | | | (96) | | |
Net Income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (106) | | | | | | | | | | | | (5,290) | | |
Balance, March 31, 2020
|
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 18,445,443 | | | | | | 40,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 279,002 | | | | | | | 35,228,682 | | | | | | 4 | | | | | | — | | | | | | — | | | | | | 88,206 | | | | | | (378,816) | | | | | | (779) | | | | | | (291,385) | | |
Balance, January 1, 2021
|
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 18,445,443 | | | | | | 40,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 279,002 | | | | | | | 41,449,497 | | | | | | 4 | | | | | | 4,960,362 | | | | | | (2,877) | | | | | | 91,798 | | | | | | (374,920) | | | | | | (518) | | | | | | (286,513) | | |
Issuance of common
stock |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 2,558,625 | | | | | | — | | | | | | | | | | | | | | | | | | 226 | | | | | | | | | | | | | | | | | | 226 | | |
Receipt of treasury stock
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | — | | |
Cancellation of options
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | — | | |
Share based compensation
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 854 | | | | | | | | | | | | | | | | | | 854 | | |
Warrants and discount on
debts |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | — | | |
Other comprehensive
income |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 1,072 | | | | | | 1,072 | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (9,440) | | | | | | | | | | | | (9,440) | | |
Balance, March 31, 2021
|
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 18,445,443 | | | | | | 40,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 279,002 | | | | | | | 44,008,122 | | | | | | 4 | | | | | | 4,960,362 | | | | | | (2,877) | | | | | | 92,878 | | | | | | (384,360) | | | | | | 554 | | | | | | (293,801) | | |
| | |
Three months ended March 31
|
| |||||||||
(in thousands, except share information)
|
| |
2021
|
| |
2020
|
| ||||||
CASH FLOWS FROM OPERATING ACTIVITIES | | | | | | | | | | | | | |
Net loss
|
| | | $ | (9,440) | | | | | $ | (106) | | |
Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | | | | | | | |
Depreciation and amortization expense
|
| | | | 934 | | | | | | 1,152 | | |
Change in fair value of convertible debt
|
| | | | 13,230 | | | | | | (5,332) | | |
Equity securities received for services
|
| | | | (178) | | | | | | (76) | | |
Digital assets impairment loss
|
| | | | 9 | | | | | | 151 | | |
Change in fair value of digital assets trust
|
| | | | — | | | | | | (60) | | |
Deferred taxes
|
| | | | (4,733) | | | | | | (80) | | |
Realized gains on investments
|
| | | | (26,078) | | | | | | — | | |
Unrealized loss on investments
|
| | | | 13,731 | | | | | | — | | |
Gain on long lived intangible assets
|
| | | | (5,500) | | | | | | — | | |
Gain on sale of fixed assets
|
| | | | (24) | | | | | | — | | |
Change in fair value of warrant liability
|
| | | | 70 | | | | | | (77) | | |
Gain on sale of Circle Invest
|
| | | | — | | | | | | (625) | | |
Loss on equity method investment in Centre IP
|
| | | | 228 | | | | | | 96 | | |
Net amortization of discount/accretion of premium
|
| | | | (73) | | | | | | 119 | | |
Capitalization of interest on debt
|
| | | | 858 | | | | | | 698 | | |
Stock compensation expense
|
| | | | 854 | | | | | | — | | |
Deferred rent
|
| | | | (21) | | | | | | (19) | | |
Changes in operating assets and liabilities: | | | | | | | | | | | | | |
Accounts receivable
|
| | | | (762) | | | | | | 426 | | |
Prepaid expenses and other current assets
|
| | | | (1,869) | | | | | | (3,409) | | |
Accounts payable and accrued expenses
|
| | | | 15,270 | | | | | | (1,913) | | |
Deferred revenue
|
| | | | (43) | | | | | | — | | |
Net cash used in operating activities
|
| | | | (3,537) | | | | | | (9,055) | | |
CASH FLOWS FROM INVESTING ACTIVITIES | | | | | | | | | | | | | |
Proceeds from sale of Poloniex
|
| | | | — | | | | | | 5,000 | | |
Proceeds from the sale of Circle Invest
|
| | | | — | | | | | | 100 | | |
Proceeds from the sale of equity securities
|
| | | | 25,988 | | | | | | — | | |
Seedinvest acquisition consideration paid
|
| | | | (2,400) | | | | | | (1,100) | | |
Poloniex acquisition consideration paid
|
| | | | (3,843) | | | | | | — | | |
Purchase of digital assets
|
| | | | (4,462) | | | | | | (1,348) | | |
Proceeds from the sale of digital assets
|
| | | | 9,532 | | | | | | 33 | | |
Capitalization of software development costs
|
| | | | — | | | | | | (715) | | |
Proceeds from fixed asset sales
|
| | | | (30) | | | | | | — | | |
Net cash provided by investing activities
|
| | | | 24,785 | | | | | | 1,970 | | |
| | |
Three months ended March 31
|
| |||||||||
(in thousands, except share information)
|
| |
2021
|
| |
2020
|
| ||||||
CASH FLOWS FROM FINANCING ACTIVITIES | | | | | | | | | | | | | |
Repayment of PPP loans
|
| | | | (1,758) | | | | | | — | | |
Repayment of convertible notes
|
| | | | (10,730) | | | | | | — | | |
Issuance of convertibles notes
|
| | | | 50,710 | | | | | | — | | |
Deposits held for customers
|
| | | | 7,138,287 | | | | | | 198,292 | | |
Proceeds from issuance of common stock
|
| | | | 226 | | | | | | 679 | | |
Net cash provided by financing activities
|
| | | | 7,176,735 | | | | | | 198,971 | | |
Cumulative foreign translation adjustment
|
| | | | 9 | | | | | | (96) | | |
Net increase in cash and cash equivalents, restricted and customer cash
|
| | | | 7,197,992 | | | | | | 191,790 | | |
Cash and cash equivalents, restricted and customer cash at the
beginning of the year |
| | | | 4,052,117 | | | | | | 557,873 | | |
Cash and cash equivalents, restricted and customer cash at the
end of the period |
| | | $ | 11,250,109 | | | | | $ | 749,663 | | |
Cash, cash equivalents, and restricted cash consisted of the following: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 61,987 | | | | | $ | 28,461 | | |
Restricted cash
|
| | | | 20,967 | | | | | | 1,070 | | |
Cash segregated for benefit of customers
|
| | | | 11,167,155 | | | | | | 720,132 | | |
Total cash, cash equivalents, and restricted cash
|
| | | $ | 11,250,109 | | | | | $ | 749,663 | | |
Supplemental disclosure of cash flow information | | | | | | | | | | | | | |
Cash paid during the period for income taxes
|
| | | | — | | | | | | — | | |
Cash paid for interest
|
| | | | 566 | | | | | | 380 | | |
Unrealized gain on convertible notes – credit risk
|
| | | | 1,063 | | | | | | — | | |
SeedInvest acquired intangible assets
|
| |
Useful life
|
|
Developed technology
|
| |
2 years
|
|
Customer relationships
|
| |
4 years
|
|
Regulatory licenses
|
| |
5 years
|
|
Trade name
|
| |
1 year
|
|
| | |
Transaction and
Treasury services |
| |||
Balance at December 31, 2020
|
| | | $ | 888 | | |
Deferred revenue billed in the current period, net of recognition
|
| | | | — | | |
Revenue recognized that was included in the beginning period
|
| | | | (43) | | |
Balance at March 31, 2021
|
| | | $ | 845 | | |
| | |
Circle Segment
|
| |||||||||
| | |
Three months ended March 31
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Segment contribution margin
|
| | | | 5,658 | | | | | | 688 | | |
Net income (loss) before income taxes
|
| | | | (6,821) | | | | | | (4,009) | | |
| | |
Seed Invest Segment
|
| |||||||||
| | |
Three months ended March 31
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Net income (loss)
|
| | | | 1,218 | | | | | | (681) | | |
| | |
Three months ended March 31
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Segment contribution margin
|
| | | | 5,658 | | | | | | 688 | | |
Costs and expenses: | | | | | | | | | | | | | |
Compensation expense
|
| | | | (5,995) | | | | | | (4,347) | | |
General and administrative expenses
|
| | | | (5,187) | | | | | | (3,602) | | |
Depreciation and amortization expense
|
| | | | (934) | | | | | | (1,152) | | |
IT infrastructure costs
|
| | | | (839) | | | | | | (951) | | |
Digital assets impairment
|
| | | | (9) | | | | | | (151) | | |
Marketing and advertising expenses
|
| | | | (199) | | | | | | (31) | | |
Other income, net
|
| | | | 684 | | | | | | 5,537 | | |
Net income (loss) before income taxes
|
| | | | (6,821) | | | | | | (4,009) | | |
| Consideration received: | | | | | | | |
|
Cash
|
| | | | 100 | | |
|
Common stock fair value
|
| | | | 525 | | |
| Net assets sold: | | | | | | | |
|
Intangible and other assets, net
|
| | | | — | | |
|
Gain on sale of Circle Invest
|
| | | | 625 | | |
As of March 31, 2021
|
| |
Gross carrying
amount |
| |
Accumulated
amortization(1) |
| |
Intangible
assets, net |
| |
Weighted average
remaining useful life (in years) |
| ||||||||||||
Amortizing intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Domain names
|
| | | | 284 | | | | | | (269) | | | | | | 15 | | | | | | 0.3 | | |
Internally developed software
|
| | | | 19,263 | | | | | | (16,305) | | | | | | 2,958 | | | | | | 1.4 | | |
SeedInvest acquired intangible assets
|
| | | | 1,882 | | | | | | (1,558) | | | | | | 324 | | | | | | 2.4 | | |
Indefinite life intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Digital assets held
|
| | | | 5,628 | | | | | | (1,265) | | | | | | 4,363 | | | | | | — | | |
Total intangible assets, net
|
| | | | 27,057 | | | | | | (19,397) | | | | | | 7,660 | | | | | | | | |
As of December 31, 2020
|
| |
Gross carrying
amount |
| |
Accumulated
amortization(2) |
| |
Intangible
assets, net |
| |
Weighted average
remaining useful life (in years) |
| ||||||||||||
Amortizing intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Domain names
|
| | | | 284 | | | | | | (269) | | | | | | 15 | | | | | | 0.5 | | |
Internally developed software
|
| | | | 18,530 | | | | | | (15,545) | | | | | | 2,985 | | | | | | 1.4 | | |
SeedInvest acquired intangible assets
|
| | | | 1,882 | | | | | | (1,420) | | | | | | 462 | | | | | | 2.1 | | |
Indefinite life intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Digital assets held
|
| | | | 5,931 | | | | | | (1,256) | | | | | | 4,675 | | | | | | — | | |
Total intangible assets, net
|
| | | | 26,626 | | | | | | (18,490) | | | | | | 8,137 | | | | | | | | |
|
2021
|
| | | $ | 1,760 | | |
|
2022
|
| | | | 1,406 | | |
|
2023
|
| | | | 123 | | |
|
2024
|
| | | | 8 | | |
|
Thereafter
|
| | | | — | | |
|
Total amortization expense
|
| | | $ | 3,297 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
Computers & Equipment
|
| | | $ | 304 | | | | | $ | 249 | | |
Fixtures & Furniture
|
| | | | 630 | | | | | | 630 | | |
Software Licenses
|
| | | | 14 | | | | | | 15 | | |
App and Web Design
|
| | | | 144 | | | | | | 143 | | |
Leasehold Improvements
|
| | | | 128 | | | | | | 128 | | |
Security Equipment
|
| | | | 4 | | | | | | 4 | | |
Total Fixed assets
|
| | | | 1,224 | | | | | | 1,169 | | |
Less: Accumulated depreciation and amortization
|
| | | | (762) | | | | | | (726) | | |
Total Fixed Assets, net
|
| | | $ | 462 | | | | | $ | 443 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||||||||||||||
| | |
Cost
|
| |
Estimated
Fair Value |
| |
Cost
|
| |
Estimated
Fair Value |
| ||||||||||||
Common Stock
|
| | | $ | — | | | | | $ | — | | | | | $ | 524 | | | | | $ | 13,631 | | |
Total
|
| | | $ | — | | | | | $ | — | | | | | $ | 524 | | | | | $ | 13,631 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||||||||||||||||||||||||||
| | |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Equity securities, at fair value
|
| | | | — | | | | | | — | | | | | | 1,244 | | | | | | 13,631 | | | | | | — | | | | | | 1,076 | | |
Divestment consideration receivable
|
| | | | — | | | | | | — | | | | | | 5,000 | | | | | | — | | | | | | — | | | | | | 5,000 | | |
Total Assets
|
| | | | — | | | | | | — | | | | | | 6,244 | | | | | | 13,631 | | | | | | — | | | | | | 6,076 | | |
Liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Convertible debt, net of debt discount
|
| | | | — | | | | | | — | | | | | | 83,489 | | | | | | — | | | | | | — | | | | | | 30,614 | | |
Acquisition payables
|
| | | | — | | | | | | — | | | | | | 6,062 | | | | | | — | | | | | | — | | | | | | 12,276 | | |
Warrant liability
|
| | | | — | | | | | | — | | | | | | 282 | | | | | | — | | | | | | — | | | | | | 212 | | |
Total Liabilities
|
| | | | — | | | | | | — | | | | | | 89,833 | | | | | | — | | | | | | — | | | | | | 43,102 | | |
|
Balance as of January 1, 2020
|
| | | $ | 541 | | |
|
Consideration received for new deals
|
| | | $ | 421 | | |
|
Fair value adjustment
|
| | | $ | 114 | | |
|
Balance as of December 31, 2020
|
| | | $ | 1,076 | | |
|
Consideration received for new deals
|
| | | | 168 | | |
|
Fair value adjustment
|
| | | | — | | |
|
Balance as of March 31, 2021
|
| | | $ | 1,244 | | |
|
Balance as of December 31, 2020
|
| | | $ | 5,000 | | |
|
Payments received
|
| | | | — | | |
|
Balance as of March 31, 2021
|
| | | $ | 5,000 | | |
|
Balance as of December 31, 2020
|
| | | $ | 212 | | |
|
Fair Value adjustment
|
| | | $ | 70 | | |
|
Balance as of March 31, 2021
|
| | | $ | 282 | | |
|
Balance as of January 1, 2021
|
| | | $ | 30,614 | | |
|
Issuance of convertible notes
|
| | | | 50,710 | | |
|
Net discount on convertible notes
|
| | | | (130) | | |
|
Capitalized interest
|
| | | | 858 | | |
|
Fair value adjustment
|
| | | | 13,230 | | |
|
Fair value adjustment – credit risk
|
| | | | (1,063) | | |
|
Principal payments
|
| | | | (10,730) | | |
|
Balance as of March 31, 2021
|
| | | $ | 83,489 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
Discount rate
|
| | | | 12.0% | | | | | | 13.0% | | |
Volatility
|
| |
42.5% – 54.8%
|
| | | | 42.3% | | | |||
Risk-free rate
|
| | | | 0.9% | | | | | | 0.4% | | |
|
Balance as of January 1, 2021
|
| | | $ | 12,276 | | |
|
Gain on extinguishment of debt
|
| | | | — | | |
|
Payment on settlement
|
| | | | (3,843) | | |
|
SeedInvest Payment
|
| | | | (2,400) | | |
|
Fair Value adjustment
|
| | | | 29 | | |
|
Balance as of March 31, 2021
|
| | | $ | 6,062 | | |
| | |
Three months ended March 31, 2021
|
| |||||||||
| | |
Circle
|
| |
SeedInvest
|
| ||||||
Continuing Operations | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | | 11,465 | | | | | | | | |
USDC interest income(1)
|
| | | | 3,168 | | | | | | | | |
SeedInvest revenue
|
| | | | | | | | | | 2,641 | | |
Discontinued Operations | | | | | | | | | | | | | |
Invest Revenue
|
| | | | 32 | | | | | | — | | |
Poloniex Revenue
|
| | | | — | | | | | | — | | |
Circle Trade Revenue
|
| | | | — | | | | | | — | | |
| | |
Three months ended March 30, 2020
|
| |||||||||
| | |
Circle
|
| |
SeedInvest
|
| ||||||
Continuing Operations | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | | — | | | | | | — | | |
USDC interest income(1)
|
| | | | 1,289 | | | | | | — | | |
SeedInvest revenue
|
| | | | — | | | | | | 813 | | |
Discontinued Operations | | | | | | | | | | | | | |
Invest Revenue
|
| | | | 138 | | | | | | — | | |
Poloniex Revenue
|
| | | | — | | | | | | — | | |
Circle Trade Revenue
|
| | | | — | | | | | | — | | |
| | |
Three months ended
March 31, 2021 |
| |
Three months ended
March 31, 2020 |
| ||||||
Realized gains on investments
|
| | | $ | 26,078 | | | | | | — | | |
Unrealized gains on investments
|
| | | | (13,456) | | | | | | — | | |
Change in fair value of convertible debt
|
| | | | (13,230) | | | | | | 5,332 | | |
Gain on long lived intangible assets
|
| | | | 5,500 | | | | | | (12) | | |
Transaction advisory expenses
|
| | | | (3,451) | | | | | | — | | |
Interest expense and amortization of discount
|
| | | | (1,268) | | | | | | (445) | | |
Income generated from winding down platforms
|
| | | | 479 | | | | | | — | | |
Transitional support income
|
| | | | — | | | | | | 536 | | |
Loss on equity method investments
|
| | | | (228) | | | | | | (96) | | |
Foreign currency exchange gain
|
| | | | (175) | | | | | | 31 | | |
Interest income
|
| | | | 3 | | | | | | 36 | | |
Other, net
|
| | | | 432 | | | | | | 155 | | |
Total, net
|
| | | | 684 | | | | | | 5,537 | | |
| | |
March 31
|
| |
December 31
|
| ||||||
| | |
2021
|
| |
2020
|
| ||||||
Genesis Loan: | | | | | | | | | | | | | |
Outstanding principal
|
| | | $ | 25,000 | | | | | $ | 25,000 | | |
Accrued interest
|
| | | | 3,012 | | | | | | 1,966 | | |
| | |
2021
|
| |
2020
|
| ||||||
Conversion of Series A redeemable convertible preferred stock
|
| | | | 33,620,690 | | | | | | 33,620,690 | | |
Conversion of Series B redeemable convertible preferred stock
|
| | | | 17,586,205 | | | | | | 17,586,205 | | |
Conversion of Series C redeemable convertible preferred stock
|
| | | | 18,445,443 | | | | | | 18,445,443 | | |
Conversion of Series C-1 redeemable convertible preferred stock
|
| | | | — | | | | | | — | | |
Conversion of Series D redeemable convertible preferred stock
|
| | | | 23,202,679 | | | | | | 23,202,679 | | |
Conversion of Series D-1 redeemable convertible preferred stock
|
| | | | — | | | | | | — | | |
Conversion of Series E redeemable convertible preferred stock
|
| | | | 9,077,030 | | | | | | 9,077,030 | | |
Common stock options issued under stock option plan
|
| | | | 17,336,177 | | | | | | 19,641,567 | | |
Common stock options available for grant under stock option plan
|
| | | | 6,151,768 | | | | | | 6,405,003 | | |
Total
|
| | |
|
125,419,992
|
| | | |
|
127,978,617
|
| |
Preferred stock class
|
| |
Issue Date
|
| |
Issue price
|
| |
Conversion
price |
| |
Liquidation preference
|
| |
Shares issued and
outstanding |
| |||||||||||||||
Series A
|
| | | | 8/22/2013 | | | | | | 0.27 | | | | | | 0.27 | | | | | | 0.27 | | | | | | 33,620,690 | | |
Series B
|
| | | | 2/26/2014 | | | | | | 0.97 | | | | | | 0.97 | | | | | | 0.97 | | | | | | 17,586,205 | | |
Series C
|
| | | | 4/10/2015 | | | | | | 2.17 | | | | | | 2.17 | | | | | | 2.17 | | | | | | 18,445,443 | | |
Series D
|
| | | | 5/17/2016 | | | | | | 2.76 | | | | | | 2.76 | | | | | | 2.76 | | | | | | 23,202,679 | | |
Series E
|
| | | | 5/14/2018 | | | | | | 16.23 | | | | | | 16.23 | | | | | | 16.23 | | | | | | 9,077,030 | | |
| | |
Number of Stock
Options |
| |
Weighted
Average Exercise Price ($) |
| |
Weighted Average
Remaining Contractual Term (in Years) |
| |
Aggregate
Intrinsic Value ($) |
| ||||||||||||
Outstanding at December 31, 2020
|
| | | | 19,641,567 | | | | | | 0.10 | | | | | | 7.92 | | | | | | 71,411 | | |
Granted
|
| | | | 529,500 | | | | | | 10.11 | | | | | | | | | | | | | | |
Exercised
|
| | | | (2,558,625) | | | | | | 0.08 | | | | | | | | | | | | | | |
Forfeited or expired
|
| | | | (276,265) | | | | | | 0.11 | | | | | | | | | | | | | | |
Outstanding at March 31, 2021
|
| | | | 17,336,177 | | | | | | 0.41 | | | | | | 7.94 | | | | | | 333,836 | | |
Exercisable at March 31, 2021
|
| | | | 5,842,954 | | | | | | 0.16 | | | | | | 6.14 | | | | | | 113,995 | | |
| | |
Number of
Options |
| |
Weighted Average
Exercise Price |
| ||||||
Unvested Outstanding at December 31, 2020
|
| | | | 12,124,988 | | | | | $ | 0.08 | | |
Granted
|
| | | | 529,500 | | | | | | 10.11 | | |
Cancelled/Forfeited
|
| | | | (220,868) | | | | | | 0.08 | | |
Vested, outstanding shares
|
| | | | (984,439) | | | | | | 0.53 | | |
Unvested Outstanding at March 31, 2021
|
| | | | 11,499,181 | | | | | | 0.54 | | |
| | |
Three months ended March 31
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Numerator | | | | | | | | | | | | | |
Net income (loss) from continuing operations
|
| | | | (9,455) | | | | | | (899) | | |
Net income (loss) from discontinued operations
|
| | | | 15 | | | | | | 793 | | |
Net income (loss) available to common stockholders
|
| | | | (9,440) | | | | | | (106) | | |
Numerator Adjustments: | | | | | | | | | | | | | |
Deemed contribution from Series C shares surrendered(1)
|
| | | $ | — | | | | | $ | — | | |
Dividend preference on preferred shares
|
| | | | — | | | | | | — | | |
Net income (loss) available to common stockholders
|
| | | $ | — | | | | | $ | — | | |
Denominator | | | | | | | | | | | | | |
Weighted-average common shares – basic
|
| | | | 42,732,965 | | | | | | 35,188,607 | | |
Dilutive effect of if-converted convertible debt
|
| | | | — | | | | | | 1,479,225 | | |
Weighted-average common shares – diluted
|
| | | | 42,732,965 | | | | | | 36,667,832 | | |
Earnings (loss) per share | | | | | | | | | | | | | |
Basic:
|
| | | | | | | | | | | | |
Continuing operations
|
| | | | (0.22) | | | | | | (0.03) | | |
Discontinued operations
|
| | | | 0.00 | | | | | | 0.02 | | |
Basic earnings (loss) per share
|
| | | | (0.22) | | | | | | (0.01) | | |
Diluted:
|
| | | | | | | | | | | | |
Continuing operations
|
| | | | (0.22) | | | | | | (0.04) | | |
Discontinued operations
|
| | | | 0.00 | | | | | | 0.02 | | |
Diluted earnings (loss) per share
|
| | | | (0.22) | | | | | | (0.02) | | |
| | |
Three months ended March 31
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Accumulated other comprehensive income (loss) | | | | | | | | | | | | | |
Beginning balance at January 1
|
| | | | (518) | | | | | | (683) | | |
Pre-tax change – Foreign currency translation adjustment
|
| | | | 9 | | | | | | 165 | | |
Pre-tax change – Unrealized gain on convertible notes – credit risk adjustment
|
| | | | 1,063 | | | | | | — | | |
Tax effect
|
| | | | — | | | | | | — | | |
Total other comprehensive income (loss), net of tax
|
| | | | 554 | | | | | | (518) | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
Income tax receivable
|
| | | $ | 3,448 | | | | | $ | 3,650 | | |
Deposits
|
| | | | 1,335 | | | | | | 1,319 | | |
Prepaid expenses
|
| | | | 2,949 | | | | | | 884 | | |
Other
|
| | | | 59 | | | | | | 69 | | |
Total prepaid expenses and other current assets
|
| | | $ | 7,791 | | | | | $ | 5,922 | | |
| | |
March 31, 2021
|
| |
December 31, 2020
|
| ||||||
Accrued expenses
|
| | | $ | 18,294 | | | | | $ | 15,009 | | |
USDC accrued rebates
|
| | | | 5,741 | | | | | | 3,803 | | |
Income tax payable
|
| | | | 8,611 | | | | | | — | | |
Accrued interest
|
| | | | 3,188 | | | | | | 3,287 | | |
Other payables
|
| | | | 3,114 | | | | | | 1,579 | | |
Total accounts payable and accrued expenses
|
| | | $ | 38,948 | | | | | $ | 23,678 | | |
Year
|
| | | | | | |
2021
|
| | | | 1,174 | | |
2022
|
| | | | 1,590 | | |
2023
|
| | | | 1,264 | | |
2024
|
| | | | 626 | | |
2025
|
| | | | — | | |
Total
|
| | | $ | 4,654 | | |
| | |
Page
|
| |||
| | | | F-40 | | | |
Consolidated Financial Statements | | | | | | | |
| | | | F-42 | | | |
| | | | F-44 | | | |
| | | | F-46 | | | |
| | | | F-47 | | | |
| | | | F-48 | | | |
| | | | F-50 | | |
(In thousands, except share information)
|
| |
2020
|
| |
2019
|
| ||||||
Assets | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 26,421 | | | | | $ | 34,726 | | |
Cash segregated for benefit of customers and USDC holders
|
| | | | 4,024,735 | | | | | | 522,057 | | |
Equity securities, at fair value (cost of $1,486 in 2020 and $541 in 2019)
|
| | | | 14,707 | | | | | | 541 | | |
Accounts receivable
|
| | | | 1,590 | | | | | | 914 | | |
Divestment consideration receivable, current
|
| | | | 3,000 | | | | | | 10,000 | | |
Prepaid expenses and other current assets
|
| | | | 5,922 | | | | | | 5,063 | | |
Current assets held for sale
|
| | | | — | | | | | | 589 | | |
Total current assets
|
| | | $ | 4,076,375 | | | | | $ | 573,890 | | |
Restricted cash for operations
|
| | | | 961 | | | | | | 1,090 | | |
Divestment consideration receivable, non-current
|
| | | | 2,000 | | | | | | 5,000 | | |
Fixed assets, net
|
| | | | 443 | | | | | | 782 | | |
Digital assets, net
|
| | | | 4,675 | | | | | | 479 | | |
Intangible assets, net
|
| | | | 3,462 | | | | | | 4,583 | | |
Goodwill
|
| | | | 24,014 | | | | | | 24,014 | | |
Investment in affiliate, equity method
|
| | | | 1,231 | | | | | | 2,000 | | |
Total assets
|
| | | $ | 4,113,161 | | | | | $ | 611,838 | | |
Liabilities and stockholders’ equity | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | | 23,678 | | | | | | 8,146 | | |
Deferred revenue
|
| | | | 888 | | | | | | — | | |
Loans payable
|
| | | | 1,758 | | | | | | — | | |
Convertible debt, net of debt discount
|
| | | | 10,740 | | | | | | — | | |
Acquisition payables, current
|
| | | | 2,371 | | | | | | 66,842 | | |
Deposits from customers and USDC holders
|
| | | | 4,021,302 | | | | | | 521,813 | | |
Total current liabilities
|
| | | $ | 4,060,737 | | | | | $ | 596,801 | | |
Long-term liabilities | | | | | | | | | | | | | |
Deferred rent
|
| | | | 411 | | | | | | 435 | | |
Deferred tax liabilities
|
| | | | 4,733 | | | | | | 546 | | |
Acquisition payables, non-current
|
| | | | 9,905 | | | | | | — | | |
Convertible debt, net of debt discount
|
| | | | 19,874 | | | | | | 26,839 | | |
Loans payable, net of debt discount
|
| | | | 24,800 | | | | | | — | | |
Warrant liability
|
| | | | 212 | | | | | | 77 | | |
Total long-term liabilities
|
| | | | 59,935 | | | | | | 27,897 | | |
Total liabilities
|
| | | $ | 4,120,672 | | | | | $ | 624,698 | | |
(In thousands, except share information)
|
| |
2020
|
| |
2019
|
| ||||||
Commitments and contingencies (see Note 22) | | | | | | | | | | | | | |
Redeemable convertible preferred stock | | | | | | | | | | | | | |
Series A redeemable convertible preferred stock ($0.0001 par value; 33,620,690 issued and outstanding; $9,078 liquidation preference at December 31, 2020 and 2019)
|
| | | | 9,000 | | | | | | 9,000 | | |
Series B redeemable convertible preferred stock ($0.0001 par value; 17,586,205
issued and outstanding; $17,059 liquidation preference at December 31, 2020 and 2019) |
| | | | 17,000 | | | | | | 17,000 | | |
Series C redeemable convertible preferred stock ($0.0001 par value; 18,445,443
issued and outstanding; $30,034 liquidation preference at December 31, 2020 and 2019) |
| | | | 40,050 | | | | | | 40,050 | | |
Series D redeemable convertible preferred stock ($0.0001 par value; 23,202,679 issued and outstanding; $64,039 liquidation preference at December 31, 2020 and 2019)
|
| | | | 64,061 | | | | | | 64,061 | | |
Series E redeemable convertible preferred stock ($0.0001 par value; 9,077,030
issued and outstanding; $147,320 liquidation preference at December 31, 2020 and 2019) |
| | | | 148,891 | | | | | | 148,891 | | |
