|
Cayman Islands*
(State or other jurisdiction of incorporation or organization) |
| |
6770
(Primary Standard Industrial Classification Code Number) |
| |
N/A
(I.R.S. Employer Identification No.) |
|
|
Michael S. Lee, Esq.
Lynwood Reinhardt, Esq. Panos Katsambas, Esq. Reed Smith LLP 599 Lexington Avenue New York, NY 10022 Tel: (212) 521-5400 |
| |
Michael P. Considine, P.C.
Alexander Lloyd, Esq. Michele M. Cumpston Kirkland & Ellis LLP 601 Lexington Avenue New York, NY 10022 Tel: (212) 446-4800 |
|
|
Large accelerated filer
|
| | ☐ | | | Accelerated filer | | | ☐ | |
|
Non-accelerated filer
|
| | ☒ | | | Smaller reporting company | | | ☒ | |
| | | | | | | Emerging growth company | | | ☒ | |
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| | | | | 323 | | | |
| | | | | 323 | | | |
| | | | | F-1 | | | |
| ANNEXES | | | | | | | |
| | |
Share Ownership in New Mondee
|
| |||||||||||||||||||||||||||||||||||||||||||||
|
Assuming
No Redemptions |
| |
Assuming 50% of
Max Redemptions(1) |
| |
Assuming Max
Redemptions(2) |
| |
Assuming 100%
Redemptions(5) |
| ||||||||||||||||||||||||||||||||||||||
|
Number
of shares |
| |
%
of total |
| |
Number
of shares |
| |
%
of total |
| |
Number
of shares |
| |
%
of total |
| |
Number
of shares |
| |
%
of total |
| ||||||||||||||||||||||||||
Mondee Stockholder(3)
|
| | | | 60,800,000 | | | | | | 61.6% | | | | | | 60,800,000 | | | | | | 66.2% | | | | | | 60,800,000 | | | | | | 71.6% | | | | | | 60,800,000 | | | | | | 82.3% | | |
Initial Shareholders(4)
|
| | | | 6,502,500 | | | | | | 6.6% | | | | | | 6,502,500 | | | | | | 7.1% | | | | | | 6,502,500 | | | | | | 7.7% | | | | | | 5,898,750(6) | | | | | | 8.0% | | |
Cantor
|
| | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.3% | | |
Former ITHAX Class A Public Shareholders
|
| | | | 24,150,000 | | | | | | 24.5% | | | | | | 17,292,819 | | | | | | 18.8% | | | | | | 10,435,638 | | | | | | 12.3% | | | | | | 0 | | | | | | 0.0% | | |
PIPE Investors
|
| | | | 7,000,000 | | | | | | 7.1% | | | | | | 7,000,000 | | | | | | 7.6% | | | | | | 7,000,000 | | | | | | 8.2% | | | | | | 7,000,000 | | | | | | 9.5% | | |
Additional Dilution
Sources(1) |
| |
Assuming
No Redemption |
| |
% of
Total(2) |
| |
Assuming 50%
of Max Redemptions(3) |
| |
% of
Total(2) |
| |
Assuming
Max Redemption(4) |
| |
% of
Total(2) |
| |
Assuming
100% Redemptions(5) |
| |
% of
Total(2) |
| ||||||||||||||||||||||||
ITHAX Warrants(6)
|
| | | | 12,412,500 | | | | | | 11.2% | | | | | | 12,412,500 | | | | | | 11.9% | | | | | | 12,412,500 | | | | | | 12.8% | | | | | | 12,412,500 | | | | | | 14.4% | | |
| | |
Existing Governing Documents
of ITHAX (Cayman) |
| |
Proposed Governing Documents
of New Mondee (Delaware) |
|
Exclusive Forum
(Advisory Governing Documents Proposal D) |
| | The Existing Governing Documents do not contain a provision adopting an exclusive forum for certain shareholder litigation. | | |
The Proposed Governing Documents adopt Delaware as the exclusive forum for certain stockholder litigation and the United States federal district courts as the exclusive forum for litigation arising out of the Securities Act.
See Article XI of the Proposed Charter.
|
|
Provisions Related to Status as Blank Check Company
(Advisory Governing Documents Proposal D) |
| |
The Existing Governing Documents set forth various provisions related to our status as a blank check company prior to the consummation of a Business Combination (as defined in the Existing Governing Documents).
See Article 36 of our Articles of Association.
|
| | The Proposed Governing Documents do not include such provisions related to our status as a blank check company, which no longer will apply upon consummation of the Business Combination, as we will cease to be a blank check company at such time. | |
Takeovers by Interested Stockholders
(Advisory Governing Documents Proposal E) |
| | The Existing Governing Documents do not provide restrictions on takeovers of ITHAX by a related shareholder following a business combination. | | |
The Proposed Governing Documents provide that New Mondee will not be governed by Section 203 of the DGCL.
See Article IX of the Proposed Charter.
|
|
| | | |
Existing Governing Documents
|
| |
Proposed Governing Documents
|
|
| | | | Memorandum of Association and Article 2 of our Articles of Association. | | | | |
|
Shareholder/Stockholder Written Consent In Lieu of a Meeting
(Advisory Governing Documents Proposal C) |
| |
The Existing Governing Documents provide that resolutions may be passed by a vote in person, by proxy at a general meeting, or by unanimous written resolution.
See Article 1 of our Articles of Association.
|
| |
The Proposed Governing Documents allow stockholders to vote in person or by proxy at a meeting of stockholders, but prohibit the ability of stockholders to act by written consent in lieu of a meeting (except that holders of New Mondee Preferred Stock may take action without a meeting to the extent expressly so provided in the applicable certificate of designation relating to such series of New Mondee Preferred Stock).
See Article VII subsection A of the Proposed Charter and Article II of the Proposed Bylaws.
|
|
|
Corporate Name
(Advisory Governing Documents Proposal D) |
| |
The Existing Governing Documents provide the name of the company is “ITHAX Acquisition Corp.”
See paragraph 1 of our Memorandum of Association.
|
| |
The Proposed Governing Documents will provide that the name of the corporation will be “Mondee Holdings, Inc.”
See Article I of the Proposed Charter.
|
|
|
Perpetual Existence
(Advisory Governing Documents Proposal D) |
| |
The Existing Governing Documents provide that if we do not consummate a Business Combination (as defined in the Existing Governing Documents) by February 1, 2023 (the date that is 24 months after the closing of ITHAX’s initial public offering), ITHAX will cease all operations except for the purposes of winding up and will redeem the shares issued in ITHAX’s initial public offering and liquidate its trust account.
See Article 36 of our Articles of Association.
|
| |
The Proposed Governing Documents do not include any provisions relating to New Mondee’s ongoing existence; the default under the DGCL will make New Mondee’s existence perpetual.
This is the default rule under the DGCL.
|
|
|
Exclusive Forum
(Advisory Governing Documents Proposal D) |
| | The Existing Governing Documents do not contain a provision adopting an exclusive forum for certain shareholder litigation. | | | The Proposed Governing Documents adopt Delaware as the exclusive forum for certain stockholder litigation and the United States federal district courts as the exclusive forum for litigation arising out of the Securities Act. | |
| | | |
Existing Governing Documents
|
| |
Proposed Governing Documents
|
|
| | | | | | | See Article XI of the Proposed Charter. | |
|
Provisions Related to Status as Blank Check Company
(Advisory Governing Documents Proposal D) |
| |
The Existing Governing Documents set forth various provisions related to our status as a blank check company prior to the consummation of a Business Combination (as defined in the Existing Governing Documents).
See Article 36 of our Articles of Association.
|
| | The Proposed Governing Documents do not include such provisions related to our status as a blank check company, which no longer will apply upon consummation of the Business Combination, as we will cease to be a blank check company at such time. | |
|
Takeovers by Interested Stockholders
(Advisory Governing Documents Proposal E) |
| | The Existing Governing Documents do not provide restrictions on takeovers of ITHAX by a related shareholder following a business combination. | | |
The Proposed Governing Documents provide that New Mondee will not be governed by Section 203 of the DGCL.
See Article IX of the Proposed Charter.
|
|
| | |
Share Ownership in New Mondee
|
| |||||||||||||||||||||||||||||||||||||||||||||
| | |
Assuming
No Redemptions |
| |
Assuming 50% of Max
Redemptions(1) |
| |
Assuming Max
Redemptions(2) |
| |
Assuming 100%
Redemptions(5) |
| ||||||||||||||||||||||||||||||||||||
| | |
Number
of shares |
| |
% of
total |
| |
Number
of shares |
| |
% of
total |
| |
Number
of shares |
| |
% of
total |
| |
Number
of shares |
| |
% of
total |
| ||||||||||||||||||||||||
Mondee Stockholder(3)
|
| | | | 60,800,000 | | | | | | 61.6% | | | | | | 60,800,000 | | | | | | 66.2% | | | | | | 60,800,000 | | | | | | 71.6% | | | | | | 60,800,000 | | | | | | 82.3% | | |
Initial Shareholders(4)
|
| | | | 6,502,500 | | | | | | 6.6% | | | | | | 6,502,500 | | | | | | 7.1% | | | | | | 6,502,500 | | | | | | 7.7% | | | | | | 5,898,750(6) | | | | | | 8.0% | | |
Cantor
|
| | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.3% | | |
Former ITHAX Class A Public Shareholders
|
| | | | 24,150,000 | | | | | | 24.5% | | | | | | 17,292,819 | | | | | | 18.8% | | | | | | 10,435,638 | | | | | | 12.3% | | | | | | 0 | | | | | | 0.0% | | |
PIPE Investors
|
| | | | 7,000,000 | | | | | | 7.1% | | | | | | 7,000,000 | | | | | | 7.6% | | | | | | 7,000,000 | | | | | | 8.2% | | | | | | 7,000,000 | | | | | | 9.5% | | |
Additional Dilution Sources(1)
|
| |
Assuming No
Redemption |
| |
% of
Total(2) |
| |
Assuming 50%
of Max Redemptions(3) |
| |
% of
Total(2) |
| |
Assuming
Max Redemption(4) |
| |
% of
Total(2) |
| |
Assuming
100% Redemptions(5) |
| |
% of
Total(2) |
| ||||||||||||||||||||||||
ITHAX Warrants(6)
|
| | | | 12,412,500 | | | | | | 11.2% | | | | | | 12,412,500 | | | | | | 11.9% | | | | | | 12,412,500 | | | | | | 12.8% | | | | | | 12,412,500 | | | | | | 14.4% | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | | | ||
ITHAX cash in trust(1)
|
| | | $ | 241,600,623 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | | ||
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 300,143,623 | | | | ||
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | | ||
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | |
Payment of estimated
transaction expenses(6) |
| | | $ | 24,457,000 | | | | ||
Existing cash on balance
sheet |
| | | $ | 13,000,000 | | | | | | | | | | | | | ||
Total sources
|
| | | $ | 999,725,623 | | | |
Total uses(7)
|
| | | $ | 999,725,623 | | | | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 172,928,188 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 231,471,188 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | | | | | | | | | |
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Total sources
|
| | | $ | 931,053,188 | | | |
Total uses(7)
|
| | | $ | 931,053,188 | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 104,356,377 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 162,899,377 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | | | | | | | | | |
Total sources(7)
|
| | | $ | 862,481,377 | | | |
Total uses(7)
|
| | | $ | 862,481,377 | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 0 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 58,543,000 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | | | | | | | | | |
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Total sources
|
| | | $ | 758,125,000 | | | |
Total uses(7)
|
| | | $ | 758,125,000 | | |
Underwriting Fees
|
| |
Assuming No
Redemption |
| |
Assuming 50%
Max Redemptions(1) |
| |
Assuming
Max Redemption(2) |
| |
Assuming 100%
Redemptions(3) |
| ||||||||||||
Unredeemed public shares
|
| | | | 24,150,000 | | | | | | 17,292,819 | | | | | | 10,435,638 | | | | | | 0 | | |
Trust proceeds to New Mondee(4)
|
| | | $ | 241,500,000 | | | | | $ | 172,928,190 | | | | | $ | 104,356,380 | | | | | | 0 | | |
Deferred underwriting fee
|
| | | $ | 9,082,500 | | | | | $ | 9,082,500 | | | | | $ | 9,082,500 | | | | | $ | 9,082,500 | | |
Effective deferred underwriting fee
|
| | | | 3.76% | | | | | | 5.25% | | | | | | 8.70% | | | | | | — | | |
| | |
Unaudited Condensed Combined Pro Forma Statement of Operations
|
| |||||||||||||||||||||
| | |
Year Ended December 31, 2021
|
| |||||||||||||||||||||
(Amounts in thousands)
|
| |
Pro Forma
Combined (Assuming No Redemptions |
| |
Pro Forma
Combined (Assuming 50% of Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming 100% Redemptions) |
| ||||||||||||
Statement of Operations Data | | | | | | | | | | | | | | | | | | | | | | | | | |
Revenues
|
| | | $ | 93,194 | | | | | $ | 93,194 | | | | | $ | 93,194 | | | | | $ | 93,194 | | |
Operating expenses
|
| | | $ | 117,394 | | | | | $ | 117,394 | | | | | $ | 117,394 | | | | | $ | 117,394 | | |
Loss from operations
|
| | | $ | (24,200) | | | | | $ | (24,200) | | | | | $ | (24,200) | | | | | $ | (24,200) | | |
Other income (expense), net
|
| | | $ | (12,894) | | | | | $ | (12,971) | | | | | $ | (13,066) | | | | | $ | (20,167) | | |
Net loss
|
| | | $ | (37,417) | | | | | $ | (37,494) | | | | | $ | (37,589) | | | | | $ | (44,690) | | |
| | |
Unaudited Condensed Combined Pro Forma Balance Sheet
|
| |||||||||||||||||||||
| | |
As of December 31, 2021
|
| |||||||||||||||||||||
| | |
Pro Forma
Combined (Assuming No Redemptions |
| |
Pro Forma
Combined (Assuming 50% of Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming 100% Redemptions) |
| ||||||||||||
(Amounts in thousands) | | | | | | | | | | | | | | | | | | | | | | | | | |
Balance Sheet Data | | | | | | | | | | | | | | | | | | | | | | | | | |
Total current assets
|
| | | $ | 350,438 | | | | | $ | 281,866 | | | | | $ | 213,294 | | | | | $ | 108,837 | | |
Total assets
|
| | | $ | 491,028 | | | | | $ | 422,456 | | | | | $ | 353,884 | | | | | $ | 249,427 | | |
Total current liabilities
|
| | | $ | 47,561 | | | | | $ | 47,561 | | | | | $ | 47,561 | | | | | $ | 47,561 | | |
Total liabilities
|
| | | $ | 229,453 | | | | | $ | 229,453 | | | | | $ | 229,453 | | | | | $ | 229,453 | | |
Total stockholders’ equity
|
| | | $ | 261,575 | | | | | $ | 193,003 | | | | | $ | 124,431 | | | | | $ | 19,974 | | |
(Amounts in thousands except
share and per share amounts) |
| |
ITHAX
(Historical) |
| |
Mondee
(Historical)(2) |
| |
Pro Forma
Condensed Combined (Assuming No Redemptions) |
| |
Pro Forma
Condensed Combined (Assuming 50% Maximum Redemptions) |
| |
Pro Forma
Condensed Combined (Assuming Maximum Redemptions) |
| |
Pro Forma
Condensed Combined (Assuming 100% Redemptions) |
| ||||||||||||||||||
For the year ended December 31, 2021
|
| | | | | | | ||||||||||||||||||||||||||||||
Book (deficit) value per share(1)
|
| | | | (0.50) | | | | | | (26,825,000) | | | | | | 2.65 | | | | | | 2.10 | | | | | | 1.46 | | | | | | 0.27 | | |
Net Income (Loss)
|
| | | $ | 3,312 | | | | | $ | (38,905) | | | | | $ | (37,417) | | | | | $ | (37,494) | | | | | $ | (37,589) | | | | | $ | (44,690) | | |
Shares outstanding
|
| | | | 30,862,500 | | | | | | 1 | | | | | | 98,662,500 | | | | | | 91,805,319 | | | | | | 84,948,138 | | | | | | 73,908,750 | | |
Use income (loss)(2)
|
| | | $ | 0.11 | | | | | $ | (38,905) | | | | | $ | (0.38) | | | | | $ | (0.41) | | | | | $ | (0.44) | | | | | $ | (0.60) | | |
| | |
Share Ownership in New Mondee
|
| |||||||||||||||||||||||||||||||||||||||||||||
| | |
Assuming
No Redemptions |
| |
Assuming 50% of
Max Redemptions(1) |
| |
Assuming Max
Redemptions(2) |
| |
Assuming 100%
Redemptions(5) |
| ||||||||||||||||||||||||||||||||||||
| | |
Number
of shares |
| |
% of
total |
| |
Number
of shares |
| |
% of
total |
| |
Number
of shares |
| |
% of
total |
| |
Number
of shares |
| |
% of
total |
| ||||||||||||||||||||||||
Mondee Stockholder(3)
|
| | | | 60,800,000 | | | | | | 61.6% | | | | | | 60,800,000 | | | | | | 66.2% | | | | | | 60,800,000 | | | | | | 71.6% | | | | | | 60,800,000 | | | | | | 82.3% | | |
Initial Shareholders(4)
|
| | | | 6,502,500 | | | | | | 6.6% | | | | | | 6,502,500 | | | | | | 7.1% | | | | | | 6,502,500 | | | | | | 7.7% | | | | | | 5,898,750(6) | | | | | | 8.0% | | |
Cantor
|
| | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.3% | | |
Former ITHAX Class A
Public Shareholders |
| | | | 24,150,000 | | | | | | 24.5% | | | | | | 17,292,819 | | | | | | 18.8% | | | | | | 10,435,638 | | | | | | 12.3% | | | | | | 0 | | | | | | 0.0% | | |
PIPE Investors
|
| | | | 7,000,000 | | | | | | 7.1% | | | | | | 7,000,000 | | | | | | 7.6% | | | | | | 7,000,000 | | | | | | 8.2% | | | | | | 7,000,000 | | | | | | 9.5% | | |
Additional Dilution
Sources(1) |
| |
Assuming
No Redemption |
| |
% of
Total(2) |
| |
Assuming 50% Max
Redemptions(3) |
| |
% of
Total(2) |
| |
Assuming
Max Redemption(4) |
| |
% of
Total(2) |
| |
Assuming 100%
Redemptions(5) |
| |
% of
Total(2) |
| ||||||||||||||||||||||||
ITHAX Warrants(6)
|
| | | | 12,412,500 | | | | | | 11.2% | | | | | | 12,412,500 | | | | | | 11.9% | | | | | | 12,412,500 | | | | | | 12.8% | | | | | | 12,412,500 | | | | | | 14.4% | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 241,600,623 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 300,143,623 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | | | | | | | | | |
Total sources
|
| | | $ | 999,725,623 | | | |
Total uses(7)
|
| | | $ | 999,725,623 | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 172,928,188.50 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 231,471,188 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | | | | | | | | | |
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Total sources
|
| | | $ | 931,053,188 | | | |
Total uses(7)
|
| | | $ | 931,053,188 | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 104,356,377 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 162,899,377 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | | | | | | | | | |
Total sources
|
| | | $ | 862,481,377 | | | |
Total uses(7)
|
| | | $ | 862,481,377 | | |
Sources
|
| | | | | | | |
Uses
|
| | | | | | |
ITHAX cash in trust(1)
|
| | | $ | 0 | | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | |
PIPE investment(2)
|
| | | $ | 70,000,000 | | | |
Cash to Mondee balance sheet(5)
|
| | | $ | 58,543,000 | | |
Mondee Rollover(3)
|
| | | $ | 608,000,000 | | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | |
ITHAX Sponsor equity(4)
|
| | | $ | 67,125,000 | | | | | |||||||
Existing cash on balance sheet
|
| | | $ | 13,000,000 | | | |
Payment of estimated transaction expenses(6)
|
| | | $ | 24,457,000 | | |
Total sources
|
| | | $ | 758,125,000 | | | |
Total uses(7)
|
| | | $ | 758,125,000 | | |
Underwriting Fees
|
| |
Assuming No
Redemption |
| |
Assuming 50%
Max Redemptions(1) |
| |
Assuming
Max Redemption(2) |
| |
Assuming 100%
Redemptions(3) |
| ||||||||||||
Unredeemed public shares
|
| | | | 24,150,000 | | | | | | 17,292,819 | | | | | | 10,435,638 | | | | | | 0 | | |
Trust proceeds to New Mondee(4)
|
| | | $ | 241,600,623 | | | | | $ | 172,928,189 | | | | | $ | 104,356,377 | | | | | | 0 | | |
Deferred underwriting fee
|
| | | $ | 9,082,500 | | | | | $ | 9,082,500 | | | | | $ | 9,082,500 | | | | | $ | 9,082,500 | | |
Effective deferred underwriting fee
|
| | | | 3.76% | | | | | | 5.25% | | | | | | 8.70% | | | | | | — | | |
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
|
Corporate Purpose
|
| | The purpose is to engage in any lawful act or activity for which corporations may be organized under the DGCL. | | | The objects for which ITHAX is established are unrestricted and ITHAX shall have full power and authority to carry out any object not prohibited by the laws of the Cayman Islands. | |
|
Capital Stock
|
| |
The total number of shares of all classes of capital stock which ITHAX shall have authority to issue is 111,000,000 shares, of which 100,000,000 shares shall be Class A Common Stock, par value $0.001 per share, 10,000,000 shares shall be Class B Common Stock, par value $0.001 per share, and 1,000,000 shares shall be preferred stock, par value $0.001 per share.