Stockholders’ equity | | | | | | | | | | | | | |
Common stock ($0.0001 par value; 255,000,000 authorized; 41,449,497 issued
and outstanding at December 31, 2020 and 35,188,607 at December 31, 2019) |
| | | | 4 | | | | | | 4 | | |
Treasury stock, at cost (4,960,362 and 0 shares held at December 31, 2020 and
2019, respectively) |
| | | | (2,877) | | | | | | — | | |
Additional paid-in capital
|
| | | | 91,798 | | | | | | 87,527 | | |
Accumulated deficit
|
| | | | (374,920) | | | | | | (378,710) | | |
Accumulated other comprehensive losses
|
| | | | (518) | | | | | | (683) | | |
Total stockholders’ equity (deficit)
|
| | | | (286,513) | | | | | | (291,862) | | |
Total liabilities, redeemable convertible preferred stock and stockholders’
equity |
| | | $ | 4,113,161 | | | | | $ | 611,838 | | |
|
(In thousands, except share and per share information)
|
| |
Year ended December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Revenue and USDC interest income | | | | | | | | | | | | | |
Transaction and Treasury services
|
| | | | 2,589 | | | | | | — | | |
USDC interest income
|
| | | | 4,435 | | | | | | 6,232 | | |
SeedInvest revenue
|
| | | | 8,417 | | | | | | 3,191 | | |
Total revenue and USDC interest income from continuing operations
|
| | | | 15,441 | | | | | | 9,423 | | |
Third-party transaction costs | | | | | | | | | | | | | |
Transaction and Treasury services costs
|
| | | | 785 | | | | | | — | | |
USDC income sharing and transaction costs
|
| | | | 2,826 | | | | | | 4,908 | | |
Total third-party transaction costs
|
| | | | 3,611 | | | | | | 4,908 | | |
Operating expenses | | | | | | | | | | | | | |
Compensation expenses
|
| | | | 18,932 | | | | | | 43,460 | | |
General and administrative expenses
|
| | | | 13,916 | | | | | | 19,120 | | |
Depreciation and amortization expense
|
| | | | 4,500 | | | | | | 4,495 | | |
IT infrastructure costs
|
| | | | 3,716 | | | | | | 5,823 | | |
Digital assets impairment
|
| | | | 1,256 | | | | | | — | | |
Marketing and advertising expenses
|
| | | | 400 | | | | | | 879 | | |
Goodwill impairment
|
| | | | — | | | | | | 13,947 | | |
Total operating expenses
|
| | | | 42,720 | | | | | | 87,724 | | |
Operating loss from continuing operations
|
| | | | (30,890) | | | | | | (83,209) | | |
Other income, net
|
| | | | 13,692 | | | | | | 64,660 | | |
Net loss before income taxes
|
| | | | (17,198) | | | | | | (18,549) | | |
Income tax expense/(benefit for income taxes)
|
| | | | 115 | | | | | | 7,731 | | |
Net loss from continuing operations
|
| | | | (17,313) | | | | | | (26,280) | | |
Discontinued operations, net of tax | | | | | | | | | | | | | |
Gain (loss) from operations of discontinued Circle Trade business (including gain on disposal of $1,900 and income tax expense of $869 for the year ended December 31, 2019)
|
| | | | (58) | | | | | | 3,268 | | |
Gain (loss) from operations of discontinued Poloniex business (including loss on disposal of $156,824 for the year ended December 31, 2019)
|
| | | | 20,431 | | | | | | (155,796) | | |
Gain from operations of discontinued Circle Invest business (including gain on disposal of $625 for the year ended December 31, 2020 and income tax expense of $64 for the year ended December 31, 2019)
|
| | | | 730 | | | | | | 243 | | |
Net income (loss)
|
| | | $ | 3,790 | | | | | $ | (178,565) | | |
Earnings (loss) per share: | | | | | | | | | | | | | |
Basic earnings (loss) per share: | | | | | | | | | | | | | |
Continuing operations
|
| | | $ | 0.00 | | | | | $ | (0.46) | | |
Discontinued operations
|
| | | $ | 0.00 | | | | | $ | (4.38) | | |
Basic earnings (loss) per share
|
| | | $ | 0.00 | | | | | $ | (4.84) | | |
(In thousands, except share and per share information)
|
| |
Year ended December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Diluted earnings (loss) per share: | | | | | | | | | | | | | |
Continuing operations
|
| | | $ | 0.00 | | | | | $ | (0.46) | | |
Discontinued operations
|
| | | $ | 0.00 | | | | | $ | (4.38) | | |
Diluted earnings (loss) per share
|
| | | $ | 0.00 | | | | | $ | (4.84) | | |
Weighted-average shares used to compute earnings (loss) per share: | | | | | | | | | | | | | |
Basic
|
| | | | 36,089,496 | | | | | | 34,805,605 | | |
Diluted
|
| | | | 51,850,396 | | | | | | 34,805,605 | | |
(In thousands)
|
| |
Year ended December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Other Comprehensive income (loss): | | | | | | | | | | | | | |
Foreign currency translation adjustment, net of tax
|
| | | | 165 | | | | | | 33 | | |
Total other comprehensive income, net of tax
|
| | | | 165 | | | | | | 33 | | |
Comprehensive income (loss)
|
| | | $ | 3,955 | | | | | $ | (178,532) | | |
| | |
Temporary Equity
|
| | |
Permanent Equity
|
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
(In thousands, except
share information) |
| |
Preferred
Stock Series A Redeemable Convertible |
| |
Preferred
Stock Series B Redeemable Convertible |
| |
Preferred
Stock Series C Redeemable Convertible |
| |
Preferred
Stock Series D Redeemable Convertible |
| |
Preferred
Stock Series E Redeemable Convertible |
| |
Total
Redeemable Convertible Preferred Stock |
| | |
Common stock
|
| |
Treasury Stock
|
| |
Additional
paid-in capital |
| |
Accumulated
deficit |
| |
Accumulated
other comprehensive losses |
| |
Total
Stockholders’ Equity |
| ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
|
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Balance, January 1, 2019
|
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 23,051,123 | | | | | | 50,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 289,002 | | | | | | | 33,932,501 | | | | | | 3 | | | | | | — | | | | | | — | | | | | | 70,029 | | | | | | (200,145) | | | | | | (716) | | | | | | (130,829) | | |
Issuance of common stock
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 1,295,613 | | | | | | 1 | | | | | | | | | | | | | | | | | | 627 | | | | | | | | | | | | | | | | | | 628 | | |
Cancellation of options
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (39,507) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | — | | |
Share based compensation
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,871 | | | | | | | | | | | | | | | | | | 6,871 | | |
Forfeiture of
shares |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | (4,605,680) | | | | | | (10,000) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (10,000) | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 10,000 | | | | | | | | | | | | | | | | | | 10,000 | | |
Foreign currency translation adjustment
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 33 | | | | | | 33 | | |
Net loss
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | (178,565) | | | | | | | | | | | | (178,565) | | |
Balance, December 31,
2019 |
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 18,445,443 | | | | | | 40,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 279,002 | | | | | | | 35,188,607 | | | | | | 4 | | | | | | — | | | | | | — | | | | | | 87,527 | | | | | | (378,710) | | | | | | (683) | | | | | | (291,862) | | |
Issuance of common stock
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 6,260,890 | | | | | | — | | | | | | | | | | | | | | | | | | 688 | | | | | | | | | | | | | | | | | | 688 | | |
Receipt of treasury stock
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 4,960,362 | | | | | | (2,877) | | | | | | | | | | | | | | | | | | | | | | | | (2,877) | | |
Cancellation of options
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | — | | |
Share based compensation
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,583 | | | | | | | | | | | | | | | | | | 3,583 | | |
Warrants and discount
on debts |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Foreign currency translation adjustment
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 165 | | | | | | 165 | | |
Net income
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | 3,790 | | | | | | | | | | | | 3,790 | | |
Balance, December 31,
2020 |
| | | | 33,620,690 | | | | | | 9,000 | | | | | | 17,586,205 | | | | | | 17,000 | | | | | | 18,445,443 | | | | | | 40,050 | | | | | | 23,202,679 | | | | | | 64,061 | | | | | | 9,077,030 | | | | | | 148,891 | | | | | | 279,002 | | | | | | | 41,449,497 | | | | | | 4 | | | | | | 4,960,362 | | | | | | (2,877) | | | | | | 91,798 | | | | | | (374,920) | | | | | | (518) | | | | | | (286,513) | | |
| | |
Year ended December 31
|
| |||||||||
(In thousands, except share information)
|
| |
2020
|
| |
2019
|
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | |
Net Income (Loss)
|
| | | $ | 3,790 | | | | | $ | (178,565) | | |
Adjustments to reconcile net income (loss) to net cash used in operating activities:
|
| | | | | | | | | | | | |
Depreciation and amortization expense
|
| | | | 4,500 | | | | | | 12,440 | | |
Change in fair value of convertible debt
|
| | | | 3,489 | | | | | | (2,355) | | |
Digital assets received for services
|
| | | | (791) | | | | | | — | | |
Equity securities received for services
|
| | | | (421) | | | | | | (541) | | |
Digital assets impairment loss
|
| | | | 1,256 | | | | | | — | | |
Goodwill impairment loss
|
| | | | — | | | | | | 13,947 | | |
Contingent consideration fair value adjustment
|
| | | | — | | | | | | (9,468) | | |
Deferred taxes
|
| | | | 4,187 | | | | | | 8,637 | | |
Realized gains on investments
|
| | | | (169) | | | | | | — | | |
Unrealized gains on investments
|
| | | | (13,221) | | | | | | — | | |
Gain on extinguishment of debt
|
| | | | (33,158) | | | | | | — | | |
Gain on treasury stock received
|
| | | | (2,877) | | | | | | — | | |
Change in fair value of warrant liability
|
| | | | 212 | | | | | | (59,528) | | |
Expiration of Series-E warrants
|
| | | | (77) | | | | | | — | | |
Loss on disposal of Poloniex
|
| | | | — | | | | | | 156,824 | | |
Fair value adjustment for investment in digital assets trust
|
| | | | — | | | | | | 656 | | |
Gain on sale of Circle Invest
|
| | | | (625) | | | | | | — | | |
Gain on sale of Circle Trade
|
| | | | — | | | | | | (1,900) | | |
Loss (gain) on equity method investment in Centre IP
|
| | | | 769 | | | | | | (2,000) | | |
Net amortization of discount on acquisition payables
|
| | | | — | | | | | | 2,988 | | |
Net amortization of premium on convertible notes
|
| | | | (174) | | | | | | — | | |
Capitalization of interest on debt
|
| | | | 698 | | | | | | — | | |
Stock compensation expense
|
| | | | 3,583 | | | | | | 6,872 | | |
Deferred rent
|
| | | | (24) | | | | | | (64) | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Accounts receivable
|
| | | | (676) | | | | | | 913 | | |
Prepaid expenses and other current assets
|
| | | | (859) | | | | | | 5,063 | | |
Accounts payable and accrued expenses
|
| | | | 15,532 | | | | | | (13,620) | | |
Deferred revenue
|
| | | | 133 | | | | | | — | | |
Net cash used in operating activities
|
| | | | (14,923) | | | | | | (59,701) | | |
Cash flows from investing activities | | | | | | | | | | | | | |
Proceeds from sale of Poloniex
|
| | | | 10,000 | | | | | | 33,150 | | |
Proceeds from sale of Circle Trade
|
| | | | — | | | | | | 1,900 | | |
Proceeds from the sale of Circle Invest
|
| | | | 100 | | | | | | — | | |
| | |
Year ended December 31
|
| |||||||||
(In thousands, except share information)
|
| |
2020
|
| |
2019
|
| ||||||
Proceeds from sale of investments
|
| | | | 758 | | | | | | — | | |
SeedInvest acquisition consideration paid
|
| | | | (1,100) | | | | | | (7,579) | | |
Poloniex settlement consideration paid
|
| | | | (20,746) | | | | | | — | | |
Purchase of fixed assets
|
| | | | — | | | | | | (122) | | |
Purchase of digital assets
|
| | | | (3,906) | | | | | | — | | |
Disposal of digital assets
|
| | | | — | | | | | | 15,363 | | |
Capitalization of software development costs
|
| | | | (3,177) | | | | | | (5,487) | | |
Proceeds from fixed asset sales
|
| | | | 137 | | | | | | — | | |
Net cash provided by (used in) investing activities
|
| | | | (17,934) | | | | | | 37,225 | | |
Cash flows from financing activities | | | | | | | | | | | | | |
Proceeds from Genesis Loan
|
| | | | 25,000 | | | | | | — | | |
Proceeds from PPP Loan
|
| | | | 1,758 | | | | | | — | | |
Repayment of loans
|
| | | | — | | | | | | (20,000) | | |
Deposits held for customers and USDC holders, net
|
| | | | 3,499,489 | | | | | | 262,030 | | |
Exercise of stock options
|
| | | | 689 | | | | | | 627 | | |
Net cash provided by financing activities
|
| | | | 3,526,936 | | | | | | 242,657 | | |
Cumulative foreign translation adjustment
|
| | | | 165 | | | | | | 33 | | |
Net increase in cash and cash equivalents, restricted and customer cash
|
| | | | 3,494,244 | | | | | | 220,214 | | |
Cash and cash equivalents, restricted and customer cash at the beginning
of the year |
| | | | 557,873 | | | | | | 337,659 | | |
Cash and cash equivalents, restricted and customer cash at the end of the period
|
| | | $ | 4,052,117 | | | | | $ | 557,873 | | |
Cash, cash equivalents, and restricted cash consisted of the following: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 26,421 | | | | | $ | 34,726 | | |
Restricted cash
|
| | | | 961 | | | | | | 1,090 | | |
Cash segregated for benefit of customers
|
| | | | 4,024,735 | | | | | | 522,057 | | |
Total cash, cash equivalents, and restricted cash
|
| | | $ | 4,052,117 | | | | | $ | 557,873 | | |
Supplemental disclosure of cash flow information | | | | | | | | | | | | | |
Cash paid during the period for income taxes
|
| | | | — | | | | | | 25 | | |
Cash paid for interest
|
| | | | 380 | | | | | | 3,031 | | |
Supplemental schedule of non-cash activities: | | | | | | | | | | | | | |
Loans payable in bitcoins
|
| | | | — | | | | | | (7,419) | | |
Deferred revenue for digital assets received
|
| | | | 755 | | | | | | — | | |
| Level 1 | | | Quoted prices (unadjusted) in active markets for identical investments at the measurement date are used. | |
| Level 2 | | | Pricing inputs are other than quoted prices included within Level 1 that are observable for the investment, either directly or indirectly. Level 2 pricing inputs include quoted prices for similar investments in active markets, quoted prices for identical or similar investments in markets that are not active, inputs other than quoted prices that are observable for the investment, and inputs that are derived principally from or corroborated by observable market data by correlation or other means. | |
| Level 3 | | | Pricing inputs are unobservable and include situations where there is little, if any, market activity for the investment. The inputs used in determination of fair value require significant judgment and estimation. | |
Fixed Asset
|
| |
Useful Life
|
|
Computers & Equipment | | | Three years | |
Fixtures & Furniture | | | Seven years | |
Software Licenses | | | One to three years | |
App and Web Design | | | One to three years | |
Leasehold Improvements | | | Lesser of useful life or remaining lease term | |
Poloniex acquired intangible assets
|
| |
Useful life
|
|
Customer relationships
|
| | 4 years | |
Developed technology
|
| | 2 years | |
Brand name and trademarks
|
| | 2 years | |
Non-compete agreement
|
| | 2 years | |
Internally developed software
|
| | 2 years | |
SeedInvest acquired intangible assets
|
| |
Useful life
|
|
Developed technology
|
| | 2 years | |
Customer relationships
|
| | 4 years | |
Regulatory licenses
|
| | 5 years | |
Trade name
|
| | 1 year | |
| | |
Circle
|
| |
SeedInvest
|
| |
Total
|
| |||||||||
Balance at December 31, 2018
|
| | | | — | | | | | | — | | | | | | — | | |
Goodwill acquired
|
| | | | — | | | | | | 37,961 | | | | | | 37,961 | | |
Goodwill impairment
|
| | | | — | | | | | | (13,947) | | | | | | (13,947) | | |
Balance at December 31, 2019
|
| | | | — | | | | | | 24,014 | | | | | | 24,014 | | |
Goodwill acquired
|
| | | | — | | | | | | — | | | | | | — | | |
Goodwill impairment
|
| | | | — | | | | | | — | | | | | | — | | |
Balance at December 31, 2020
|
| | | | — | | | | | | 24,014 | | | | | | 24,014 | | |
| | |
Transaction
and Treasury Services |
| |||
Balance at December 31, 2019
|
| | | | — | | |
Deferred revenue billed in the current period, net of recognition
|
| | | $ | 888 | | |
Revenue recognized that was included in the beginning period
|
| | | | — | | |
Balance at December 31, 2020
|
| | | $ | 888 | | |
| | |
Circle Segment
|
| |||||||||
|
Year ended December 31
|
| |||||||||||
|
2020
|
| |
2019
|
| ||||||||
Segment contribution margin
|
| | | | 3,413 | | | | | | 1,323 | | |
Net income (loss) before income taxes
|
| | | | (19,737) | | | | | | (16,339) | | |
| | |
SeedInvest Segment
|
| |||||||||
|
Year ended December 31
|
| |||||||||||
|
2020
|
| |
2019
|
| ||||||||
Net income (loss)
|
| | | | 2,544 | | | | | | (2,208) | | |
| | |
Year ended December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Segment contribution margin
|
| | | | 3,413 | | | | | | 1,323 | | |
Costs and expenses: | | | | | | | | | | | | | |
Compensation expense
|
| | | | (14,658) | | | | | | (39,685) | | |
General and administrative expenses
|
| | | | (12,832) | | | | | | (18,090) | | |
Depreciation and amortization expense
|
| | | | (4,500) | | | | | | (4,495) | | |
IT infrastructure costs
|
| | | | (3,242) | | | | | | (5,508) | | |
Digital assets impairment
|
| | | | (1,256) | | | | | | — | | |
Goodwill impairment
|
| | | | — | | | | | | (13,947) | | |
Marketing and advertising expenses
|
| | | | (240) | | | | | | (597) | | |
Other income, net
|
| | | | 13,578 | | | | | | 64,660 | | |
Net income (loss) before income taxes
|
| | | | (19,737) | | | | | | (16,339) | | |
| | |
Fair value
recognized on acquisition |
| |||
Assets Acquired | | | | | | | |
Accounts receivable
|
| | | | 417 | | |
Deposits and prepayments
|
| | | | 71 | | |
Intangible assets, net
|
| | | | 1,882 | | |
Total assets
|
| | |
$
|
2,370
|
| |
Liabilities Assumed | | | | | | | |
Accounts payable and accrued expenses
|
| | | | 117 | | |
Total liabilities
|
| | |
$
|
117
|
| |
Total identifiable net assets, at fair value
|
| | | | 2,253 | | |
Goodwill arising on acquisition
|
| | | | 37,961 | | |
Purchase consideration
|
| | | $ | 40,214 | | |
|
(i)
Closing cash payment at the acquisition date
|
| | | | 7,579 | | |
|
(ii)
Fair value of convertible notes
|
| | | | 29,560 | | |
|
(iii)
Fair value of contingent consideration
|
| | | | 3,075 | | |
|
Total consideration
|
| | | | 40,214 | | |
| Consideration received: | | | | | | | |
|
Cash
|
| | | | 100 | | |
|
Common stock fair value
|
| | | | 525 | | |
| Net assets sold: | | | | | | | |
|
Intangible and other assets, net
|
| | | | — | | |
|
Gain on sale of Circle Invest
|
| | | | 625 | | |
| Consideration received: | | | | | | | |
|
Cash
|
| | | $ | 1,900 | | |
|
Contingent Stock
|
| | | | — | | |
| Net assets sold: | | | | | | | |
|
Intangible and other assets, net
|
| | | | — | | |
|
Gain on sale of Circle Trade
|
| | | | 1,900 | | |
| Consideration received: | | | | | | | |
|
Cash
|
| | | | 33,150 | | |
|
Contingent Consideration
|
| | | | 15,000 | | |
| Net assets sold: | | | | | | | |
|
Intangible and other assets, net
|
| | | | 19,360 | | |
|
Goodwill
|
| | | | 185,555 | | |
|
Digital assets disposed, net
|
| | | | 59 | | |
|
Loss on Disposal of Poloniex
|
| | | | (156,824) | | |
As of December 31, 2020
|
| |
Gross
carrying amount |
| |
Accumulated
amortization(1) |
| |
Intangible
assets, net |
| |
Weighted average
remaining useful life (in years) |
| ||||||||||||
Amortizing intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Domain names
|
| | | | 284 | | | | | | (269) | | | | | | 15 | | | | | | 0.5 | | |
Internally developed software
|
| | | | 18,530 | | | | | | (15,545) | | | | | | 2,985 | | | | | | 1.4 | | |
SeedInvest acquired intangible assets
|
| | | | 1,882 | | | | | | (1,420) | | | | | | 462 | | | | | | 2.1 | | |
Indefinite life intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Digital assets held
|
| | | | 5,931 | | | | | | (1,256) | | | | | | 4,675 | | | | | | — | | |
Total intangible assets, net
|
| | | | 26,626 | | | | | | (18,490) | | | | | | 8,137 | | | | | | | | |
As of December 31, 2019
|
| |
Gross
carrying amount |
| |
Accumulated
amortization |
| |
Intangible
assets, net |
| |
Weighted average
remaining useful life (in years) |
| ||||||||||||
Amortizing intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Domain names
|
| | | | 284 | | | | | | (248) | | | | | | 36 | | | | | | 1.5 | | |
Internally developed software
|
| | | | 15,353 | | | | | | (12,027) | | | | | | 3,326 | | | | | | 1.2 | | |
SeedInvest acquired intangible assets
|
| | | | 1,882 | | | | | | (661) | | | | | | 1,221 | | | | | | 2.2 | | |
Indefinite life intangible assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Digital assets held
|
| | | | 479 | | | | | | — | | | | | | 479 | | | | | | — | | |
Total intangible assets, net
|
| | | | 17,998 | | | | | | (12,936) | | | | | | 5,062 | | | | | | | | |
|
2021
|
| | | $ | 2,349 | | |
|
2022
|
| | | | 1,039 | | |
|
2023
|
| | | | 66 | | |
|
2024
|
| | | | 8 | | |
|
Thereafter
|
| | | | — | | |
|
Total amortization expense
|
| | | $ | 3,462 | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Computers & Equipment
|
| | | $ | 249 | | | | | $ | 278 | | |
Fixtures & Furniture
|
| | | | 630 | | | | | | 819 | | |
Software Licenses
|
| | | | 15 | | | | | | 14 | | |
App and Web Design
|
| | | | 143 | | | | | | 144 | | |
Leasehold Improvements
|
| | | | 128 | | | | | | 214 | | |
Security Equipment
|
| | | | 4 | | | | | | 4 | | |
Total Fixed assets
|
| | | | 1,169 | | | | | | 1,473 | | |
Less: Accumulated depreciation and amortization
|
| | | | (726) | | | | | | (691) | | |
Total Fixed Assets, net
|
| | | $ | 443 | | | | | $ | 782 | | |
| | |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||||||||||||||
| | |
Cost
|
| |
Estimated
Fair Value |
| |
Cost
|
| |
Estimated
Fair Value |
| ||||||||||||
Common Stock
|
| | | $ | 524 | | | | | $ | 13,631 | | | | | $ | — | | | | | $ | — | | |
Total
|
| | | $ | 524 | | | | | $ | 13,631 | | | | | $ | — | | | | | $ | — | | |
| | |
December 31, 2020
|
| |
December 31, 2019
|
| ||||||||||||||||||||||||||||||
| | |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| ||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Investment in digital assets trust
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | 589 | | |
Equity securities, at fair value
|
| | | | 13,631 | | | | | | — | | | | | | 1,076 | | | | | | — | | | | | | — | | | | | | 541 | | |
Divestment consideration receivable
|
| | | | — | | | | | | — | | | | | | 5,000 | | | | | | — | | | | | | — | | | | | | 15,000 | | |
Total Assets
|
| | | $ | 13,631 | | | | | $ | — | | | | | $ | 6,076 | | | | | $ | — | | | | | $ | — | | | | | $ | 16,130 | | |
Liabilities | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Convertible debt, net of debt discount
|
| | |
$
|
—
|
| | | | $ | — | | | | | $ | 30,614 | | | | | $ | — | | | | | $ | — | | | | | $ | 26,839 | | |
Acquisition payables
|
| | | | — | | | | | | — | | | | | | 12,276 | | | | | | — | | | | | | — | | | | | | 66,842 | | |
Warrant liability
|
| | | | — | | | | | | — | | | | | | 212 | | | | | | | | | | | | — | | | | | | 77 | | |
Total Liabilities
|
| | | $ | — | | | | | $ | — | | | | | $ | 43,102 | | | | | $ | — | | | | | $ | — | | | | | $ | 93,758 | | |
|
Balance as of January 1, 2020
|
| | | $ | 541 | | |
|
Consideration received for new deals
|
| | | $ | 421 | | |
|
Fair value adjustment
|
| | | $ | 114 | | |
|
Balance as of December 31, 2020
|
| | | $ | 1,076 | | |
|
Balance as of January 1, 2020
|
| | | $ | 15,000 | | |
|
Payments received
|
| | | ($ | 10,000) | | |
|
Balance as of December 31, 2020
|
| | | $ | 5,000 | | |
|
Balance as of January 1, 2020
|
| | | $ | 589 | | |
|
Liquidation during 2020
|
| | | ($ | 589) | | |
|
Balance as of December 31, 2020
|
| | | $ | 0 | | |
|
Balance as of January 1, 2020
|
| | | $ | 77 | | |
|
Expiration of Series-E warrants
|
| | | | (77) | | |
|
Fair value adjustment of warrants related to the acquisition loan
|
| | | | 212 | | |
|
Balance as of December 31, 2020
|
| | | $ | 212 | | |
|
Balance as of January 1, 2020
|
| | | $ | 26,839 | | |
|
Net discount on convertible notes
|
| | | | (412) | | |
|
Capitalized interest
|
| | | | 698 | | |
|
Fair value adjustment
|
| | | | 3,489 | | |
|
Balance as of December 31, 2020
|
| | | $ | 30,614 | | |
| | |
December 31,
2020 |
| |
December 31,
2019 |
| ||||||
Discount rate
|
| | | | 13.0% | | | | | | 14.0% | | |
Volatility
|
| | | | 42.3% | | | | | | 35.9% | | |
Risk-free rate
|
| | | | 0.4% | | | | | | 1.8% | | |
|
Balance as of January 1, 2020
|
| | | $ | 66,842 | | |
|
Gain on extinguishment of debt
|
| | | | (33,158) | | |
|
Payment on settlement
|
| | | | (20,746) | | |
|
SeedInvest Payment
|
| | | | (1,100) | | |
|
Fair Value adjustment
|
| | | | 438 | | |
|
Balance as of December 31, 2020
|
| | | $ | 12,276 | | |
| | |
Year Ended December 31, 2020
|
| |||||||||
| | |
Circle
|
| |
SeedInvest
|
| ||||||
Continuing Operations | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | $ | 2,589 | | | | | | — | | |
USDC interest income(1)
|
| | | | 4,435 | | | | | | — | | |
SeedInvest revenue
|
| | | | — | | | | | | 8,417 | | |
| | |
Year Ended December 31, 2020
|
| |||||||||
| | |
Circle
|
| |
SeedInvest
|
| ||||||
Discontinued Operations | | | | | | | | | | | | | |
Invest Revenue
|
| | | | 159 | | | | | | — | | |
Poloniex Revenue
|
| | | | — | | | | | | — | | |
Circle Trade Revenue
|
| | | | — | | | | | | — | | |
| | |
Year Ended December 31, 2019
|
| |||||||||
| | |
Circle
|
| |
SeedInvest
|
| ||||||
Continuing Operations | | | | | | | | | | | | | |
Transaction and Treasury Services
|
| | | | — | | | | | | — | | |
USDC interest income(1)
|
| | | | 6,232 | | | | | | — | | |
SeedInvest revenue
|
| | | | — | | | | | | 3,191 | | |
Discontinued Operations | | | | | | | | | | | | | |
Invest Revenue
|
| | | | 567 | | | | | | — | | |
Poloniex Revenue
|
| | | | 11,333 | | | | | | — | | |
Circle Trade Revenue
|
| | | | 7,276 | | | | | | — | | |
| | |
Year ended December 31