Preferred Stock
The ITHAX 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 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.
Rights and Options
ITHAX has the authority to create and issue rights, warrants and options
|
| |
ITHAX’s authorized share capital consists of 111,000,000 shares, consisting of 100,000,000 Class A Ordinary Shares, par value $0.001 per share, 10,000,000 Class B Ordinary Shares, par value $0.001 per share, and 1,000,000 preference shares,par value $0.001.
Preference Shares
The directors have general and unconditional authority to allot (with or without confirming rights of renunciation), issue, grant options over or otherwise deal with any unissued Shares of ITHAX to such persons, at such times and on such terms and conditions as they may decide, save that the directors may not allot, issue, grant options over or otherwise deal with any unissued Shares to the extent that it may affect the ability of ITHAX to carry out a Class B Share Conversion described at Article 37 of the Existing Governing Documents.
Effect of New Share on Existing Class Rights
Unless the terms on which a class of Shares was issued state otherwise, the rights conferred on the Member holding Shares of any class shall not be deemed to be varied by the creation or issue of further Shares ranking pari passu with the existing Shares of that class.
Ordinary Shares
The directors have general and unconditional authority to allot (with
|
|
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
| | | |
or convertible securities entitling the holders thereof to subscribe for, purchase or receive shares of any class or series of ITHAX’s capital stock or other securities of ITHAX, and such rights, warrants and options shall be evidenced by instrument(s) approved by the ITHAX Board.
The ITHAX Board is hereby expressly authorized 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 subject thereto may not be less than the par value thereof.
Common Stock
The ITHAX Board is hereby expressly authorized to provide for the issuance of shares of common stock from time to time. Except as may otherwise be provided in the Interim Charter (including any certificate filed with the Secretary of State of the State of Delaware establishing the terms of a series of preferred stock), each holder of common stock shall be entitled to one (1) vote for each share of common stock held of record by such holder on each matter properly submitted to the stockholders on which the holders of the common stock are entitled to vote.
|
| | or without confirming rights of renunciation), issue, grant options over or otherwise deal with any unissued Shares of ITHAX to such persons, at such times and on such terms and conditions as they may decide, save that the directors may not allot, issue, grant options over or otherwise deal with any unissued Shares to the extent that it may affect the ability of ITHAX to carry out a Class B Share Conversion described at Article 37 of the Existing Governing Documents. | |
|
Directors;
Classes |
| |
The minimum number of directors of ITHAX shall be one (1) and there shall be no maximum number of directors.
The ITHAX Board shall be divided into three classes, designated Class I, and Class II and Class III. Each class shall consist, as nearly as may be possible, of one-third of the total number of directors constituting the entire Board. The Board may assign members of the Board already in office at the time of effectiveness of the Interim Charter (the “Effective
|
| | The directors shall be divided into three classes: Class I, Class II and Class III. The number of directors in each class shall be as nearly equal as possible. Immediately prior to the consummation of the IPO, the existing directors shall by resolution classify themselves as Class I, Class II or Class III directors. The Class I directors shall stand elected for a term expiring at the Company’s first annual general meeting, the Class II directors shall stand elected for a term expiring at the Company’s second annual general meeting and the Class III | |
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
| | | | Time”) to such classes. The Class I directors shall stand elected for a term expiring at ITHAX’s first annual stockholder meeting following the Effective Time. The Class II directors shall stand elected for a term expiring at ITHAX’s second annual stockholder meeting following the Effective Time. The Class III directors shall stand elected for a term expiring at ITHAX’s third annual stockholder meeting following the Effective Time. At each annual meeting of the stockholders of ITHAX following the Effective Time, successors to the class of directors whose term expires at that annual meeting shall be elected for a term of office to expire at the third annual stockholder meeting following their election, subject to their earlier death, resignation or removal. | | | directors shall stand elected for a term expiring at the Company’s third annual general meeting. Commencing at the Company’s first annual general meeting, and at each annual general meeting thereafter, directors elected to succeed those directors whose terms expire shall be elected for a term of office to expire at the third succeeding annual general meeting after their election. All directors shall hold office until the expiration of their respective terms of office and until their successors shall have been elected and qualified. | |
|
Board Vacancies; Removal
|
| |
Newly created directorships resulting from an increase in the number of directors and any vacancies on the ITHAX Board resulting from death, resignation, retirement, disqualification, removal or other cause may be filled solely 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.
Any or all of the directors may be removed from office with or without cause by the affirmative vote of holders of a majority of the then-outstanding shares of capital stock of ITHAX entitled to vote generally in the election of directors, voting together as a single class.
|
| | A director elected to fill a vacancy resulting from the death, resignation or removal of a director shall serve for the remainder of the full term of the director whose death, resignation or removal shall have created such vacancy and until his successor shall have been elected and qualified. | |
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
|
Stockholder/Shareholder
Voting |
| |
Subject to the rights of the holders of any outstanding series of the Preferred Stock, and to the requirements of applicable law, special meetings of stockholders of ITHAX may be called only by the chairman of the Board, chief executive officer or president of ITHAX, or the ITHAX Board pursuant to a resolution adopted by a majority of the ITHAX Board, and the stockholders of record, owning not less than 10% of the entire capital stock of ITHAX issued and outstanding and entitled to vote.
Stockholders must comply with certain advance notice procedures to nominate candidates to the ITHAX Board or to propose matters to be acted upon at a stockholders’ meeting, as provided in the Bylaws.
Any action required or permitted to be taken by the stockholders of the Corporation may be effected by written consent of the stockholders holding the requisite number of shares required to approve such action.
|
| |
Votes of shareholders shall be decided on a poll.
Members may pass a resolution in writing without holding a meeting if the following conditions are met: (a) all Members entitled so to vote are given notice of the resolution as of the same were being proposed at a meeting of the Members; (b) all Members entitled so to vote: (i) sign a document; or (ii) sign several documents in the life form each signed by one or more of those Members; and (c) the signed document or documents is or are delivered to the Company, including, if the Company so nominates, by delivery of an electronic record by electronic means to the address specified for that purpose.
|
|
|
Amendments to
the Governing Documents |
| |
Subject to applicable law, ITHAX may, by affirmative vote of the stockholders: (i) change its name or (ii) change the provisions of the Interim Charter with respect to its objects, powers and any other matter specified in the Interim Charter.
Subject to applicable law and the Interim Charter, ITHAX may, by the affirmative vote of the stockholders, amend the Interim Charter in whole or in part save that no amendment may be made to the Interim Charter to amend (i) Article IX (Business Combination) unless the holders of the Public Shares are provided with the opportunity to redeem their Public Shares upon the approval of any such amendment in the manner and for the price as set out in the Interim Charter or (ii) amend this provision of the Interim Charter during the Target Business
|
| |
Subject to applicable law, ITHAX may, by Special Resolution: (i) change its name or (ii) change the provisions of the Existing Governing Documents with respect to its objects, powers and any other matter specified in the Existing Governing Documents.
Subject to applicable law and the Existing Governing Documents, ITHAX may, by Special Resolution, amend the Existing Governing Documents in whole or in part save that no amendment may be made to the Existing Governing Documents to amend (i) Article 36 unless the holders of the Public Shares are provided with the opportunity to redeem their Public Shares upon the approval of any such amendment in the manner and for the price as set out in the Existing Governing Documents or (ii) amend this provision of the Existing Governing
|
|
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
| | | | Acquisition Period (as defined therein). | | | Documents during the Target Business Acquisition Period (as defined therein). | |
|
Authority of the
Directors |
| | The directors are empowered to exercise all such powers and do all such acts and things as may be exercised or done by ITHAX, subject to the provisions of the DGCL, the Interim Charter and any bylaws adopted by the stockholders. | | | The business shall be managed by the directors who may exercise all the powers of the company. | |
|
Liability of the
Directors |
| | A director of ITHAX shall not be liable to ITHAX 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. Any amendment, modification or repeat of this provision shall not adversely affect any right or protection of a director of ITHAX in respect of any act or omission occurring prior to the time of such amendment, modification or repeal. | | | The Cayman Islands Companies Act does not limit the extent to which a company’s memorandum and articles of association may provide for indemnification of officers and directors, except to the extent any such provision may be held by the Cayman Islands courts to be contrary to public policy, such as to provide indemnification against willful default, fraud or the consequences of committing a crime. The Existing Governing Documents provide for indemnification of officers and directors, including for any liability incurred in their capacities as such, except through their own actual fraud, willful default or willful neglect. | |
|
Indemnification of Directors, Officers, Employees and Others
|
| | To the fullest extent permitted by applicable law, ITHAX 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, by reason of the fact that he or she is or was a director or an officer of ITHAX or, while a director or officer of ITHAX, is or was serving at the request of ITHAX as a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or non-profit entity, against all liability and loss suffered and expenses reasonably incurred by such indemnitee in connection with such proceeding, provided, however, that, except in certain circumstances, | | | See “Liability of Directors” above. | |
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
| | | | ITHAX shall indemnify any such indemnitee in connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the ITHAX Board. Indemnitees shall also have the right to be paid by ITHAX the expenses (including attorney’s fees) incurred in defending or otherwise participating in any such proceeding in advance of its final disposition or in connection with a proceeding brought to establish or enforce a right to indemnification or advancement of expenses, subject to the requirements concerning the repayment of certain expenses set forth in the Interim Charter. | | | | |
|
Exclusive Forum
|
| | Unless ITHAX consents in writing to the selection of an alternative forum, the Court of Chancery of the State of Delaware (or, in the event that the Chancery Court declines or does not have jurisdiction, the federal district court for the District of Delaware or, in the event that the federal district court for the District of Delaware does not have jurisdiction, other state courts of the State of Delaware) and any appellate court thereof shall, to the fullest extent permitted by law, be the sole and exclusive forum for (i) any derivative action, suit or proceeding brought on behalf of ITHAX, (ii) any action, suit or proceeding asserting a claim of breach of a fiduciary duty owed by any director, officer or stockholder of ITHAX to ITHAX or to ITHAX’s stockholders, (iii) any action, suit or proceeding arising pursuant to any provision of the DGCL or the Bylaws or the Interim Charter (as either may be amended from time to time), (iv) any action, suit or proceeding as to which the DGCL confers jurisdiction on the Court of Chancery of the State of Delaware, or (v) any action, suit or proceeding asserting a claim against ITHAX or any current or former director, officer or stockholder governed by the internal affairs | | | No similar provision. | |
| | | |
Delaware Interim
Charter |
| |
Cayman Islands Existing
Governing Documents |
|
| | | | doctrine. Unless the Corporation consents in writing to the selection of an alternative forum, to the fullest extent permitted by law, the federal district courts of the United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action arising under the Securities Act and the Exchange Act. | | | | |
|
Business Opportunities
|
| | The doctrine of corporate opportunity, or any other analogous doctrine, shall not apply with respect to ITHAX or any of its officers or directors or in circumstances where the application of any such doctrine would conflict with any of his or her current or future fiduciary duties or contractual obligations. | | | No similar provision. | |
| | | |
Interim Charter
|
| |
Proposed Charter and Proposed Bylaws
|
|
| Authorized Shares | | |
The total number of shares of all classes of capital stock which ITHAX shall have authority to issue is 111,000,000 shares, of which 100,000,000 shares shall be Class A Common Stock, par value $0.001 per share, 10,000,000 shares shall be Class B Common Stock, par value $0.001 per share, and 1,000,000 shares shall be preferred stock, par value $0.001 per share.
See Article IV of the Interim Charter.
|
| |
The Proposed Governing Documents authorize US$[•] divided into [•] shares of New Mondee Common Stock, having a par value of $0.0001 per share, and [•] shares of New Mondee Preferred Stock, having a par value of $0.0001 per share. The New Mondee Common Stock will consist of two classes: [•] shares of Class A Common Stock and [•] shares of Class C Common Stock.
See Article IV of the Proposed Charter.
|
|
| Removal of Directors | | | Any or all of the directors may be removed from office with or without cause by the affirmative vote of holders of a majority of the then-outstanding shares of capital stock of ITHAX entitled to vote generally in the election of directors, voting | | | Subject to the special rights of the holders of one or more outstanding series of Preferred Stock to elect directors, the Board of Directors or any individual director may be removed from office at any time, but only for cause and only by the | |
| | | |
Interim Charter
|
| |
Proposed Charter and Proposed Bylaws
|
|
| | | |
to amend (i) Article IX (Business Combination) unless the holders of the Public Shares are provided with the opportunity to redeem their Public Shares upon the approval of any such amendment in the manner and for the price as set out in the Interim Charter or (ii) amend this provision of the Interim Charter during the Target Business Acquisition Period (as defined therein).