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Unrealized gains on investments
|
| | | $ | 13,221 | | | | | $ | — | | |
Change in fair value of convertible debt
|
| | | | (3,489) | | | | | | 2,355 | | |
Gain on treasury stock
|
| | | | 2,877 | | | | | | — | | |
Interest expense and amortization of discount
|
| | | | (3,363) | | | | | | (3,453) | | |
Income generated from winding down platforms
|
| | | | 2,371 | | | | | | 1,689 | | |
Transitional support income
|
| | | | 1,061 | | | | | | 1,599 | | |
Fair value adjustment on warrant liability
|
| | | | (212) | | | | | | 59,528 | | |
Gain on exchange of IP for Centre Investment
|
| | | | — | | | | | | 2,000 | | |
Other, net
|
| | | | 1,226 | | | | | | 942 | | |
Total, net
|
| | | $ | 13,692 | | | | | $ | 64,660 | | |
| | |
Year ended December 31
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Domestic
|
| | | $ | (26,507) | | | | | $ | (59,154) | | |
Foreign
|
| | | | 9,309 | | | | | | 40,605 | | |
Total income before provision for income taxes
|
| | | $ | (17,198) | | | | | $ | (18,549) | | |
| | |
Year ended December 31
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Current | | | | | | | | | | | | | |
Federal
|
| | | $ | (4,215) | | | | | | — | | |
State
|
| | | | 119 | | | | | | 11 | | |
Foreign
|
| | | | 24 | | | | | | 12 | | |
Total Current
|
| | | $ | (4,072) | | | | | $ | 23 | | |
Deferred: | | | | | | | | | | | | | |
Federal
|
| | | $ | (152) | | | | | $ | 5,357 | | |
State
|
| | | | (102) | | | | | | 2,351 | | |
Foreign
|
| | | | 4,441 | | | | | | — | | |
Total Deferred
|
| | | | 4,187 | | | | | | 7,708 | | |
Total
|
| | | $ | 115 | | | | | $ | 7,731 | | |
| | |
Year ended December 31
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Federal income taxes at 21.0%
|
| | | $ | (3,611) | | | | | $ | (3,895) | | |
State income taxes, net of federal benefit
|
| | | | 14 | | | | | | (1,902) | | |
Other permanent differences
|
| | | | (25) | | | | | | 585 | | |
Interest Expense Limitation
|
| | | | 130 | | | | | | — | | |
Other non-deductible Irish expenses
|
| | | | 813 | | | | | | — | | |
Penalties
|
| | | | 315 | | | | | | — | | |
Non-deductible warrant income / expense
|
| | | | 28 | | | | | | (12,501) | | |
Non-deductible compensation
|
| | | | 357 | | | | | | 995 | | |
Excess tax benefits related to share-based compensation
|
| | | | 66 | | | | | | (118) | | |
Federal research and experimentation credits
|
| | | | — | | | | | | (730) | | |
| | |
Year ended December 31
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Foreign rate differential
|
| | | | 1,367 | | | | | | 1,037 | | |
Income tax contingency
|
| | | | (13) | | | | | | 127 | | |
Change in valuation allowance
|
| | | | 2,245 | | | | | | 23,682 | | |
Provision to return adjustments
|
| | | | 994 | | | | | | (39) | | |
Deferred tax rate change and adjustments
|
| | | | (209) | | | | | | 489 | | |
Current Tax Benefit (CARES Act)
|
| | | | (3,987) | | | | | | — | | |
DTA Utilization (CARES Act)
|
| | | | 1,558 | | | | | | — | | |
Other
|
| | | | 73 | | | | | | 1 | | |
Income tax expense
|
| | | $ | 115 | | | | | $ | 7,731 | | |
|
| | |
December 31
|
| |||||||||
Deferred tax assets:
|
| |
2020
|
| |
2019
|
| ||||||
Net operating loss carryforwards
|
| | | $ | 46,111 | | | | | $ | 59,850 | | |
Tax credit carryforwards
|
| | | | 1,913 | | | | | | 1,191 | | |
Intangible Assets
|
| | | | 3,554 | | | | | | 6,795 | | |
Unrealized loss on investments
|
| | | | 304 | | | | | | 140 | | |
Stock Based Compensation
|
| | | | 1,245 | | | | | | 810 | | |
Accruals and reserves
|
| | | | 3,980 | | | | | | 160 | | |
Charitable Contribution Carryforward
|
| | | | 212 | | | | | | — | | |
Other, net
|
| | | | — | | | | | | — | | |
Total deferred tax assets
|
| | | | 57,319 | | | | | | 68,946 | | |
Valuation allowance
|
| | | | (55,486) | | | | | | (68,019) | | |
Total deferred tax assets, net of valuation allowance
|
| | | | 1,833 | | | | | | 927 | | |
Deferred tax liabilities: | | | | | | | | | | | | | |
Fixed Assets
|
| | | | (58) | | | | | | — | | |
Unrealized gain on investments
|
| | | | (5,165) | | | | | | — | | |
Investment in Centre Consortium
|
| | | | (344) | | | | | | (546) | | |
Other
|
| | | | (999) | | | | | | (927) | | |
Total deferred tax liabilities
|
| | | | (6,566) | | | | | | (1,473) | | |
Net deferred tax liability
|
| | | | (4,733) | | | | | | (546) | | |
| | |
December 31
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Beginning balance
|
| | | | 311 | | | | | | 302 | | |
Increase/(decrease) related to tax positions taken during current year
|
| | | | — | | | | | | — | | |
Increase/(decrease) related to tax positions taken during prior years
|
| | | | 2 | | | | | | 9 | | |
Decrease related to a lapse of the applicable statute of limitations
|
| | | | — | | | | | | — | | |
Ending balance
|
| | | | 313 | | | | | | 311 | | |
| | |
December 31
2020 |
| |||
Genesis Loan: | | | | | | | |
Outstanding principal
|
| | | $ | 25,000 | | |
Accrued interest
|
| | | | 1,966 | | |
PPP Loan: | | | | | | | |
Outstanding principal
|
| | | $ | 1,758 | | |
Accrued interest
|
| | | | — | | |
| | |
2020
|
| |
2019
|
| ||||||
Conversion of Series A redeemable convertible preferred stock
|
| | | | 33,620,690 | | | | | | 33,620,690 | | |
Conversion of Series B redeemable convertible preferred stock
|
| | | | 17,586,205 | | | | | | 17,586,205 | | |
Conversion of Series C redeemable convertible preferred stock
|
| | | | 18,445,443 | | | | | | 18,445,443 | | |
Conversion of Series C-1 redeemable convertible preferred stock
|
| | | | — | | | | | | — | | |
Conversion of Series D redeemable convertible preferred stock
|
| | | | 23,202,679 | | | | | | 23,202,679 | | |
Conversion of Series D-1 redeemable convertible preferred stock
|
| | | | — | | | | | | — | | |
Conversion of Series E redeemable convertible preferred stock
|
| | | | 9,077,030 | | | | | | 9,077,030 | | |
Common stock options issued under stock option plan
|
| | | | 19,641,567 | | | | | | 25,250,825 | | |
Common stock options available for grant under stock option plan
|
| | | | 6,405,003 | | | | | | 7,056,635 | | |
Total
|
| | |
|
127,978,617
|
| | | |
|
134,239,507
|
| |
Preferred stock class
|
| |
Issue Date
|
| |
Issue
price |
| |
Conversion
price |
| |
Liquidation
preference |
| |
Shares issued
and outstanding |
| |||||||||||||||
Series A
|
| | | | 8/22/2013 | | | | | | 0.27 | | | | | | 0.27 | | | | | | 0.27 | | | | | | 33,620,690 | | |
Series B
|
| | | | 2/26/2014 | | | | | | 0.97 | | | | | | 0.97 | | | | | | 0.97 | | | | | | 17,586,205 | | |
Series C
|
| | | | 4/10/2015 | | | | | | 2.17 | | | | | | 2.17 | | | | | | 2.17 | | | | | | 18,445,443 | | |
Series D
|
| | | | 5/17/2016 | | | | | | 2.76 | | | | | | 2.76 | | | | | | 2.76 | | | | | | 23,202,679 | | |
Series E
|
| | | | 5/14/2018 | | | | | | 16.23 | | | | | | 16.23 | | | | | | 16.23 | | | | | | 9,077,030 | | |
| | |
2020
|
| |
2019
|
|
Risk-free interest rate
|
| |
0.3% – 2.0%
|
| |
1.7% – 2.4%
|
|
Expected term
|
| |
2 – 6 years
|
| |
4 – 7 years
|
|
Expected volatility
|
| |
60.0 – 64.0%
|
| |
58.0 – 60.0%
|
|
Expected annual dividend
|
| |
0%
|
| |
0%
|
|
| | |
Number of
Stock Options |
| |
Weighted
Average Exercise Price ($) |
| |
Weighted
Average Remaining Contractual Term (in Years) |
| |
Aggregate
Intrinsic Value ($) |
| ||||||||||||
Outstanding at January 1, 2019
|
| | | | 27,362,491 | | | | | | 1.58 | | | | | | 8.18 | | | | | | — | | |
Granted
|
| | | | 7,287,777 | | | | | | 1.56 | | | | | | — | | | | | | | | |
Exercised
|
| | | | (1,295,613) | | | | | | 1.56 | | | | | | — | | | | | | | | |
Forfeited or expired
|
| | | | (8,103,830) | | | | | | 2.10 | | | | | | — | | | | | | | | |
Outstanding at December 31, 2019
|
| | | | 25,250,825 | | | | | | 1.22 | | | | | | 7.64 | | | | | | — | | |
| | |
Number of
Stock Options |
| |
Weighted
Average Exercise Price ($) |
| |
Weighted
Average Remaining Contractual Term (in Years) |
| |
Aggregate
Intrinsic Value ($) |
| ||||||||||||
Exercisable at December 31, 2019
|
| | | | 14,151,491 | | | | | | 1.00 | | | | | | 6.77 | | | | | | — | | |
Outstanding at December 31, 2019
|
| | | | 25,250,825 | | | | | | 1.22 | | | | | | 7.79 | | | | | | — | | |
Granted
|
| | | | 16,024,870 | | | | | | 0.08 | | | | | | | | | | | | | | |
Exercised
|
| | | | (6,260,890) | | | | | | 0.11 | | | | | | | | | | | | | | |
Forfeited or expired
|
| | | | (15,373,238) | | | | | | 1.06 | | | | | | | | | | | | | | |
Outstanding at December 31, 2020
|
| | | | 19,641,567 | | | | | | 0.10 | | | | | | 7.92 | | | | | | 71,411 | | |
Exercisable at December 31, 2020
|
| | | | 7,516,579 | | | | | | 0.14 | | | | | | 6.14 | | | | | | 27,033 | | |
|
| | |
Number of
Options |
| |
Weighted Average
Exercise Price |
| ||||||
Unvested Outstanding at January 1, 2019
|
| | |
|
15,983,844
|
| | | | $ | 2.12 | | |
Granted
|
| | | | 7,287,777 | | | | | | 1.56 | | |
Cancelled/Forfeited
|
| | | | (184,534) | | | | | | 2.17 | | |
Vested, outstanding shares
|
| | | | (11,987,753) | | | | | | 1.22 | | |
Unvested Outstanding at December 31, 2019
|
| | | | 11,099,334 | | | | | $ | 1.50 | | |
Granted
|
| | | | 16,024,870 | | | | | | 0.08 | | |
Cancelled/Forfeited
|
| | | | (1,299,323) | | | | | | 1.14 | | |
Vested, outstanding shares
|
| | | | (13,699,893) | | | | | | 0.11 | | |
Unvested Outstanding at December 31, 2020
|
| | | | 12,124,988 | | | | | $ | 0.08 | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2020
|
| |
2019
|
| ||||||
Numerator: | | | | | | | | | | | | | |
Net income (loss) from continuing operations
|
| | | $ | (17,313) | | | | | $ | (26,280) | | |
Net income (loss) from discontinued operations
|
| | | | 21,103 | | | | | | (152,285) | | |
Net income (loss) available to common stockholders
|
| | | $ | 3,790 | | | | | $ | (178,565) | | |
Numerator Adjustments: | | | | | | | | | | | | | |
Deemed contribution from Series C shares surrendered(1)
|
| | | $ | — | | | | | $ | 9,994 | | |
Dividend preference on preferred shares
|
| | | | (3,790) | | | | | | — | | |
Net income (loss) available to common stockholders
|
| | | $ | — | | | | | $ | (168,571) | | |
Denominator: | | | | | | | | | | | | | |
Weighted-average common shares – basic
|
| | | | 36,089,496 | | | | | | 34,805,605 | | |
Dilutive effect of equity awards
|
| | | | 15,760,900 | | | | | | — | | |
Weighted-average common shares – diluted
|
| | | | 51,850,396 | | | | | | 34,805,605 | | |
Earnings (loss) per share: | | | | | | | | | | | | | |
Basic:
|
| | | | | | | | | | | | |
Continuing operations
|
| | | | 0.00 | | | | | | (0.46) | | |
Discontinued operations
|
| | | | 0.00 | | | | | | (4.38) | | |
Basic earnings (loss) per share
|
| | | $ | 0.00 | | | | | $ | (4.84) | | |
Diluted:
|
| | | | | | | | | | | | |
Continuing operations
|
| | | | 0.00 | | | | | | (0.46) | | |
Discontinued operations
|
| | | | 0.00 | | | | | | (4.38) | | |
Diluted earnings (loss) per share
|
| | | $ | 0.00 | | | | | $ | (4.84) | | |
| | |
Year ended December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Foreign currency translation adjustment | | | | | | | | | | | | | |
Beginning balance at January 1
|
| | | $ | 683 | | | | | $ | 716 | | |
Pre-tax change
|
| | | | (165) | | | | | | (33) | | |
Tax effect
|
| | | | — | | | | | | — | | |
Total other comprehensive income, net of tax
|
| | | $ | 518 | | | | | $ | 683 | | |
| | |
December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Income tax receivable
|
| | | $ | 3,650 | | | | | $ | 3,396 | | |
Deposits
|
| | | | 1,319 | | | | | | 300 | | |
Prepaid expenses
|
| | | | 884 | | | | | | 1,266 | | |
Other
|
| | | | 69 | | | | | | 101 | | |
Total prepaid expenses and other current assets
|
| | | $ | 5,922 | | | | | $ | 5,063 | | |
| | |
December 31
|
| |||||||||
|
2020
|
| |
2019
|
| ||||||||
Accrued expenses
|
| | | $ | 15,009 | | | | | $ | 4,358 | | |
USDC accrued rebates
|
| | | | 3,803 | | | | | | 941 | | |
Accrued interest
|
| | | | 3,287 | | | | | | 1,079 | | |
Other payables
|
| | | | 1,579 | | | | | | 1,768 | | |
Total accounts payable and accrued expenses
|
| | | $ | 23,678 | | | | | $ | 8,146 | | |
Year
|
| | | | | | |
2021
|
| | | $ | 1,563 | | |
2022
|
| | | | 1,590 | | |
2023
|
| | | | 1,264 | | |
2024
|
| | | | 626 | | |
2025
|
| | | | — | | |
Total
|
| | | $ | 5,043 | | |
| | |
Page
|
| |||
| | | | F-91 | | | |
| | | | F-92 | | | |
| | | | F-93 | | | |
| | | | F-94 | | | |
| | | | F-95 | | |
| | |
March 31,
2021 (Unaudited) |
| |
December 31,
2020 |
| ||||||
Assets: | | | | | | | | | | | | | |
Current asset: | | | | | | | | | | | | | |
Cash
|
| | | $ | 951,848 | | | | | $ | 1,082,101 | | |
Prepaid expense
|
| | | | 402,385 | | | | | | 465,709 | | |
Total current assets
|
| | | | 1,354,233 | | | | | | 1,547,810 | | |
Securities held in trust account
|
| | | | 276,029,393 | | | | | | 276,005,942 | | |
Total Assets
|
| | | $ | 277,383,626 | | | | | $ | 277,553,752 | | |
| | | | | | | | | | | | | |
Liabilities and Stockholders’ Equity: | | | | | | | | | | | | | |
Current liabilities: | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | $ | 88,000 | | | | | $ | 100,253 | | |
Total current liabilities
|
| | | | 88,000 | | | | | | 100,253 | | |
| | | | | | | | | | | | | |
Warrant liabilities
|
| | | | 12,766,000 | | | | | | 11,912,642 | | |
Total Liabilities
|
| | | | 12,854,000 | | | | | | 12,012,895 | | |
Commitments | | | | | | | | | | | | | |
Common stock subject to possible redemption, 25,952,962 and 26,054,085 shares at redemption value, respectively
|
| | | | 259,529,620 | | | | | | 260,540,850 | | |
Stockholders’ Equity: | | | | | | | | | | | | | |
Preferred stock, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
|
| | | | | | | | | | — | | |
Class A common stock, $0.0001 par value; 200,000,000 shares authorized;
2,399,038 and 2,297,915 shares issued and outstanding, respectively |
| | | | 241 | | | | | | 231 | | |
Class B common stock, $0.0001 par value; 20,000,000 shares authorized; 6,900,000 shares issued and outstanding, respectively
|
| | | | 690 | | | | | | 690 | | |
Additional paid-in capital
|
| | | | 6,241,287 | | | | | | 5,230,067 | | |
Accumulated deficit
|
| | | | (1,242,212) | | | | | | (230,981) | | |
Total Stockholders’ equity
|
| | | | 5,000,006 | | | | | | 5,000,007 | | |
Total Liabilities and Stockholders’ Equity
|
| | | $ | 277,383,626 | | | | | $ | 277,553,752 | | |
|
Operating costs
|
| | | $ | 181,324 | | |
| | | | | | | | |
|
Loss from operations
|
| | | | (181,324) | | |
| | | | | | | | |
| Other income/(expense) | | | | | | | |
|
Change in fair value of warrants liability
|
| | | | (853,358) | | |
|
Interest income
|
| | | | 23,451 | | |
|
Total other income/(expense)
|
| | | | (829,907) | | |
| | | | | | | | |
|
Net loss
|
| | | | (1,011,231) | | |
| | | | | | | | |
|
Basic and diluted weighted average shares outstanding, Class A common stock subject to possible redemption
|
| | | | 26,054,085 | | |
|
Basic and diluted net income per share, Class A common stock subject to possible redemption
|
| | | $ | 0.00 | | |
|
Basic and diluted weighted average shares outstanding, common stock
|
| | | | 9,194,954 | | |
|
Basic and diluted net loss per share, common stock
|
| | | $ | (0.11) | | |
| | |
Class A Common
Stock |
| |
Class B Common
Stock |
| |
Additional
Paid-in |
| |
Accumulated
|
| |
Stockholders’
|
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| |
Capital
|
| |
Deficit
|
| |
Equity
|
| |||||||||||||||||||||
Balance as of December 31, 2020
|
| | | | 2,297,915 | | | | | $ | 231 | | | | | | 6,900,000 | | | | | $ | 690 | | | | | $ | 5,230,067 | | | | | $ | (230,981) | | | | | $ | 5,000,007 | | |
Change in Class A common stock subject to possible
redemption |
| | | | 101,123 | | | | | | 10 | | | | | | — | | | | | | — | | | | | | 1,011,220 | | | | | | — | | | | | | 1,011,230 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (1,011,231) | | | | | | (1,011,231) | | |
Balance as of March 31,
2021 |
| | | | 2,399,038 | | | | | $ | 241 | | | | | | 6,900,000 | | | | | $ | 690 | | | | | $ | 6,241,287 | | | | | $ | (1,242,212) | | | | | $ | 5,000,006 | | |
| Cash flows from operating activities: | | | | | | | |
|
Net loss
|
| | | $ | (1,011,231) | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
|
Accretion of interest on debt securities held in trust account
|
| | | | (23,451) | | |
|
Change in fair value of warrant liability
|
| | | | 853,358 | | |
|
Changes in operating assets and liabilities:
|
| | | | | | |
|
Prepaid assets
|
| | | | 63,324 | | |
|
Accounts payable and accrued expenses
|
| | | | (12,253) | | |
|
Net cash used in operating activities
|
| | | | (130,253) | | |
| | | | | | | | |
| Cash flows from investing activities: | | | | | | | |
|
Purchase of marketable securities
|
| | | | (1,104,070,313) | | |
|
Maturity of marketable securities
|
| | | | 1,104,070,313 | | |
|
Net cash used in investing activities
|
| | | | — | | |
| | | | | | | | |
|
Net change in cash
|
| | | | (130,253) | | |
|
Cash, beginning of the period
|
| | | | 1,082,101 | | |
|
Cash, end of period
|
| | | $ | 951,848 | | |
| Supplemental disclosure of cash flow information: | | | | | | | |
| Non-cash investing and financing transactions: | | | | | | | |
|
Change in value of Class A common stock subject to possible redemption
|
| | | $ | (1,011,230) | | |
| | |
For the
three months ended March 31, 2021 |
| |||
Common stock subject to possible redemption | | | | | | | |
Numerator: Net income allocable to Class A common stock subject to possible redemption
|
| | | | | | |
Accretion of interest income on marketable securities held in trust
|
| | | $ | 21,472 | | |
Less: interest available to be withdrawn for payment of taxes
|
| | | | (21,472) | | |
Net income allocable to Class A common stock subject to possible redemption
|
| | | $ | — | | |
Denominator: Weighted Average Redeemable Class A common stock
|
| | | | | | |
Redeemable Class A Common Stock, Basic and Diluted
|
| | | | 26,054,085 | | |
Basic and Diluted net income per share, Redeemable Class A Common Stock
|
| | | $ | 0.00 | | |
Non-Redeemable Common Stock | | | | | | | |
Numerator: Net Income minus Redeemable Net Earnings
|
| | | | | | |
Net Loss
|
| | | $ | (1,011,231) | | |
Redeemable Net Earnings
|
| | | | — | | |
Non-Redeemable Net Loss
|
| | | $ | (1,011,231) | | |
Denominator: Weighted Average Non-Redeemable Common Stock
|
| | | | | | |
Basic and diluted weighted average shares outstanding, common stock
|
| | | | 9,194,954 | | |
Basic and diluted net loss per share, common stock
|
| | | $ | (0.11) | | |
| | |
(Level 1)
|
| |
(Level 2)
|
| |
(Level 3)
|
| |||||||||
Assets | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account – U.S. Money Market Funds
|
| | | $ | 276,029,393 | | | | | $ | — | | | | | $ | — | | |
Liabilities | | | | | | | | | | | | | | | | | | | |
Public Warrants
|
| | | $ | 12,420,000 | | | | | $ | — | | | | | $ | — | | |
Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 346,000 | | |
Input
|
| |
March 31,
2021 |
| |
December 31,
2020 |
| ||||||
Common stock price
|
| | | $ | 9.78 | | | | | $ | 9.58 | | |
Expected term (years)
|
| | | | 5.69 | | | | | | 5.94 | | |
Expected volatility (Public Warrants)
|
| | | | — | | | | | | 15.0 | | |
Expected volatility (Private Warrants)
|
| | | | 14.1% | | | | | | 15.1% | | |
Exercise price
|
| | | $ | 11.50 | | | | | $ | 11.50 | | |
Risk-free rate of interest
|
| | | | 1.08% | | | | | | 0.50% | | |
|
Fair value at December 31, 2020
|
| | | $ | 11,912,642 | | |
|
Public Warrants reclassified to level 1(1)
|
| | | | (12,420,000) | | |
|
Change in fair value
|
| | | | 853,358 | | |
|
Fair Value at March 31, 2021
|
| | | $ | 346,000 | | |
| | |
Page
|
| |||
| | | | F-108 | | | |
| | | | F-109 | | | |
| | | | F-110 | | | |
| | | | F-111 | | | |
| | | | F-112 | | | |
| | | | F-113 | | |
| Assets: | | | | | | | |
| Current asset: | | | | | | | |
|
Cash
|
| | | $ | 1,082,101 | | |
|
Prepaid expense
|
| | | | 465,709 | | |
|
Total current assets
|
| | | | 1,547,810 | | |
|
Securities held in Trust Account
|
| | | | 276,005,942 | | |
|
Total Assets
|
| | | $ | 277,553,752 | | |
| Liabilities and Stockholders’ Equity: | | | | | | | |
| Current liabilities: | | | | | | | |
|
Accounts payable and accrued expenses
|
| | | $ | 100,253 | | |
|
Total current liabilities
|
| | | | 100,253 | | |
|
Warrant liability
|
| | | | 11,912,642 | | |
|
Total Liabilities
|
| | | | 12,012,895 | | |
| Commitments | | | | | | | |
|
Common stock subject to possible redemption, 26,054,085 shares at redemption value
|
| | | | 260,540,850 | | |
| Stockholders’ Equity: | | | | | | | |
|
Preferred stock, $0.0001 par value; 1,000,000 shares authorized; none issued and outstanding
|
| | | | — | | |
|
Class A common stock, $0.0001 par value; 200,000,000 shares authorized; 2,297,915 shares issued and outstanding at December 31, 2020
|
| | | | 231 | | |
|
Class B common stock, $0.0001 par value; 20,000,000 shares authorized; 6,900,000 shares
issued and outstanding at December 31, 2020 |
| | | | 690 | | |
|
Additional paid-in capital
|
| | | | 5,230,067 | | |
|
Accumulated deficit
|
| | | | (230,981) | | |
|
Total stockholders’ equity
|
| | | | 5,000,007 | | |
|
Total Liabilities and Stockholders’ Equity
|
| | | $ | 277,553,752 | | |
|
Formation and operating costs
|
| | | $ | 121,735 | | |
|
Loss from operations
|
| | | | (121,735) | | |
| Other income | | | | | | | |
|
Change in fair value of warrant liability
|
| | | | 138,962 | | |
|
Transaction costs
|
| | | | (254,150) | | |
|
Interest income
|
| | | | 5,942 | | |
|
Total other income/(expense)
|
| | | | (109,246) | | |
|
Net loss
|
| | | | (230,981) | | |
|
Basic and diluted weighted average shares outstanding, Class A common stock subject to possible redemption
|
| | | | 4,113,335 | | |
|
Basic and diluted net income per share, Class A common stock subject to possible
redemption |
| | | $ | 0.00 | | |
|
Basic and diluted weighted average shares outstanding, common stock
|
| | | | 6,505,401 | | |
|
Basic and diluted net loss per share, common stock
|
| | | $ | (0.04) | | |
| | |
Class A Common
Stock |
| |
Class B Common
Stock |
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Stockholders’
Equity (Deficit) |
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance as of
August 20, 2020 |
| | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Class B common stock issued to initial stockholders
|
| | | | — | | | | | | — | | | | | | 6,900,000 | | | | | | 690 | | | | | | 24,310 | | | | | | — | | | | | | 25,000 | | |
Sale of 28,352,000 Units
on December 10, 2020, net of warrant liability initial fair value |
| | | | 28,352,000 | | | | | | 2,835 | | | | | | — | | | | | | — | | | | | | 271,465,561 | | | | | | — | | | | | | 271,468,396 | | |
Net offering costs
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (5,721,558) | | | | | | — | | | | | | (5,721,558) | | |
Class A common stock subject to possible redemption
|
| | | | (26,054,085) | | | | | | (2,604) | | | | | | | | | | | | | | | | | | (260,538,246) | | | | | | — | | | | | | (260,540,850) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (230,981) | | | | | | (230,981) | | |
Balance as of December 31, 2020
|
| | | | 2,297,915 | | | | | $ | 231 | | | | | | 6,900,000 | | | | | $ | 690 | | | | | $ | 5,230,068 | | | | | $ | (230,981) | | | | | $ | 5,000,007 | | |
| Cash flows from operating activities: | | | | | | | |
|
Net loss
|
| | | $ | (230,981) | | |
| Adjustments to reconcile net loss to net cash used in operating activities: | | | | | | | |
|
Accretion of interest on debt securities held in Trust Account
|
| | | | (5,942) | | |
|
Transaction costs
|
| | | | 254,150 | | |
|
Change in fair value of warrant liability
|
| | | | (138,962) | | |
|
Changes in operating assets and liabilities:
|
| | | | | | |
|
Prepaid assets
|
| | | | (465,709) | | |
|
Accounts payable and accrued expenses
|
| | | | 100,253 | | |
|
Net cash used in operating activities
|
| | | | (487,191) | | |
| Cash flows from investing activities: | | | | | | | |
|
Purchase of investment held in Trust Account
|
| | | | (276,000,000) | | |
|
Net cash used in investing activities
|
| | | | (276,000,000) | | |
| Cash flows from financing activities: | | | | | | | |
|
Proceeds from sale of common stock to initial stockholders
|
| | | | 25,000 | | |
|
Proceeds from sale of Units, net of underwriters’ discount
|
| | | | 270,480,000 | | |
|
Proceeds from sale of Private Placement Units
|
| | | | 7,520,000 | | |
|
Proceeds from note payable-related party
|
| | | | 200,000 | | |
|
Repayment of note payable-related party
|
| | | | (200,000) | | |
|
Payment of offering costs
|
| | | | (455,708) | | |
|
Net cash provided by financing activities
|
| | | | 277,569,292 | | |
|
Net change in cash
|
| | | | 1,082,101 | | |
|
Cash, beginning of the period
|
| | | | — | | |
|
Cash, end of period
|
| | | $ | 1,082,101 | | |
| Supplemental disclosure of cash flow information: | | | | | | | |
| Non-cash investing and financing transactions: | | | | | | | |
|
Initial value of Class A common stock subject to possible redemption
|
| | | $ | 260,511,240 | | |
|
Change in value of Class A common stock subject to possible redemption
|
| | | $ | 29,610 | | |
| | |
As Previously
Reported |
| |
Adjustment
|
| |
As restated
|
| |||||||||
Balance Sheet at December 10, 2020 | | | | | | | | | | | | | | | | | | | |
Warrant liability
|
| | | $ | — | | | | | $ | 12,051,604 | | | | | $ | 12,051,604 | | |
Total liabilities
|
| | | | 27,068 | | | | | | 12,051,604 | | | | | | 12,078,672 | | |
Class A common stock subject to possible redemption
|
| | | | 272,562,840 | | | | | | (12,051,600) | | | | | | 260,511,240 | | |
Class A common stock
|
| | | | 110 | | | | | | 121 | | | | | | 231 | | |
Additional paid-in capital
|
| | | | 5,000,652 | | | | | | 254,025 | | | | | | 5,254,677 | | |
Accumulated deficit
|
| | | | (1,447) | | | | | | (254,150) | | | | | | (255,597) | | |
Total Stockholders’ Equity
|
| | | | 5,000,005 | | | | | | (4) | | | | | | 5,000,001 | | |
Balance Sheet at December 31, 2020 | | | | | | | | | | | | | | | | | | | |
Warrant liability
|
| | | $ | — | | | | | $ | 11,912,642 | | | | | $ | 11,912,642 | | |
Total liabilities
|
| | | | 100,253 | | | | | | 11,912,642 | | | | | | 12,012,895 | | |
Class A common stock subject to possible redemption
|
| | | | 272,453,490 | | | | | | (11,912,640) | | | | | | 260,540,850 | | |
Class A common stock
|
| | | | 110 | | | | | | 121 | | | | | | 231 | | |
Additional paid-in capital
|
| | | | 5,115,002 | | | | | | 115,065 | | | | | | 5,230,067 | | |
Accumulated deficit
|
| | | | (115,793) | | | | | | (115,188) | | | | | | (230,981) | | |
Total Stockholders’ Equity
|
| | | $ | 5,000,009 | | | | | $ | (2) | | | | | $ | 5,000,007 | | |
Statement of Operations for the period from August 20, 2020 (inception) through December 31, 2020
|
| | | | | | | | | | | | | | | | | | |
Change in fair value of warrant liability
|
| | | $ | — | | | | | $ | 138,962 | | | | | $ | 138,962 | | |
Transaction costs
|
| | | | — | | | | | | (254,150) | | | | | | (254,150) | | |
Total other income/(expense)
|
| | | | 5,942 | | | | | | (115,188) | | | | | | (109,246) | | |
| | |
As Previously
Reported |
| |
Adjustment
|
| |
As restated
|
| |||||||||
Net Loss
|
| | | | (115,793) | | | | | | (115,188) | | | | | | (230,981) | | |
Basic and diluted weighted average shares outstanding, Class A common stock subject to possible redemption
|
| | | | 4,303,624 | | | | | | (190,289) | | | | | | 4,113,335 | | |
Basic and diluted weighted average shares outstanding, Class A common stock and Class B common stock
|
| | | | 6,315,113 | | | | | | 190,288 | | | | | | 6,505,401 | | |
Basic and diluted net loss per share
|
| | | | (0.02) | | | | | | (0.02) | | | | | | (0.04) | | |
Statement of Stockholders’ Equity for the period from August 20, 2020 (inception) through December 31, 2020
|
| | | | | | | | | | | | | | | | | | |
Class A common stock shares
|
| | | | 1,106,651 | | | | | | 1,191,264 | | | | | | 2,297,915 | | |
Class A common stock amount
|
| | | | 110 | | | | | | 121 | | | | | | 231 | | |
Additional paid-in-capital
|
| | | | 5,115,002 | | | | | | 115,065 | | | | | | 5,230,067 | | |
Accumulated deficit
|
| | | | (115,793) | | | | | | (115,188) | | | | | | (230,981) | | |
Total stockholders’ equity
|
| | | | 5,000,009 | | | | | | (2) | | | | | | 5,000,007 | | |
Statement of Cash Flows for the period from August 20, 2020 (inception) through December 31, 2020
|
| | | | | | | | | | | | | | | | | | |
Cash Flows from Operating Activities:
|
| | | | | | | | | | | | | | | | | | |
Net loss
|
| | | $ | (115,793) | | | | | $ | (115,188) | | | | | $ | (230,981) | | |
Change in fair value of warrant liability
|
| | | | — | | | | | | (138,962) | | | | | | (138,962) | | |
Transaction costs
|
| | | | | | | | | | 254,150 | | | | | | 254,150 | | |
Supplemental disclosure of cash flow information: | | | | | | | | | | | | | | | | | | | |
Initial value of Class A common stock subject to possible
redemption |
| | | | 272,562,840 | | | | | | (12,051,600) | | | | | | 260,511,240 | | |
Change in value of Class A common stock subject to possible redemption
|
| | | | (109,350) | | | | | | 138,960 | | | | | | 29,610 | | |
Year-end value of common stock subject to possible conversion
|
| | | | 272,453,490 | | | | | | (11,912,640) | | | | | | 260,540,850 | | |
| | |
For the Year ended
December 31, 2020 |
| |||
Common stock subject to possible redemption | | | | | | | |
Numerator: Net income allocable to Class A common stock subject to possible redemption
|
| | | | | | |
Accretion of interest income on marketable securities held in trust
|
| | | $ | 5,461 | | |
Less: interest available to be withdrawn for payment of taxes
|
| | | | (5,461) | | |
Net income allocable to Class A common stock subject to possible redemption
|
| | | $ | — | | |
Denominator: Weighted Average Redeemable Class A common stock
|
| | | | | | |
Redeemable Class A Common Stock, Basic and Diluted
|
| | | | 4,113,335 | | |
Basic and Diluted net income per share, Redeemable Class A Common Stock
|
| | | $ | 0.00 | | |
Non-Redeemable Common Stock | | | | | | | |
Numerator: Net Income minus Redeemable Net Earnings
|
| | | | | | |
Net Loss
|
| | | $ | (230,981) | | |
Redeemable Net Earnings
|
| | | | — | | |
Non-Redeemable Net Loss
|
| | | $ | (230,981) | | |
Denominator: Weighted Average Non-Redeemable Common Stock
|
| | | | | | |
Basic and diluted weighted average shares outstanding, common stock
|
| | | | 6,505,401 | | |
Basic and diluted net loss per share, common stock
|
| | | $ | (0.04) | | |
| | |
Amortized
Cost and Carrying Value |
| |
Gross
Unrealized Gains |
| |
Gross
Unrealized Losses |
| |
Fair Value
as of December 31, 2020 |
| ||||||||||||
U.S. Money Market
|
| | | $ | 10,695 | | | | | $ | — | | | | | $ | — | | | | | $ | 10,695 | | |
U.S. Treasury Securities
|
| | | | 275,995,247 | | | | | | 1,993 | | | | | | — | | | | | | 275,997,240 | | |
| | | | $ | 276,005,942 | | | | | $ | 1,993 | | | | | $ | — | | | | | $ | 276,007,935 | | |
| | |
Quoted
Prices in Active Markets (Level 1) |
| |
Significant
Other Observable Inputs (Level 2) |
| |
Significant
Other Unobservable Inputs (Level 3) |
| |||||||||
Assets | | | | | | | | | | | | | | | | | | | |
Investments held in Trust Account – U.S. Money Market
|
| | | $ | 10,695 | | | | | $ | — | | | | | $ | — | | |
Investments held in Trust Account – U.S. Treasury
|
| | | $ | 275,997,240 | | | | | $ | — | | | | | $ | — | | |
Liabilities | | | | | | | | | | | | | | | | | | | |
Public Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 11,593,380 | | |
Private Warrants
|
| | | $ | — | | | | | $ | — | | | | | $ | 319,262 | | |
Input
|
| |
December 10,
2020 (Initial Measurement) |
| |
December 31,
2020 |
| ||||||
Common stock price
|
| | | $ | 9.58 | | | | | $ | 9.58 | | |
Expected term (years)
|
| | | | 6.00 | | | | | | 5.94 | | |
Expected volatility (Public Warrants)
|
| | | | 15.0% | | | | | | 15.0% | | |
Expected volatility (Private Warrants)
|
| | | | 15.1% | | | | | | 15.1% | | |
Exercise price
|
| | | $ | 11.50 | | | | | $ | 11.50 | | |
Risk-free rate of interest
|
| | | | 0.52% | | | | | | 0.50% | | |
|
Fair value at issuance December 10, 2020
|
| | | $ | 12,051,604 | | |
|
Change in fair value
|
| | | | (138,962) | | |
|
Fair Value at December 31, 2020
|
| | | $ | 11,912,642 | | |
| | |
December 31,
2020 |
| |||
Deferred tax asset | | | | | | | |
Organizational costs/Startup expenses
|
| | | $ | 10,177 | | |
Federal net operating loss
|
| | | | 14,140 | | |
Total deferred tax asset
|
| | | | 24,317 | | |
Valuation allowance
|
| | | | (24,317) | | |
Deferred tax asset, net of allowance
|
| | | $ | — | | |
| | |
December 31,
2020 |
| |||
Federal | | | | | | | |
Current
|
| | | $ | — | | |
Deferred
|
| | | | 24,317 | | |
State | | | | | | | |
Current
|
| | | | — | | |
Deferred
|
| | | | — | | |
Change in valuation allowance
|
| | | | (24,317) | | |
Income tax provision
|
| | | $ | — | | |
|
Statutory federal income tax rate
|
| | | | 21.0% | | |
|
State taxes, net of federal tax benefit
|
| | | | 0.0% | | |
|
Transaction costs
|
| | | | (23.1)% | | |
|
Change in fair value of the warrant liability
|
| | | | 12.6% | | |
|
Change in valuation allowance
|
| | | | (10.5)% | | |
|
Income tax provision
|
| | | | —% | | |
| | |
Page
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| | | | A-81 | | |
|
Exhibit A
Form of Shareholders Agreement
|
| | | |
|
Exhibit B
Form of Registration Rights Agreement
|
| | | |
|
Exhibit C
Allocation Schedule
|
| | | |
|
Exhibit D
Amended Topco Constitution
|
| | | |
|
Exhibit E
Officers and Directors
|
| | | |
|
Exhibit F
Concord Warrant Amendment
|
| | | |
|
Exhibit G
Topco Capitalization
|
| | | |
|
Exhibit H
Escrow
|
| | | |
|
Exhibit I
Rollover Schedule
|
| | | |
|
Schedule A
Company Knowledge Parties
|
| | | |
|
Schedule A-1
Concord Knowledge Parties
|
| | | |
|
Schedule B
Supporting Equity Holders
|
| | | |
Defined Term
|
| |
Location of Definition
|
|
2021 Balance Sheet | | | Section 5.07(b) | |
Action | | | Section 5.09 | |
Aggregate Company Consideration | | | Section 1.01 | |
Agreement | | | Preamble | |
Allocation Schedule | | | Section 2.01 | |
Alternative Transaction | | | Section 9.04 | |
Amended Topco Constitution | | | Section 9.15 Section 10.02(g) | |
Antitrust Laws | | | Section 9.11(a) | |
Attorney | | | Section 2.01(c) | |
Audited Financial Statements | | | Section 5.07(a) | |
Balance Sheet Date | | | Section 5.07(a) | |
Blue Sky Laws | | | Section 5.05(b) | |
Claims | | | Section 8.03 | |
Closing | | | Section 4.01 | |
Closing Date | | | Section 4.01 | |
Closing Filing | | | Section 9.09 | |
Closing Press Release | | | Section 9.09 | |
Company | | | Preamble | |
Company Board | | | Recitals | |
Company Permits | | | Section 5.06 | |
Company Related Parties | | | Section 11.03(d) | |
Company Termination Fee | | | Section 11.03(b) | |
Defined Term
|
| |
Location of Definition
|
|
Competing Concord Transaction | | | Section 9.04(b) | |
Competing Seller | | | Section 9.04(b) | |
Concord | | | Preamble | |
Concord Board | | | Recitals | |
Concord Bylaws | | | Recitals | |
Concord Certificates | | | Section 3.06(a) | |
Concord Certificate of Incorporation | | | Recitals | |
Concord Preferred Shares | | | Section 7.03(a) | |
Concord Proposals | | | Section 9.02(a) | |
Concord SEC Reports | | | Section 7.07(a) | |
Concord Stockholders’ Meeting | | | Section 9.02(a) | |
Concord Tail Policy | | | Section 9.06(e) | |
Continuing Employees | | | Section 9.05(b) | |
Contracting Party | | | Section 12.11 | |
Contributing Holders | | | Section 2.01(c) | |
D&O Tail Policy | | | Section 9.06(d) | |
Data Security Requirements | | | Section 5.13(j) | |
Delivered Financial Statements | | | Section 9.14 | |
DGCL | | | Recitals | |
Earnout Consideration | | | Section 4.03(a) | |
Effect | | | Definition of Company Material Adverse Effect | |
Employment Matters | | | Section 5.11(e) | |
Environmental Permits | | | Section 5.15 | |
ERISA Affiliate | | | Section 5.10(c) | |
Exchange Act | | | Section 5.05(b) | |
First Contribution | | | Recitals | |
Fixtures and Equipment | | | Section 5.23 | |
Governmental Authority | | | Section 5.05(b) | |
Insurance Policies | | | Section 5.17(a) | |
Intended Irish Stamp Duty Treatment | | | Section 9.13(a) | |
Intended Merger Tax Treatment | | | Section 9.13(a) | |
Intended Tax Treatment | | | Section 9.13(a) | |
Intended Transaction Tax Treatment | | | Section 9.13(a) | |
IRS | | | Section 5.10(b) | |
Lease | | | Section 5.12(b) | |
Lease Documents | | | Section 5.12(b) | |
Material Contracts | | | Section 5.16(a) | |
Merger | | | Recitals | |
Merger Consideration | | | Section 3.06(a) | |
Merger Effective Time | | | Section 3.02 | |
Nonparty Affiliates | | | Section 12.11 | |
Non-U.S. Subsidiaries | | | Section 9.13(c)(v) | |
Defined Term
|
| |
Location of Definition
|
|
Outside Date | | | Section 11.01(b) | |
Parties | | | Preamble | |
Pending Matters | | | Exhibit H | |
PFIC | | | Section 9.13(c)(v) | |
Plans | | | Section 5.10(a) | |
PPACA | | | Section 5.10(f) | |
Private Placements | | | Recitals | |
Registration Rights Agreement | | | Recitals | |
Registration Statement / Proxy Statement | | | Section 9.01(a) | |
Remedies Exceptions | | | Section 5.04 | |
Rollover Schedule | | | Section 2.01(f) | |
SEC | | | Section 7.07(a) | |
Second Contribution | | | Recitals | |
Section 16 | | | Section 9.20 | |
Securities Act | | | Section 5.05(b) | |
Shareholders Agreement | | | Recitals | |
Signing Filing | | | Section 9.09 | |
Signing Press Release | | | Section 9.09 | |
Subscription Agreements | | | Recitals | |
Supporting Equity Holders | | | Recitals | |
Surviving Corporation | | | Section 3.01 | |
Terminating Company Breach | | | Section 11.01(g) | |
Terminating Concord Breach | | | Section 11.01(h) | |
Topco Equity Plans | | | Section 9.05(c) | |
Trademarks | | | Definition of Intellectual Property | |
Transaction Support Agreements | | | Recitals | |
Trust Account | | | Section 7.12 | |
Trust Agreement | | | Section 7.12 | |
Trust Fund | | | Section 7.12 | |
Trustee | | | Section 7.12 | |
US Subsidiary | | | Recitals | |
Waiver Agreement | | | Recitals | |
Warrant Accounting Matter | | | Section 7.07(c) | |
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| Date: , | | | (Signature) | | | | |
| | | | (Address) | | | | |
| | | | | | |
(Tax Identification Number)
|
|
|
Signature Guaranteed:
|
| | | | | | |
| Name of Subscriber: | | | State/Country of Formation or Domicile: | | |||
| By: | | |
|
| | | |
| Name: | | |
|
| | ||
| Title: | | |
|
| | ||
| Name in which shares are to be registered (if different): | | | Date: , 2021 | | |||
| Subscriber’s EIN: | | | | | |||
| Business Address-Street: | | | Mailing Address-Street (if different): | | |||
| City, State, Zip: | | | City, State, Zip: | | |||
| Attn: | | | Attn: | | |||
| Telephone No.: | | | Telephone No.: | | |||
| Email Address: | | | Email Address: | | |||
| Number of Shares subscribed for: | | | | | |||
| Aggregate Subscription Amount: $ | | | Price Per Share: $10.00 | |
1.
|
☐
|
We are a “qualified institutional buyer” (as defined in Rule 144A under the Securities Act). |
1.
|
☐
|
We are an “accredited investor” (within the meaning of Rule 501(a) under the Securities Act) for one or more of the following reasons (Please check the applicable subparagraphs): |
☐
|
|
a Canadian financial institution or a Schedule III bank of the Bank Act (Canada), |
☐
|
|
the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada), |
☐
|
|
a subsidiary of any person or company referred to in paragraphs (a) or (b) if the person or company owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of that subsidiary, |
☐
|
|
a person or company registered under the securities legislation of a province or territory of Canada as an adviser or dealer, except as otherwise prescribed by the regulations, |
|
|
[omitted] |
|
(e.1)
|
[omitted] |
☐
|
|
the Government of Canada, the government of a province or territory of Canada, or any Crown |
☐
|
|
a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’île de Montréal or an intermunicipal management board in Québec, |
☐
|
|
any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government, |
☐
|
(i)
|
a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions (Canada) or a pension commission or similar regulatory authority of a province or territory of Canada, |
|
|
[omitted] |
☐
|
(j.1)
|
an individual who beneficially owns financial assets having an aggregate realizable value that before taxes, but net of any related liabilities, exceeds CAD$5,000,000, |
|
|
[omitted] |
|
|
[omitted] |
☐
|
|
a person, other than an individual or investment fund, that has net assets of at least $5,000,000 as shown on its most recently prepared financial statements, |
☐
|
|
an investment fund that distributes or has distributed its securities only to a person that is or was an accredited investor at the time of the distribution, a person that acquires or acquired securities in the circumstances referred to in sections 2.10 of NI 45-106 [Minimum amount investment], or 2.19 of NI 45-106 [Additional investment in investment funds], or a person described in paragraph (i) or (ii) that acquires or acquired securities under section 2.18 of NI 45-106 [Investment fund reinvestment], |
☐
|
|
an investment fund that distributes or has distributed securities under a prospectus in a jurisdiction of Canada for which the regulator or, in Québec, the securities regulatory authority, has issued a receipt, |
☐
|
|
a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a fully managed account managed by the trust company or trust corporation, as the case may be, |
☐
|
|
a person acting on behalf of a fully managed account1 managed by that person, if that person is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction, |
☐
|
|
a registered charity under the Income Tax Act (Canada) that, in regard to the trade, has obtained advice from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity to give advice on the securities being traded, |
☐
|
|
an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) through (d) or paragraph (i) in form and function, |
☐
|
|
a person in respect of which all of the owners of interests, direct, indirect or beneficial, except the voting securities required by law to be owned by directors, are persons that are accredited investors, |
☐
|
|
an investment fund that is advised by a person registered as an adviser or a person that is exempt from registration as an adviser, |
☐
|
|
a person that is recognized or designated by the Commission as an accredited investor, |
☐
|
|
a trust established by an accredited investor for the benefit of the accredited investor’s family members of which a majority of the trustees are accredited investors and all of the beneficiaries are the accredited investor’s spouse, a former spouse of the accredited investor or a parent, grandparent, brother, sister, child or grandchild of that accredited investor, of that accredited investor’s spouse or of that accredited investor’s former spouse. |
☐
|
(a)
|
a Canadian financial institution or a Schedule III bank; |
☐
|
(b)
|
the Business Development Bank of Canada incorporated under the Business Development Bank of Canada Act (Canada); |
☐
|
(c)
|
a subsidiary of any person or company referred to in paragraph (a) or (b), if the person or company owns all of the voting securities of the subsidiary, except the voting securities required by law to be owned by directors of the subsidiary; |
☐
|
(d)
|
a person or company registered under the securities legislation of a jurisdiction of Canada as an adviser, investment dealer, mutual fund dealer or exempt market dealer; |
☐
|
(e)
|
a pension fund that is regulated by either the Office of the Superintendent of Financial Institutions or a pension commission or similar regulatory authority of a jurisdiction of Canada or a wholly-owned subsidiary of such a pension fund; |
☐
|
(f)
|
an entity organized in a foreign jurisdiction that is analogous to any of the entities referred to in paragraphs (a) through (e); |
☐
|
(g)
|
the Government of Canada or a jurisdiction of Canada, or any Crown corporation, agency or wholly-owned entity of the Government of Canada or a jurisdiction of Canada; |
☐
|
(h)
|
any national, federal, state, provincial, territorial or municipal government of or in any foreign jurisdiction, or any agency of that government; |
☐
|
(i)
|
a municipality, public board or commission in Canada and a metropolitan community, school board, the Comité de gestion de la taxe scolaire de l’île de Montréal or an intermunicipal management board in Quebec; |
☐
|
(j)
|
a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction, acting on behalf of a managed account managed by the trust company or trust corporation, as the case may be; |
☐
|
(k)
|
a person or company acting on behalf of a managed account managed by person or company, if the person or company is registered or authorized to carry on business as an adviser or the equivalent under the securities legislation of a jurisdiction of Canada or a foreign jurisdiction; |
☐
|
(l)
|
an investment fund if one or both of the following apply: |
☐
|
(m)
|
in respect of a dealer, a registered charity under the Income Tax Act (Canada) that obtains advice on the securities to be traded from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity; |
☐
|
(n)
|
in respect of an adviser, a registered charity under the Income Tax Act (Canada) that is advised by an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity; |
☐
|
(o)
|
a registered charity under the Income Tax Act (Canada) that obtains advice on the securities to be traded from an eligibility adviser or an adviser registered under the securities legislation of the jurisdiction of the registered charity; |
☐
|
(p)
|
an individual who beneficially owns financial assets having an aggregate realizable value that, before taxes but net of any related liabilities, exceeds $5 million; |
☐
|
(q)
|
a person or company that is entirely owned by an individual or individuals referred to in paragraph (o), who holds the beneficial ownership interest in the person or company directly or through a trust, the trustee of which is a trust company or trust corporation registered or authorized to carry on business under the Trust and Loan Companies Act (Canada) or under comparable legislation in a jurisdiction of Canada or a foreign jurisdiction; |
☐
|
(r)
|
a person or company, other than an individual or an investment fund, that has net assets of at least C$25,000,000 as shown on its most recently prepared financial statements; or |
☐
|
(s)
|
a person or company that distributes securities of its own issue in Canada only to persons or companies referred to in paragraphs (a) through (r). |
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| 1 | | | Albania | | | 39 | | | Luxembourg | |
| 2 | | | Armenia | | | 40 | | | Macedonia | |
| 3 | | | Australia | | | 41 | | | Malaysia | |
| 4 | | | Austria | | | 42 | | | Malta | |
| 5 | | | Bahrain | | | 43 | | | Mexico | |
| 6 | | | Belarus | | | 44 | | | Moldova | |
| 7 | | | Belgium | | | 45 | | | Montenegro | |
| 8 | | | Bosnia & Herzegovina | | | 46 | | | Morocco | |
| 9 | | | Botswana | | | 47 | | | Netherlands | |
| 10 | | | Bulgaria | | | 48 | | | New Zealand | |
| 11 | | | Canada | | | 49 | | | Norway | |
| 12 | | | Chile | | | 50 | | | Pakistan | |
| 13 | | | China | | | 51 | | | Panama | |
| 14 | | | Croatia | | | 52 | | | Poland | |
| 15 | | | Cyprus | | | 53 | | | Portugal | |
| 16 | | | Czech Republic | | | 54 | | | Qatar | |
| 17 | | | Denmark | | | 55 | | | Romania | |
| 18 | | | Egypt | | | 56 | | | Russia | |
| 19 | | | Estonia | | | 57 | | | Saudi Arabia | |
| 20 | | | Ethiopia | | | 58 | | | Serbia | |
| 21 | | | Finland | | | 59 | | | Singapore | |
| 22 | | | France | | | 60 | | | Slovak Republic | |
| 23 | | | Georgia | | | 61 | | | Slovenia | |
| 24 | | | Germany | | | 62 | | | South Africa | |
| 25 | | | Ghana4 | | | 63 | | | Spain | |
| 26 | | | Greece | | | 64 | | | Sweden | |
| 27 | | | Hong Kong | | | 65 | | | Switzerland | |
| 28 | | | Hungary | | | 66 | | | Thailand | |
| 29 | | | Iceland | | | 67 | | | Turkey | |
| 30 | | | India | | | 68 | | | Ukraine | |
| 31 | | | Israel | | | 69 | | | United Arab Emirates | |
| 32 | | | Italy | | | 70 | | | United Kingdom | |
| 33 | | | Japan | | | 71 | | | United States of America | |
| 34 | | | Kazakhstan | | | 72 | | | Uzbekistan | |
| 35 | | | Republic of Korea | | | 73 | | | Vietnam | |
| 36 | | | Kuwait | | | 74 | | | Zambia | |
| 37 | | | Latvia | | | | | | | |
| 38 | | | Lithuania | | | | | | | |
|
Exhibit
Number |
| |
Description
|
|
|
2#
|
| | | |
|
3.1*
|
| | Memorandum and Articles of Association of Topco. | |
|
3.2*
|
| | Form of Amended Memorandum and Articles of Association of Topco (as they will be in effect at the Merger Effective Time) (included as Annex C to the proxy statement/prospectus). | |
|
3.3
|
| | | |
|
3.4
|
| | | |
|
4.1*
|
| | Specimen Topco ordinary share certificate. | |
|
4.2*
|
| | Specimen Topco warrant. | |
|
4.3
|
| | | |
|
4.4
|
| | Form of Assignment, Assumption and Amendment Agreement for Concord’s outstanding warrants (included as Exhibit F to Exhibit 2). | |
|
5.1*
|
| | Opinion of Matheson, Ireland. | |
|
5.2*
|
| | Opinion of Greenberg Traurig, LLP. | |
|
8.1*
|
| | Opinion of Greenberg Traurig, LLP regarding tax matters. | |
|
10.1
|
| | | |
|
10.2
|
| | | |
|
10.3
|
| | | |
|
10.4*
|
| | 2021 Equity Incentive Plan. | |
|
10.5*
|
| | 2021 Employee Stock Purchase Plan. | |
|
10.6*
|
| | Senior Executive Cash Bonus Plan. | |
|
10.7*
|
| | Form of Director & Officer Indemnification. | |
|
14*
|
| | Form of Code of Ethics. | |
|
23.1
|
| | | |
|
23.2
|
| | | |
|
23.3*
|
| | Consent of Matheson, Ireland (included in Exhibit 5.1). | |
|
23.4
|
| | | |
|
23.5*
|
| | Consent of Greenberg Traurig, LLP (included in Exhibit 5.2). | |
|
23.6*
|
| | Consent of Greenberg Traurig, LLP (included in Exhibit 8.1). | |
|
99.1
|
| | | |
|
99.2*
|
| | Form of Preliminary Proxy Card (included as Annex E to the proxy statement/prospectus). | |
|
99.3*
|
| | Consent of Jeremy Allaire. | |
|
99.4*
|
| | Consent of M. Michele Burns. | |
|
99.5*
|
| | Consent of Raj Date. | |
|
99.6*
|
| | Consent of P. Sean Neville. | |
|
99.7*
|
| | Consent of Bob Diamond. | |
|
99.8*
|
| | Consent of [•]. | |
|
99.9*
|
| | Consent of [•]. | |
| | | | CIRCLE ACQUISITION PUBLIC LIMITED COMPANY | | ||||||
| | | | By: | | |
/s/ Jeremy Allaire
|
| |||
| | | | | | | Name: | | | Jeremy Allaire | |
| | | | | | | Title: | | | Chief Executive Officer | |
| | | | By: | | |
/s/ Jeremy Fox-Geen
|
| |||
| | | | | | | Name: | | | Jeremy Fox-Geen | |
| | | | | | | Title: | | | Chief Financial Officer | |
|
Signature
|
| |
Title
|
| |
Date
|
|
|
/s/ Jeremy Allaire
Jeremy Allaire
|
| |
Chief Executive Officer
(Principal Executive Officer) & Director |
| |
August 6, 2021
|
|
|
/s/ Jeremy Fox-Geen
Jeremy Fox-Geen
|
| |
Chief Financial Officer
(Principal Financial Officer and Accounting Officer) |
| |
August 6, 2021
|
|
|
/s/ Elisabeth Carpenter
Elisabeth Carpenter
|
| |
Director
|
| |
August 6, 2021
|
|
| | | | By: | | |
/s/ Flavia Naves
|
| |||
| | | | | | | Name: | | | Flavia Naves | |
| | | | | | | Title: | | | Secretary | |
Exhibit 3.3
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
CONCORD Acquisition Corp
December 7, 2020
Concord Acquisition Corp, a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is “Concord Acquisition Corp”. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on August 20, 2020 (the “Original Certificate”).
2. This Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”), which both restates and further amends the provisions of the Original Certificate, was duly adopted in accordance with Sections 242 and 245 of the General Corporation Law of the State of Delaware, as amended from time to time (the “DGCL”), and by written consent of the Corporation’s stockholders in accordance with Section 228 of the DGCL.