See Article XI of the Interim Charter.
|
| |
addition to any vote required by applicable law, prior to the seventh (7th) anniversary of the Effective Time (as defined therein), the following provisions in the Proposed Charter may be amended, altered, repealed or rescinded, in whole or in part, or any provision inconsistent therewith or herewith may be adopted, only by the affirmative vote of the holders of at least 66 2/3% of the total voting power of all the then outstanding shares of stock of the Corporation entitled to vote thereon, voting together as a single class: Article V(B) (Preferred Stock), Article VI (Board of Directors), Article VII (Meeting of Stockholders; Action by Written Consent), Article VII (Limitation of Director Liability), Article IX (Business Combination), Article X (Indemnification), Article XI (Competition and Corporate Opportunities), Article XII (Forum Selection), and Article XIII (Miscellaneous).
See Article XIII of the Proposed Charter.
|
|
| Corporate Name | | |
The Interim Charter will provide that the name of the corporation will be “ITHAX Acquisition Corp.”
See Article I of the Interim Charter.
|
| |
The Proposed Governing Documents will provide that the name of the corporation will be “Mondee Holdings, Inc.”
See Article I of the Proposed Charter.
|
|
| Exclusive Forum | | |
The Interim Charter adopts Delaware as the exclusive forum for certain stockholder litigation and the United States federal district courts as the exclusive forum for litigation arising out of the Securities Act.
See Article XII of the Interim Charter.
|
| |
The Proposed Governing Documents adopt Delaware as the exclusive forum for certain stockholder litigation and the United States federal district courts as the exclusive forum for litigation arising out of the Securities Act.
See Article XI of the Proposed Charter.
|
|
| Provisions Related to Status as Blank Check Company | | | ITHAX’s Interim Charter contains provisions in Article IX in connection with the mechanics and logistics relating to a Business Combination, and such provisions cannot be amended | | | The Proposed Governing Documents do not include such provisions related to our status as a blank check company, which no longer will apply upon consummation of the Business Combination, as we will cease to be a blank check company at such time. | |
| | |
Existing Governing Documents of ITHAX
(Cayman) |
| |
Proposed Governing Documents of New Mondee
(Delaware) |
|
Preferred Stock Without Stockholder Consent (Advisory Governing Documents Proposal B) | | |
unlimited number of authorized and outstanding preference shares with par value US$0.001 per share and with such designation, rights and preferences as may be determined from time to time by the ITHAX Board. Accordingly, the ITHAX Board is empowered under the Existing Governing Documents, without shareholder approval, to issue preference shares with dividend, liquidation, redemption, voting or other rights which could adversely affect the voting power or other rights of the holders of ordinary shares.
See paragraph 8 of our Memorandum of Association and Article 2 of our Articles of Association.
|
| |
issue all or any shares of New Mondee Preferred Stock in one or more series and to fix for each such series such voting powers, full or limited, and such designations, preferences and relative, participating, optional or other special rights and such qualifications, limitations or restrictions thereof, as the board of directors may determine.
See Article V subsection B of the Proposed Charter.
|
|
Shareholder/Stockholder Written Consent In Lieu of a Meeting
(Advisory Governing Documents Proposal C) |
| |
The Existing Governing Documents provide that resolutions may be passed by a vote in person, by proxy at a general meeting, or by unanimous written resolution.
See Article 1 of our Articles of Association.
|
| |
The Proposed Governing Documents allow stockholders to vote in person or by proxy at a meeting of stockholders, but prohibit the ability of stockholders to act by written consent in lieu of a meeting (except that holders of New Mondee Preferred Stock may take action without a meeting to the extent expressly so provided in the applicable certificate of designation relating to such series of New Mondee Preferred Stock).
See Article VII subsection A of the Proposed Charter and Article II of the Proposed Bylaws.
|
|
Corporate Name (Advisory Governing Documents Proposal D) | | |
The Existing Governing Documents provide the name of the company is “ITHAX Acquisition Corp.”
See paragraph 1 of our Memorandum of Association.
|
| |
The Proposed Governing Documents will provide that the name of the corporation will be “Mondee Holdings, Inc.”
See Article I of the Proposed Charter.
|
|
Perpetual Existence (Advisory Governing Documents Proposal D) | | | The Existing Governing Documents provide that if we do not consummate a Business Combination (as defined in the Existing Governing Documents) by February 1, 2023 (the date that is 24 months after the closing of ITHAX’s initial public offering), ITHAX will cease all operations except for the purposes of winding up and will redeem the shares issued in ITHAX’s initial public | | |
The Proposed Governing Documents do not include any provisions relating to New Mondee’s ongoing existence; the default under the DGCL will make New Mondee’s existence perpetual.
This is the default rule under the DGCL.
|
|
| | |
Existing Governing Documents of ITHAX
(Cayman) |
| |
Proposed Governing Documents of New Mondee
(Delaware) |
|
| | |
offering and liquidate its trust account.
See Article 36 of our Articles of Association.
|
| | | |
Exclusive Forum (Advisory Governing Documents Proposal D) | | | The Existing Governing Documents do not contain a provision adopting an exclusive forum for certain shareholder litigation. | | |
The Proposed Governing Documents adopt Delaware as the exclusive forum for certain stockholder litigation and the United States federal district courts as the exclusive forum for litigation arising out of the Securities Act.
See Article XI of the Proposed Charter.
|
|
Provisions Related to Status as Blank Check Company
(Advisory Governing Documents Proposal D) |
| |
The Existing Governing Documents set forth various provisions related to our status as a blank check company prior to the consummation of a Business Combination (as defined in the Existing Governing Documents).
See Article 36 of our Articles of Association.
|
| | The Proposed Governing Documents do not include such provisions related to our status as a blank check company, which no longer will apply upon consummation of the Business Combination, as we will cease to be a blank check company at such time. | |
Takeovers by Interested Stockholders
(Advisory Governing Documents Proposal E) |
| | The Existing Governing Documents do not provide restrictions on takeovers of ITHAX by a related shareholder following a business combination. | | |
The Proposed Governing Documents provide that New Mondee will not be governed by Section 203 of the DGCL.
See Article IX of the Proposed Charter.
|
|
| | |
ITHAX
(Historical) |
| |
Mondee
(Historical) |
| |
Transaction
Accounting Adjustments (Assuming No redemptions) |
| | | | |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Additional
Pro Forma Adjustments (Assuming 50% of Maximum Redemptions) |
| | | | |
Pro Forma
Combined (Assuming 50% of Maximum Redemptions) |
| |
Additional
Pro Forma Adjustments (Assuming Maximum Redemptions) |
| | | | |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| |
Additional
Pro Forma Adjustments (Assuming 100% Redemptions) |
| | | | |
Pro Forma
Combined (Assuming 100% Redemptions) |
| ||||||||||||||||||||||||||||||
| | | | | | | | | | | | | | | | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 525 | | | | | | 15,506 | | | | | $ | 309,198 | | | |
3(a)
|
| | | | 325,229 | | | | | $ | (68,572) | | | |
3(a)
|
| | | | 256,657 | | | | | | (68,572) | | | |
3(a)
|
| | | $ | 188,085 | | | | | $ | (104,457) | | | |
3(a)
|
| | | $ | 83,628 | | |
Restricted Cash
|
| | | | — | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Restricted short-term investments
|
| | | | — | | | | | | 8,484 | | | | | | — | | | | | | | | | 8,484 | | | | | | — | | | | | | | | | 8,484 | | | | | | — | | | | | | | | | 8,484 | | | | | | | | | | | | | | | 8,484 | | |
Trade accounts receivable
|
| | | | — | | | | | | 10,178 | | | | | | — | | | | | | | | | 10,178 | | | | | | — | | | | | | | | | 10,178 | | | | | | — | | | | | | | | | 10,178 | | | | | | | | | | | | | | | 10,178 | | |
Contract assets
|
| | | | — | | | | | | 3,935 | | | | | | — | | | | | | | | | 3,935 | | | | | | — | | | | | | | | | 3,935 | | | | | | — | | | | | | | | | 3,935 | | | | | | | | | | | | | | | 3,935 | | |
Prepaid and other current assets
|
| | | | 24 | | | | | | 2,588 | | | | | | — | | | | | | | | | 2,612 | | | | | | — | | | | | | | | | 2,612 | | | | | | — | | | | | | | | | 2,612 | | | | | | | | | | | | | | | 2,612 | | |
Total current assets
|
| | | | 549 | | | | | | 40,691 | | | | | | 309,198 | | | | | | | | | 350,438 | | | | | | (68,572) | | | | | | | | | 281,866 | | | | | | (68,572) | | | | | | | | | 213,294 | | | | | | (104,457) | | | | | | | | | 108,837 | | |
Property and equipment, net
|
| | | | — | | | | | | 8,874 | | | | | | — | | | | | | | | | 8,874 | | | | | | — | | | | | | | | | 8,874 | | | | | | — | | | | | | | | | 8,874 | | | | | | | | | | | | | | | 8,874 | | |
Investments held in Trust Account
|
| | | | 241,601 | | | | | | — | | | | | | (241,601) | | | |
3(a)(1)
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Goodwill
|
| | | | — | | | | | | 66,420 | | | | | | — | | | | | | | | | 66,420 | | | | | | — | | | | | | | | | 66,420 | | | | | | — | | | | | | | | | 66,420 | | | | | | | | | | | | | | | 66,420 | | |
Intangible asset, net
|
| | | | — | | | | | | 63,708 | | | | | | — | | | | | | | | | 63,708 | | | | | | — | | | | | | | | | 63,708 | | | | | | — | | | | | | | | | 63,708 | | | | | | | | | | | | | | | 63,708 | | |
Loan receivable from related parties
|
| | | | — | | | | | | 22,054 | | | | | | (22,054) | | | |
3(k)
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | | | | | | | — | | |
Other non-current assets
|
| | | | — | | | | | | 1,588 | | | | | | — | | | | | | | | | 1,588 | | | | | | — | | | | | | | | | 1,588 | | | | | | — | | | | | | | | | 1,588 | | | | | | | | | | | | | | | 1,588 | | |
Total assets
|
| | | $ | 242,150 | | | | | $ | 203,335 | | | | | $ | 45,543 | | | | | | | | $ | 491,028 | | | | | $ | (68,572) | | | | | | | | $ | 422,456 | | | | | $ | (68,572) | | | | | | | | $ | 353,884 | | | | | $ | (104,457) | | | | | | | | $ | 249,427 | | |
Liabilities and stockholders’ (deficit)
equity |
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | — | | | | | $ | 19,529 | | | | | $ | — | | | | | | | | $ | 19,529 | | | | | | — | | | | | | | | $ | 19,529 | | | | | | — | | | | | | | | $ | 19,529 | | | | | | — | | | | | | | | $ | 19,529 | | |
Accounts payable to related parties
|
| | | | — | | | | | | 716 | | | | | | — | | | | | | | | | 716 | | | | | | — | | | | | | | | | 716 | | | | | | — | | | | | | | | | 716 | | | | | | — | | | | | | | | | 716 | | |
PPP and other government loans, current portion
|
| | | | — | | | | | | 338 | | | | | | — | | | | | | | | | 338 | | | | | | — | | | | | | | | | 338 | | | | | | — | | | | | | | | | 338 | | | | | | — | | | | | | | | | 338 | | |
Accrued expenses and other current
liabilities |
| | | | 211 | | | | | | 10,354 | | | | | | (1,100) | | | |
3(g)
|
| | | | 9,465 | | | | | | — | | | | | | | | | 9,465 | | | | | | — | | | | | | | | | 9,465 | | | | | | — | | | | | | | | | 9,465 | | |
Deferred revenue
|
| | | | — | | | | | | 6,450 | | | | | | — | | | | | | | | | 6,450 | | | | | | — | | | | | | | | | 6,450 | | | | | | — | | | | | | | | | 6,450 | | | | | | — | | | | | | | | | 6,450 | | |
Long-term debt, current portion
|
| | | | — | | | | | | 11,063 | | | | | | — | | | | | | | | | 11,063 | | | | | | — | | | | | | | | | 11,063 | | | | | | — | | | | | | | | | 11,063 | | | | | | — | | | | | | | | | 11,063 | | |
Total current liabilities
|
| | |
|
211
|
| | | |
|
48,450
|
| | | | | (1,100) | | | | | | | |
|
47,561
|
| | | | | — | | | | | | | |
|
47,561
|
| | | | | — | | | | | | | |
|
47,561
|
| | | | | — | | | | | | | |
|
47,561
|
| |
Deferred income taxes
|
| | | | — | | | | | | 512 | | | | | | — | | | | | | | | | 512 | | | | | | — | | | | | | | | | 512 | | | | | | — | | | | | | | | | 512 | | | | | | — | | | | | | | | | 512 | | |
Loan payable to related parties
|
| | | | — | | | | | | 193 | | | | | | — | | | | | | | | | 193 | | | | | | — | | | | | | | | | 193 | | | | | | — | | | | | | | | | 193 | | | | | | — | | | | | | | | | 193 | | |
Paycheck Protection Program (PPP)
and other government loans |
| | | | — | | | | | | 1,915 | | | | | | — | | | | | | | | | 1,915 | | | | | | — | | | | | | | | | 1,915 | | | | | | — | | | | | | | | | 1,915 | | | | | | — | | | | | | | | | 1,915 | | |
Long-term debt excluding current portion
|
| | | | — | | | | | | 162,170 | | | | | | — | | | | | | | | | 162,170 | | | | | | — | | | | | | | | | 162,170 | | | | | | — | | | | | | | | | 162,170 | | | | | | — | | | | | | | | | 162,170 | | |
Deferred revenue excluding current
portion |
| | | | — | | | | | | 14,288 | | | | | | — | | | | | | | | | 14,288 | | | | | | — | | | | | | | | | 14,288 | | | | | | — | | | | | | | | | 14,288 | | | | | | — | | | | | | | | | 14,288 | | |
Other long-term liabilities
|
| | | | — | | | | | | 2,632 | | | | | | — | | | | | | | | | 2,632 | | | | | | — | | | | | | | | | 2,632 | | | | | | — | | | | | | | | | 2,632 | | | | | | — | | | | | | | | | 2,632 | | |
Warrant Liability
|
| | | | 6,703 | | | | | | — | | | | | | 6,521 | | | |
3(e)(2)
|
| | | | 182 | | | | | | — | | | | | | | | | 182 | | | | | | — | | | | | | | | | 182 | | | | | | — | | | | | | | | | 182 | | |
Deferred underwriting fee
|
| | | | 9,083 | | | | | | — | | | | | | (9,083) | | | |
3(a)(4)
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | |
Total liabilities
|
| | | | 15,997 | | | | | | 230,160 | | | | | | (16,704) | | | | | | | | | 229,453 | | | | | | — | | | | | | | |
|
229,453
|
| | | | | — | | | | | | | |
|
229,453
|
| | | | | — | | | | | | | |
|
229,453
|
| |
Common stock subject to possible
redemption |
| | | | 241,601 | | | | | | — | | | | | | (241,601) | | | |
3(b)
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | |
Stockholders (deficit) equity
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
ITHAX Class A Ordinary shares
|
| | | | 1 | | | | | | — | | | | | | (1) | | | |
3(c)
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | |
ITHAX Class B Ordinary shares
|
| | | | 6 | | | | | | — | | | | | | (6) | | | |
3(c)(2)
|
| | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | — | | | | | | | | | — | | |
New Mondee Common Stock
|
| | | | — | | | | | | — | | | | | | 99 | | | |
3(d)
|
| | | | 99 | | | | | | (7) | | | |
3(d)
|
| | | | 92 | | | | | | (7) | | | |
3(d)
|
| | | | 85 | | | | | | (10) | | | |
3(d)
|
| | | | 75 | | |
Additional paid-in capital
|
| | | | | | | | | | 163,465 | | | | | | 289,617 | | | |
3(e)
|
| | | | 453,082 | | | | | | (68,488) | | | |
3(e)
|
| | | | 384,594 | | | | | | (68,393) | | | |
3(e)
|
| | | | 316,201 | | | | | | (97,174) | | | |
3(e)
|
| | | | 219,027 | | |
Accumulated other comprehensive
income (loss) |
| | | | — | | | | | | (273) | | | | | | — | | | | | | | | | (273) | | | | | | — | | | | | | | | | (273) | | | | | | — | | | | | | | | | (273) | | | | | | — | | | | | | | | | (273) | | |
Retained earnings (accumulated deficit)
|
| | | | (15,455) | | | | | | (190,017) | | | | | | 14,139 | | | |
3(f)
|
| | | | 191,333 | | | | | | (77) | | | |
3(h)
|
| | | | 191,410 | | | | | | (172) | | | |
3(h)
|
| | | | (191,582) | | | | | | (7,273) | | | |
3(h)
|
| | | | (198,855) | | |
Total stockholders’ (deficit) equity
|
| | | | (15,448) | | | | | | (26,825) | | | | | | 303,848 | | | | | | | | | 261,575 | | | | | | (68,572) | | | | | | | | | 193,003 | | | | | | (68,572) | | | | | | | | | 124,431 | | | | | | (104,457) | | | | | | | | | 19,974 | | |
Total liabilities and stockholders’ (deficit) equity
|
| | |
$
|
242,150
|
| | | |
$
|
203,335
|
| | | |
$
|
45,543
|
| | | | | | | $ | 491,028 | | | | | $ | (68,572) | | | | | | | | $ | 422,456 | | | | | $ | (68,572) | | | | | | | | $ | 353,884 | | | | | $ | (104,457) | | | | | | | | $ | 249,427 | | |
| | |
ITHAX
(Historical) |
| |
Mondee
(Historical) |
| |
Transaction
Accounting Adjustments (Assuming No Redemptions) |
| | | | |
Pro Forma
Combined (Assuming No Redemptions) |
| | | | |
Transaction
Accounting Adjustments (Assuming 50% Maximum Redemptions) |
| | | | |
Pro Forma
Combined (Assuming 50% Maximum Redemptions) |
| | | | |
Additional
Transaction Accounting (Assuming Maximum Redemptions) |
| | | | |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| | | | |
Additional
Transaction Accounting (Assuming 100% Redemptions) |
| | | | |
Pro Forma
Combined (Assuming 100% Redemptions) |
| | | | | | | ||||||||||||||||||||||||||||||
Revenue, net
|
| | | $ | — | | | | | $ | 93,194 | | | | | $ | — | | | | | | | | $ | 93,194 | | | | | | | | $ | — | | | | | | | | $ | 93,194 | | | | | | | | $ | — | | | | | | | | $ | 93,194 | | | | | | | | $ | — | | | | | | | | $ | 93,194 | | | | | | | | |
Operating expenses | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
General and
administrative |
| | | | 834 | | | | | | 7,455 | | | | | | — | | | | | | | | | 8,289 | | | | | | | | | — | | | | | | | | | 8,289 | | | | | | | | | — | | | | | | | | | 8,289 | | | | | | | | | — | | | | | | | | | 8,289 | | | | | | | | |
Sales and other expenses
|
| | | | — | | | | | | 11,165 | | | | | | 92 | | | |
3(i)
|
| | | | 11,257 | | | | | | | | | — | | | | | | | | | 11,257 | | | | | | | | | — | | | | | | | | | 11,257 | | | | | | | | | — | | | | | | | | | 11,257 | | | | | | | | |
Marketing Expenses
|
| | | | — | | | | | | 54,611 | | | | | | — | | | | | | | | | 54,611 | | | | | | | | | | | | | | | | | | 54,611 | | | | | | | | | | | | | | | | | | 54,611 | | | | | | | | | | | | | | | | | | 54,611 | | | | | | | | |
Personnel expense,
including stock-based compensation |
| | | | — | | | | | | 23,422 | | | | | | 1,022 | | | |
3(i)
|
| | | | 24,444 | | | | | | | | | — | | | | | | | | | 24,444 | | | | | | | | | — | | | | | | | | | 24,444 | | | | | | | | | — | | | | | | | | | 24,444 | | | | | | | | |
Information technology
expense |
| | | | — | | | | | | 4,058 | | | | | | — | | | | | | | | | 4,058 | | | | | | | | | — | | | | | | | | | 4,058 | | | | | | | | | — | | | | | | | | | 4,058 | | | | | | | | | — | | | | | | | | | 4,058 | | | | | | | | |
Provision for doubtful accounts receivable and contract assets
|
| | | | — | | | | | | 1,874 | | | | | | — | | | | | | | | | 1,874 | | | | | | | | | — | | | | | | | | | 1,874 | | | | | | | | | — | | | | | | | | | 1,874 | | | | | | | | | — | | | | | | | | | 1,874 | | | | | | | | |
Depreciation and amortization
|
| | | | — | | | | | | 12,861 | | | | | | — | | | | | | | | | 12,861 | | | | | | | | | — | | | | | | | | | 12,861 | | | | | | | | | — | | | | | | | | | 12,861 | | | | | | | | | — | | | | | | | | | 12,861 | | | | |||||
Total Operating Expenses
|
| | | | 834 | | | | | | 115,446 | | | | | | 1,114 | | | | | | | | | 117,394 | | | | | | | | | — | | | | | | | | | 117,394 | | | | | | | | | — | | | | | | | | | 117,394 | | | | | | | | | — | | | | | | | | | 117,394 | | | | | | | | |
Loss from operations
|
| | |
|
(834)
|
| | | | | (22,252) | | | | | | (1,114) | | | | | | | | | (24,200) | | | | | | | | | — | | | | | | | | | (24,200) | | | | | | | | | — | | | | | | | | | (24,200) | | | | | | | | | — | | | | | | | | | (24,200) | | | | | | | | |
Interest Income
|
| | | | 100 | | | | | | 505 | | | | | | (507) | | | |
3(k)
|
| | | | 98 | | | | | | | | | — | | | | | | | | | 98 | | | | | | | | | — | | | | | | | | | 98 | | | | | | | | | — | | | | | | | | | 98 | | | | | | | | |
Interest Expense
|
| | | | — | | | | | | (23,683) | | | | | | — | | | | | | | | | (23,683) | | | | | | | | | — | | | | | | | | | (23,683) | | | | | | | | | — | | | | | | | | | (23,683) | | | | | | | | | — | | | | | | | | | (23,683) | | | | | | | | |
Gain on extinguishment
of PPP loan |
| | | | — | | | | | | 5,869 | | | | | | — | | | | | | | | | 5,869 | | | | | | | | | — | | | | | | | | | 5,869 | | | | | | | | | — | | | | | | | | | 5,869 | | | | | | | | | — | | | | | | | | | 5,869 | | | | |||||
Other Income (expense)
|
| | | | 4,045 | | | | | | 979 | | | | | | (202) | | | |
3(h)
|
| | | | 4,822 | | | | | | | | | (77) | | | |
(3h)
|
| | | | 4,745 | | | | | | | | | (172) | | | |
3(h)
|
| | | | 4,650 | | | | | | | | | (7,273) | | | |
3(h)
|
| | | | (2,451) | | | | | | | | |
Income (loss) before income taxes
|
| | |
|
3,311
|
| | | | | (38,582) | | | | | | (1,823) | | | | | | | | | (37,094) | | | | | | | | | (77) | | | | | | | | | (37,171) | | | | | | | | | (172) | | | | | | | | | (37,266) | | | | | | | | | (7,273) | | | | | | | | | (44,367) | | | | | | | | |
Provision from income
taxes |
| | | | — | | | | | | (323) | | | | | | — | | | | | | | | | (323) | | | | | | | | | — | | | | | | | | | (323) | | | | | | | | | — | | | | | | | | | (323) | | | | | | | | | — | | | | | | | | | (323) | | | | | | | | |
Net income (loss)
|
| | |
|
3,311
|
| | | | | (38,905) | | | | | | (1,823) | | | | | | | | | (37,417) | | | | | | | | | (77) | | | | | | | | | (37,494) | | | | | | | | | (172) | | | | | | | | | (37,589) | | | | | | | | | (7,273) | | | | | | | | | (44,690) | | | | |||||
Other comprehensive
income . |
| | | | — | | | | | | (311) | | | | | | — | | | | | | | | | (311) | | | | | | | | | — | | | | | | | | | (311) | | | | | | | | | — | | | | | | | | | (311) | | | | | | | | | — | | | | | | | | | (311) | | | | | | | | |
Total Comprehensive
income |
| | | $ | 3,311 | | | | | $ | (39,216) | | | | | $ | (1,823) | | | | | | | | $ | (37,728) | | | | | | | | $ | (77) | | | | | | | | $ | (37,805) | | | | | | | | $ | (172) | | | | | | | | $ | (37,900) | | | | | | | | $ | (7,273) | | | | | | | | $ | (45,001) | | | | | | | | |
Basic and diluted net
income (loss), Class A ordinary shares subject to possible redemption |
| | | | 0.12 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | |
Weighted average shares
outstanding, Class A ordinary shares subject to possible redemption |
| | | | 22,098,904 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | |
Basic net income (loss) per ordinary share, Class A and B Ordinary Shares
|
| | | | 0.12 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | |
Weighted average shares
outstanding, basic Non-redeemable Class A and Class B ordinary shares |
| | | | 6,588,288 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | |
Diluted net income (loss)
per ordinary share, Class A and Class B Ordinary Shares |
| | | | 0.12 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | |
Weighted average shares
outstanding, Diluted Non-redeemable Class A and Class B Ordinary Shares |
| | | | 6,655,171 | | | | | | — | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | | — | | | | | | | | |
Basic and diluted net loss
per share |
| | | | — | | | | | | N/A | | | | | | — | | | | | | | | | (0.38) | | | | | | | | | — | | | | | | | | | (0.41) | | | | | | | | | — | | | | | | | | | (0.44) | | | | | | | | | — | | | | | | | | | (0.60) | | | | | | | | |
Weighted average shares
outstanding, basic and diluted |
| | | | — | | | | | | N/A | | | | | | — | | | | | | | | | 98,662,500 | | | |
3(j)
|
| | | | — | | | | | | | | | 91,805,319 | | | |
3(j)
|
| | | | — | | | | | | | | | 84,948,138 | | | |
3(j)
|
| | | | — | | | | | | | | | 73,908,750 | | | | | | 3(j) | | |
|
Shares transferred at Closing
|
| | | | 60,800,000 | | |
|
Value per share
|
| | | $ | 10 | | |
|
Total Share Consideration(1)
|
| | | $ | 608,000,000 | | |
| | |
Share Ownership in New Mondee
|
| |||||||||||||||||||||||||||||||||||||||||||||
| | |
Assuming
No Redemptions |
| |
Assuming 50% of
Max Redemptions(1) |
| |
Assuming Max
Redemptions(2) |
| |
Assuming 100%
Redemptions(5) |
| ||||||||||||||||||||||||||||||||||||
| | |
Number of
shares |
| |
% of total
|
| |
Number
of shares |
| |
% of total
|
| |
Number
of shares |
| |
% of total
|
| |
Number
of shares |
| |
% of total
|
| ||||||||||||||||||||||||
Mondee Stockholder(3)
|
| | | | 60,800,000 | | | | | | 61.6% | | | | | | 60,800,000 | | | | | | 66.2% | | | | | | 60,800,000 | | | | | | 71.6% | | | | | | 60,800,000 | | | | | | 82.2% | | |
Initial Shareholders(4)
|
| | | | 6,502,500 | | | | | | 6.6% | | | | | | 6,502,500 | | | | | | 7.1% | | | | | | 6,502,500 | | | | | | 7.7% | | | | | | 5,898,750(6) | | | | | | 8.0% | | |
Cantor
|
| | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.2% | | | | | | 210,000 | | | | | | 0.3% | | |
Former ITHAX Class A
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Public Shareholders
|
| | | | 24,150,000 | | | | | | 24.5% | | | | | | 17,292,819 | | | | | | 18.9% | | | | | | 10,435,638 | | | | | | 12.3% | | | | | | — | | | | | | 0.0% | | |
PIPE Investors
|
| | | | 7,000,000 | | | | | | 7.1% | | | | | | 7,000,000 | | | | | | 7.6% | | | | | | 7,000,000 | | | | | | 8.2% | | | | | | 7,000,000 | | | | | | 9.5% | | |
| | | | | | | | |
Transaction
Accounting Adjustments (Assuming No Redemption) |
| |
Additional
Transaction Accounting Adjustments (Assuming 50% of Maximum Redemption) |
| |
Additional
Transaction Accounting Adjustments (Assuming Maximum Redemption) |
| |
Additional
Transaction Accounting Adjustments (Assuming 100% Redemption) |
| ||||||||||||
ITHAX cash held in Trust Account
|
| | |
|
(1)
|
| | | | $ | 241,601 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
PIPE Financing
|
| | |
|
(2)
|
| | | | | 70,000 | | | | | | — | | | | | | — | | | | | | — | | |
Payment of transaction costs
|
| | |
|
(3)
|
| | | | | (15,374) | | | | | | — | | | | | | — | | | | | | — | | |
Payment of deferred underwriting fees
|
| | |
|
(4)
|
| | | | | (9,083) | | | | | | — | | | | | | — | | | | | | — | | |
Related Party Loan
Adjustment |
| | |
|
(5)
|
| | | | | 22,054 | | | | | | — | | | | | | — | | | | | | — | | |
Redemption of ITHAX Public Shareholders
|
| | | | | | | | | | —3(e)(3) | | | | | | (68,572)(3)(e)(4) | | | | | | (68,572)3(e)(5) | | | | | | (104,457) | | |
Total transaction accounting adjustments
|
| | | | | | | | | $ | 309,198 | | | | | $ | (68,572) | | | | | $ | (68,572) | | | | | $ | (104,457) | | |
| | | | | | | | |
Transaction
Accounting Adjustments (Assuming No Redemption) |
| |
Additional
Transaction Accounting Adjustments (Assuming 50% of Maximum Redemption) |
| |
Additional
Transaction Accounting Adjustments (Assuming Maximum Redemption) |
| |
Additional
Transaction Accounting Adjustments (Assuming 100% Redemption) |
| ||||||||||||
Conversion and recapitalization of ITHAX Stock
|
| | |
|
(1)
|
| | | | $ | (31) | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
ITHAX’s Domestication
|
| | |
|
(2)
|
| | | | | 6 | | | | | | — | | | | | | — | | | | | | — | | |
Reclassification of ITHAX’s redeemable
shares to ITHAX Class A common stock |
| | |
|
3(b)
|
| | | | | 24 | | | | | | — | | | | | | — | | | | | | — | | |
Total transaction accounting
|
| | | | | | | | | | | | | | | | | | | | | | | | | | | | | | |
Adjustments
|
| | | | | | | | | $ | (1) | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
| | |
Transaction
Accounting Adjustments (Assuming No redemptions) |
| |
Additional
Transaction Accounting Adjustments (Assuming (50% of Maximum Redemptions) |
| |
Additional
Transaction Accounting Adjustments (Assuming Maximum Redemptions) |
| |
Additional
Transaction Accounting Adjustments (Assuming 100% Redemptions) |
| ||||||||||||
PIPE Offering3(a)(2)
|
| | | $ | 7 | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Conversion and Recapitalization of ITHAX & Mondee Stock(1)
|
| | | | 92 | | | | | | — | | | | | | — | | | | | | — | | |
Redemption of ITHAX Public Shareholders
|
| | | | —3(e)(3) | | | | | | (7)(3)(e)(4) | | | | | | (7)3(e)(5) | | | | | | (10) | | |
Total transaction accounting adjustments
|
| | | $ | 99 | | | | | $ | (7) | | | | | $ | (7) | | | | | $ | (10) | | |
| | |
Transaction
Accounting Adjustments (Assuming No redemptions) |
| |
Additional
Transaction Accounting Adjustments (Assuming 50% of Maximum Redemptions) |
| |
Additional
Transaction Accounting Adjustments (Assuming Maximum Redemptions) |
| |
Additional
Transaction Accounting Adjustments (Assuming 100% Redemptions) |
| ||||||||||||
Payment of Mondee and ITHAX transaction costs3(a)(3)
|
| | | $ | (14,072) | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Reclassification of ITHAX’s redeemable shares to ITHAX Class A Common Stock3(b)
|
| | | | 241,577 | | | | | | — | | | | | | — | | | | | | — | | |
PIPE Financing3(a)(2)
|
| | | | 69,993 | | | | | | — | | | | | | — | | | | | | — | | |
Elimination of historical Mondee accumulated deficit(1)
|
| | | | (15,455) | | | | | | — | | | | | | — | | | | | | — | | |
Reclassification of ITHAX Public Warrants(2)
|
| | | | 6,521 | | | | | | — | | | | | | — | | | | | | — | | |
Conversion and Recapitalization of ITHAX & Mondee Stock3(c)(1)
|
| | | | (61) | | | | | | — | | | | | | — | | | | | | — | | |
Incentive Units Vesting Upon IPO.(6)
|
| | | | 1,114 | | | | | | | | | | | | | | | | |||||
Redemption of ITHAX Public Shareholders
|
| | | | —(3) | | | | | | (68,488)(4) | | | | | | (68,393)(5) | | | | | | (97,174) | | |
Total transaction accounting adjustments
|
| | | $ | 289,617 | | | | | $ | (68,488) | | | | | $ | (68,393) | | | | | $ | (97,174) | | |
| | |
Pro Forma
Combined (Assuming No Redemptions) |
| |
Pro Forma
Combined (Assuming 50% of Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming Maximum Redemptions) |
| |
Pro Forma
Combined (Assuming 100% Redemptions) |
| ||||||||||||
Unaudited Pro Forma Net Loss
|
| | | $ | (37,417) | | | | | $ | (37,494) | | | | | $ | (37,589) | | | | | $ | (44,690) | | |
Basic weighted average shares outstanding
|
| | | | 98,662,500 | | | | | | 91,805,319 | | | | | | 84,948,138 | | | | | | 73,908,750 | | |
Net loss per share- Basic and Diluted
|
| | | $ | (0.38) | | | | | $ | (0.41) | | | | | $ | (0.44) | | | | | $ | (0.60) | | |
Basic weighted average shares outstanding | | | | | | | | | | | | | | | | | | | | | | | | | |
Mondee Stockholder
|
| | | | 60,800,000 | | | | | | 60,800,000 | | | | | | 60,800,000 | | | | | | 60,800,000 | | |
Initial Shareholders
|
| | | | 6,502,500 | | | | | | 6,502,500 | | | | | | 6,502,500 | | | | | | 5,898,750 | | |
Cantor
|
| | | | 210,000 | | | | | | 210,000 | | | | | | 210,000 | | | | | | 210,000 | | |
Former ITHAX Class A Public Shareholders
|
| | | | 24,150,000 | | | | | | 17,292,819 | | | | | | 10,435,638 | | | | | | — | | |
PIPE Investors
|
| | | | 7,000,000 | | | | | | 7,000,000 | | | | | | 7,000,000 | | | | | | 7,000,000 | | |
Total
|
| | | | 98,662,500 | | | | | | 91,805,319 | | | | | | 84,948,138 | | | | | | 73,908,750 | | |
Name
|
| |
Age
|
| |
Titles
|
|
Orestes Fintiklis | | |
42
|
| | Chief Executive Officer and Director Nominee | |
Dimitrios Athanasopoulos | | |
45
|
| | Chief Financial Officer, Treasurer, and Director | |
Carlos N. Guimarães | | |
64
|
| | Director Nominee | |
George Syllantavos | | |
57
|
| | Director Nominee | |
Rahul Vir | | |
59
|
| | Director Nominee | |
Individual(1)(2)
|
| |
Entity
|
| |
Entity’s Business
|
| |
Affiliation
|
|
Dimitrios Athanasopoulos | | | AXIA Ventures Group Ltd. | | | Investment Bank | | | Founder Partner, Group Managing Director | |
Orestes Fintiklis | | | Ithaca Capital Partners | | | Investment — Hospitality and Real Estate | | | Founder and Managing Partner | |
Carlos N. Guimarães | | | LAIG Investments | | | Investment — Energy | | | Chairman and Partner | |
George Syllantavos | | |
Cepton, Inc.