3. This Amended and Restated Certificate shall become effective on the date of filing with the Secretary of State of Delaware.
4. The text of the Original Certificate is hereby restated and amended in its entirety to read as follows:
Article I
NAME
The name of the corporation is Concord Acquisition Corp (the “Corporation”).
Article II
PURPOSE
The purpose of the Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business or purposes of the Corporation, including, but not limited to, effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Corporation and one or more businesses (a “Business Combination”).
Article III
REGISTERED AGENT
The address of the Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, Wilmington, New Castle County, Delaware 19808. The name of its registered agent at such address is Corporation Service Company.
Article IV
CAPITALIZATION
Section 4.1 Authorized Capital Stock. The total number of shares of all classes of capital stock, each with a par value of $0.0001 per share, which the Corporation is authorized to issue is 221,000,000 shares, consisting of (a) 220,000,000 shares of common stock (the “Common Stock”), including (i) 200,000,000 shares of Class A Common Stock (the “Class A Common Stock”) and (ii) 20,000,000 shares of Class B Common Stock (the “Class B Common Stock”), and (b) 1,000,000 shares of preferred stock (the “Preferred Stock”).
Section 4.2 Preferred Stock. Subject to Article IX of this Amended and Restated Certificate, the Board of Directors of the Corporation (the “Board”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “Preferred Stock Designation”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the full extent provided by law, now or hereafter, to adopt any such resolution or resolutions.
Section 4.3 Common Stock.
(a) Voting.
(i) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of the Common Stock shall exclusively possess all voting power with respect to the Corporation.
(ii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders on which the holders of the Common Stock are entitled to vote.
(iii) Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), at any annual or special meeting of the stockholders of the Corporation, holders of the Class A Common Stock and holders of the Class B Common Stock, voting together as a single class, shall have the exclusive right to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders. Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), holders of shares of any series of Common Stock shall not be entitled to vote on any amendment to this Amended and Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more outstanding series of Preferred Stock or other series of Common Stock if the holders of such affected series of Preferred Stock or Common Stock, as applicable, are entitled exclusively, either separately or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) or the DGCL.
(b) Class B Common Stock.
(i) Shares of Class B Common Stock shall be convertible into shares of Class A Common Stock on a one-for-one basis (the “Initial Conversion Ratio”) (A) at any time and from time to time at the option of the holder thereof and (B) automatically upon the closing of the initial Business Combination.
(ii) Notwithstanding the Initial Conversion Ratio, in the case that additional shares of Class A Common Stock, or equity-linked securities (as defined below), are issued or deemed issued in excess of the amounts sold in the Corporation’s initial public offering of securities (the “Offering”) and related to the closing of the initial Business Combination, all issued and outstanding shares of Class B Common Stock shall automatically convert into shares of Class A Common Stock at the time of the closing of the initial Business Combination at a ratio for which:
2
· | the numerator shall be equal to the sum of (A) 25% of all shares of Class A Common Stock issued or issuable (upon the conversion or exercise of any equity-linked securities or otherwise), in each case by the Corporation, related to or in connection with the consummation of the initial Business Combination (net of the number of Offering Shares redeemed in connection with the initial Business Combination and excluding any securities issued or issuable to any seller in the initial Business Combination and any private placement warrants issued to Concord Sponsor Group LLC (the “Sponsor”) or its affiliates upon conversion of loans to the Corporation) plus (B) the number of shares of Class B Common Stock issued and outstanding prior to the closing of the initial Business Combination; and |
· | the denominator shall be the number of shares of Class B Common Stock issued and outstanding prior to the closing of the initial Business Combination. |
As used herein, the term “equity-linked securities” means any debt or equity securities of the Corporation that are convertible into, exercisable or exchangeable for Class A Common Stock issued in connection with the initial Business Combination, including but not limited to a private placement of equity or debt.
Notwithstanding anything to the contrary contained herein, (i) the foregoing adjustment to the Initial Conversion Ratio may be waived as to any particular issuance or deemed issuance of additional shares of Class A Common Stock or equity-linked securities by the written consent or agreement of holders of a majority of the shares of Class B Common Stock then outstanding consenting or agreeing separately as a single class in the manner provided in Section 4.3(b)(iii), and (ii) in no event shall the Class B Common Stock convert into Class A Common Stock at a ratio that is less than one-for-one.
The foregoing conversion ratio shall also be adjusted to account for any subdivision (by stock split, subdivision, exchange, stock dividend, reclassification, recapitalization or otherwise) or combination (by reverse stock split, exchange, reclassification, recapitalization or otherwise) or similar reclassification or recapitalization of the outstanding shares of Class A Common Stock into a greater or lesser number of shares occurring after the original filing of this Amended and Restated Certificate without a proportionate and corresponding subdivision, combination or similar reclassification or recapitalization of the outstanding shares of Class B Common Stock.
Each share of Class B Common Stock shall convert into its pro rata number of shares of Class A Common Stock pursuant to this Section 4.3(b). The pro rata share for each holder of Class B Common Stock will be determined as follows: Each share of Class B Common Stock shall convert into such number of shares of Class A Common Stock as is equal to the product of one (1) multiplied by a fraction, the numerator of which shall be the total number of shares of Class A Common Stock into which all of the issued and outstanding shares of Class B Common Stock shall be converted pursuant to this Section 4.3(b) and the denominator of which shall be the total number of issued and outstanding shares of Class B Common Stock at the time of conversion.
(iii) Voting. Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation and Section 9.9 hereof), for so long as any shares of Class B Common Stock shall remain outstanding, the Corporation shall not, without the prior vote or written consent of the holders of a majority of the shares of Class B Common Stock then outstanding, voting separately as a single class, amend, alter or repeal any provision of this Amended and Restated Certificate, whether by merger, consolidation or otherwise, if such amendment, alteration or repeal would alter or change the powers, preferences or relative, participating, optional or other or special rights of the Class B Common Stock. Any action required or permitted to be taken at any meeting of the holders of Class B Common Stock may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of the outstanding Class B Common Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of Class B Common Stock were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which minutes of proceedings of stockholders are recorded.
3
Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt written notice of the taking of corporate action without a meeting by less than unanimous written consent of the holders of Class B Common Stock shall, to the extent required by law, be given to those holders of Class B Common Stock who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders of Class B Common Stock to take the action were delivered to the Corporation.
(c) Dividends. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions of Article IX hereof, the holders of shares of Common Stock shall be entitled to receive such dividends and other distributions (payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends and distributions.
(d) Liquidation, Dissolution or Winding Up of the Corporation. Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions of Article IX hereof, in the event of any voluntary or involuntary liquidation, dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the Corporation, the holders of shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation available for distribution to its stockholders, ratably in proportion to the number of shares of Class A Common Stock (on an as converted basis with respect to the Class B Common Stock) held by them.
Section 4.4 Rights and Options. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options to be evidenced by or in instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
Article V
BOARD OF DIRECTORS
Section 5.1 Board Powers. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition to the powers and authority expressly conferred upon the Board by statute, this Amended and Restated Certificate or the Bylaws of the Corporation then in effect (the “Bylaws”), the Board is hereby empowered to exercise all such powers and do all such acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended and Restated Certificate, and any Bylaws adopted by the stockholders of the Corporation; provided, however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
Section 5.2 Number, Election and Term.
(a) The number of directors of the Corporation, other than those who may be elected by the holders of one or more series of the Preferred Stock voting separately by class or series, shall be fixed from time to time exclusively by the Board pursuant to a resolution adopted by a majority of the Board.
(b) Subject to Section 5.5 hereof, the Board shall be divided into three classes, as nearly equal in number as possible and designated Class I, Class II and Class III. The term of the initial Class I Directors shall expire at the first annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate; the term of the initial Class II Directors shall expire at the second annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate; and the term of the initial Class III Directors shall expire at the third annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate. At each succeeding annual meeting of the stockholders of the Corporation, beginning with the first annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate, each of the successors elected to the class of directors whose term expires at that annual meeting shall be elected for a three-year term or until the election and qualification of their respective successors in office, subject to their earlier death, resignation or removal. Subject to Section 5.5 hereof, if the number of directors that constitutes the Board is changed, any increase or decrease shall be apportioned by the Board among the classes so as to maintain the number of directors in each class as nearly equal as possible, but in no case shall a decrease in the number of directors constituting the Board shorten the term of any incumbent director. Subject to any contractual rights of stockholders, in accordance with the DGCL, or the rights of the holders of one or more series of Preferred Stock, voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. The Board is hereby expressly authorized, by resolution or resolutions thereof, to assign members of the Board already in office to the aforesaid classes at the time this Amended and Restated Certificate (and therefore such classification) becomes effective in accordance with the DGCL.
4
(c) Subject to Section 5.5 hereof, a director shall hold office until the annual meeting for the year in which his or her term expires and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
(d) Unless and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot. The holders of shares of Common Stock shall not have cumulative voting rights.
Section 5.3 Newly Created Directorships and Vacancies. Subject to Section 5.5 hereof and the contractual rights of any stockholder, in accordance with the DGCL, newly created directorships resulting from an increase in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office for the remainder of the full term of the class of directors to which the new directorship was added or in which the vacancy occurred and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation, retirement, disqualification or removal.
Section 5.4 Removal. Subject to Section 5.5 hereof and the contractual rights of any stockholder, in accordance with the DGCL, any or all of the directors may be removed from office at any time, but only for cause and only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 5.5 Preferred Stock - Directors. Notwithstanding any other provision of this Article V, and except as otherwise required by law, whenever the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships shall be governed by the terms of such series of the Preferred Stock as set forth in this Amended and Restated Certificate (including any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to this Article V unless expressly provided by such terms.
Article VI
BYLAWS
In furtherance and not in limitation of the powers conferred upon it by law, the Board shall have the power and is expressly authorized to adopt, amend, alter or repeal the Bylaws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the Bylaws. The Bylaws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by law or by this Amended and Restated Certificate (including any Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the Bylaws; and provided further, however, that no Bylaws hereafter adopted by the stockholders shall invalidate any prior act of the Board that would have been valid if such Bylaws had not been adopted.
5
Article VII
MEETINGS OF STOCKHOLDERS; ACTION BY WRITTEN CONSENT
Section 7.1 Special Meetings. Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, the Chief Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the ability of the stockholders of the Corporation to call a special meeting is hereby specifically denied. Except as provided in the foregoing sentence, special meetings of stockholders of the Corporation may not be called by another person or persons.
Section 7.2 Advance Notice. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.3 Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, subsequent to the consummation of the Offering, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders and may not be effected by written consent of the stockholders other than with respect to Class B Common Stock with respect to which action may be taken by written consent.
Article VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1 Limitation of Director Liability. A director of the Corporation shall not be personally liable to the Corporation or its stockholders for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation thereof is not permitted under the DGCL as the same exists or may hereafter be amended. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such amendment, modification or repeal.
Section 8.2 Indemnification and Advancement of Expenses.
(a) To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that the indemnitee is not entitled to be indemnified under this Section 8.2 or otherwise. The rights to indemnification and advancement of expenses conferred by this Section 8.2 shall be contract rights and such rights shall continue as to an indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators. Notwithstanding the foregoing provisions of this Section 8.2(a), except for proceedings to enforce rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
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(b) The rights to indemnification and advancement of expenses conferred on any indemnitee by this Section 8.2 shall not be exclusive of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws, an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any repeal or amendment of this Section 8.2 by the stockholders of the Corporation or by changes in law, or the adoption of any other provision of this Amended and Restated Certificate inconsistent with this Section 8.2, shall, unless otherwise required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to, any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This Section 8.2 shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law, to indemnify and to advance expenses to persons other than indemnitees.
Article IX
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
Section 9.1 General.
(a) The provisions of this Article IX shall apply during the period commencing upon the effectiveness of this Amended and Restated Certificate and terminating upon the consummation of the Corporation’s initial Business Combination and no amendment to this Article IX shall be effective prior to the consummation of the initial Business Combination unless approved by the affirmative vote of the holders of at least sixty-five percent (65%) of all then outstanding shares of the Common Stock.
(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, as initially filed with the Securities and Exchange Commission (the “SEC”) on October 23, 2020, as amended (the “Registration Statement”), shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest income (if any) to pay the Corporation’s taxes, if any, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation does not complete its initial Business Combination within 18 months from the closing of the Offering (or 24 months from the Closing of the Offering if an Extension Election (as defined in Section 9.8) is properly made), subject to applicable law, and (iii) the redemption of Offering Shares in connection with a stockholder vote to approve an amendment to this Amended and Restated Certificate that (A) would affect the substance or timing of the Corporation’s obligation to allow redemption in connection with the initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not completed an initial Business Combination within 18 months from the closing of the Offering (or 24 months from the Closing of the Offering if an Extension Election is properly made) or (B) with respect to stockholders’ rights or pre-initial Business Combination activity (as described in Section 9.7). Holders of shares of the Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are the Sponsor or officers or directors of the Corporation, or any affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
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Section 9.2 Redemption Rights.
(a) Prior to the consummation of the initial Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares redeemed upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, Sections 9.2(b) and 9.2(c) (such rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the “Redemption Rights”) hereof for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof (the “Redemption Price”); provided, however, that the Corporation shall not redeem Offering Shares to the extent that such redemption would result in the Corporation’s failure to have net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or any successor rule)) of at least $5,000,001 or any greater net tangible asset or cash requirement which may be contained in the agreement relating to the initial Business Combination (such limitation hereinafter called the “Redemption Limitation”). Notwithstanding anything to the contrary contained in this Amended and Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the Offering.
(b) If the Corporation offers to redeem the Offering Shares other than in conjunction with a stockholder vote on an initial Business Combination with a proxy solicitation pursuant to Regulation 14A of the Exchange Act (or any successor rules or regulations) and filing proxy materials with the SEC, the Corporation shall offer to redeem the Offering Shares upon the consummation of the initial Business Combination, subject to lawfully available funds therefor, in accordance with the provisions of Section 9.2(a) hereof, pursuant to a tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act (or any successor rule or regulation) (such rules and regulations hereinafter called the “Tender Offer Rules”) which it shall commence prior to the consummation of the initial Business Combination and shall file tender offer documents with the SEC prior to the consummation of the initial Business Combination that contain substantially the same financial and other information about the initial Business Combination and the Redemption Rights as is required under Regulation 14A of the Exchange Act (or any successor rule or regulation) (such rules and regulations hereinafter called the “Proxy Solicitation Rules”), even if such information is not required under the Tender Offer Rules; provided, however, that if a stockholder vote is required by law to approve the proposed initial Business Combination, or the Corporation decides to submit the proposed initial Business Combination to the stockholders for their approval for business or other legal reasons, the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds therefor, in accordance with the provisions of Section 9.2(a) hereof, in conjunction with a proxy solicitation pursuant to the Proxy Solicitation Rules (and not the Tender Offer Rules) at a price per share equal to the Redemption Price calculated in accordance with the following provisions of this Section 9.2(b). In the event that the Corporation offers to redeem the Offering Shares pursuant to a tender offer in accordance with the Tender Offer Rules, the Redemption Price per share of the Common Stock payable to holders of the Offering Shares tendering their Offering Shares pursuant to such tender offer shall be equal to the quotient obtained by dividing: (i) the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the completion of the initial Business Combination, including interest earned on the funds held in the Trust Account and not previously released to the Corporation to pay its taxes by (ii) the number of the then outstanding Offering Shares. If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on the proposed initial Business Combination pursuant to a proxy solicitation, the Redemption Price per share of the Common Stock payable to holders of the Offering Shares exercising their Redemption Rights shall be equal to the quotient obtained by dividing (a) the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the completion of the initial Business Combination, including interest earned on the funds held in the Trust Account and not previously released to the Corporation to pay its taxes by (b) the number of the then outstanding Offering Shares.
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(c) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination pursuant to a proxy solicitation, a Public Stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a “group” (as defined under Section 13(d)(3) of the Exchange Act), shall be restricted from seeking Redemption Rights with respect to more than an aggregate of 15% of the Offering Shares without the prior consent of the Corporation.
(d) In the event that the Corporation has not completed an initial Business Combination within 18 months from the closing of the Offering (or 24 months from the Closing of the Offering if an Extension Election is properly made), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but no more than ten business days thereafter subject to lawfully available funds therefor, redeem the Offering Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (which interest shall be net of taxes payable, and less up to $100,000 of interest to pay dissolution expenses), divided by the number of the then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, liquidate and dissolve, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and the requirements of other applicable law.
(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed initial Business Combination only if (i) such initial Business Combination is approved by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination and (ii) the Redemption Limitation is not exceeded.
(f) If the Corporation conducts a tender offer pursuant to Section 9.2(b), the Corporation shall consummate the proposed initial Business Combination only if the Redemption Limitation is not exceeded.
Section 9.3 Distributions from the Trust Account.
(a) A Public Stockholder shall be entitled to receive funds from the Trust Account only as provided in Sections 9.2(a), 9.2(b), 9.2(d) or 9.7 hereof. In no other circumstances shall a Public Stockholder have any right or interest of any kind in or to distributions from the Trust Account, and no stockholder other than a Public Stockholder shall have any interest in or to the Trust Account.
(b) Each Public Stockholder that does not exercise its Redemption Rights shall retain its interest in the Corporation and shall be deemed to have given its consent to the release of the remaining funds in the Trust Account to the Corporation, and following payment to any Public Stockholders exercising their Redemption Rights, the remaining funds in the Trust Account shall be released to the Corporation.
(c) The exercise by a Public Stockholder of the Redemption Rights shall be conditioned on such Public Stockholder following the specific procedures for redemptions set forth by the Corporation in any applicable tender offer or proxy materials sent to the Public Stockholders relating to the proposed initial Business Combination, including the requirement that any Public Stockholder that holds Offering Shares beneficially through a nominee must identify itself to the Corporation in connection with any redemption election in order to validly redeem such Offering Shares. Holders of Offering Shares seeking to exercise their Redemption Rights may be required to either tender their certificates (if any) to the Corporation’s transfer agent or to deliver their shares to the transfer agent electronically using The Depository Trust Company’s DWAC (Deposit/Withdrawal At Custodian) System, at the holder’s option, in each case up to two business days prior to the originally scheduled vote on the proposal to approve a Business Combination. Payment of the amounts necessary to satisfy the Redemption Rights properly exercised shall be made as promptly as practical after the consummation of the initial Business Combination.
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Section 9.4 Share Issuances. Prior to or in connection with the consummation of the Corporation’s initial Business Combination, the Corporation shall not issue any additional securities of the Corporation that would entitle the holders thereof to (i) receive funds from the Trust Account or (ii) vote on the Corporation’s initial Business Combination or any other proposal presented to the stockholders prior to or in connection with the completion of an initial Business Combination.
Section 9.5 Transactions with Affiliates. In the event the Corporation seeks to complete its initial Business Combination with a business combination target that is affiliated with the Sponsor, or the executive officers or directors of the Corporation, the Corporation, or a committee of independent directors of the Corporation, shall obtain an opinion from an independent investment banking firm which is a member of the Financial Industry Regulatory Authority or an independent accounting firm, that such initial Business Combination is fair to the Corporation from a financial point of view.
Section 9.6 No Transactions with Other Blank Check Companies. The Corporation shall not enter into an initial Business Combination with another blank check company or a similar company with nominal operations.
Section 9.7 Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to Section 9.2(d) that would affect the substance or timing of the Corporation’s obligation to allow redemption in connection with the Corporation’s initial Business Combination or to redeem 100% of the Offering Shares if the Corporation does not complete an initial Business Combination within 18 months from the closing of the Offering (or 24 months from the Closing of the Offering if an Extension Election is properly made) or with respect to any other provision relating to stockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Corporation to pay its taxes, divided by the number of the then outstanding Offering Shares; provided, however, that any such amendment will be voided, and this Article IX will remain unchanged, if any stockholders who wish to redeem are unable to redeem due to the Redemption Limitation.
Section 9.8 Extension. Notwithstanding any other provision in this Article IX, the Board may, if requested by the Sponsor and upon not less than five days’ advance notice prior to the 18-month anniversary of the closing of the Offering, extend the initial period of time to consummate a Business Combination one time, by an additional six months, subject to the Sponsor, its affiliates or designees depositing an additional $2,000,000 or up to $2,300,000 if the underwriters’ over-allotment option in the Offering is exercised in full (or $0.10 per unit sold in the Offering in either case) on or prior to the expiration of the initial 18-month deadline (an “Extension Election”).
Section 9.9 Appointment and Removal of Directors. Notwithstanding any other provision in this Amended and Restated Certificate, prior to the closing of the initial Business Combination, the holders of Class B Common Stock shall have the exclusive right to elect, remove and replace any director, and the holders of Class A Common Stock shall have no right to vote on the election, removal or replacement of any director. This Section 9.9 may only be amended by a resolution passed by holders of a majority of the shares of outstanding Class B Common Stock.
Section 9.10 Minimum Value of Target. The Corporation’s initial Business Combination must occur with one or more target businesses that together have an aggregate fair market value of at least 80% of the net assets held in the Trust Account (excluding the amount of deferred underwriting discounts held in trust and taxes payable on the interest earned on the Trust Account) at the time of the agreement to enter into the initial Business Combination.
Section 9.11 Approval of Business Combination. Notwithstanding any other provision in this Amended and Restated Certificate, approval of the initial Business Combination shall require the affirmative vote of a majority of the Board, which must include a majority of the Corporation’s independent directors.
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Article X
CORPORATE OPPORTUNITY
To the extent allowed by law, the doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to the Corporation or any of its officers or directors, or any of their respective affiliates, in circumstances where the application of any such doctrine would conflict with any fiduciary duties or contractual obligations they may have as of the date of this Amended and Restated Certificate or in the future, and the Corporation renounces any expectancy that any of the directors or officers of the Corporation will offer any such corporate opportunity of which he or she may become aware to the Corporation, except, the doctrine of corporate opportunity shall apply with respect to any of the directors or officers of the Corporation only with respect to a corporate opportunity that was offered to such person solely in his or her capacity as a director or officer of the Corporation and (i) such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise be reasonable for the Corporation to pursue and (ii) the director or officer is permitted to refer that opportunity to the Corporation without violating any legal obligation.
Article XI
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
The Corporation reserves the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Amended and Restated Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Amended and Restated Certificate and the DGCL; and, except as set forth in Article VIII, all rights, preferences and privileges of whatever nature herein conferred upon stockholders, directors or any other persons by and pursuant to this Amended and Restated Certificate in its present form or as hereafter amended are granted subject to the right reserved in this Article XI; provided, however, that Article IX of this Amended and Restated Certificate may be amended only as provided therein.
Article XII
EXCLUSIVE FORUM FOR CERTAIN LAWSUITS
Section 12.1 Forum. Unless the Corporation consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any stockholder (including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors, officers or employees arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the Bylaws, or (iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter jurisdiction. This exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act, the Securities Act of 1933, as amended (the “Securities Act”), or any other claim for which the federal courts have exclusive jurisdiction. Section 27 of the Exchange Act creates exclusive federal jurisdiction over all suits brought to enforce any duty or liability created by the Exchange Act or the rules and regulations thereunder and Section 22 of the Securities Act creates concurrent jurisdiction for federal and state courts over all suits brought to enforce any duty or liability created by the Securities Act or the rules and regulations thereunder. As a result, the exclusive forum provision will not apply to suits brought to enforce any duty or liability created by the Exchange Act, the Securities Act, or any other claim for which the federal courts have exclusive jurisdiction.
Section 12.2 Consent to Jurisdiction. If any action the subject matter of which is within the scope of Section 12.1 is filed in a court other than a court located within the State of Delaware (a “Foreign Action”) in the name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal courts located within the State of Delaware in connection with any action brought in any such court to enforce Section 12.1 (an “FSC Enforcement Action”) and (ii) having service of process made upon such stockholder in any such FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
Section 12.3 Severability. If any provision or provisions of this Article XII shall be held to be invalid, illegal or unenforceable as applied to any person or entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, the validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Article XII (including, without limitation, each portion of any sentence of this Article XII containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable) and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired thereby. Any person or entity purchasing or otherwise acquiring any interest in shares of capital stock of the Corporation shall be deemed to have notice of and consented to the provisions of this Article XII.
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IN WITNESS WHEREOF, Concord Acquisition Corp has caused this Amended and Restated Certificate to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.
CONCORD Acquisition Corp | ||
By: | /s/ Jeff Tuder | |
Name: Jeff Tuder | ||
Title: Chief Executive Officer |
[Signature Page to Amended and Restated Certificate of Incorporation]
Exhibit 3.4
BY LAWS
OF
CONCORD acquisition CORP (THE “CORPORATION”)
Article I
OFFICES
Section 1.1. Registered Office. The registered office of the Corporation within the State of Delaware shall be located at either (a) the principal place of business of the Corporation in the State of Delaware or (b) the office of the corporation or individual acting as the Corporation’s registered agent in Delaware.
Section 1.2. Additional Offices. The Corporation may, in addition to its registered office in the State of Delaware, have such other offices and places of business, both within and outside the State of Delaware, as the Board of Directors of the Corporation (the “Board”) may from time to time determine or as the business and affairs of the Corporation may require.
Article II
STOCKHOLDERS MEETINGS
Section 2.1. Annual Meetings. The annual meeting of stockholders shall be held at such place, either within or without the State of Delaware, and time and on such date as shall be determined by the Board and stated in the notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a). At each annual meeting, the stockholders shall elect those directors of the Corporation to fill any term of a directorship that expires on the date of such annual meeting and may transact any other business as may properly be brought before the meeting.
Section 2.2. Special Meetings. Subject to the rights of the holders of any outstanding series of the Preferred Stock, special meetings of stockholders, for any purpose or purposes, may be called only by the Chairman of the Board, the Chief Executive Officer, or the Board pursuant to a resolution adopted by a majority of the Board, and may not be called by any other person. Special meetings of stockholders shall be held at such place, either within or without the State of Delaware, and time and on such date as shall be determined by the Board and stated in the Corporation’s notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to Section 9.5(a).
Section 2.3. Notices. Written notice of each stockholders meeting stating the place, if any, date, and time of the meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, shall be given in the manner permitted by Section 9.3 to each stockholder entitled to vote thereat as of the record date for determining the stockholders entitled to notice of the meeting, by the Corporation not less than 10 nor more than 60 days before the date of the meeting unless otherwise required by the General Corporation Law of the State of Delaware (the “DGCL”). If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given may be postponed, and any meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public announcement (as defined in Section 2.7(c)) given before the date previously scheduled for such meeting.
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Section 2.4. Quorum. Except as otherwise provided by applicable law, the Corporation’s Certificate of Incorporation, as the same may be amended or restated from time to time (the “Certificate of Incorporation”) or these By Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital stock of the Corporation representing a majority of the voting power of all outstanding shares of capital stock of the Corporation entitled to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified business is to be voted on by a class or series of stock voting as a class, the holders of shares representing a majority of the voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction of such business. If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation, the chairman of the meeting may adjourn the meeting from time to time in the manner provided in Section 2.6 until a quorum shall attend. The stockholders present at a duly convened meeting may continue to transact business until adjournment, notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation or to another corporation, if a majority of the voting power of the shares entitled to vote in the election of directors of such other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any such other corporation to vote shares held by it in a fiduciary capacity.
Section 2.5. Voting of Shares.
(a) Voting Lists. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before every meeting of stockholders, a complete list of the stockholders of record entitled to vote at such meeting; provided, however, if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall reflect the stockholders entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order and showing the address and the number of shares registered in the name of each stockholder. Nothing contained in this Section 2.5(a) shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of the meeting during the whole time thereof, and may be examined by any stockholder who is present. If a meeting of stockholders is to be held solely by means of remote communication as permitted by Section 9.5(a), the list shall be open to the examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information required to access such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to who are the stockholders entitled to examine the list required by this Section 2.5(a) or to vote in person or by proxy at any meeting of stockholders.
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(b) Manner of Voting. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized by the Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by a ballot submitted by electronic transmission (as defined in Section 9.3), provided that any such electronic transmission must either set forth or be submitted with information from which the Corporation can determine that the electronic transmission was authorized by the stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders, in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c) Proxies. Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted or acted upon after three years from its date, unless the proxy provides for a longer period. Proxies need not be filed with the Secretary of the Corporation until the meeting is called to order, but shall be filed with the Secretary before being voted. Without limiting the manner in which a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute a valid means by which a stockholder may grant such authority.
(i) A stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be accomplished by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to, by facsimile signature.
(ii) A stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission, provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined that the electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire original writing or transmission.
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(d) Required Vote. Subject to the rights of the holders of one or more series of preferred stock of the Corporation (“Preferred Stock”), voting separately by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, at all meetings of stockholders at which a quorum is present, the election of directors shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon. All other matters presented to the stockholders at a meeting at which a quorum is present shall be determined by the vote of a majority of the votes cast by the stockholders present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by applicable law, the Certificate of Incorporation, these By Laws or applicable stock exchange rules, a different vote is required, in which case such provision shall govern and control the decision of such matter.
(e) Inspectors of Election. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or more persons as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities, to act at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may designate one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates are appointed by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector, before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality and according to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and the voting power of each; determine the number of shares present in person or represented by proxy at the meeting and the validity of proxies and ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the report of a majority shall be the report of the inspectors.