(Nasdaq: CPTN) |
| |
Electrical/electronic
manufacturing |
| | Director | |
| | | Phunware Inc. (Nasdaq:PHUN) | | | Digital marketing services | | | Director | |
| | | Nautilus Energy Management Corp. | | | Maritime management services | | | Chief Executive Officer | |
| | | Sevenseas Investment Fund (Luxembourg-regulated) | | | Maritime assets investment fund | | | Director | |
Rahul Vir | | |
White Sails
Hospitality LLC |
| | Hospitality consulting | | | Principal | |
| | |
Years ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
| | |
($ in thousands)
|
| |||||||||
Net loss
|
| | | $ | (38,905) | | | | | $ | (41,734) | | |
Interest expense, (net)
|
| | | | 23,178 | | | | | | 19,902 | | |
Stock-based compensation expense
|
| | | | 3,936 | | | | | | 15 | | |
Depreciation and amortization
|
| | | | 12,861 | | | | | | 11,414 | | |
Provision for (Benefits from) income taxes
|
| | | | 323 | | | | | | (14,042) | | |
Gain on forgiveness of PPP loan
|
| | | | (5,868) | | | | | | — | | |
Other expense (income), net
|
| | | | (980) | | | | | | 17 | | |
Adjusted EBITDA
|
| | | $ | (5,455) | | | | | $ | (24,428) | | |
| | |
Years ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
| | |
($ in thousands)
|
| |||||||||
Net cash provided by (used in) operating activities
|
| | | $ | (15,673) | | | | | $ | (3,662) | | |
Capital expenditures
|
| | | | (4,022) | | | | | | (4,061) | | |
Cash paid for interest
|
| | | | 6,740 | | | | | | 316 | | |
Unlevered free cash flow
|
| | | $ | (12,955) | | | | | $ | (7,407) | | |
For the year ended December 31, 2021
|
| |
2021
|
| |||
| | |
($ in thousands)
|
| |||
Travel Marketplace
|
| | | $ | 92,038 | | |
Subscription Based Platform
|
| | | | 1,156 | | |
Total revenue
|
| | | $ | 93,194 | | |
| | |
For the year ended December 31,
|
| | | | | | | | | | | | | |||||||||
| | |
2021
|
| |
2020
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
($ in thousands)
|
| | | | | | | | | | | | | |||||||||
Revenues, net
|
| | | $ | 93,194 | | | | | $ | 65,796 | | | | | $ | 27,398 | | | | | | 42% | | |
Operating expenses:
|
| | | | | | | | | | | | | | | | | | | | | | | | |
Marketing expenses
|
| | | | 54,611 | | | | | | 39,501 | | | | | | 15,110 | | | | | | 38% | | |
Sales and other expenses
|
| | | | 11,165 | | | | | | 14,434 | | | | | | (3,269) | | | | | | (23)% | | |
Personnel expense
|
| | | | 23,422 | | | | | | 20,658 | | | | | | 2,764 | | | | | | 13% | | |
General and administrative expense
|
| | | | 7,455 | | | | | | 7,736 | | | | | | (281) | | | | | | (4)% | | |
Information technology expense
|
| | | | 4,058 | | | | | | 3,255 | | | | | | 803 | | | | | | 25% | | |
Provision for doubtful accounts receivable and contract assets
|
| | | | 1,874 | | | | | | 4,655 | | | | | | (2,781) | | | | | | (60)% | | |
Depreciation and amortization
|
| | | | 12,861 | | | | | | 11,414 | | | | | | 1,447 | | | | | | 13% | | |
Total Operating Expenses
|
| | | $ | 115,446 | | | | | $ | 101,653 | | | | | $ | 13,793 | | | | | | 14% | | |
Net (loss) Income from operations
|
| | | $ | (22,252) | | | | | $ | (35,857) | | | | | $ | 13,605 | | | | | | (38)% | | |
Other income (expense):
|
| | | | | | | | | | | | | | | | | | | | | | | | |
| | |
For the year ended December 31,
|
| | | | | | | | | | | | | |||||||||
| | |
2021
|
| |
2020
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
($ in thousands)
|
| | | | | | | | | | | | | |||||||||
Interest income
|
| | | | 505 | | | | | | 508 | | | | | | (3) | | | | | | (1)% | | |
Interest expense
|
| | | | (23,683) | | | | | | (20,410) | | | | | | (3,273) | | | | | | 16% | | |
Gain on forgiveness of PPP loan
|
| | | | 5,868 | | | | | | — | | | | | | 5,868 | | | | | | N/A | | |
Other (expense) income, net
|
| | | | 980 | | | | | | (17) | | | | | | 997 | | | | | | (5,865)% | | |
Total other expense
|
| | | | (16,330) | | | | | | (19,919) | | | | | | 3,589 | | | | | | (18)% | | |
Net loss before income taxes
|
| | | | (38,582) | | | | | | (55,776) | | | | | | 17,194 | | | | | | (31)% | | |
Benefit from (provision for) income taxes
|
| | | | (323) | | | | | | 14,042 | | | | | | (14,365) | | | | | | (102)% | | |
Net loss
|
| | | $ | (38,905) | | | | | $ | (41,734) | | | | | $ | 2,829 | | | | | | (7)% | | |
|
| | |
For the year ended December 31,
|
| | | | | | | | | | | | | |||||||||
| | |
2021
|
| |
2020
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
($ in thousands)
|
| | | | | | | | | | | | | |||||||||
Marketing expenses
|
| | | | 54,611 | | | | | $ | 39,501 | | | | | $ | 15,110 | | | | | | 38% | | |
Sales and other expenses
|
| | | | 11,165 | | | | | | 14,434 | | | | | | (3,269) | | | | | | (23)% | | |
Personnel expense
|
| | | | 23,422 | | | | | | 20,658 | | | | | | 2,764 | | | | | | 13% | | |
General and administrative expense
|
| | | | 7,455 | | | | | | 7,736 | | | | | | (281) | | | | | | (4)% | | |
Information technology expense
|
| | | | 4,058 | | | | | | 3,255 | | | | | | 803 | | | | | | 25% | | |
Provision for doubtful accounts receivable and contract assets
|
| | | | 1,874 | | | | | | 4,655 | | | | | | (2,781) | | | | | | (60)% | | |
Depreciation and amortization
|
| | | | 12,861 | | | | | | 11,414 | | | | | | 1,447 | | | | | | 13% | | |
Interest Income
|
| | | | (505) | | | | | | (508) | | | | | | 3 | | | | | | (1)% | | |
Interest expense
|
| | | | 23,683 | | | | | | 20,410 | | | | | | 3,273 | | | | | | 16% | | |
Gain on extinguishment of PPP loan
|
| | | | (5,868) | | | | | | — | | | | | | (5,868) | | | | | | N/A | | |
Other (income) expense, net
|
| | | | (980) | | | | | | 17 | | | | | | (997) | | | | | | (5,865)% | | |
| | | | $ | 131,776 | | | | | $ | 121,572 | | | | | $ | 10,204 | | | | | | 8% | | |
| | |
Year Ended December 31,
|
| | | | | | | | | | | | | |||||||||
| | |
2021
|
| |
2020
|
| |
$ Change
|
| |
% Change
|
| ||||||||||||
| | |
($ in thousands)
|
| | | | | | | | | | | | | |||||||||
Benefit from (provision for) income taxes
|
| | | $ | (323) | | | | | $ | 14,042 | | | | | $ | (14,365) | | | | | | (102)% | | |
| | |
Year Ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
| | |
($ in thousands)
|
| |||||||||
Net cash used in Operating activities
|
| | | $ | (15,673) | | | | | $ | (3,662) | | |
Net cash used in Investing activities
|
| | | | (3,112) | | | | | | (37,710) | | |
Net cash provided by Financing activities
|
| | | | 3,077 | | | | | | 61,087 | | |
Effect of exchange rate changes on cash, cash equivalents and restricted cash
|
| | | | (311) | | | | | | 1 | | |
Net increase in cash and cash equivalents
|
| | | $ | (16,019) | | | | | $ | 19,716 | | |
(In millions)
|
| |
December 31,
2021 |
| |
December 31,
2020 |
| ||||||
Letters of credit
|
| | | $ | 7.3 | | | | | $ | 7.4 | | |
Name and
Principal Position |
| |
Year
|
| |
Salary
($) |
| |
Bonus
($) |
| |
Stock
Awards ($) |
| |
Option
Awards ($) |
| |
Non-Equity
Deferred Incentive Plan Compensation ($) |
| |
Non-Equity
Deferred Compensation Earnings ($) |
| |
All
Other Compensation ($) |
| |
Total ($)
|
|
Prasad Gundumogula, Chief Executive Officer
|
| |
2021
|
| |
$0
|
| |
$0
|
| |
$286,726(1)
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$286,726
|
|
Dan Figenshu, Chief Financial Officer
|
| |
2021
|
| |
$280,000
|
| |
$28,000(2)
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$308,000
|
|
Venkat Pasupuleti, Chief Technology Officer
|
| |
2021
|
| |
$172,800
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$172,800
|
|
Jim Dullum, Chief Operating Officer
|
| |
2021
|
| |
$300,000(3)
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$0
|
| |
$50,000
|
|
Name
|
| |
2021 Base Salary
|
| |||
Prasad Gundumogula, Chief Executive Officer
|
| | | $ | 0 | | |
Dan Figenshu, Chief Financial Officer
|
| | | $ | 280,000 | | |
Venkat Pasupuleti, Chief Technology Officer
|
| | | $ | 172,800 | | |
Jim Dullum, Chief Operating Officer
|
| | | $ | 300,000(1) | | |
| | |
Option Awards
|
| |
Stock Awards
|
| ||||||||||||||||||||||||||||||||||||||||||
Name
|
| |
Number of
Securities Underlying Unexercised Options(#) Exercisable |
| |
Number of
Securities Underlying Unexercised Options (#) Unexercisable |
| |
Option
Exercise Price ($) |
| |
Option
Expiration Date |
| |
Number of
Shares or Units of Stock that Have Not Vested (#) |
| |
Market
Value of Shares of Units of Stock That Have Not Vested ($) |
| |
Equity
Incentive Plan Awards: Number of Unearned Shares, Units or Other Rights That Have Not Vested (#) |
| |
Equity
Incentive Plan Awards: Market value of Unearned Shares, Units or Other Rights That Have Not Vested ($) |
| ||||||||||||||||||||||||
Prasad Gundumogula, Chief Executive Officer
|
| | |
|
—
|
| | | |
|
—
|
| | | | | | | | | |
|
—
|
| | | |
|
—
|
| | | | | | | | | |
|
—
|
| | | |
|
—
|
| |
Dan Figenshu, Chief Financial Officer
|
| | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| |
Venkat Pasupuleti, Chief Technology Officer
|
| | |
|
—
|
| | | | | | | | | | | | | | | | | | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| |
Jim Dullum, Chief Operating Officer
|
| | |
|
—
|
| | | | | | | | | | | | | | | | | | | | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| | | |
|
—
|
| |
Name
|
| |
Fees Earned
or Paid in Cash ($)<‘> |
| |
Stock
Awards ($) |
| |
Option
Awards ($) |
| |
Non-Equity
Incentive Plan Compensation ($) |
| |
Nonqualified
Deferred Compensation Earnings ($) |
| |
All Other
Compensation ($) |
| |
Total
($) |
| ||||||
| | | | | | | | | ||||||||||||||||||||
| | | | | | | | | ||||||||||||||||||||
| | | | | — | | | | | | | | | | | | | | | | | | | | | — | | |
| | | | | — | | | | | | | | | | | | | | | | | | | | | — | | |
| | | | | — | | | | | | | | | | | | | | | | | | | | | — | | |
Name
|
| |
Age*
|
| |
Position
|
|
Executive Officers | | | | | | | |
Prasad Gundumogula | | |
47
|
| |
Founder and Chief Executive Officer
|
|
Dan Figenshu | | |
44
|
| |
Chief Financial Officer
|
|
Venkat Pasupuleti | | |
59
|
| |
Chief Technology Officer
|
|
Jim Dullum | | |
69
|
| |
Chief Operating Officer
|
|
[•] | | |
[•]
|
| |
[•]
|
|
[•] | | |
[•]
|
| |
[•]
|
|
[•] | | |
[•]
|
| |
[•]
|
|
Non-Employee Directors | | | | | | | |
| | |
Before the
Business Combination(2) |
| |
After the
Business Combination(3) |
| ||||||||||||||||||
| | |
Amount and
Nature of Beneficial Ownership |
| |
Approximate
Percentage of Outstanding Shares |
| |
Amount and
Nature of Beneficial Ownership |
| |
Approximate
percentage of Outstanding Shares |
| ||||||||||||
Name and Address of Beneficial Owner | | | | | | | | | | | | | | | | | | | | | | | | | |
Directors and Executive Officers Pre-Business Combination(1) | | | | | | | | | | | | | | | | | | | | | | | | | |
Orestes Fintiklis(4)
|
| | | | 6,472,500 | | | | | | 21.0% | | | | | | 6,732,500 | | | | | | 6.8% | | |
Dimitrios Athansopoulos(4)
|
| | | | 6,472,500 | | | | | | 21.0% | | | | | | 6,732,500 | | | | | | 6.8% | | |
Carlos N. Guimarães
|
| | | | 10,000 | | | | | | * | | | | | | 10,000 | | | | | | * | | |
George Syllantavos(5)
|
| | | | 10,000 | | | | | | * | | | | | | 10,000 | | | | | | * | | |
Rahul Vir
|
| | | | 10,000 | | | | | | * | | | | | | 10,000 | | | | | | * | | |
All Executive Officers and Directors as a group (5 individuals)
|
| | | | 6,502,500 | | | | | | 21.1% | | | | | | 6,762,500 | | | | | | 6.8% | | |
Directors and Executive Officers Post-Business Combination(6) | | | | | | | | | | | | | | | | | | | | | | | | | |
Prasad Gundumogula
|
| | | | — | | | | | | — | | | | | | 60,900,000(7) | | | | | | 61.6% | | |
Dan Figenshu
|
| | | | — | | | | | | — | | | | | | 119,600 | | | | | | * | | |
Venkat Pasupuleti
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Jim Dullum
|
| | | | — | | | | | | — | | | | | | 112,000 | | | | | | * | | |
All Executive Officers and Directors as a group ([•] individuals)
|
| | | | [•] | | | | | | [•] | | | | | | [•] | | | | | | [•] | | |
Greater than Five Percent Holders | | | | | | | | | | | | | | | | | | | | | | | | | |
ITHAX Acquisition Sponsor LLC(4)
|
| | | | 6,472,500 | | | | | | 20.97% | | | | | | 6,732,500 | | | | | | 6.8% | | |
Mondee Holdings LLC(7)
|
| | | | — | | | | | | — | | | | | | 60,800,000 | | | | | | 61% | | |
| | |
Delaware
|
| | |
Cayman Islands
|
|
Stockholder/Shareholder Approval of Business Combinations
|
| |
Mergers generally require approval of a majority of all outstanding target shares.