Section 2.6. Adjournments. Any meeting of stockholders, annual or special, may be adjourned, from time to time, whether or not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any such adjourned meeting if the date, time, and place, if any, thereof, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting at which the adjournment is taken. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled to vote separately as a class, as the case may be, may transact any business that might have been transacted at the original meeting. If the adjournment is for more than 30 days, notice of the adjourned meeting shall be given to each stockholder of record entitled to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance with Section 9.2, and shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the record date fixed for notice of such adjourned meeting.
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Section 2.7. Advance Notice for Business.
(a) Annual Meetings of Stockholders. No business (other than nominations of individual(s) for election to the Board) may be transacted at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s notice of meeting (or any supplement thereto), (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or (iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 2.7(a) and on the record date for the determination of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this Section 2.7(a). Notwithstanding anything in this Section 2.7(a) to the contrary, only persons nominated for election as a director to fill any term of a directorship that expires on the date of the annual meeting pursuant to Section 3.3 will be considered for election at such meeting.
(i) In addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation and such business must otherwise be a proper matter for stockholder action. Subject to Section 2.7(a)(iii), a stockholder’s notice to the Secretary with respect to such business, to be timely, must be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 70 days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 2.7(a).
(ii) To be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations) must set forth as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any resolutions proposed for consideration and in the event such business includes a proposal to amend these By Laws, the language of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B) the name and record address of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons (including their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the annual meeting to bring such business before the meeting.
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(iii) The foregoing notice requirements of this Section 2.7(a) shall be deemed satisfied by a stockholder as to any proposal (other than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and such stockholder has complied with the requirements of such Rule for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance with the procedures set forth in this Section 2.7(a), provided, however, that once business has been properly brought before the annual meeting in accordance with such procedures, nothing in this Section 2.7(a) shall be deemed to preclude discussion by any stockholder of any such business. If the Board or the chairman of the annual meeting determines that any stockholder proposal was not made in accordance with the provisions of this Section 2.7(a) or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 2.7(a), such proposal shall not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this Section 2.7(a), if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies in respect of such matter may have been received by the Corporation.
(iv) In addition to the provisions of this Section 2.7(a), a stockholder shall also comply with all applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 2.7(a) shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement pursuant to Rule 14a-8 under the Exchange Act.
(b) Special Meetings of Stockholders. Only such business shall be conducted at a special meeting of stockholders as shall have been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s notice of meeting only pursuant to Section 3.3.
(c) Public Announcement. For purposes of these By Laws, “public announcement” shall mean disclosure in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange Act (or any successor thereto).
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Section 2.8. Conduct of Meetings. The chairman of each annual and special meeting of stockholders shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence or inability or refusal to act of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the President or if the President is not a director, such other person as shall be appointed by the Board. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate. Except to the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman of any meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting. Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include, without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof; and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary or, in the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Section 2.9. Consents in Lieu of Meeting. Unless otherwise provided by the Certificate of Incorporation, until the corporation consummates an initial public offering (“Offering”), any action required to be taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
Every written consent shall bear the date of signature of each stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless, within 60 days of the earliest dated consent delivered in the manner required by this section and the DGCL to the Corporation, written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested.
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Article III
DIRECTORS
Section 3.1. Powers. The business and affairs of the Corporation shall be managed by or under the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are not by statute or by the Certificate of Incorporation or by these By Laws required to be exercised or done by the stockholders. Directors need not be stockholders or residents of the State of Delaware.
Section 3.2. Number and Election. The Board shall consist of not less than one nor more than fifteen members, the exact number of which shall initially be fixed at one member and thereafter from time to time by the Board. If the Board consists of three or more directors, the Board will be divided into three classes with only one class of directors being elected in each year and each class (except for those directors appointed prior to the first annual meeting of stockholders) serving a three-year term. In such a case, (i) the term of office of the first class of directors will expire at the first annual meeting of stockholders (ii) the term of office of the second class of directors will expire at the second annual meeting of stockholders and (iii) the term of office of the third class of directors will expire at the third annual meeting of stockholders.
Section 3.3. Advance Notice for Nomination of Directors.
(a) Only persons who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation (x) who is a stockholder of record on the date of the giving of the notice provided for in this Section 3.3 and on the record date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures set forth in this Section 3.3.
(b) In addition to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary must be delivered to the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting, not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting is more than 30 days before or more than 70 days after such anniversary date, notice by the stockholder to be timely must be so delivered not earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special meeting of stockholders called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public announcement of the date of the special meeting is first made by the Corporation. In no event shall the public announcement of an adjournment or postponement of an annual meeting or special meeting commence a new time period (or extend any time period) for the giving of a stockholder’s notice as described in this Section 3.3.
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(c) Notwithstanding anything in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased Board before the close of business on the 100th day prior to the anniversary date of the immediately preceding annual meeting of stockholders, a stockholder’s notice required by this Section 3.3 shall also be considered timely, but only with respect to nominees for the additional directorships created by such increase that are to be filled by election at such annual meeting, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close of business on the 10th day following the date on which such public announcement was first made by the Corporation.
(d) To be in proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation, if any, that are owned beneficially or of record by the person, (D) any other information relating to the person that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, without regard to the application of the Exchange Act to either the nomination or the Corporation; and (ii) as to the stockholder giving the notice (A) the name and record address of such stockholder as they appear on the Corporation’s books and the name and address of the beneficial owner, if any, on whose behalf the nomination is made, (B) the class or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder and the beneficial owner, if any, on whose behalf the nomination is made, (C) a description of all arrangements or understandings relating to the nomination to be made by such stockholder among such stockholder, the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any other person or persons (including their names), (D) a representation that such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E) any other information relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination is made that would be required to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
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(e) If the Board or the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions of this Section 3.3 or that the information provided in a stockholder’s notice does not satisfy the information requirements of this Section 3.3, then such nomination shall not be considered at the meeting in question. Notwithstanding the foregoing provisions of this Section 3.3, if the stockholder (or a qualified representative of the stockholder) does not appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded, notwithstanding that proxies in respect of such nomination may have been received by the Corporation.
(f) In addition to the provisions of this Section 3.3, a stockholder shall also comply with all of the applicable requirements of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this Section 3.3 shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
Section 3.4. Compensation. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, the Board shall have the authority to fix the compensation of directors, including for service on a committee of the Board. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board. No such payment shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of committees of the Board may be allowed like reimbursement of expenses for service on the committee.
Article IV
BOARD MEETINGS
Section 4.1. Annual Meetings. The Board shall meet as soon as practicable after the adjournment of each annual stockholders meeting at the place of the annual stockholders meeting unless the Board shall fix another time and place and give notice thereof in the manner required herein for special meetings of the Board. No notice to the directors shall be necessary to legally convene this meeting, except as provided in this Section 4.1.
Section 4.2. Regular Meetings. Regularly scheduled, periodic meetings of the Board may be held without notice at such times, dates and places (within or without the State of Delaware) as shall from time to time be determined by the Board.
Section 4.3. Special Meetings. Special meetings of the Board (a) may be called by the Chairman of the Board or President and (b) shall be called by the Chairman of the Board, President or Secretary on the written request of at least a majority of directors then in office, or the sole director, as the case may be, and shall be held at such time, date and place (within or without the State of Delaware) as may be determined by the person calling the meeting or, if called upon the request of directors or the sole director, as specified in such written request. Notice of each special meeting of the Board shall be given, as provided in Section 9.3, to each director (i) at least 24 hours before the meeting if such notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these By Laws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or waiver of notice of such meeting. A special meeting may be held at any time without notice if all directors are present or if those not present waive notice in accordance with Section 9.4.
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Section 4.4. Quorum; Required Vote. A majority of the Board shall constitute a quorum for the transaction of business at any meeting of the Board, and the act of a majority of the directors present at any meeting at which there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by applicable law, the Certificate of Incorporation or these By Laws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section 4.5. Consent In Lieu of Meeting. Unless otherwise restricted by the Certificate of Incorporation or these By Laws, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission, and the writing or writings or electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall be in electronic form if the minutes are maintained in electronic form.
Section 4.6. Organization. The chairman of each meeting of the Board shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act) of the Chief Executive Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or in the absence (or inability or refusal to act) of the President or if the President is not a director, a chairman elected from the directors present. The Secretary shall act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary, an Assistant Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Article V
COMMITTEES OF DIRECTORS
Section 5.1. Establishment. The Board may by resolution passed by a majority of the Board designate one or more committees, each committee to consist of one or more of the directors of the Corporation. Each committee shall keep regular minutes of its meetings and report the same to the Board when required by the resolution designating such committee. The Board shall have the power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
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Section 5.2. Available Powers. Any committee established pursuant to Section 5.1 hereof, to the extent permitted by applicable law and by resolution of the Board, shall have and may exercise all of the powers and authority of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to be affixed to all papers that may require it.
Section 5.3. Alternate Members. The Board may designate one or more directors as alternate members of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or not he, she or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of any such absent or disqualified member.
Section 5.4. Procedures. Unless the Board otherwise provides, the time, date, place, if any, and notice of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number of members of the committee (but not including any alternate member, unless such alternate member has replaced any absent or disqualified member at the time of, or in connection with, such meeting) shall constitute a quorum for the transaction of business. The act of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as otherwise specifically provided by applicable law, the Certificate of Incorporation, these By Laws or the Board. If a quorum is not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in these By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business pursuant to Article IV of these By Laws.
Article VI
OFFICERS
Section 6.1. Officers. The officers of the Corporation elected by the Board shall be a Chairman of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Secretary and such other officers (including without limitation, Vice Presidents, Assistant Secretaries and a Treasurer) as the Board from time to time may determine. Officers elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific provisions of this Article VI. Such officers shall also have such powers and duties as from time to time may be conferred by the Board. The Chief Executive Officer or President may also appoint such other officers (including without limitation one or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of the business of the Corporation. Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided in these By Laws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer or President, as may be prescribed by the appointing officer.
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(a) Chairman of the Board. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board. The Chairman of the Board shall have general supervision and control of the acquisition activities of the Corporation subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters. In the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties of the Chairman of the Board shall not include supervision or control of the preparation of the financial statements of the Corporation (other than through participation as a member of the Board). The position of Chairman of the Board and Chief Executive Officer may be held by the same person.
(b) Chief Executive Officer. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters, except to the extent any such powers and duties have been prescribed to the Chairman of the Board pursuant to Section 6.1(a) above. In the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The position of Chief Executive Officer and President may be held by the same person.
(c) President. The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the Chairman of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The President shall also perform such duties and have such powers as shall be designated by the Board. The position of President and Chief Executive Officer may be held by the same person.
(d) Vice Presidents. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there be more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e) Secretary.
(i) The Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the proceedings of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all meetings of the stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the Board, the Chairman of the Board, Chief Executive Officer or President. The Secretary shall have custody of the corporate seal of the Corporation and the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring it, and when so affixed, it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his or her signature.
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(ii) The Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date of certificates issued for the same and the number and date of certificates cancelled.
(f) Assistant Secretaries. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined by the Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of the Secretary.
(g) Chief Financial Officer. The Chief Financial Officer shall perform all duties commonly incident to that office (including, without limitation, the care and custody of the funds and securities of the Corporation, which from time to time may come into the Chief Financial Officer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as the Board, the Chief Executive Officer or the President may authorize).
(h) Treasurer. The Treasurer shall, in the absence (or inability or refusal to act) of the Chief Financial Officer, perform the duties and exercise the powers of the Chief Financial Officer.
Section 6.2. Term of Office; Removal; Vacancies. The elected officers of the Corporation shall hold office until their successors are duly elected and qualified or until their earlier death, resignation, retirement, disqualification, or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by the Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President, as the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be filled by the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by the Chief Executive Officer or President, as the case may be, unless the Board then determines that such office shall thereupon be elected by the Board, in which case the Board shall elect such officer.
Section 6.3. Other Officers. The Board may delegate the power to appoint such other officers and agents, and may also remove such officers and agents or delegate the power to remove the same, as it shall from time to time deem necessary or desirable.
Section 6.4. Multiple Officeholders; Stockholder and Director Officers. Any number of offices may be held by the same person unless the Certificate of Incorporation or these By Laws otherwise provide. Officers need not be stockholders or residents of the State of Delaware.
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Article VII
SHARES
Section 7.1. Certificated and Uncertificated Shares. The shares of the Corporation may be certificated or uncertificated, subject to the sole discretion of the Board and the requirements of the DGCL.
Section 7.2. Multiple Classes of Stock. If the Corporation shall be authorized to issue more than one class of stock or more than one series of any class, the Corporation shall (a) cause the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences and/or rights to be set forth in full or summarized on the face or back of any certificate that the Corporation issues to represent shares of such class or series of stock or (b) in the case of uncertificated shares, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof a written notice containing the information required to be set forth on certificates as specified in clause (a) above; provided, however, that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face or back of such certificate or, in the case of uncertificated shares, on such written notice a statement that the Corporation will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions of such preferences or rights.
Section 7.3. Signatures. Each certificate representing capital stock of the Corporation shall be signed by or in the name of the Corporation by (a) the Chairman of the Board, the Chief Executive Officer, the President or a Vice President and (b) the Chief Financial Officer, Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as if such person were such officer, transfer agent or registrar on the date of issue.
Section 7.4. Consideration and Payment for Shares.
(a) Subject to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case of shares with par value a value not less than the par value thereof, and to such persons, as determined from time to time by the Board. The consideration may consist of cash, tangible or intangible property or any benefit to the Corporation or any combination thereof.
(b) Subject to applicable law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon the books and records of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate representing certificated shares or said uncertificated shares are issued.
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Section 7.5. Lost, Destroyed or Wrongfully Taken Certificates.
(a) If an owner of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by the Corporation.
(b) If a certificate representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated form.
Section 7.6. Transfer of Stock.
(a) If a certificate representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares, the Corporation shall register the transfer as requested if:
(i) in the case of certificated shares, the certificate representing such shares has been surrendered;
(ii) (A) with respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares; (B) with respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C) with respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate person or by an agent who has actual authority to act on behalf of the appropriate person;
(iii) the Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable assurance that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the transfer does not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with Section 7.8(a); and
(v) such other conditions for such transfer as shall be provided for under applicable law have been satisfied.
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(b) Whenever any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so record such fact in the entry of transfer if, when the certificate for such shares is presented to the Corporation for transfer or, if such shares are uncertificated, when the instruction for registration of transfer thereof is presented to the Corporation, both the transferor and transferee request the Corporation to do so.
Section 7.7. Registered Stockholders. Before due presentment for registration of transfer of a certificate representing shares of the Corporation or of an instruction requesting registration of transfer of uncertificated shares, the Corporation may treat the registered owner as the person exclusively entitled to inspect for any proper purpose the stock ledger and the other books and records of the Corporation, vote such shares, receive dividends or notifications with respect to such shares and otherwise exercise all the rights and powers of the owner of such shares, except that a person who is the beneficial owner of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon providing documentary evidence of beneficial ownership of such shares and satisfying such other conditions as are provided under applicable law, may also so inspect the books and records of the Corporation.
Section 7.8. Effect of the Corporation’s Restriction on Transfer.
(a) A written restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing such shares or, in the case of uncertificated shares, contained in a notice sent pursuant to Section 7.2, may be enforced against the holder of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian or other fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A restriction imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or (ii) the shares are uncertificated and such restriction was contained in a notice sent pursuant to Section 7.2.
Section 7.9. Regulations. The Board shall have power and authority to make such additional rules and regulations, subject to any applicable requirement of law, as the Board may deem necessary and appropriate with respect to the issue, transfer or registration of transfer of shares of stock or certificates representing shares. The Board may appoint one or more transfer agents or registrars and may require for the validity thereof that certificates representing shares bear the signature of any transfer agent or registrar so appointed.
Article VIII
INDEMNIFICATION
Section 8.1. Right to Indemnification. To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify, defend and hold harmless each person who was or is made a party or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (hereinafter a “proceeding”), by reason of the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter an “Indemnitee”), whether the basis of such proceeding is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding; provided, however, that, except as provided in Section 8.3 with respect to proceedings to enforce rights to indemnification, the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only if such proceeding (or part thereof) was authorized by the Board.
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Section 8.2. Right to Advancement of Expenses. In addition to the right to indemnification conferred in Section 8.1, an Indemnitee shall also have the right to be paid by the Corporation to the fullest extent not prohibited by applicable law the expenses (including, without limitation, attorneys’ fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition (hereinafter an “advancement of expenses”); provided, however, that, if the DGCL requires, an advancement of expenses incurred by an Indemnitee in his or her capacity as a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such Indemnitee, including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt of an undertaking (hereinafter an “undertaking”), by or on behalf of such Indemnitee, to repay all amounts so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this Article VIII or otherwise.
Section 8.3. Right of Indemnitee to Bring Suit. If a claim under Section 8.1 or Section 8.2 is not paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation, except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a) any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such expenses upon a final judicial decision from which there is no further right to appeal that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement of expenses, under this Article VIII or otherwise shall be on the Corporation.
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Section 8.4. Non-Exclusivity of Rights. The rights provided to any Indemnitee pursuant to this Article VIII shall not be exclusive of any other right, which such Indemnitee may have or hereafter acquire under applicable law, the Certificate of Incorporation, these By Laws, an agreement, a vote of stockholders or disinterested directors, or otherwise.
Section 8.5. Insurance. The Corporation may maintain insurance, at its expense, to protect itself and/or any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such person against such expense, liability or loss under the DGCL.
Section 8.6. Indemnification of Other Persons. This Article VIII shall not limit the right of the Corporation to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to the extent authorized from time to time by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation and to any other person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit plan, to the fullest extent of the provisions of this Article VIII with respect to the indemnification and advancement of expenses of Indemnitees under this Article VIII.
Section 8.7. Amendments. Any repeal or amendment of this Article VIII by the Board or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other provision of these By Laws inconsistent with this Article VIII, will, to the extent permitted by applicable law, be prospective only (except to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification rights to Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision; provided however, that amendments or repeals of this Article VIII shall require the affirmative vote of the stockholders holding at least 65% of the voting power of all outstanding shares of capital stock of the Corporation.
Section 8.8. Certain Definitions. For purposes of this Article VIII, (a) references to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request of the Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interest of the Corporation” for purposes of Section 145 of the DGCL.
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Section 8.9. Contract Rights. The rights provided to Indemnitees pursuant to this Article VIII shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent or employee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section 8.10. Severability. If any provision or provisions of this Article VIII 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 Article VIII shall not in any way be affected or impaired thereby; and (b) to the fullest extent possible, the provisions of this Article VIII (including, without limitation, each such portion of this Article VIII containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the intent manifested by the provision held invalid, illegal or unenforceable.
Article IX
MISCELLANEOUS
Section 9.1. Place of Meetings. If the place of any meeting of stockholders, the Board or committee of the Board for which notice is required under these By Laws is not designated in the notice of such meeting, such meeting shall be held at the principal business office of the Corporation; provided, however, if the Board has, in its sole discretion, determined that a meeting shall not be held at any place, but instead shall be held by means of remote communication pursuant to Section 9.5 hereof, then such meeting shall not be held at any place.
Section 9.2. Fixing Record Dates.
(a) In order that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof, the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled to notice of and to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting, and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this Section 9.2(a) at the adjourned meeting.
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(b) In order that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action. If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business on the day on which the Board adopts the resolution relating thereto.
Section 9.3. Means of Giving Notice.
(a) Notice to Directors. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
(b) Notice to Stockholders. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to be given to any stockholder, such notice may be given (i) in writing and sent either by hand delivery, through the United States mail, or by a nationally recognized overnight delivery service for next day delivery, or (ii) by means of a form of electronic transmission consented to by the stockholder, to the extent permitted by, and subject to the conditions set forth in Section 232 of the DGCL. A notice to a stockholder shall be deemed given as follows: (i) if given by hand delivery, when actually received by the stockholder, (ii) if sent through the United States mail, when deposited in the United States mail, with postage and fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited with such service, with fees thereon prepaid, addressed to the stockholder at the stockholder’s address appearing on the stock ledger of the Corporation, and (iv) if given by a form of electronic transmission consented to by the stockholder to whom the notice is given and otherwise meeting the requirements set forth above, (A) if by facsimile transmission, when directed to a number at which the stockholder has consented to receive notice, (B) if by electronic mail, when directed to an electronic mail address at which the stockholder has consented to receive notice, (C) if by a posting on an electronic network together with separate notice to the stockholder of such specified posting, upon the later of (1) such posting and (2) the giving of such separate notice, and (D) if by any other form of electronic transmission, when directed to the stockholder. A stockholder may revoke such stockholder’s consent to receiving notice by means of electronic communication by giving written notice of such revocation to the Corporation. Any such consent shall be deemed revoked if (1) the Corporation is unable to deliver by electronic transmission two consecutive notices given by the Corporation in accordance with such consent and (2) such inability becomes known to the Secretary or an Assistant Secretary or to the Corporation’s transfer agent, or other person responsible for the giving of notice; provided, however, the inadvertent failure to treat such inability as a revocation shall not invalidate any meeting or other action.
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(c) Electronic Transmission. “Electronic transmission” means any form of communication, not directly involving the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof, and that may be directly reproduced in paper form by such a recipient through an automated process.
(d) Notice to Stockholders Sharing Same Address. Without limiting the manner by which notice otherwise may be given effectively by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate of Incorporation or these By Laws shall be effective if given by a single written notice to stockholders who share an address if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written notice shall be deemed to have consented to receiving such single written notice.
(e) Exceptions to Notice Requirements. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or these By Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with whom communication is unlawful.
Whenever notice is required to be given by the Corporation, under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to any stockholder to whom (1) notice of two consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all, and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address, the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that notice was not given to persons to whom notice was not required to be given pursuant to Section 230 (b) of the DGCL. The exception in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any notice returned as undeliverable if the notice was given by electronic transmission.
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Section 9.4. Waiver of Notice. Whenever any notice is required to be given under applicable law, the Certificate of Incorporation, or these By Laws, a written waiver of such notice, signed by the person or persons entitled to said notice, or a waiver by electronic transmission by the person entitled to said notice, whether before or after the time stated therein, shall be deemed equivalent to such required notice. All such waivers shall be kept with the books of the Corporation. Attendance at a meeting shall constitute a waiver of notice of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
Section 9.5. Meeting Attendance via Remote Communication Equipment.
(a) Stockholder Meetings. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate in a meeting of stockholders; and
(ii) be deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely by means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b) Board Meetings. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Such participation in a meeting shall constitute presence in person at the meeting, except where a person participates in the meeting for the express purpose of objecting to the transaction of any business on the ground that the meeting was not lawfully called or convened.
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Section 9.6. Dividends. The Board may from time to time declare, and the Corporation may pay, dividends (payable in cash, property or shares of the Corporation’s capital stock) on the Corporation’s outstanding shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section 9.7. Reserves. The Board may set apart out of the funds of the Corporation available for dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
Section 9.8. Contracts and Negotiable Instruments. Except as otherwise provided by applicable law, the Certificate of Incorporation or these By Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed and delivered in the name and on behalf of the Corporation by such officer or officers or other employee or employees of the Corporation as the Board may from time to time authorize. Such authority may be general or confined to specific instances as the Board may determine. The Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board, Chief Executive Officer, President, the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers or employees of the Corporation under such person’s supervision and authority, it being understood, however, that any such delegation of power shall not relieve such officer of responsibility with respect to the exercise of such delegated power.
Section 9.9. Fiscal Year. The fiscal year of the Corporation shall be fixed by the Board.
Section 9.10. Seal. The Board may adopt a corporate seal, which shall be in such form as the Board determines. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section 9.11. Books and Records. The books and records of the Corporation may be kept within or outside the State of Delaware at such place or places as may from time to time be designated by the Board.
Section 9.12. Resignation. Any director, committee member or officer may resign by giving notice thereof in writing or by electronic transmission to the Chairman of the Board, the Chief Executive Officer, the President or the Secretary. The resignation shall take effect at the time it is delivered unless the resignation specifies a later effective date or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective.
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Section 9.13. Surety Bonds. Such officers, employees and agents of the Corporation (if any) as the Chairman of the Board, Chief Executive Officer, President or the Board may direct, from time to time, shall be bonded for the faithful performance of their duties and for the restoration to the Corporation, in case of their death, resignation, retirement, disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession or under their control belonging to the Corporation, in such amounts and by such surety companies as the Chairman of the Board, Chief Executive Officer, President or the Board may determine. The premiums on such bonds shall be paid by the Corporation and the bonds so furnished shall be in the custody of the Secretary.
Section 9.14. Securities of Other Corporations. Powers of attorney, proxies, waivers of notice of meeting, consents in writing and other instruments relating to securities owned by the Corporation may be executed in the name of and on behalf of the Corporation by the Chairman of the Board, Chief Executive Officer, President, or any officers authorized by the Board. Any such officer, may, in the name of and on behalf of the Corporation, take all such action as any such officer may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation, and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power incident to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board may from time to time confer like powers upon any other person or persons.
Section 9.15. Amendments. The Board shall have the power to adopt, amend, alter or repeal the By Laws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the By Laws. The By Laws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of the holders of any class or series of capital stock of the Corporation required by applicable law or the Certificate of Incorporation, the affirmative vote of the holders of at least a majority of the voting (except as otherwise provided in Section 8.7) power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the By Laws.
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Exhibit 4.3
WARRANT AGREEMENT
THIS WARRANT AGREEMENT (this “Agreement”), dated as of December 7, 2020, is by and between Concord Acquisition Corp, a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company, as warrant agent (the “Warrant Agent” and, in its capacity as transfer agent, referred to herein as the “Transfer Agent”).
WHEREAS, on December 7, 2020, the Company entered into separate agreements with Concord Sponsor Group LLC, a Delaware limited liability company (the “Sponsor”), and CA Co-Investment LLC, a Delaware limited liability company (“Cowen Investments” and collectively with the Sponsor, the “Sponsors”), pursuant to which the Sponsors agreed to purchase an aggregate of 680,000 units (or 752,000 units if the Over-allotment Option (as defined below) in connection with the Company’s Offering (as defined below) is exercised in full) (the “Private Placement Units”), each Private Placement Unit comprised of one share of the Company’s Common Stock (as defined below) and one-half of one redeemable warrant (each whole warrant, a “Private Placement Warrant”), bearing the legend set forth in Exhibit B hereto, in a private placement transaction to occur simultaneously with the closing of the Offering (and the closing of the Over-allotment Option, if applicable). Each Private Placement Warrant entitles the holder thereof to purchase one share of Common Stock (as defined below) at a price of $11.50 per share, subject to adjustment as described herein;
WHEREAS, in order to finance the Company’s transaction costs in connection with an intended initial merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination, involving the Company and one or more businesses (a “Business Combination”), the Sponsors or an affiliate of the Sponsors 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 made to the Company may be convertible into units at a price of $10.00 per unit (the “Working Capital Units”), each Working Capital Unit comprised of one share of the Company’s Common Stock and one-half of one redeemable warrant (the “Working Capital Warrants”);
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 share of Class A common stock of the Company, par value $0.0001 per share (“Common Stock”), and one-half of one redeemable Public Warrant (as defined below) (the “Public Units” and together with the Private Placement Units and the Working Capital Units, the “Units”) and, in connection therewith, has determined to issue and deliver 12,000,000 warrants (or up to 13,800,000 warrants if the Over-allotment Option is exercised in full) to public investors in the Offering (the “Public Warrants” and, together with the Private Placement Warrants and the Working Capital Warrants, the “Warrants”). Each whole Warrant entitles the holder thereof to purchase one share of Common Stock 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;
WHEREAS, the Company has filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1 (File No. 333-249654) and a prospectus (the “Prospectus”), for the registration under the Securities Act of 1933, as amended (the “Securities Act”), of the Public Units and the Public Warrants and the Common Stock included in the Public Units;
WHEREAS, the Company desires the Warrant Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants;
WHEREAS, the Company desires to provide for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights, limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf of the Warrant Agent (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.
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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 Warrant certificate 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 President, the Chief Executive Officer, the Chief Financial Officer, the 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 (notwithstanding any notation of ownership or other writing on any physical certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.4 Detachability of Warrants. The Common Stock and Public Warrants comprising the Public 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 Cowen and Company, LLC, as representative of the several underwriters, but in no event shall the Common Stock and the Public Warrants comprising the Public 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 received by the Company from the exercise by the underwriters of their right to purchase additional Public 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.