Mergers in which less than 20% of the acquirer’s stock is issued generally do not require acquirer stockholder approval.
Mergers in which one corporation owns 90% or more of a second corporation may be completed without the vote of the second corporation’s board of directors or stockholders.
|
| | |
Mergers require a special resolution, and any other authorization as may be specified in the relevant articles of association. Parties holding certain security interests in the constituent companies must also consent.
All mergers (other than parent/subsidiary mergers) require shareholder approval — there is no exception for smaller mergers.
Where a bidder has acquired 90% or more of the shares in a Cayman Islands company, it can compel the acquisition of the shares of the remaining shareholders and thereby become the sole shareholder.
A Cayman Islands company may also be acquired through a “scheme of arrangement” sanctioned by a Cayman Islands court and approved by 50%+1 in number and 75% in value of shareholders in attendance and voting at a shareholders’ meeting.
|
|
Stockholder/Shareholder Votes for Routine Matters
|
| | Generally, approval of routine corporate matters that are put to a stockholder vote require the affirmative vote of the majority of shares present in person or represented by proxy at a meeting at which a quorum is present and entitled to vote on the subject matter. | | | | Under Cayman Islands law and the Existing Governing Documents, routine corporate matters may be approved by an ordinary resolution (being a resolution passed by a simple majority of the shareholders as being entitled to do so, attend and vote at a meeting). | |
| | |
Delaware
|
| | |
Cayman Islands
|
|
Appraisal Rights
|
| | Generally, a stockholder of a publicly traded corporation does not have appraisal rights in connection with a merger. | | | | Under the Cayman Islands Companies Act, minority shareholders that dissent to a merger are entitled, in certain circumstances, to be paid the fair value of their shares, which if necessary may ultimately be determined by the court. | |
Inspection of Books and Records
|
| | Any stockholder may inspect the corporation’s books and records for a proper purpose during the usual hours for business. | | | | Shareholders generally do not have any rights to inspect or obtain copies of the register of shareholders or other corporate records of a company. | |
Stockholder/Shareholder Lawsuits
|
| | A stockholder may bring a derivative suit subject to procedural requirements (including adopting Delaware as the exclusive forum as per Advisory Governing Documents Proposal E). | | | | In the Cayman Islands, the decision to institute proceedings on behalf of a company is generally taken by the company’s board of directors. A shareholder may be entitled to bring a derivative action on behalf of the company, but only in certain limited circumstances. | |
Fiduciary Duties of Directors
|
| | Directors must exercise a duty of care and duty of loyalty and good faith to the company and its stockholders. | | | |
A director owes fiduciary duties to a company, including to exercise loyalty, honesty and good faith to the company as a whole.
In addition to fiduciary duties, directors owe a duty of care, diligence and skill.
Such duties are owed to the company but directors may be required to consider the interests of creditors or shareholders in certain limited circumstances.
|
|
Indemnification of Directors and Officers
|
| | A corporation is generally permitted to indemnify its directors and officers acting in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the corporation. | | | | A Cayman Islands company generally may indemnify its directors or officers except with regard to fraud or willful default. | |
Limited Liability of Directors
|
| | Permits limiting or eliminating the monetary liability of a director to a corporation or its stockholders, except with regard to breaches of duty of loyalty, intentional misconduct, unlawful repurchases or dividends, or improper personal benefit. | | | | Liability of directors may be unlimited, except with regard to their own fraud or willful default. | |
| | |
Page
|
| |||
Audited Consolidated Financial Statements of ITHAX Acquisition Corp. | | | | | | | |
| | | | F-2 | | | |
| | | | F-3 | | | |
| | | | F-4 | | | |
| | | | F-5 | | | |
| | | | F-6 | | | |
| | | | F-7 | | | |
Audited Consolidated Financial Statements of Mondee Holdings II, Inc. | | | | | | | |
| | | | F-25 | | | |
| | | | F-26 | | | |
| | | | F-27 | | | |
| | | | F-28 | | | |
| | | | F-29 | | | |
| | | | F-30 | | | |
| | | | F-31 | | |
| | |
December 31, 2021
|
| |
December 31, 2020
|
| ||||||
ASSETS | | | | | | | | | | | | | |
Current assets | | | | | | | | | | | | | |
Cash
|
| | | $ | 525,204 | | | | | $ | 1,000 | | |
Prepaid expenses
|
| | | | 23,750 | | | | | | — | | |
Total Current Assets
|
| | | | 548,954 | | | | | | 1,000 | | |
Deferred offering costs
|
| | | | — | | | | | | 80,631 | | |
Cash and marketable securities held in Trust Account
|
| | | | 241,600,623 | | | | | | — | | |
TOTAL ASSETS
|
| | | $ | 242,149,577 | | | | | $ | 81,631 | | |
LIABILITIES AND SHAREHOLDERS’ (DEFICIT) EQUITY | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable and accrued expenses
|
| | | $ | 211,548 | | | | | $ | — | | |
Accrued offering costs
|
| | | | — | | | | | | 17,966 | | |
Promissory note – related party
|
| | | | — | | | | | | 43,556 | | |
Total Current Liabilities
|
| | | | 211,548 | | | | | | 61,522 | | |
Deferred underwriting fee payable
|
| | | | 9,082,500 | | | | | | — | | |
Warrant liabilities
|
| | | | 6,702,750 | | | | | | — | | |
TOTAL LIABILITIES
|
| | | | 15,996,798 | | | | | | 61,522 | | |
Commitments and Contingencies | | | | | | | | | | | | | |
Class A ordinary shares subject to possible redemption; 24,150,000 and
no shares at redemption value as of December 31, 2021 and 2020, respectively |
| | | | 241,600,623 | | | | | | — | | |
Shareholders’ (Deficit) Equity | | | | | | | | | | | | | |
Preference shares, $0.001 par value; 1,000,000 shares authorized; none issued or outstanding
|
| | | | — | | | | | | — | | |
Class A ordinary shares, $0.001 par value; 100,000,000 shares
authorized; 675,000 and no shares issued and outstanding (excluding 24,150,000 and no shares subject to possible redemption) as of December 31, 2021 and 2020, respectively |
| | | | 675 | | | | | | — | | |
Class B ordinary shares, $0.001 par value; 10,000,000 shares authorized;
6,037,500 shares issued and outstanding as of December 31, 2021 and 2020 |
| | | | 6,038 | | | | | | 6,038 | | |
Additional paid-in capital
|
| | | | — | | | | | | 18,962 | | |
Accumulated deficit
|
| | | | (15,454,557) | | | | | | (4,891) | | |
Total Shareholders’ (Deficit) Equity
|
| | | | (15,447,844) | | | | | | 20,109 | | |
TOTAL LIABILITIES AND SHAREHOLDERS’ (DEFICIT) EQUITY
|
| | | $ | 242,149,577 | | | | | $ | 81,631 | | |
| | |
Year Ended
December 31, 2021 |
| |
For the period
from October 2, 2020 (inception) through December 31, 2020 |
| ||||||
Formation and operational costs
|
| | | $ | 833,758 | | | | | $ | 4,891 | | |
Loss from operations
|
| | | | (833,758) | | | | | | (4,891) | | |
Other income (loss): | | | | | | | | | | | | | |
Interest earned on marketable securities held in Trust Account
|
| | | | 97,231 | | | | | | — | | |
Unrealized gain on marketable securities held in Trust Account
|
| | | | 3,392 | | | | | | — | | |
Transaction costs allocated to warrant liabilities
|
| | | | (675,351) | | | | | | — | | |
Change in fair value of warrant liabilities
|
| | | | 4,720,125 | | | | | | — | | |
Other income, net
|
| | | | 4,145,397 | | | | | | — | | |
Net income (loss)
|
| | | $ | 3,311,639 | | | | | $ | (4,891) | | |
Weighted average shares outstanding of Class A ordinary shares subject to possible redemption
|
| | | | 22,098,904 | | | | | | — | | |
Basic and diluted income (loss) per share, Class A ordinary shares subject to possible redemption
|
| | | $ | 0.12 | | | | | $ | — | | |
Weighted average shares outstanding of Non-redeemable Class A and Class B ordinary shares
|
| | | | 6,588,288 | | | | | | 5,250,000 | | |
Basic net income (loss) per share, Non-redeemable Class A and Class B ordinary shares
|
| | | $ | 0.12 | | | | | $ | 0.00 | | |
Weighted average shares outstanding of Non-redeemable Class A and Class B ordinary shares
|
| | | | 6,655,171 | | | | | | — | | |
Diluted net income (loss) per share, Non-redeemable Class A and Class B ordinary shares
|
| | | $ | 0.12 | | | | | $ | — | | |
| | |
Class A
Ordinary Shares |
| |
Class B
Ordinary Shares |
| |
Additional
Paid-in Capital |
| |
Accumulated
Deficit |
| |
Total
Shareholders’ Equity (Deficit) |
| |||||||||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| |
Shares
|
| |
Earnings
|
| ||||||||||||||||||||||||||||||
Balance – October 2, 2020 (Inception)
|
| | | | — | | | | | $ | — | | | | | | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Issuance of Class B ordinary shares to Sponsor
|
| | | | — | | | | | | — | | | | | | 6,037,500 | | | | | | 6,038 | | | | | | 18,962 | | | | |
|
—
|
| | | | | 25,000 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (4,891) | | | | | | (4,891) | | |
Balance – December 31, 2020
|
| | | | — | | | | | | — | | | | | | 6,037,500 | | | | | | 6,038 | | | | | | 18,962 | | | | | | (4,891) | | | | | | 20,109 | | |
Sale of 675,000 Private Placement Units, net of initial fair value of Private Placement Warrants and offering costs
|
| | | | 675,000 | | | | | | 675 | | | | | | — | | | | | | — | | | | | | 6,435,891 | | | | | | — | | | | | | 6,436,566 | | |
Subsequent measurement of Class A ordinary shares to redemption amount
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (6,454,853) | | | | | | (18,761,305) | | | | | | (25,216,158) | | |
Net income
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | 3,311,639 | | | | | | 3,311,639 | | |
Balance – December 31, 2021
|
| | | | 675,000 | | | | | $ | 675 | | | | | | 6,037,500 | | | | | $ | 6,038 | | | | | $ | — | | | | | $ | (15,454,557) | | | | | $ | (15,447,844) | | |
| | |
Year Ended
December 31, 2021 |
| |
For the Period
from October 2, 2020 (Inception) through December 31, 2020 |
| ||||||
Cash Flows from Operating Activities: | | | | | | | | | | | | | |
Net income (loss)
|
| | | $ | 3,311,639 | | | | | $ | (4,891) | | |
Adjustments to reconcile net income (loss) to net cash used in operating activities: | | | | | | | | | | | | | |
Interest earned on marketable securities held in Trust Account
|
| | | | (97,231) | | | | | | — | | |
Unrealized gain on marketable securities held in Trust Account
|
| | | | (3,392) | | | | | | — | | |
Change in fair value of warrant liabilities
|
| | | | (4,720,125) | | | | | | — | | |
Transaction costs allocated to warrant liabilities
|
| | | | 675,351 | | | | | | — | | |
Changes in operating assets and liabilities:
|
| | | | | | | | | | | | |
Prepaid expenses
|
| | | | (23,750) | | | | | | — | | |
Accrued offering costs
|
| | | | (32,966) | | | | | | — | | |
Accrued expenses
|
| | | | 211,548 | | | | | | — | | |
Net cash used in operating activities
|
| | | | (678,926) | | | | | | (4,891) | | |
Cash Flows from Investing Activities: | | | | | | | | | | | | | |
Investment of cash into trust Account
|
| | | | (241,500,000) | | | | | | — | | |
Net cash used in investing activities
|
| | |
|
(241,500,000)
|
| | | | | — | | |
Cash Flows from Financing Activities: | | | | | | | | | | | | | |
Proceeds from initial public offering, net of underwriting discounts paid
|
| | | | 236,250,000 | | | | | | — | | |
Proceeds from sale of Private Placements Units
|
| | | | 6,750,000 | | | | | | — | | |
Proceeds from promissory note – related party
|
| | | | 44,708 | | | | | | 43,556 | | |
Repayment of convertible promissory note – related party
|
| | | | (88,264) | | | | | | — | | |
Payment of offering costs
|
| | | | (253,314) | | | | | | (37,665) | | |
Net cash provided by financing activities
|
| | | | 242,703,130 | | | | | | 5,891 | | |
Net Change in Cash
|
| | | | 524,204 | | | | | | 1,000 | | |
Cash – Beginning
|
| | | | 1,000 | | | | | | — | | |
Cash – Ending | | | | $ | 525,204 | | | | | $ | 1,000 | | |
Non-cash investing and financing activities: | | | | | | | | | | | | | |
Offering costs included in accrued offering costs
|
| | | $ | — | | | | | $ | 17,966 | | |
Subsequent measurement of Class A ordinary shares to redemption amount
|
| | | $ | 25,216,158 | | | | | $ | — | | |
Deferred underwriting fee payable
|
| | | $ | 9,082,500 | | | | | $ | — | | |
Initial classification of warrant liabilities
|
| | | $ | 11,422,875 | | | | | $ | — | | |
Offering costs paid by Sponsor in exchange for issuance of founder shares
|
| | | $ | — | | | | | $ | 25,000 | | |
|
Gross proceeds
|
| | | $ | 241,500,000 | | |
| Less: | | | | | | | |
|
Proceeds allocated to Public Warrants
|
| | | | (11,109,000) | | |
|
Class A ordinary shares issuance costs
|
| | | | (14,006,535) | | |
| Plus: | | | | | | | |
|
Subsequent measurement of carrying value to redemption value
|
| | | | 25,216,158 | | |
|
Class A ordinary shares subject to possible redemption
|
| | | $ | 241,600,623 | | |
| | |
Year Ended
December 31, 2021 |
| |
For the period from October 2, 2020
(inception) through December 31, 2020 |
| ||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| |
Class A
|
| |
Class B
|
| ||||||||||||
Basic net income (loss) per ordinary share | | | | | | | | | | | | | | | | | | | | | | | | | |
Numerator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Allocation of net income (loss), as adjusted
|
| | | $ | 2,551,089 | | | | | $ | 760,550 | | | | | $ | — | | | | | $ | (4,891) | | |
Denominator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Basic weighted average shares outstanding
|
| | | | 22,098,904 | | | | | | 6,588,288 | | | | | | — | | | | | | 5,250,000 | | |
Basic net income (loss) per ordinary share
|
| | | $ | 0.12 | | | | | $ | 0.12 | | | | | $ | — | | | | | $ | 0.00 | | |
| | |
Year Ended
December 31, 2021 |
| |
For the period from October 2, 2020
(inception) through December 31, 2020 |
| ||||||||||||||||||
| | |
Class A
|
| |
Class B
|
| |
Class A
|
| |
Class B
|
| ||||||||||||
Diluted net income (loss) per ordinary share | | | | | | | | | | | | | | | | | | | | | | | | | |
Numerator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Allocation of net income (loss), as adjusted
|
| | | $ | 2,545,155 | | | | | $ | 766,484 | | | | | $ | — | | | | | $ | (4,891) | | |
Denominator: | | | | | | | | | | | | | | | | | | | | | | | | | |
Diluted weighted average shares outstanding
|
| | | | 22,098,904 | | | | | | 6,655,171 | | | | | | — | | | | | | 5,250,000 | | |
Diluted net income (loss) per ordinary share
|
| | | $ | 0.12 | | | | | $ | 0.12 | | | | | $ | — | | | | | $ | 0.00 | | |
Description
|
| |
Level
|
| |
December 31,
2021 |
| ||||||
Assets: | | | | | | | | | | | | | |
Marketable securities held in Trust Account
|
| | | | 1 | | | | | $ | 241,600,623 | | |
Liabilities: | | | | | | | | | | | | | |
Warrant Liability – Public Warrants
|
| | | | 1 | | | | | $ | 6,520,500 | | |
Warrant Liability – Private Placement Warrants
|
| | | | 3 | | | | | $ | 182,250 | | |
| | |
February 1, 2021
(Initial Measurement) |
| |
December 31, 2021
|
| ||||||||||||
Input
|
| |
Public
Warrants |
| |
Private
Warrants |
| |
Private
Warrants |
| |||||||||
Ordinary Share Price
|
| | | $ | 9.55 | | | | | | 9.55 | | | | | $ | 9.82 | | |
Exercise Price
|
| | | $ | 11.50 | | | | | | 11.50 | | | | | $ | 11.50 | | |
Expected Life (in years)
|
| | | | 5 | | | | | | 5 | | | | | | 5.26 | | |
Risk Free Interest Rate
|
| | | | 0.49% | | | | | | 0.49% | | | | | | 1.3% | | |
Volatility
|
| | | | 19.00% | | | | | | 19.00% | | | | | | 9.9% | | |
Dividend Yield
|
| | | | 0.00% | | | | | | 0.00% | | | | | | 0.00% | | |
Redemption Trigger (20 of 30 trading days)
|
| | | $ | 18.00 | | | | | | N/A | | | | | | N/A | | |
| | |
Private Placement
|
| |
Public
|
| |
Warrant Liabilities
|
| |||||||||
Fair value as of January 1, 2021
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | |
Initial measurement on February 1, 2021
|
| | | | 313,875 | | | | | | 11,109,000 | | | | | | 11,422,875 | | |
Change in fair value
|
| | | | (131,625) | | | | | | (2,898,000) | | | | | | (3,029,625) | | |
Transfers to Level 1
|
| | | | — | | | | | | (8,211,000) | | | | | | (8,211,000) | | |
Fair value as of December 31, 2021
|
| | | $ | 182,250 | | | | | $ | — | | | | | $ | 182,250 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Assets | | | | | | | | | | | | | |
Current assets: | | | | | | | | | | | | | |
Cash and cash equivalents
|
| | | $ | 15,506 | | | | | $ | 31,425 | | |
Restricted cash and cash equivalents
|
| | | | — | | | | | | 100 | | |
Restricted short-term investments
|
| | | | 8,484 | | | | | | 9,394 | | |
Accounts receivable, net of allowance of $5,005, and $3,911, respectively
|
| | | | 10,178 | | | | | | 5,355 | | |
Contract assets, net of allowance of $1,000 and $500, respectively
|
| | | | 3,935 | | | | | | 4,420 | | |
Prepaid expenses and other current assets
|
| | | | 2,588 | | | | | | 2,611 | | |
Total current assets
|
| | | | 40,691 | | | | | | 53,305 | | |
Property and equipment, net
|
| | | | 8,874 | | | | | | 9,156 | | |
Goodwill
|
| | | | 66,420 | | | | | | 66,420 | | |
Intangible assets, net
|
| | | | 63,708 | | | | | | 71,590 | | |
Loan receivable from related party
|
| | | | 22,054 | | | | | | 21,547 | | |
Other non-current assets
|
| | | | 1,588 | | | | | | 1,338 | | |
TOTAL ASSETS
|
| | | $ | 203,335 | | | | | $ | 223,356 | | |
Liabilities and Stockholder’s (Deficit) Equity | | | | | | | | | | | | | |
Current liabilities | | | | | | | | | | | | | |
Accounts payable
|
| | | $ | 19,529 | | | | | $ | 17,414 | | |
Amounts payable to related parties
|
| | | | 716 | | | | | | 757 | | |
Paycheck Protection Program (PPP) and other government loans, current portion
|
| | | | 338 | | | | | | — | | |
Accrued expenses and other current liabilities
|
| | | | 10,354 | | | | | | 11,477 | | |
Deferred revenue
|
| | | | 6,450 | | | | | | 7,265 | | |
Long-term debt, current portion
|
| | | | 11,063 | | | | | | 8,618 | | |
Total current liabilities
|
| | | | 48,450 | | | | | | 45,531 | | |
Deferred income taxes
|
| | | | 512 | | | | | | 328 | | |
Note payable to related party
|
| | | | 193 | | | | | | 189 | | |
PPP and other government loans excluding current portion
|
| | | | 1,915 | | | | | | 4,331 | | |
Long-term debt excluding current portion
|
| | | | 162,170 | | | | | | 148,027 | | |
Deferred revenue excluding current portion
|
| | | | 14,288 | | | | | | 16,139 | | |
Other long-term liabilities
|
| | | | 2,632 | | | | | | 356 | | |
Total liabilities
|
| | | | 230,160 | | | | | | 214,901 | | |
Commitments and contingencies (Note 11) | | | | | | | | | | | | | |
Stockholder’s (deficit) equity: | | | | | | | | | | | | | |
Common stock – $0.01 par value; 1,000 stock authorized, 1 stock issued and outstanding
|
| | | | — | | | | | | — | | |
Additional paid-in capital
|
| | | | 163,465 | | | | | | 159,529 | | |
Accumulated other comprehensive (loss) income
|
| | | | (273) | | | | | | 38 | | |
Accumulated deficit
|
| | | | (190,017) | | | | | | (151,112) | | |
Total stockholder’s (deficit) equity
|
| | | | (26,825) | | | | | | 8,455 | | |
TOTAL LIABILITIES AND STOCKHOLDER’S EQUITY (DEFICIT)
|
| | | $ | 203,335 | | | | | $ | 223,356 | | |
| | |
For the year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Revenues, net
|
| | | $ | 93,194 | | | | | $ | 65,796 | | |
Operating expenses: | | | | | | | | | | | | | |
Marketing expenses
|
| | | | 54,611 | | | | | | 39,501 | | |
Sales and other expenses, including non-employee stock-based compensation
of $16 and $0, respectively |
| | | | 11,165 | | | | | | 14,434 | | |
Personnel expenses, including stock-based compensation of $3,920 and $15,
respectively |
| | | | 23,422 | | | | | | 20,658 | | |
General and administrative expenses
|
| | | | 7,455 | | | | | | 7,736 | | |
Information technology expenses
|
| | | | 4,058 | | | | | | 3,255 | | |
Provision for doubtful accounts receivable and contract assets
|
| | | | 1,874 | | | | | | 4,655 | | |
Depreciation and amortization
|
| | | | 12,861 | | | | | | 11,414 | | |
Total operating expenses
|
| | | | 115,446 | | | | | | 101,653 | | |
Loss from operations
|
| | | | (22,252) | | | | | | (35,857) | | |
Other income (expense): | | | | | | | | | | | | | |
Interest income
|
| | | | 505 | | | | | | 508 | | |
Interest expense
|
| | | | (23,683) | | | | | | (20,410) | | |
Gain on forgiveness of PPP loan
|
| | | | 5,868 | | | | | | — | | |
Other income (expense), net
|
| | | | 980 | | | | | | (17) | | |
Total other expense, net
|
| | | | (16,330) | | | | | | (19,919) | | |
Loss before income taxes
|
| | | | (38,582) | | | | | | (55,776) | | |
(Provision for) Benefit from income taxes
|
| | | | (323) | | | | | | 14,042 | | |
Net loss
|
| | | $ | (38,905) | | | | | $ | (41,734) | | |
| | |
For the year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Net loss
|
| | | $ | (38,905) | | | | | $ | (41,734) | | |
Other comprehensive (loss) income, net of tax: | | | | | | | | | | | | | |
Currency translation adjustment
|
| | | | (311) | | | | | | 1 | | |
Comprehensive loss
|
| | | $ | (39,216) | | | | | $ | (41,733) | | |
| | |
Common Stock
|
| |
Additional
Paid-in- Capital |
| |
Accumulated
Other Comprehensive Income (Loss) |
| |
Accumulated
Deficit |
| |
Total
Stockholder’s Equity (Deficit) |
| |||||||||||||||||||||
| | |
Shares
|
| |
Amount
|
| ||||||||||||||||||||||||||||||
Balance at December 31, 2019
|
| | | | 1 | | | | | $ | — | | | | | $ | 100,226 | | | | | $ | 37 | | | | | $ | (109,378) | | | | | $ | (9,115) | | |
Stock based compensation
|
| | | | — | | | | | | — | | | | | | 15 | | | | | | — | | | | | | — | | | | | | 15 | | |
Parent unit issued for acquisition of CTS (refer note 8)
|
| | | | — | | | | | | — | | | | | | 10,428 | | | | | | — | | | | | | — | | | | | | 10,428 | | |
Parent put options issued for acquisition
of CTS (refer note 8) |
| | | | — | | | | | | — | | | | | | 25,020 | | | | | | — | | | | | | — | | | | | | 25,020 | | |
Parent unit issued for acquisition of Rocketrip (refer note 8)
|
| | | | — | | | | | | — | | | | | | 699 | | | | | | — | | | | | | — | | | | | | 699 | | |
Parent put options issued for acquisition
of Rocketrip (refer note 8) |
| | | | — | | | | | | — | | | | | | 5,045 | | | | | | — | | | | | | — | | | | | | 5,045 | | |
Parent unit issued to lenders (refer note 7)
|
| | | | — | | | | | | — | | | | | | 6,525 | | | | | | — | | | | | | — | | | | | | 6,525 | | |
Capital contribution from Parent
|
| | | | — | | | | | | — | | | | | | 11,571 | | | | | | — | | | | | | — | | | | | | 11,571 | | |
Currency translation adjustments
|
| | | | — | | | | | | — | | | | | | — | | | | | | 1 | | | | | | — | | | | | | 1 | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (41,734) | | | | | | (41,734) | | |
Balance at December 31, 2020
|
| | | | 1 | | | | | $ | — | | | | | $ | 159,529 | | | | | $ | 38 | | | | | $ | (151,112) | | | | | $ | 8,455 | | |
Stock based compensation
|
| | | | — | | | | | | — | | | | | | 3,936 | | | | | | — | | | | | | — | | | | | | 3,936 | | |
Currency translation adjustment
|
| | | | — | | | | | | — | | | | | | — | | | | | | (311) | | | | | | — | | | | | | (311) | | |
Net loss
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | | | | | (38,905) | | | | | | (38,905) | | |
Balance at December 31, 2021
|
| | | | 1 | | | | | $ | — | | | | | $ | 163,465 | | | | | $ | (273) | | | | | $ | (190,017) | | | | | $ | (26,825) | | |
| | |
For the year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Cash flows from operating activities | | | | | | | | | | | | | |
Net loss
|
| | | $ | (38,905) | | | | | $ | (41,734) | | |
Adjustments to reconcile net loss to net cash used in operating activities | | | | | | | | | | | | | |
Depreciation and amortization
|
| | | | 12,861 | | | | | | 11,414 | | |
Deferred taxes
|
| | | | 184 | | | | | | (13,941) | | |
Provision for doubtful accounts receivable and contract assets
|
| | | | 1,874 | | | | | | 4,655 | | |
Stock-based compensation
|
| | | | 3,936 | | | | | | 15 | | |
Amortization of loan origination fees
|
| | | | 2,361 | | | | | | 551 | | |
Payment in kind interest expense
|
| | | | 14,582 | | | | | | 19,619 | | |
Gain on forgiveness of PPP Loan
|
| | | | (5,868) | | | | | | — | | |
Change in the estimated fair value of earn-out consideration
|
| | | | 265 | | | | | | (66) | | |
Changes in operating assets and liabilities | | | | | | | | | | | | | |
Accounts receivable
|
| | | | (6,697) | | | | | | 11,505 | | |
Contract assets
|
| | | | 485 | | | | | | 19,555 | | |
Prepaid expenses and other current assets
|
| | | | 23 | | | | | | 1,011 | | |
Other non-current assets
|
| | | | (757) | | | | | | 38 | | |
Amounts payable to related parties, current portion
|
| | | | (358) | | | | | | — | | |
Accounts payable
|
| | | | 2,115 | | | | | | (19,459) | | |
Accrued expenses and other current liabilities
|
| | | | 892 | | | | | | 2,488 | | |
Deferred revenue
|
| | | | (2,666) | | | | | | 687 | | |
Net cash used in operating activities
|
| | | | (15,673) | | | | | | (3,662) | | |
Cash flows from investing activities | | | | | | | | | | | | | |
Capital expenditure
|
| | | | (4,022) | | | | | | (4,061) | | |
Cash paid for the acquisition; net of cash acquired
|
| | | | — | | | | | | (34,912) | | |
Purchase of restricted short-term investments
|
| | | | — | | | | | | (195) | | |
Sale of restricted short-term investments
|
| | | | 910 | | | | | | 1,458 | | |
Net cash used in investing activities
|
| | | | (3,112) | | | | | | (37,710) | | |
Cash flows from financing activities | | | | | | | | | | | | | |
Repayments of long-term debt
|
| | | | (638) | | | | | | (1,269) | | |
Proceeds from issuance of long-term debt
|
| | | | — | | | | | | 55,000 | | |
Loan origination fees for long-term debt
|
| | | | (75) | | | | | | (1,762) | | |
Proceeds from PPP and other government loans
|
| | | | 3,790 | | | | | | 4,331 | | |
Capital contribution from Parent
|
| | | | — | | | | | | 11,571 | | |
Repayment of Related Party Loan
|
| | | | — | | | | | | (6,784) | | |
Net cash provided by financing activities
|
| | | | 3,077 | | | | | | 61,087 | | |
Effect of exchange rate changes on cash, cash equivalents and restricted cash
|
| | | | (311) | | | | | | 1 | | |
Net increase (decrease) in cash, cash equivalents and restricted cash
|
| | | | (16,019) | | | | | | 19,716 | | |
Cash, cash equivalents and restricted cash at beginning of year
|
| | | | 31,525 | | | | | | 11,809 | | |
Cash, cash equivalents and restricted cash at end of year
|
| | | $ | 15,506 | | | | | $ | 31,525 | | |
Supplemental disclosures of cash flow information: | | | | | | | | | | | | | |
Cash paid during the year for interest
|
| | | $ | 6,740 | | | | | $ | 316 | | |
Cash paid during the year for income taxes
|
| | | $ | 82 | | | | | $ | 711 | | |
Supplemental schedule of noncash investing and financing activities | | | | | | | | | | | | | |
Fair value of Parent units and Put Options in connection with acquisition of CTS
|
| | | $ | — | | | | | $ | 35,448 | | |
Fair value of Parent units and Put Options in connection with acquisition of Rocketrip
|
| | | $ | — | | | | | $ | 5,744 | | |
Fair value of Parent units issued to lenders
|
| | | $ | — | | | | | $ | 6,525 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Cash and cash equivalents
|
| | | $ | 15,506 | | | | | $ | 31,425 | | |
Restricted cash
|
| | | | — | | | | | | 100 | | |
| | | | $ | 15,506 | | | | | $ | 31,525 | | |
| | |
Useful Lives
|
|
Computer equipment
|
| |
3 – 7 years
|
|
Furniture and office equipment
|
| |
5 – 7 years
|
|
Capitalized software
|
| |
3 years
|
|
| | |
Amortization Period
|
|
Covenants not to compete
|
| |
5 years
|
|
Trade name with definite life
|
| |
20 years
|
|
Acquired technology
|
| |
10 years
|
|
Customer relationships
|
| |
5 – 10 years
|
|
Supplier relationships
|
| |
15 years
|
|
Developed technology
|
| |
5 – 10 years
|
|
| | |
December 31, 2021
|
| |||||||||||||||||||||
| | |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| |
Total
|
| ||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Restricted cash and cash equivalents(1)
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Total assets
|
| | | $ | — | | | | | $ | — | | | | | $ | — | | | | | $ | — | | |
Liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Earn-out consideration(2)
|
| | | | — | | | | | $ | — | | | | | $ | 597 | | | | | $ | 597 | | |
| | |
December 31, 2020
|
| |||||||||||||||||||||
| | |
Level 1
|
| |
Level 2
|
| |
Level 3
|
| |
Total
|
| ||||||||||||
Assets | | | | | | | | | | | | | | | | | | | | | | | | | |
Restricted cash and cash equivalents(1)
|
| | | | 100 | | | | | | — | | | | | | — | | | | | | 100 | | |
Total assets
|
| | | $ | 100 | | | | | $ | — | | | | | $ | — | | | | | $ | 100 | | |
Liabilities | | | | | | | | | | | | | | | | | | | | | | | | | |
Earn-out consideration(2)
|
| | | $ | — | | | | | $ | — | | | | | $ | 332 | | | | | $ | 332 | | |
| | |
For the Year Ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Balance, beginning of year
|
| | | $ | 332 | | | | | $ | 398 | | |
Change in the estimated fair value of earn-out consideration