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2.5 No Fractional Warrants Other Than as Part of Units. The Company shall not issue fractional Warrants other than as part of the Units, each of which is comprised of one share of Common Stock and one-half of one Warrant. If, upon the detachment of 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; Working Capital Warrants. The Private Placement Warrants and the Working Capital Warrants shall be identical to the Public Warrants, except that so long as they are held by any of the Sponsors or their Permitted Transferees (as defined below) the Private Placement Warrants and the Working Capital Warrants: (i) may be exercised for cash or on a “cashless basis,” pursuant to subsection 3.3.1(c) hereof, (ii) with respect to Private Placement Warrants held by Cowen Investments, will not be exercisable more than five years from the commencement of sales of the Offering in accordance with FINRA Rule 5110(g)(8)(A), (iii) including the shares of Common Stock issuable upon exercise of the Private Placement Warrants or the Working Capital Warrants, may not be transferred, assigned or sold until the date that is thirty (30) days after the completion by the Company of an initial Business Combination, and (iv) shall not be redeemable by the Company; provided, however, that in the case of clause (iii), the Private Placement Warrants, the Working Capital Warrants and any shares of Common Stock held by any of the Sponsors or their Permitted Transferees that are issued upon exercise of the Private Placement Warrants or Working Capital 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 affiliate of the Sponsors or any employees of such affiliates, or to any member(s) of the Sponsors or any affiliates of such members;
(b) in the case of an individual, by gift to a member of such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, or an affiliate of such individual or to a charitable organization;
(c) in the case of an individual, by virtue of the laws of descent and distribution upon death of such 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 an initial Business Combination at prices no greater than the price at which the securities were originally purchased;
(f) in the event of the Company’s liquidation prior to consummation of the Company’s initial Business Combination;
(g) by virtue of the laws of the State of Delaware or either of the Sponsors’ limited liability company agreement upon dissolution of such Sponsor;
(h) as distributions to direct or indirect members of the Sponsors;
(i) to the Company for no value for cancellation in connection with the completion of its initial Business Combination; or
(j) in the event of the Company’s liquidation, merger, capital stock exchange, reorganization or other similar transaction which results in all of the Company’s stockholders having the right to exchange their shares of Common Stock for cash, securities or other property subsequent to the Company’s completion of its initial Business Combination;
provided, however, that, in each case (except for clauses (f), (i) or (j) or with the prior written consent of the Company) prior to such registration for transfer, the Warrant Agent shall be presented with written documentation pursuant to which any such transferee (the “Permitted Transferees”) must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement.
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3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each 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 shares of Common Stock 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) at which shares of Common Stock may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price (including by allowing “cashless exercise”) at any time prior to the Expiration Date (as defined below) for a period of not less than twenty (20) Business Days, provided, that the Company shall provide at least three (3) Business 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 5:00 p.m., New York City time on the earliest to occur of (x) 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 certificate of incorporation, as amended from time to time; provided, however, that the Private Placement Warrants issued to Cowen Investments will not be exercisable more than five years from the commencement of sales of the Offering in accordance with FINRA Rule 5110(g)(8)(A), or (z) other than with respect to the Private Placement Warrants and Working Capital Warrants to the extent then held by the Sponsors or their Permitted Transferees, 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 or a Working Capital Warrant then held by any of the Sponsors or their Permitted Transferees) in the event of a redemption (as set forth in Section 6 hereof), each Warrant (other than a Private Placement Warrant or a Working Capital Warrant then held by any of the Sponsors or their Permitted Transferees in the event of a redemption) not exercised on or before the Expiration Date shall become null and 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 share of Common Stock 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 share of Common Stock as to which the Warrant is exercised and any and all applicable taxes due in connection with the exercise of the Warrant, the exchange of the Warrant for the shares of Common Stock and the issuance of such shares of Common Stock, as follows:
(a) in lawful money of the United States, in good certified check or wire payable to the Warrant Agent;
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(b) in the event of a redemption pursuant to Section 6.1 hereof in which the Company’s board of directors (the “Board”) has elected to require all holders of the Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of shares of Common Stock equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the excess of the “Fair Market Value” (as defined in this subsection 3.3.1(b)) over the Warrant Price by (y) the Fair Market Value and (B) 0.361. Solely for purposes of this subsection 3.3.1(b), Section 6.2 and Section 6.4, the “Fair Market Value” shall mean the average last reported sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which the notice of redemption is sent to the holders of the Warrants, pursuant to Section 6 hereof;
(c) with respect to any Private Placement Warrant or Working Capital Warrant, so long as such Private Placement Warrant or Working Capital Warrant is held by any of the Sponsors or their Permitted Transferees, by surrendering the Warrants for that number of shares of Common Stock equal (i) if in connection with a redemption of Private Placement Warrants or Working Capital Warrants pursuant to Section 6.2 hereof, as provided in Section 6.2 hereof with respect to a Make-Whole Exercise (as defined below) and (ii) in all other scenarios, to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the excess of the “Sponsor Exercise Fair Market Value”, as defined in this subsection 3.3.1(c), over the Warrant Price by (y) the Sponsor Exercise Fair Market Value. Solely for purposes of this subsection 3.3.1(c), the “Sponsor Exercise Fair Market Value” shall mean the average last reported sale price of the Common Stock for the ten (10) trading days ending on the third trading day prior to the date on which notice of exercise of the Private Placement Warrant or Working Capital Warrant is sent to the Warrant Agent;
(d) on a cashless basis, as provided in Section 6.2 hereof with respect to a Make-Whole Exercise; or
(e) on a cashless basis, as provided in Section 7.4 hereof.
3.3.2 Issuance of Shares of Common Stock upon 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 full shares of Common Stock to which he, she or it is entitled, registered in such name or names as may be directed by him, her or it, and if such Warrant shall not have been exercised in full, a new book-entry position or countersigned Warrant, as applicable, for the number of shares of Common Stock as to which such Warrant shall not have been exercised. Notwithstanding the foregoing, the Company shall not be obligated to deliver any shares of Common Stock pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless (a) a registration statement under the Securities Act with respect to the shares of Common Stock underlying the Public Warrants is then effective and (b) a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4 or a valid exemption from registration being available. No Warrant shall be exercisable and the Company shall not be obligated to issue shares of Common Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant exercise has 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 Public Warrants may exercise its Public Warrants only for a whole number of shares of Common Stock. 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 a share of Common Stock, the Company shall round down to the nearest whole number, the number of shares of Common Stock to be issued to such holder.
3.3.3 Valid Issuance. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be validly issued, fully paid and non-assessable.
3.3.4 Date of Issuance. Each person in whose name any book-entry position or certificate, as applicable, for shares of Common Stock is issued shall for all purposes be deemed to have become the holder of record of such shares of Common Stock 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 share transfer books 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 of Common Stock at the close of business on the next succeeding date on which the share transfer books or book-entry system are open.
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3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event he, she or 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% (or such other amount as a holder may specify) (the “Maximum Percentage”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and his, her or its affiliates or any such other person or group shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining, unexercised portion of the Warrant beneficially owned by such person and his, her or 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 his, her or its affiliates (including, without limitation, any convertible notes or convertible preferred stock 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 shares of Common Stock, the holder may rely on the number of outstanding shares of Common Stock 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 the Transfer Agent setting forth the number of shares of Common Stock 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 shares of Common Stock then outstanding. In any case, the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity securities of the Company by the holder and his, her or its affiliates since the date as of which such number of outstanding shares of Common Stock 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 Stock Dividends.
4.1.1 Split-Ups. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of outstanding shares of Common Stock is increased by a stock capitalization or stock dividend payable in shares of Common Stock, or by a split-up of shares of Common Stock or other similar event, then, on the effective date of such stock capitalization or stock dividend, split-up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be increased in proportion to such increase in the outstanding shares of Common Stock. A rights offering to holders of the Common Stock entitling holders to purchase shares of Common Stock at a price less than the “Historical Fair Market Value” (as defined below) shall be deemed a stock dividend of a number of shares of Common Stock equal to the product of (i) the number of shares of Common Stock actually sold in such rights offering (or issuable under any other equity securities sold in such rights offering that are convertible into or exercisable for the Common Stock) and (ii) one (1) minus the quotient of (x) the price per share of Common Stock 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 Common Stock, in determining the price payable for Common Stock, 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 Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the first date on which the shares of Common Stock trade on the applicable exchange or in the applicable market, regular way, without the right to receive such rights. No shares of Common Stock shall be issued at less than their par value.
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4.1.2 Extraordinary Dividends. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution in cash, securities or other assets to all or substantially all of the holders of the Common Stock on account of such shares of Common Stock (or other shares of the Company’s capital stock into which the Warrants are convertible), other than (a) as described in subsection 4.1.1 above, (b) Ordinary Cash Dividends (as defined below), (c) to satisfy the redemption rights of the holders of the Common Stock in connection with a proposed initial Business Combination, (d) to satisfy the redemption rights of the holders of Common Stock in connection with a stockholder vote to amend the Company’s amended and restated certificate of incorporation to (i) modify the substance or timing of the Company’s obligation to allow redemption in connection with the Company’s initial Business Combination or to redeem 100% of the shares of Common Stock included in the Units sold in the Offering if the Company does not complete its initial Business Combination within the time period set forth in the Company’s amended and restated certificate of incorporation, as amended from time to time or (ii) with respect to any other provision relating to stockholders’ rights or pre-initial Business Combination activity or (e) in connection with the redemption of the shares of Common Stock included in the Units sold in the Offering 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 Board in good faith) of any securities or other assets paid on each share of Common Stock 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 Common Stock during the 365-day period ending on the date of declaration of such dividend or distribution (as adjusted to appropriately reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant) does not exceed $0.50 (being 5% of the offering price of the Units in the Offering).
4.2 Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination, reverse stock split or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.
4.3 Adjustments in Exercise Price.
4.3.1 Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the number of shares of Common Stock so purchasable immediately thereafter.
4.3.2 If (x) the Company issues additional shares of Common Stock or securities convertible into or exercisable or exchangeable for shares of Common Stock 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 share of Common Stock, 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 Sponsors or their affiliates, without taking into account any shares of Class B common stock of the Company, par value $0.0001 per share (the “Class B common stock”), held by the Sponsors or their 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 an initial Business Combination on the date of the consummation of such initial Business Combination (net of redemptions), and (z) the volume weighted average trading price of the Common Stock during the twenty (20) trading day period starting on the trading day prior to the day on which the Company consummates an initial Business Combination (such price, the “Market Value”) is below $9.20 per share, the Warrant Price will be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the Newly Issued Price, and the $18.00 per share redemption trigger prices (as described in Section 6.1) will be adjusted (to the nearest cent) to be equal to 180% of the higher of the Market Value and the Newly Issued Price.
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4.4 Replacement of Securities upon Reorganization, etc. In case of any reclassification or reorganization of the outstanding shares of Common Stock (other than a change under Section 4.1 or Section 4.2 hereof or that solely affects the par value of such shares of Common Stock), or in the case of any merger or consolidation of the Company with or into another entity or conversion of the Company as another entity (other than a consolidation or merger in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding shares of Common Stock), or 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 shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the rights represented thereby, the kind and amount of shares of 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 Common Stock 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 Common Stock 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 Common Stock (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by stockholders of the Company as provided for in the Company’s amended and restated certificate of incorporation or as a result of the repurchase of shares of Common Stock by the Company if a proposed initial Business Combination is presented to the stockholders 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 (or any successor rule)) 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 (or any successor rule)) 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 (or any successor rule)) more than 50% of the outstanding shares of Common Stock, 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 stockholder 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 Common Stock 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 Common Stock in the applicable event is payable in the form of common stock 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) (but in no event less than zero) 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) 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 (“Bloomberg”). For purposes of calculating such amount, (1) Section 6 of this Agreement shall be taken into account, (2) the price of each share of Common Stock shall be the volume weighted average price of the Common Stock as reported during the ten (10) trading day period ending on the trading day prior to the effective date of the applicable event, (3) 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 (4) 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 Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the volume weighted average price of the Common Stock as reported 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 shares of Common Stock 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 will the Warrant Price be reduced to less than the par value per share issuable upon exercise of the Warrant.
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4.5 Notices of Changes in Warrant. Upon every adjustment of the Warrant Price or the number of shares of Common Stock 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 of Common Stock purchasable at such price upon the exercise of a Warrant, setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence of any event specified in Sections 4.1, 4.2, 4.3 or 4.4, 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.
4.6 No Fractional Shares. Notwithstanding any provision contained in this Agreement to the contrary, the Company shall not issue fractional shares of Common Stock 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 shares of Common Stock to be issued to such holder.
4.7 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 of Common Stock 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.
4.8 Other Events. In case any event shall occur affecting the Company as to which none of the provisions of the preceding subsections of this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company shall appoint a firm of independent registered public accountants, investment banking or other appraisal firm of recognized national standing, which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment; provided, however, that under no circumstances shall the Warrants be adjusted pursuant to this Section 4.8 as a result of any issuance of securities in connection with a Business Combination. The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
4.9 No Adjustment. For the avoidance of doubt, no adjustment shall be made to the terms of the Warrants solely as a result of an adjustment to the conversion ratio of the Class B common stock into shares of Common Stock or the conversion of the shares of Class B common stock into shares of Common Stock, in each case, pursuant to the Company’s amended and restated certificate of incorporation, as further amended from time to time.
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, in the case of certificated Warrants, 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.
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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 When the Price per Share of Common Stock Equals or Exceeds $18.00. Subject to Sections 6.5 and 6.6 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 (as defined below) 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 shares of Common Stock 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) or the Company has elected to require the exercise of the Warrants on a “cashless basis” pursuant to subsection 3.3.1.
6.2 Redemption of Warrants When the Price per Share of Common Stock Equals or Exceeds $10.00. Subject to Sections 6.5 and 6.6 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 (a) the Reference Value equals or exceeds $10.00 per share (subject to adjustment in compliance with Section 4 hereof) and (b) there is an effective registration statement covering the issuance of the shares of Common Stock 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). 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 shares of Common Stock 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 shares of Common Stock 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.
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Redemption
Date (period to expiration of | Fair Market Value of Our Common Stock | ||||||||||||||||||||||||||||||||||
warrants) | ≥$10.00 | $11.00 | $12.00 | $13.00 | $14.00 | $15.00 | $16.00 | $17.00 | ≥$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 shares of Common Stock to be issued for each Warrant exercised in a Make-Whole Exercise will 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 stock 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 is adjusted pursuant to Section 4 hereof. In the event of a Warrant Price adjustment pursuant to Section 4.3.1, the adjusted stock prices in the column headings shall equal the stock 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. In no event will the number of shares issued in connection with a Make-Whole Exercise exceed 0.361 shares of Common Stock 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 shares of Common Stock 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.
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6.4 Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with subsection 3.3.1(b) or 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. In the event that the Company determines to require all holders of Warrants to exercise their Warrants on a “cashless basis” pursuant to subsection 3.3.1, the notice of redemption shall contain the information necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the Fair Market Value (as such term is defined in subsection 3.3.1(b) hereof) in such case. 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; Working Capital Warrants. The Company agrees that the redemption rights provided in Sections 6.1 and 6.2 hereof shall not apply to the Private Placement Warrants or the Working Capital Warrants if at the time of the redemption such Private Placement Warrants or Working Capital Warrants continue to be held by the Sponsors or their Permitted Transferees. However, once such Private Placement Warrants or Working Capital Warrants are transferred (other than to Permitted Transferees in accordance with Section 2.6 hereof), the Company may redeem the Private Placement Warrants and the Working Capital Warrants pursuant to Sections 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 or Working Capital Warrants to exercise the Private Placement Warrants or Working Capital 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 Working Capital Warrants that are transferred to persons other than Permitted Transferees shall, upon such transfer, cease to be Private Placement Warrants and Working Capital Warrants, and shall become Public Warrants under this Agreement, including for purposes of Section 9.8 hereof.
6.6 Public Warrants Held By the Company’s Officers or Directors. The Company agrees that if Public Warrants are held by any of the Company’s officers or directors, the Public Warrants held by such officers and directors will be subject to the redemption rights provided in Section 6.2, except that such officers and directors shall only receive the “Public Warrant Fair Market Value” for such Public Warrants so redeemed. “Public Warrant Fair Market Value” in this Section 6.6 shall mean the last reported sale price of the Public Warrants on the applicable Redemption Date.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1 No Rights as Stockholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a stockholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as a stockholder in respect of the meetings of stockholders or the election of directors of the Company or any other matter.
7.2 Lost, Stolen, Mutilated, or Destroyed Warrants. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen, mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3 Reservation of Common Stock. The Company shall at all times reserve and keep available a number of its authorized but unissued shares of Common Stock that shall be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this Agreement.
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7.4 Registration of Common Stock; Cashless Exercise at Company’s Option.
7.4.1 Registration of the Common Stock. 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 commercially reasonable efforts to file with the Commission a registration statement for the registration, under the Securities Act, of the shares of Common Stock issuable upon exercise of the Warrants. The Company shall use commercially reasonable efforts to cause the same to become effective 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 shares of Common Stock issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis,” pursuant to subsection 3.3.1, by exchanging the Warrants (in accordance with Section 3(a)(9) of the Securities Act (or any successor rule) or another exemption) for that number of shares of Common Stock equal to the lesser of (A) the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the excess of the “Fair Market Value” (as defined below) over 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 Common Stock 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 his, her 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 shares of Common Stock 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 (or any successor statute)) 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 Common Stock is at the time of any exercise of a Warrant not listed on a national securities exchange such that it satisfies the definition of a “covered security” under Section 18(b)(1) of the Securities Act (or any successor statute), 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 (or any successor statute) 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 Common Stock issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary and (y) use commercially reasonable efforts to register or qualify for sale the Common Stock issuable upon exercise of the Public Warrant under applicable blue sky laws of the state of residence of the holder 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 shares of Common Stock 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 of Common Stock.
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 organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority, powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
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8.2.2 Notice of Successor Warrant Agent. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof to the predecessor Warrant Agent and the Transfer Agent for the Common Stock not later than the effective date of any such appointment.
8.2.3 Merger or Consolidation of Warrant Agent. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor Warrant Agent under this Agreement without any further act.
8.3 Fees and Expenses of Warrant Agent.
8.3.1 Remuneration. The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder 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 the President, the Chief Executive Officer, the Chief Financial Officer, 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 shares of Common Stock to be issued pursuant to this Agreement or any Warrant or as to whether any shares of Common Stock shall, when issued, be valid and fully paid and non-assessable.
14
8.5 Acceptance of Agency. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common Stock 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 the Warrant Agent 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:
Concord Acquisition Corp
477 Madison Avenue
New York, NY 10022
Attn: Jeff Tuder
Email: jeff@tremsoncapital.com
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
1 State Street, 30th Floor
New York, NY 10004
Attn: Compliance Department
With a copy in each case to:
Greenberg Traurig, LLP
1750 Tysons Boulevard, Suite 1000
McLean, VA 22102
Attn: Alan I. Annex and Jason T. Simon, Esq.
Email: annexa@gtlaw.com and simonj@gtlaw.com
15
and
White & Case, LLP
1221 Avenue of the Americas
New York, NY 10020
Attn: Joel L. Rubinstein, Esq. and Elliott M. Smith, Esq.
Email: joel.rubinstein@whitecase.com and elliott.smith@whitecase.com
9.3 Applicable Law. 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, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. 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 jurisdiction and that such courts represent an inconvenient forum.
9.4 Persons Having Rights under this Agreement. Nothing in this Agreement shall be construed to confer upon, or give to, any person or corporation other than the parties hereto and the Registered Holders of the Warrants any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and of the Registered Holders of the Warrants.
9.5 Examination of the Warrant Agreement. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant Agent in the Borough of Manhattan, City and State of New York, for inspection by the Registered Holder of any Warrant. The Warrant Agent may require any such holder to submit such holder’s Warrant for inspection by the Warrant Agent.
9.6 Counterparts; Electronic Signatures. 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. A signature to this Agreement transmitted electronically shall have the same authority, effect, and enforceability as an original signature.
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 (i) for the purpose of 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 curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties deem shall not adversely affect the interest of the Registered Holders, and (ii) to provide for the delivery of Alternative Issuance pursuant to Section 4.4. All other modifications or amendments, including any amendment to increase the Warrant Price or shorten the Exercise Period and any amendments to the terms of only the Private Placement Warrants or Working Capital Warrants, shall require the vote or written consent of the Registered Holders of 50% of the then outstanding Public Warrants and, solely with respect to any amendment to the terms of the Private Placement Warrants or Working Capital Warrants or any provision of this Agreement with respect to the Private Placement Warrants or Working Capital Warrants, 50% of the then-outstanding Private Placement Warrants or Working Capital Warrants, respectively. 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.
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9.10 Business Continuity Plan. The Warrant Agent shall maintain plans for business continuity, disaster recovery, and backup capabilities and facilities designed to ensure the Warrant Agent’s continued performance of its obligations under this Agreement, including, without limitation, loss of production, loss of systems, loss of equipment, failure of carriers and the failure of the Warrant Agent’s or its supplier’s equipment, computer systems or business systems (“Business Continuity Plan”). Such Business Continuity Plan shall include, but shall not be limited to, testing, accountability and corrective actions designed to be promptly implemented, if necessary. In addition, in the event that the Warrant Agent has knowledge of an incident affecting the integrity or availability of such Business Continuity Plan, then the Warrant Agent shall, as promptly as practicable, but no later than twenty-four (24) hours (or sooner to the extent required by applicable law or regulation) after the Warrant Agent becomes aware of such incident, notify the Company in writing of such incident and provide the Company with updates, as deemed appropriate by the Warrant Agent under the circumstances, with respect to the status of all related remediation efforts in connection with such incident. The Warrant Agent represents that, as of the date of this Agreement, such Business Continuity Plan is active and functioning normally in all material respects.
9.11 Confidentiality. The Warrant Agent and the Company agree that all books, records, information and data pertaining to the business of the other party, including inter alia, personal, non-public warrant holder information, which are exchanged or received pursuant to the negotiation or the carrying out of this Warrant Agreement, including the fees for services, shall remain confidential, and shall not be voluntarily disclosed to any other person, except as may be required by law or regulation, including, without limitation, pursuant to requests from the Securities and Exchange Commission and subpoenas from state or federal government authorities (e.g., in divorce and criminal actions).
Exhibit A – Form of Warrant Certificate
Exhibit B – Legend
[Signature Page Follows]
17
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
CONCORD Acquisition Corp | ||
By: | /s/ Jeff Tuder | |
Name: | Jeff Tuder | |
Title: | Chief Executive Officer | |
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
By: | /s/ Margaret B. Lloyd | |
Name: | Margaret B. Lloyd | |
Title: | Vice President | |
[Signature Page to Warrant Agreement]
EXHIBIT A
Form of Warrant Certificate
[FACE]
Number
Warrants
THIS WARRANT SHALL BE NULL AND VOID IF NOT EXERCISED
PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
Concord Acquisition Corp
Incorporated Under the Laws of the State of Delaware
CUSIP [•]
Warrant Certificate
This Warrant Certificate certifies that , or registered assigns, is the registered holder of warrant(s) evidenced hereby (the “Warrants” and each, a “Warrant”) to purchase shares of Class A common stock, $0.0001 par value per share (“Common Stock”), of Concord Acquisition Corp, a Delaware corporation (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 non-assessable shares of Common Stock 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 share of Common Stock. No fractional shares will be issued upon exercise of any Warrant. If, upon the exercise of Warrant, a holder would be entitled to receive a fractional interest in a share, the Company will, upon exercise, round down to the nearest whole number of the number of shares of Common Stock to be issued to the holder. The number of shares of Common Stock 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 share of Common Stock for any Warrant is equal to $11.50 per whole 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 null and void.
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.
A-1
CONCORD ACQUISITION CORP | ||
By: | ||
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS WARRANT AGENT | ||
By: | ||
Name: | ||
Title: |
A-2
[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 shares of Common Stock 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 (or successor warrant agent) (collectively, 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 designated office(s) 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 shares of Common Stock to be issued upon exercise is effective under the Securities Act and (ii) a prospectus thereunder relating to the shares of Common Stock 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 shares of Common Stock 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 a share of Common Stock, the Company shall, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the holder of the Warrant.
Warrant Certificates, when surrendered at the designated office(s) 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(s) 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 third-party charges 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 stockholder of the Company.
A-3
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 shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of Concord Acquisition Corp (the “Company”) in the amount of $ in accordance with the terms hereof. The undersigned requests that a certificate for such shares of Common Stock be registered in the name of , whose address is and that such shares of Common Stock be delivered to whose address is . If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder, the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock 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 6.1 or Section 6.2 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.4 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with subsection 3.3.1(b) and Section 6.4 of the Warrant Agreement.
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 shares of Common Stock 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 shares of Common Stock 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 shares of Common Stock 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 shares of Common Stock. If said number of shares of Common Stock is less than all of the shares of Common Stock purchasable hereunder (after giving effect to the cashless exercise), the undersigned requests that a new Warrant Certificate representing the remaining balance of such shares of Common Stock be registered in the name of , whose address is , and that such Warrant Certificate be delivered to , whose address is .
Date: , | (Signature) | ||
(Address) | |||
(Tax Identification Number) | |||
Signature Guaranteed: | |||
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 SEC RULE 17Ad-15 (OR ANY SUCCESSOR RULE) under the SECURITIES exchange act, OF 1934, AS AMENDED).
A-4
EXHIBIT B
LEGEND
“THE SECURITIES REPRESENTED HEREBY 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 CONCORD Acquisition Corp (THE “COMPANY”), CONCORD SPONSOR GROUP LLC, CA CO-INVESTMENT LLC AND THE OTHER PARTIES THERETO, THE SECURITIES REPRESENTED HEREBY 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 HEREBY AND SHARES OF CLASS A COMMON STOCK OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED TO REGISTRATION RIGHTS UNDER A REGISTRATION AND STOCKHOLDER RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.”
B-1
Exhibit 10.1
Execution Copy
TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT, dated as of July 7, 2021 (this “Agreement”), is by and among Concord Acquisition Corp, a Delaware corporation (“Concord”) and certain of the shareholders of the Company (as defined below) whose names appear on the signature pages of this Agreement (each, a “Shareholder” and, collectively, the “Shareholders”).
WHEREAS, Concord, Circle Acquisition Public Limited Company, a public company limited by shares incorporated in Ireland (“Topco”), Topco (Ireland) Merger Sub, Inc., a Delaware corporation (“Topco Merger Sub”) and Circle Internet Financial Limited, a private company limited by shares incorporated in Ireland (the “Company”) propose to enter into, simultaneously herewith, a business combination agreement in the form attached hereto as Exhibit B (the “BCA”; capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the BCA), which provides for, among other things, a business combination among Concord, Topco, Topco Merger Sub and the Company; and
WHEREAS, as of the date hereof, each Shareholder owns of record and/or beneficially the number and class of Company Shares as set forth opposite such Shareholder’s name on Exhibit A hereto (all such Company Shares and any Company Shares of which ownership of record or the power to vote or dispose is hereafter acquired by the Shareholders prior to the termination of this Agreement being referred to herein as the “Shares”).
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Agreement to Vote. Subject to the earlier termination of this Agreement in accordance with Section 6, each Shareholder, by this Agreement, with respect to its Shares, severally and not jointly, hereby agrees to vote (or cause to be voted), at any meeting (including, for the avoidance of doubt, any general meeting, including the EGM, class meeting and any general and/or class meeting of the Company convened in accordance with Chapter 1 of Part 9 of the Act to approve the Scheme) of the Shareholders of the Company following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act, and in any action by written consent of the Shareholders of the Company (which written consent shall be delivered promptly, and in any event within two (2) business days, following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act), all of such Shareholder’s Shares held by such Shareholder at such time (i) in favor of the approval and adoption of the BCA and approval of the Transactions, including the Scheme of Arrangement, (ii) against any Alternative Transaction and (iii) against any action, agreement or transaction or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the BCA or that would reasonably be expected to result in the failure of the Transactions from being consummated. Each Shareholder acknowledges receipt and review of a copy of the BCA.
2. Termination of Company Shareholder Agreements. Each Shareholder, by this Agreement, with respect to its Shares, severally and not jointly, hereby agrees to terminate, subject to the occurrence of, and effective immediately prior to, the Scheme Effective Time, (a) that certain Investor Rights Agreement, dated May 14, 2018, among the Company and the shareholders of the Company named therein (the “Investor Rights Agreement”), (b) that certain Share Sale Agreement, dated May 14, 2018, among the Company and the shareholders of the Company named therein (the “Share Sale Agreement”) and (c) that certain Voting Agreement, dated May 14, 2018, by and among the Company and the shareholders of the Company named therein (the “Voting Agreement” and, together with the Investor Rights Agreement and the Share Sale Agreement, the “Company Shareholder Agreements”), and (d) if applicable to such Shareholder, any rights under any other agreement providing for redemption rights, put rights, purchase rights, information rights, rights to consult with and advise management, inspection rights, preemptive rights, Company Board observer rights or rights to receive information delivered to the Company Board or other similar rights not generally available to shareholders of the Company between such Shareholder and the Company, but excluding, for the avoidance of doubt, any rights such Shareholder may have that relate to any commercial or employment agreements or arrangements between such Shareholder and the Company or any subsidiary, which shall survive in accordance with their terms.
3. Transfer of Shares. Subject to the earlier termination of this Agreement in accordance with Section 6 or the Closing, each Shareholder, severally and not jointly, agrees that it shall not, directly or indirectly, (x) sell, assign, transfer (including by operation of law), lien, pledge, dispose of or otherwise encumber any of the Shares or otherwise agree to do any of the foregoing, except for a sale, assignment or transfer (i) pursuant to the BCA, (ii) to another shareholder of the Company that is a party to this Agreement and bound by the terms and obligations hereof or (iii) in a Permitted Transfer, (y) deposit any Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement or (z) except as otherwise contemplated in the BCA, enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any Shares. A “Permitted Transfer” shall mean any sale(s), assignment(s) or transfer(s): (a) to an affiliate of such Shareholder; (b) as a bona fide gift or gifts, or to a charitable organization; (c) to a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of the undersigned or any other person with whom the undersigned has a relationship by blood, marriage or adoption not more remote than first cousin; (d) if the Shareholder is an individual, by will or intestate succession upon the death of such Shareholder; (e) by operation of law, such as pursuant to a qualified domestic order or the dissolution of marriage or civil union (including, without limitation, a divorce settlement); (f) if the Shareholder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, to another corporation, partnership, limited liability company, trust, syndicate, association or other business entity that controls, is controlled by or is under common control or management with the undersigned or its affiliates; provided, that in each Permitted Transfer, such transferee shall execute this Agreement or a joinder agreeing to become a party to this Agreement; and (g) to Circle Internet Trust Company (a private company limited by shares incorporated in Ireland) as trustee for the benefit of the Shareholder.
4. No Solicitation of Transactions; Waiver of Appraisal Rights.
(a) Each of the Shareholders, severally and not jointly, agrees not to, and shall cause its Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information), whether publicly or otherwise, any inquiries with respect to, or the making of, any Alternative Transaction, (ii) engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any Confidential Information or data to, any person relating to an Alternative Transaction, (iii) enter into, engage in and maintain discussions or negotiations with respect to any Alternative Transaction (or inquiries, proposals or offers or other efforts that could reasonably be expected to lead to any Alternative Transaction) or otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, proposals, offers, efforts, discussions or negotiations, (iv) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company, (v) approve, vote in favor for, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (vi) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that could reasonably be expected to lead to an Alternative Transaction, or (vii) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives to take any such action. On execution of this Agreement, each Shareholder shall, and shall instruct its Representatives to, immediately cease any solicitations, discussions or negotiations with any person (other than the parties to the BCA and their respective Representatives) in connection with an Alternative Transaction (other than the Transactions). Each Shareholder may only respond to any unsolicited proposal regarding an Alternative Transaction by indicating that the Company is subject to the BCA and such Shareholder is unable to provide any information related to the Company or entertain any proposals or offers or engage in any negotiations or discussions concerning an Alternative Transaction for as long as the BCA remains in effect.
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(b) Each Shareholder hereby agrees not to assert, exercise or perfect, directly or indirectly, and irrevocably and unconditionally waives, any appraisal rights (including under Section 262 of the DGCL) with respect to the Merger and any rights to dissent with respect to the Merger or to oppose any reorganization or amendment designed to facilitate drag along rights or otherwise facilitate the BCA. Each Shareholder hereby further agrees that it will take no action which may prevent or unduly delay: (i) the approval of the Scheme of Arrangement, including at the Irish High Court hearing to sanction the Scheme, or (ii) the effectiveness of the Scheme of Arrangement.
5. Representations and Warranties. Each Shareholder, severally and not jointly, represents and warrants to Concord as follows:
(a) The execution, delivery and performance by such Shareholder of this Agreement and the consummation by such Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order applicable to such Shareholder, (ii) result in the creation of any encumbrance on any Shares (other than under this Agreement, the BCA and the agreements contemplated by the BCA) or (iii) conflict with or result in a breach of or constitute a default under any provision of such Shareholder’s governing documents or any agreement (including any voting agreement or letter agreement with the Company) to which such Shareholder is a party.
(b) As of the date of this Agreement, such Shareholder owns exclusively of record and has good and valid title to, and/or owns beneficially, the Shares set forth opposite such Shareholder’s name on Exhibit A free and clear of any security interest, lien, claim, pledge, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind, other than pursuant to (i) this Agreement, (ii) applicable securities laws, (iii) the Company Organizational Documents and (iv) the Company Shareholder Agreements, and as of the date of this Agreement, such Shareholder has the sole power (as currently in effect) to vote and right, power and authority to sell, transfer and deliver such Shares, and such Shareholder does not own, directly or indirectly, any other Shares.
(c) Such Shareholder has the power, authority and capacity to execute, deliver and perform this Agreement and this Agreement has been duly authorized, executed and delivered by such Shareholder.
(d) There are no outstanding loans or advances from such Shareholder or their respective affiliates to the Company or its subsidiaries or vice versa.
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6. Termination. This Agreement and the obligations of the Shareholders under this Agreement shall automatically terminate upon the earliest of (a) the Merger Effective Time; (b) the termination of the BCA in accordance with its terms, (c) the effective date of a written agreement of the parties hereto terminating this Agreement, (d) any change to the form of consideration (other than to add additional consideration) or decrease in the amount of consideration payable in the Transactions and (e) any change to the terms of the BCA or other Transaction Documents that adversely effects, in any respect, or is reasonably likely to adversely effect, in any respect, any Shareholder party to this Agreement relative to other holders of Equity Interests of the Company. Upon termination of this Agreement, neither party shall have any further obligations or liabilities under this Agreement; provided that nothing in this Section 6 shall relieve any party of liability for any willful material breach of this Agreement occurring prior to termination. The representations and warranties contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the Closing or the termination of this Agreement.
7. Miscellaneous.
(a) Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated.
(b) All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by e-mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses or e-mail addresses (or at such other address or email address for a party as shall be specified in a notice given in accordance with this Section 7(b)):
If to Concord, to it at:
Concord Acquisition Corp
477 Madison Avenue, 22nd Floor
New York, NY 10022
Attention: Michele J. Cito
Email: mcito@atlasmerchantcapital.com
with a copy to:
Greenberg Traurig, P.A.
333 SE 2nd Avenue, Suite 4400
Miami, FL 33131
Attention: Alan I. Annex, Esq.
Email: annexa@gtlaw.com
If to Company, to it at:
Circle Internet Financial Limited
332 Congress Street
4th Floor
Boston, MA 02210
Attention: Legal Department
Email: legal@circle.com
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with a copy to:
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Attention : William, Schnoor, John Mutkoski and Gregg Katz
Email: wschnoor@goodwinlaw.com, jmutkoski@goodwinlaw.com and
gkatz@goodwinlaw.com
If to a Shareholder, to the address or email address set forth for Shareholder on the signature page hereof.
(c) If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(d) This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise), by any party without the prior express written consent of the other parties hereto.
(e) This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. No Shareholder shall be liable for the breach by any other Shareholder of this Agreement.
(f) This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed by (i) Concord and (ii) Shareholders holding a majority of the Company Shares set forth on Exhibit A.
(g) The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.
(h) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court. The parties hereto hereby (i) submit to the exclusive jurisdiction of the Delaware Chancery Court for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereunder may not be enforced in or by any of the above-named courts. Notwithstanding the foregoing, the Scheme of Arrangement and matters related thereto shall, to the extent required by the laws of Ireland, and the interpretation of the duties of the directors of the Company, be governed by and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction to settle any disputes relating to such matters, and any proceedings, suits or actions arising out of or in connection with such matters shall therefore be brought in the courts of Ireland.
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(i) This Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(j) Each Shareholder hereby consents to and authorizes the Company and Concord to publish and disclose in any announcement or disclosure required by the SEC and any other applicable securities regulators such Shareholder’s identity and ownership of Shares and the nature of such Shareholder’s obligations under this Agreement.
(k) At the request of Concord, in the case of any Shareholder, or at the request of the Shareholders, in the case of Concord, and without further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(l) This Agreement shall not be effective or binding upon any Shareholder until after such time as the BCA is executed and delivered by the Company, Concord, Topco and Topco Merger Sub.
(m) Notwithstanding anything herein to the contrary, each Shareholder signs this Agreement solely in such Shareholder’s capacity as a shareholder of the Company, and not in any other capacity and this Agreement shall not limit its capacity, if applicable, as an officer or director of the Company. Notwithstanding anything in this Agreement to the contrary, nothing contained herein shall restrict any Shareholder’s exercise of fiduciary duties, if owed, to the Company or its shareholders in such Shareholder’s capacity as an officer or director of the Company.
(n) Each of the parties hereto hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto (i) certifies that no Representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Section 7(n).
[Signature pages follow]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
CONCORD ACQUISITION CORP
By: |
Name:
Title:
[Signature Page to Transaction Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
SHAREHOLDERS:
[_____________]
By: |
Name:
Title:
Address:
[Signature Page to Transaction Support Agreement]
EXHIBIT A
LIST OF SHAREHOLDERS
Number of Shares Owned | ||||||||||||||||||||||||
Name of Shareholder | Ordinary Shares | Series A Preferred Stock | Series B Preferred Stock | Series C /C-1 Preferred Stock | Series D Preferred Stock | Series E Preferred Stock | ||||||||||||||||||
Accel XI L.P | - | 7,114,979 | 1,313,535 | 2,173,997 | - | 69,542 | ||||||||||||||||||
Accel XI Strategic Partners L.P. | - | 534,569 | 98,689 | 163,339 | - | 5,224 | ||||||||||||||||||
Accel Investors 2013 L.L.C. | - | 755,625 | 139,500 | 230,883 | - | 7,385 | ||||||||||||||||||
Breyer Capital L.L.C. | 775,464 | 8,405,172 | 1,551,724 | 2,931,437 | 2,680,055 | 328,609 | ||||||||||||||||||
Breyer Chao Capital LLC | - | - | - | - | 36,168 | |||||||||||||||||||
Martha Michele Burns | - | - | 51,724 | 92,113 | 30,056 | 7,016 | ||||||||||||||||||
Chuang Xi Capital Limited | - | - | - | 6,908,404 | 1,690,306 | - | ||||||||||||||||||
Fenway Summer Ventures LP | - | - | - | 322,393 | 14,467 | - | ||||||||||||||||||
FS Venture Capital LLC | - | - | 103,448 | 138,168 | 21,701 | - | ||||||||||||||||||
General Catalyst Group VI, L.P. | 287,693 | 16,810,345 | 3,103,448 | 2,302,801 | 1,085,054 | 82,152 | ||||||||||||||||||
Patrick Sean Neville | 3,975,578 | - | - | - | - | - | ||||||||||||||||||
Oak Investment Partners XIII, Limited Partnership | - | 10,862,069 | 3,115,199 | - | - | |||||||||||||||||||
Wide Palace Limited | 1,430,997 | - | - | - | 9,548,476 | 3,696,857 |
EXHIBIT B
BUSINESS COMBINATION AGREEMENT
Exhibit 10.2
Execution Copy
TRANSACTION SUPPORT AGREEMENT
This TRANSACTION SUPPORT AGREEMENT, dated as of July 7, 2021 (this “Agreement”), is by and among Concord Acquisition Corp, a Delaware corporation (“Concord”) and certain of the shareholders of the Company (as defined below) whose names appear on the signature pages of this Agreement (each, a “Shareholder” and, collectively, the “Shareholders”).
WHEREAS, Concord, Circle Acquisition Public Limited Company, a public company limited by shares incorporated in Ireland (“Topco”), Topco (Ireland) Merger Sub, Inc., a Delaware corporation (“Topco Merger Sub”) and Circle Internet Financial Limited, a private company limited by shares incorporated in Ireland (the “Company”) propose to enter into, simultaneously herewith, a business combination agreement in the form attached hereto as Exhibit B (the “BCA”; capitalized terms used but not defined in this Agreement shall have the meanings ascribed to them in the BCA), which provides for, among other things, a business combination among Concord, Topco, Topco Merger Sub and the Company; and
WHEREAS, as of the date hereof, each Shareholder owns of record and/or beneficially the number and class of Company Shares as set forth opposite such Shareholder’s name on Exhibit A hereto (all such Company Shares and any Company Shares of which ownership of record or the power to vote or dispose is hereafter acquired by the Shareholders prior to the termination of this Agreement being referred to herein as the “Shares”).
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements contained herein, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
1. Agreement to Vote. Subject to the earlier termination of this Agreement in accordance with Section 6, each Shareholder, by this Agreement, with respect to its Shares, severally and not jointly, hereby agrees to vote (or cause to be voted), at any meeting (including, for the avoidance of doubt, any general meeting, including the EGM, class meeting and any general and/or class meeting of the Company convened in accordance with Chapter 1 of Part 9 of the Act to approve the Scheme) of the Shareholders of the Company following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act, and in any action by written consent of the Shareholders of the Company (which written consent shall be delivered promptly, and in any event within two (2) business days, following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act), all of such Shareholder’s Shares held by such Shareholder at such time (i) in favor of the approval and adoption of the BCA and approval of the Transactions, including the Scheme of Arrangement, (ii) against any Alternative Transaction and (iii) against any action, agreement or transaction or proposal that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of the Company under the BCA or that would reasonably be expected to result in the failure of the Transactions from being consummated. Each Shareholder acknowledges receipt and review of a copy of the BCA.
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2. Termination of Company Shareholder Agreements. Each Shareholder, by this Agreement, with respect to its Shares, severally and not jointly, hereby agrees to terminate, subject to the occurrence of, and effective immediately prior to, the Scheme Effective Time, (a) that certain Investor Rights Agreement, dated May 14, 2018, among the Company and the shareholders of the Company named therein (the “Investor Rights Agreement”), (b) that certain Share Sale Agreement, dated May 14, 2018, among the Company and the shareholders of the Company named therein (the “Share Sale Agreement”) and (c) that certain Voting Agreement, dated May 14, 2018, by and among the Company and the shareholders of the Company named therein (the “Voting Agreement” and, together with the Investor Rights Agreement and the Share Sale Agreement, the “Company Shareholder Agreements”), and (d) if applicable to such Shareholder, any rights under any other agreement providing for redemption rights, put rights, purchase rights, information rights, rights to consult with and advise management, inspection rights, preemptive rights, Company Board observer rights or rights to receive information delivered to the Company Board or other similar rights not generally available to shareholders of the Company between such Shareholder and the Company, but excluding, for the avoidance of doubt, any rights such Shareholder may have that relate to any commercial or employment agreements or arrangements between such Shareholder and the Company or any subsidiary, which shall survive in accordance with their terms.
3. Transfer of Shares. Subject to the earlier termination of this Agreement in accordance with Section 6 or the Closing, each Shareholder, severally and not jointly, agrees that it shall not, directly or indirectly, (x) sell, assign, transfer (including by operation of law), lien, pledge, dispose of or otherwise encumber any of the Shares or otherwise agree to do any of the foregoing, except for a sale, assignment or transfer (i) pursuant to the BCA, (ii) to another shareholder of the Company that is a party to this Agreement and bound by the terms and obligations hereof or (iii) in a Permitted Transfer, (y) deposit any Shares into a voting trust or enter into a voting agreement or arrangement or grant any proxy or power of attorney with respect thereto that is inconsistent with this Agreement or (z) except as otherwise contemplated in the BCA, enter into any contract, option or other arrangement or undertaking with respect to the direct or indirect acquisition or sale, assignment, transfer (including by operation of law) or other disposition of any Shares. A “Permitted Transfer” shall mean any sale(s), assignment(s) or transfer(s): (a) to an affiliate of such Shareholder; (b) as a bona fide gift or gifts, or to a charitable organization; (c) to a trust, or other entity formed for estate planning purposes for the primary benefit of the spouse, domestic partner, parent, sibling, child or grandchild of the undersigned or any other person with whom the undersigned has a relationship by blood, marriage or adoption not more remote than first cousin; (d) if the Shareholder is an individual, by will or intestate succession upon the death of such Shareholder; (e) by operation of law, such as pursuant to a qualified domestic order or the dissolution of marriage or civil union (including, without limitation, a divorce settlement); (f) if the Shareholder is a corporation, partnership (whether general, limited or otherwise), limited liability company, trust or other business entity, to another corporation, partnership, limited liability company, trust, syndicate, association or other business entity that controls, is controlled by or is under common control or management with the undersigned or its affiliates; provided, that in each Permitted Transfer, such transferee shall execute this Agreement or a joinder agreeing to become a party to this Agreement; and (g) to Circle Internet Trust Company (a private company limited by shares incorporated in Ireland) as trustee for the benefit of the Shareholder.
4. No Solicitation of Transactions; Waiver of Appraisal Rights.
(a) Each of the Shareholders, severally and not jointly, agrees not to, and shall cause its Representatives not to, directly or indirectly, (i) initiate, solicit, knowingly facilitate or knowingly encourage (including by way of furnishing non-public information), whether publicly or otherwise, any inquiries with respect to, or the making of, any Alternative Transaction, (ii) engage in any negotiations or discussions concerning, or provide access to its properties, books and records or any Confidential Information or data to, any person relating to an Alternative Transaction, (iii) enter into, engage in and maintain discussions or negotiations with respect to any Alternative Transaction (or inquiries, proposals or offers or other efforts that could reasonably be expected to lead to any Alternative Transaction) or otherwise cooperate with or assist or participate in, or knowingly facilitate any such inquiries, proposals, offers, efforts, discussions or negotiations, (iv) amend or grant any waiver or release under any standstill or similar agreement with respect to any class of equity securities of the Company, (v) approve, vote in favor for, endorse or recommend, or propose publicly to approve, endorse or recommend, any Alternative Transaction, (vi) approve, endorse, recommend, execute or enter into any agreement in principle, letter of intent, memorandum of understanding, term sheet, acquisition agreement, merger agreement, option agreement, joint venture agreement, partnership agreement or other written arrangement relating to any Alternative Transaction or any proposal or offer that could reasonably be expected to lead to an Alternative Transaction, or (vii) resolve or agree to do any of the foregoing or otherwise authorize or permit any of its Representatives to take any such action. On execution of this Agreement, each Shareholder shall, and shall instruct its Representatives to, immediately cease any solicitations, discussions or negotiations with any person (other than the parties to the BCA and their respective Representatives) in connection with an Alternative Transaction (other than the Transactions). Each Shareholder may only respond to any unsolicited proposal regarding an Alternative Transaction by indicating that the Company is subject to the BCA and such Shareholder is unable to provide any information related to the Company or entertain any proposals or offers or engage in any negotiations or discussions concerning an Alternative Transaction for as long as the BCA remains in effect.
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(b) Each Shareholder hereby agrees not to assert, exercise or perfect, directly or indirectly, and irrevocably and unconditionally waives, any appraisal rights (including under Section 262 of the DGCL) with respect to the Merger and any rights to dissent with respect to the Merger or to oppose any reorganization or amendment designed to facilitate drag along rights or otherwise facilitate the BCA. Each Shareholder hereby further agrees that it will take no action which may prevent or unduly delay: (i) the approval of the Scheme of Arrangement, including at the Irish High Court hearing to sanction the Scheme, or (ii) the effectiveness of the Scheme of Arrangement.
5. Representations and Warranties. Each Shareholder, severally and not jointly, represents and warrants to Concord as follows:
(a) The execution, delivery and performance by such Shareholder of this Agreement and the consummation by such Shareholder of the transactions contemplated hereby do not and will not (i) conflict with or violate any United States or non-United States statute, law, ordinance, regulation, rule, code, executive order, injunction, judgment, decree or other order applicable to such Shareholder, (ii) result in the creation of any encumbrance on any Shares (other than under this Agreement, the BCA and the agreements contemplated by the BCA) or (iii) conflict with or result in a breach of or constitute a default under any provision of such Shareholder’s governing documents or any agreement (including any voting agreement or letter agreement with the Company) to which such Shareholder is a party.
(b) As of the date of this Agreement, such Shareholder owns exclusively of record and has good and valid title to, and/or owns beneficially, the Shares set forth opposite such Shareholder’s name on Exhibit A free and clear of any security interest, lien, claim, pledge, proxy, option, right of first refusal, agreement, voting restriction, limitation on disposition, charge, adverse claim of ownership or use or other encumbrance of any kind, other than pursuant to (i) this Agreement, (ii) applicable securities laws, (iii) the Company Organizational Documents and (iv) the Company Shareholder Agreements, and as of the date of this Agreement, such Shareholder has the sole power (as currently in effect) to vote and right, power and authority to sell, transfer and deliver such Shares, and such Shareholder does not own, directly or indirectly, any other Shares.
(c) Such Shareholder has the power, authority and capacity to execute, deliver and perform this Agreement and this Agreement has been duly authorized, executed and delivered by such Shareholder.
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(d) There are no outstanding loans or advances from such Shareholder or their respective affiliates to the Company or its subsidiaries or vice versa.
6. Termination. This Agreement and the obligations of the Shareholders under this Agreement shall automatically terminate upon the earliest of (a) the Merger Effective Time; and (b) the six month anniversary of the termination of the BCA in the event the BCA is terminated and the Company Termination Fee is payable in accordance therewith; provided, however, that this Section 6(b) shall not apply in the event of and with respect to an initial public offering by the Company following termination of this Agreement, (c) the effective date of a written agreement of the parties hereto terminating this Agreement, (d) any change to the form of consideration (other than to add additional consideration) or decrease in the amount of consideration payable in the Transactions and (e) any change to the terms of the BCA or other Transaction Documents that adversely effects, in any respect, or is reasonably likely to adversely effect, in any respect, any Shareholder party to this Agreement relative to other holders of Equity Interests of the Company. Upon termination of this Agreement, neither party shall have any further obligations or liabilities under this Agreement; provided that nothing in this Section 6 shall relieve any party of liability for any willful material breach of this Agreement occurring prior to termination. The representations and warranties contained in this Agreement and in any certificate or other writing delivered pursuant hereto shall not survive the Closing or the termination of this Agreement.
7. Miscellaneous.
(a) Except as otherwise provided herein, all costs and expenses incurred in connection with this Agreement and the transactions contemplated hereby shall be paid by the party incurring such costs and expenses, whether or not the transactions contemplated hereby are consummated.
(b) All notices, requests, claims, demands and other communications hereunder shall be in writing and shall be given (and shall be deemed to have been duly given upon receipt) by delivery in person, by e-mail or by registered or certified mail (postage prepaid, return receipt requested) to the respective parties at the following addresses or e-mail addresses (or at such other address or email address for a party as shall be specified in a notice given in accordance with this Section 7(b)):
If to Concord, to it at:
Concord Acquisition Corp
477 Madison Avenue, 22nd Floor
New York, NY 10022
Attention: Michele J. Cito
Email: mcito@atlasmerchantcapital.com
with a copy to:
Greenberg Traurig, P.A.
333 SE 2nd Avenue, Suite 4400
Miami, FL 33131
Attention: Alan I. Annex, Esq.
Email: annexa@gtlaw.com
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If to Company, to it at:
Circle Internet Financial Limited
332 Congress Street
4th Floor
Boston, MA 02210
Attention: Legal Department
Email: legal@circle.com
with a copy to:
Goodwin Procter LLP
100 Northern Avenue
Boston, MA 02210
Attention : William, Schnoor, John Mutkoski and Gregg Katz
Email: wschnoor@goodwinlaw.com, jmutkoski@goodwinlaw.com and
gkatz@goodwinlaw.com
If to a Shareholder, to the address or email address set forth for Shareholder on the signature page hereof.
(c) If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law, or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the fullest extent possible.
(d) This Agreement constitutes the entire agreement among the parties with respect to the subject matter hereof and supersedes all prior agreements and undertakings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof. This Agreement shall not be assigned (whether pursuant to a merger, by operation of law or otherwise), by any party without the prior express written consent of the other parties hereto.
(e) This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective permitted assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. No Shareholder shall be liable for the breach by any other Shareholder of this Agreement.
(f) This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed by (i) Concord and (ii) Shareholders holding a majority of the Company Shares set forth on Exhibit A.
(g) The parties hereto agree that irreparable damage would occur in the event any provision of this Agreement was not performed in accordance with the terms hereof and that the parties shall be entitled to specific performance of the terms hereof, in addition to any other remedy at law or in equity.
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(h) This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware applicable to contracts executed in and to be performed in that State. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in any Delaware Chancery Court. The parties hereto hereby (i) submit to the exclusive jurisdiction of the Delaware Chancery Court for the purpose of any Action arising out of or relating to this Agreement brought by any party hereto, and (ii) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereunder may not be enforced in or by any of the above-named courts. Notwithstanding the foregoing, the Scheme of Arrangement and matters related thereto shall, to the extent required by the laws of Ireland, and the interpretation of the duties of the directors of the Company, be governed by and construed in accordance with the laws of Ireland and the courts of Ireland shall have exclusive jurisdiction to settle any disputes relating to such matters, and any proceedings, suits or actions arising out of or in connection with such matters shall therefore be brought in the courts of Ireland.
(i) This Agreement may be executed and delivered (including by facsimile or portable document format (pdf) transmission) in counterparts, and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement.
(j) Each Shareholder hereby consents to and authorizes the Company and Concord to publish and disclose in any announcement or disclosure required by the SEC and any other applicable securities regulators such Shareholder’s identity and ownership of Shares and the nature of such Shareholder’s obligations under this Agreement.
(k) At the request of Concord, in the case of any Shareholder, or at the request of the Shareholders, in the case of Concord, and without further consideration, each party shall execute and deliver or cause to be executed and delivered such additional documents and instruments and take such further action as may be reasonably necessary to consummate the transactions contemplated by this Agreement.
(l) This Agreement shall not be effective or binding upon any Shareholder until after such time as the BCA is executed and delivered by the Company, Concord, Topco and Topco Merger Sub.
(m) Notwithstanding anything herein to the contrary, each Shareholder signs this Agreement solely in such Shareholder’s capacity as a shareholder of the Company, and not in any other capacity and this Agreement shall not limit its capacity, if applicable, as an officer or director of the Company. Notwithstanding anything in this Agreement to the contrary, nothing contained herein shall restrict any Shareholder’s exercise of fiduciary duties, if owed, to the Company or its shareholders in such Shareholder’s capacity as an officer or director of the Company.
(n) Each of the parties hereto hereby waives to the fullest extent permitted by applicable law any right it may have to a trial by jury with respect to any litigation directly or indirectly arising out of, under or in connection with this Agreement. Each of the parties hereto (i) certifies that no Representative, agent or attorney of any other party has represented, expressly or otherwise, that such other party would not, in the event of litigation, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other parties hereto have been induced to enter into this Agreement and the transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and certifications in this Section 7(n).
[Signature pages follow]
6
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
CONCORD ACQUISITION CORP
By: | ||
Name: | ||
Title: |
[Signature Page to Transaction Support Agreement]
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written above.
SHAREHOLDERS:
[_____________]
By: | ||
Name: | ||
Title: | ||
Address: |
[Signature Page to Transaction Support Agreement]
EXHIBIT A
LIST OF SHAREHOLDERS
Number of Shares Owned | ||||||||||||||||||||||||
Name of Shareholder | Ordinary Shares | Series A Preferred Stock | Series B Preferred Stock | Series C/C-1 Preferred Stock | Series D Preferred Stock | Series E Preferred Stock | ||||||||||||||||||
Jeremy Allaire | 19,134,399 | - | - | - | - | - |
EXHIBIT B
BUSINESS COMBINATION AGREEMENT
Exhibit 23.1
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We have issued our report dated August 6, 2021 with respect to the consolidated financial statements of Circle Internet Financial Limited and subsidiaries contained in the Registration Statement and Prospectus. We consent to the use of the aforementioned report in the Registration Statement and Prospectus, and to the use of our name as it appears under the caption “Experts.”
New York, New York
August 6, 2021
Exhibit 23.2
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of Concord Acquisition Corp on Form S-4 of our report dated March 30, 2021, except for the effects of the restatement discussed in Notes 2, 3, 7, 9 and 10 as to which the date is May 19, 2021, with respect to our audit of the financial statements of Concord Acquisition Corp as of December 31, 2020 and for the period from August 20, 2020 (inception) through December 31, 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
Philadelphia, Pennsylvania
August 6, 2021
Exhibit 23.4
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We consent to the use in the Prospectus constituting a part of this Registration Statement on Form S-4 of our report dated February 25, 2021, relating to the financial statements of SI Securities, LLC as of and for the year ended December 31, 2020. We also consent to the reference to our Firm under the caption “Experts” in such Prospectus.
/s/ Mazars USA LLP | |
New York, New York | |
August 6, 2021 |
Exhibit 99.1
CONSENT OF CASSEL SALPETER & CO., LLC
Concord Acquisition Corp
477 Madison Avenue, 22nd Floor
New York, NY 10022
Attention: Board of Directors
RE: | Proxy Statement of Concord Acquisition Corp (“Concord”) / Prospectus of Circle Acquisition Public Limited Company (“Circle”), which forms part of the Registration Statement on Form S-4 of Circle (the “Registration Statement”). |
Members of the Board of Directors: |
We hereby consent to the inclusion of our opinion letter, dated July 7, 2021, to the Board of Directors of Concord as Annex D to the Proxy Statement/Prospectus included in the Registration Statement filed with the Securities and Exchange Commission today and the references to our firm and our opinion, including the quotation or summarization of such opinion, in such Registration Statement, under the headings “QUESTIONS AND ANSWERS ABOUT THE BUSINESS COMBINATION,” “PROPOSAL NO. 1 – THE BUSINESS COMBINATION – Background of the Business Combination,” “PROPOSAL NO. 1 – THE BUSINESS COMBINATION – Recommendation of the Concord Board of Directors and Reasons for the Business Combination,” and “PROPOSAL NO. 1 – THE BUSINESS COMBINATION – Opinion of Financial Advisor to Concord’s Board of Directors.” The foregoing consent applies only to the Registration Statement being filed with the Securities and Exchange Commission today and not to any amendments or supplements to the Registration Statement, and our opinion is not to be filed with, included in or referred to in whole or in part in any other registration statement (including any amendments to the above-mentioned Registration Statement), proxy statement or any other document, except in accordance with our prior written consent.
In giving our consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder, nor do we admit that we are experts with respect to any part of such Registration Statement within the meaning of the term “experts” as used in the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission thereunder.
Dated: August 6, 2021 | |
Cassel Salpeter & Co., LLC | |
/s/ Cassel Salpeter & Co., LLC |
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