|
| | | | 265 | | | | | | (66) | | |
Balance, end of year
|
| | | $ | 597 | | | | | $ | 332 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Capitalized software
|
| | | $ | 27,606 | | | | | $ | 19,326 | | |
Computer equipment
|
| | | | 749 | | | | | | 655 | | |
Furniture and office equipment
|
| | | | 428 | | | | | | 357 | | |
Leasehold improvements
|
| | | | 233 | | | | | | 233 | | |
Capitalized software development in process
|
| | | | 1,218 | | | | | | 4,898 | | |
Total property and equipment
|
| | | | 30,234 | | | | | | 25,469 | | |
Less: accumulated depreciation and amortization
|
| | | | (21,360) | | | | | | (16,313) | | |
Total property and equipment, net
|
| | | $ | 8,874 | | | | | $ | 9,156 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Goodwill
|
| | | $ | 66,420 | | | | | $ | 66,420 | | |
Intangible assets with indefinite lives
|
| | | | 12,028 | | | | | | 12,028 | | |
Intangible assets with definitive lives, net
|
| | | | 51,680 | | | | | | 59,562 | | |
| | |
Travel
Marketplace |
| |
SAAS
Platform |
| |
Total
|
| |||||||||
Balance as of December 31, 2019
|
| | | $ | 27,277 | | | | | $ | — | | | | | $ | 27,277 | | |
Additions
|
| | | | 31,722 | | | | | | 7,421 | | | | | | 39,143 | | |
Impairment charges
|
| | | | — | | | | | | — | | | | | | — | | |
Balance as of December 31, 2020
|
| | | | 58,999 | | | | | | 7,421 | | | | | | 66,420 | | |
Additions
|
| | | | — | | | | | | — | | | | | | — | | |
Impairment charges
|
| | | | — | | | | | | — | | | | | | — | | |
Balance as of December 31, 2021
|
| | | $ | 58,999 | | | | | $ | 7,421 | | | | | $ | 66,420 | | |
| | |
Weighted-
average Remaining Useful Life (in years) |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net Carrying
Amount |
| ||||||||||||
Customer relationships
|
| | | | 5.57 | | | | | $ | 60,778 | | | | | $ | (24,613) | | | | | $ | 36,165 | | |
Trade name
|
| | | | 9.95 | | | | | | 9,580 | | | | | | (4,816) | | | | | | 4,764 | | |
Acquired technology
|
| | | | — | | | | | | 7,430 | | | | | | (7,430) | | | | | | — | | |
Supplier relationships
|
| | | | 13.02 | | | | | | 5,767 | | | | | | (769) | | | | | | 4,998 | | |
Developed technology
|
| | | | 8.24 | | | | | | 7,220 | | | | | | (1,467) | | | | | | 5,753 | | |
Covenants not to compete
|
| | | | — | | | | | | 332 | | | | | | (332) | | | | | | — | | |
Balances as of December 31, 2021
|
| | | | | | | | | $ | 91,107 | | | | | $ | (39,427) | | | | | $ | 51,680 | | |
| | |
Weighted-
average Remaining Useful Life (in years) |
| |
Gross
Carrying Amount |
| |
Accumulated
Amortization |
| |
Net Carrying
Amount |
| ||||||||||||
Customer relationships
|
| | | | 6.57 | | | | | $ | 60,778 | | | | | $ | (18,953) | | | | | $ | 41,825 | | |
Trade name
|
| | | | 10.95 | | | | | | 9,580 | | | | | | (4,337) | | | | | | 5,243 | | |
Acquired technology
|
| | | | 0.75 | | | | | | 7,430 | | | | | | (6,873) | | | | | | 557 | | |
Supplier relationships
|
| | | | 14.02 | | | | | | 5,767 | | | | | | (376) | | | | | | 5,391 | | |
Developed technology
|
| | | | 9.24 | | | | | | 7,220 | | | | | | (674) | | | | | | 6,546 | | |
Covenants not to compete
|
| | | | — | | | | | | 332 | | | | | | (332) | | | | | | — | | |
Balances as of December 31, 2020
|
| | | | | | | | | $ | 91,107 | | | | | $ | (31,545) | | | | | $ | 59,562 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Accrued expenses
|
| | | $ | 4,834 | | | | | $ | 4,548 | | |
Provision for chargebacks
|
| | | | 3,176 | | | | | | 4,150 | | |
Accrued compensation and benefits
|
| | | | 1,427 | | | | | | 905 | | |
Earn-out consideration payable
|
| | | | 597 | | | | | | 332 | | |
Other current liabilities
|
| | | | 320 | | | | | | 1,542 | | |
| | | | $ | 10,354 | | | | | $ | 11,477 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
HASCAP
|
| | | $ | 198 | | | | | $ | — | | |
CEBA
|
| | | | 55 | | | | | | 39 | | |
PPP
|
| | | | 2,000 | | | | | | 4,292 | | |
Total PPP and other governmental loans
|
| | | $ | 2,253 | | | | | $ | 4,331 | | |
Lee: current portion of PPP and other governmental loans
|
| | | | (338) | | | | | | — | | |
Total PPP and other governmental loans, net of current portion
|
| | | $ | 1,915 | | | | | $ | 4,331 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
TCW Credit Agreement
|
| | | $ | 150,000 | | | | | $ | 150,000 | | |
Cumulative PIK interest for TCW Credit Agreement(2)
|
| | | | 36,858 | | | | | | 20,164 | | |
GDS Obligation
|
| | | | 298 | | | | | | 745 | | |
Vendor Obligation
|
| | | | — | | | | | | 191 | | |
Total outstanding principal balance
|
| | | $ | 187,156 | | | | | $ | 171,100 | | |
Less: Unamortized debt issuance costs and discounts
|
| | | | (13,923) | | | | | | (14,455) | | |
Total debt
|
| | | $ | 173,233 | | | | | $ | 156,645 | | |
Less : Current portion of long term debt
|
| | | | (11,063) | | | | | | (8,618) | | |
Long term debt, net of current portion
|
| | | $ | 162,170 | | | | | $ | 148,027 | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Cash interest expense
|
| | | $ | 6,587 | | | | | $ | 99 | | |
Payment in kind interest, net(1)
|
| | | | 14,582 | | | | | | 19,619 | | |
LOC commitment charges
|
| | | | 153 | | | | | | 141 | | |
Amortization of debt issuance costs
|
| | | | 2,361 | | | | | | 551 | | |
| | | | $ | 23,683 | | | | | $ | 20,410 | | |
Year ending December 31,
|
| |
Borrowing Arrangements
|
| |
PPP and Other
Governmental Loans |
| ||||||
2022
|
| | | $ | 11,063 | | | | | $ | 338 | | |
2023
|
| | | | 9,243 | | | | | | 571 | | |
2024
|
| | | | 166,850 | | | | | | 560 | | |
2025
|
| | | | — | | | | | | 566 | | |
2026
|
| | | | — | | | | | | 113 | | |
Thereafter
|
| | | | — | | | | | | 105 | | |
| | | | | 187,156 | | | | | | 2,253 | | |
Less: Loan origination fees
|
| | | | (13,923) | | | | | | — | | |
| | | | $ | 173,233 | | | | | $ | 2,253 | | |
| Purchase Price Consideration | | | | | | | |
|
Cash consideration(i)
|
| | | $ | 2,500 | | |
|
Issuance of shares of Parent stock and Put Option(ii)
|
| | | | 3,133 | | |
|
Deferred issuance of shares of Parent stock and Put Option(iii)
|
| | | | 2,611 | | |
|
Total purchase price consideration
|
| | | $ | 8,244 | | |
|
Trade accounts receivables
|
| | | $ | 745 | | |
|
Prepaid and other current assets
|
| | | | 2,116 | | |
|
Property and equipment, net
|
| | | | 105 | | |
|
Intangible assets
|
| | | | 4,162 | | |
|
Trade accounts payable
|
| | | | (684) | | |
|
Accrued expenses and other current liabilities
|
| | | | (696) | | |
|
Deferred revenue
|
| | | | (4,906) | | |
|
Other non-current liabilities
|
| | | | (19) | | |
|
Net identifiable assets
|
| | | | 823 | | |
|
Goodwill
|
| | | | 7,421 | | |
|
Total purchase consideration
|
| | | $ | 8,244 | | |
| | |
Useful life (years)
|
| |
Fair value
|
| ||||||
Customer relationships
|
| | | | 5 | | | | | $ | 1,825 | | |
Trade names
|
| | | | — | | | | | | 1,551 | | |
Developed technology
|
| | | | 5 | | | | | | 786 | | |
Total acquired intangibles
|
| | | | | | | | | $ | 4,162 | | |
| Purchase price consideration | | | | | | | |
|
Cash consideration(i)
|
| | | $ | 39,000 | | |
|
Issuance of Parent stock and put options(ii)
|
| | | | 35,448 | | |
|
Total purchase price consideration
|
| | | $ | 74,448 | | |
|
Cash and cash equivalents
|
| | | $ | 6,588 | | |
|
Restricted short-term investments
|
| | | | 2,572 | | |
|
Trade accounts receivable
|
| | | | 5,108 | | |
|
Other non-current assets
|
| | | | 143 | | |
|
Property and equipment, net
|
| | | | 23 | | |
|
Intangible assets, net
|
| | | | 51,621 | | |
|
Trade accounts payable
|
| | | | (4,296) | | |
|
Accrued expenses and other current liabilities
|
| | | | (4,909) | | |
|
Deferred tax liability
|
| | | | (14,124) | | |
|
Net identifiable assets
|
| | | | 42,726 | | |
|
Goodwill
|
| | | | 31,722 | | |
|
Total purchase consideration
|
| | | $ | 74,448 | | |
| | |
Useful life (years)
|
| |
Fair value
|
| ||||||
Customer relationships
|
| | | | 10 | | | | | $ | 43,083 | | |
Trade names
|
| | | | — | | | | | | 4,977 | | |
Developed technology
|
| | | | 10 | | | | | | 3,561 | | |
Total acquired intangibles
|
| | | | | | | | | $ | 51,621 | | |
|
Purchase price consideration
|
| | | | | | |
|
Assumed liability(i)
|
| | | $ | 3,423 | | |
|
Promissory notes issued(ii)
|
| | | | 1,750 | | |
|
Issuance of shares of Parent stock and Put Option(iii)
|
| | | | 16,051 | | |
|
Earn-out consideration(iv)
|
| | | | 396 | | |
|
Total purchase price consideration
|
| | | $ | 21,620 | | |
|
Cash
|
| | | $ | 1,146 | | |
|
Trade accounts receivable
|
| | | | 2,518 | | |
|
Property and equipment, net
|
| | | | 284 | | |
|
Prepaid expenses and other current assets
|
| | | | 591 | | |
|
Other non-current assets
|
| | | | 384 | | |
|
Intangible assets
|
| | | | 14,140 | | |
|
Trade accounts payable
|
| | | | (12,788) | | |
|
Other non-current liabilities
|
| | | | (42) | | |
|
Accrued liabilities
|
| | | | (1,399) | | |
|
Net identifiable assets
|
| | | | 4,834 | | |
|
Goodwill
|
| | | | 16,786 | | |
|
Total purchase price consideration
|
| | | $ | 21,620 | | |
| | |
Useful life (years)
|
| |
Fair value
|
| ||||||
Supplier relationships
|
| | | | 15 | | | | | $ | 5,767 | | |
Trade name
|
| | | | — | | | | | | 5,500 | | |
Developed technology
|
| | | | 10 | | | | | | 2,873 | | |
Total acquired intangibles
|
| | | | | | | | | $ | 14,140 | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Revenue from Travel Marketplace
|
| | | $ | 92,038 | | | | | $ | 65,057 | | |
Revenue from SAAS Platform
|
| | | | 1,156 | | | | | | 739 | | |
| | | | $ | 93,194 | | | | | $ | 65,796 | | |
| | |
Accounts Receivables
|
| |
Contract Asset
|
| |
Deferred Revenue
|
| |||||||||
Ending Balance as of December 31, 2019
|
| | | $ | 15,664 | | | | | $ | 23,975 | | | | | $ | (21,386) | | |
Increase/(decrease), net
|
| | | | (10,309) | | | | | | (19,555) | | | | | | (2,018) | | |
Ending Balance as of December 31, 2020
|
| | | | 5,355 | | | | | | 4,420 | | | | | | (23,404) | | |
Increase/(decrease), net
|
| | | | 4,823 | | | | | | (485) | | | | | | 2,666 | | |
Ending Balance as of December 31, 2021
|
| | | $ | 10,178 | | | | | $ | 3,935 | | | | | $ | (20,738) | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
United States
|
| | | $ | (38,396) | | | | | $ | (55,936) | | |
International
|
| | | | (186) | | | | | | 160 | | |
| | | | $ | (38,582) | | | | | $ | (55,776) | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Current tax expense: | | | | | | | | | | | | | |
Federal
|
| | | $ | — | | | | | $ | (282) | | |
State
|
| | | | 18 | | | | | | 74 | | |
International
|
| | | | 121 | | | | | | 107 | | |
| | | | | 139 | | | | | | (101) | | |
Deferred
|
| | | | | | | | | | | | |
Federal
|
| | | | 42 | | | | | | (9,513) | | |
State
|
| | | | 142 | | | | | | (4,422) | | |
International
|
| | | | — | | | | | | (6) | | |
| | | | | 184 | | | | | | (13,941) | | |
Total provision (benefit) for income taxes
|
| | | $ | 323 | | | | | $ | (14,042) | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Accrued bonus and vacation
|
| | | $ | 308 | | | | | $ | 169 | | |
Allowance for doubtful accounts
|
| | | | 1,649 | | | | | | 1,584 | | |
Charity deduction carryover
|
| | | | 1 | | | | | | — | | |
Deferred rent
|
| | | | 12 | | | | | | 29 | | |
Deferred revenue
|
| | | | 5,212 | | | | | | 5,771 | | |
Accrued expenses
|
| | | | 1,256 | | | | | | 904 | | |
Fixed assets
|
| | | | (1,588) | | | | | | (871) | | |
Intangible assets
|
| | | | (16,533) | | | | | | (17,777) | | |
Other
|
| | | | 384 | | | | | | 429 | | |
Inventory
|
| | | | 162 | | | | | | 51 | | |
State tax
|
| | | | 7 | | | | | | 7 | | |
Interest expense limitation
|
| | | | 12,328 | | | | | | 7,412 | | |
Net operating loss
|
| | | | 31,901 | | | | | | 26,302 | | |
Total non-current
|
| | | | 35,099 | | | | | | 24,010 | | |
Valuation allowance
|
| | | | (35,611) | | | | | | (24,338) | | |
Total net deferred tax liability
|
| | | $ | (512) | | | | | $ | (328) | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Federal tax at statutory rate
|
| | | | 21.00% | | | | | | 21.00% | | |
State, net of federal benefit
|
| | | | 9.05 | | | | | | 9.08 | | |
Permanent differences
|
| | | | 0.74 | | | | | | (0.45) | | |
Prior year payable true ups
|
| | | | — | | | | | | 0.44 | | |
Adjustment to deferred through goodwill
|
| | | | — | | | | | | 25.33 | | |
Foreign rate differential
|
| | | | (0.23) | | | | | | (0.09) | | |
Change in valuation allowance
|
| | | | (31.29) | | | | | | (30.14) | | |
Other
|
| | | | (0.11) | | | | | | 0.02 | | |
Effective tax rate
|
| | | | (0.84)% | | | | | | 25.19% | | |
Year ending December 31,
|
| | | | | | |
2022
|
| | | $ | 895 | | |
2023
|
| | | | 480 | | |
2024
|
| | | | 400 | | |
2025
|
| | | | 188 | | |
2026
|
| | | | 92 | | |
Thereafter
|
| | | | 134 | | |
| | | | $ | 2,189 | | |
| | |
By Period
|
| |||||||||||||||||||||
Total
|
| |
Less than 1 Year
|
| |
1 to 3 Years
|
| |
3 to 5 Years
|
| |
More than 5 Years
|
| ||||||||||||
$7,258
|
| | | $ | 7,258 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
$7,258
|
| | | $ | 7,258 | | | | | $ | 0 | | | | | $ | 0 | | | | | $ | 0 | | |
Particulars
|
| |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Present value of obligation as at the beginning of the year
|
| | | $ | 383 | | | | | $ | 298 | | |
Interest cost
|
| | | | 25 | | | | | | 20 | | |
Acquisitions
|
| | | | — | | | | | | — | | |
Current service cost
|
| | | | 90 | | | | | | 83 | | |
Benefits paid
|
| | | | — | | | | | | — | | |
Actuarial gain on obligation
|
| | | | (46) | | | | | | (12) | | |
Effect of exchange rate changes
|
| | | | (8) | | | | | | (6) | | |
Present value of obligation as at the end of the year
|
| | |
$
|
444
|
| | | |
$
|
383
|
| |
Particulars
|
| |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Present value of obligation as at the end of the period
|
| | | $ | 444 | | | | | $ | 383 | | |
Fair value of plan assets as at the end of the period
|
| | | | — | | | | | | — | | |
Funded status / (unfunded status)
|
| | | | (444) | | | | | | (383) | | |
Excess of actual over estimated
|
| | | | — | | | | | | — | | |
Unrecognized actuarial (gains)/losses
|
| | | | — | | | | | | — | | |
Net asset/(liability)recognized in consolidated balance sheet
|
| | | $ | (444) | | | | | $ | (383) | | |
Current portion
|
| | | | 12 | | | | | | 29 | | |
Non-current portion
|
| | | | 432 | | | | | | 354 | | |
| | |
As of December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Accumulated benefit obligation
|
| | | $ | 168 | | | | | $ | 139 | | |
Particulars
|
| |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Current service cost
|
| | | $ | 90 | | | | | $ | 83 | | |
Interest cost
|
| | | | 25 | | | | | | 20 | | |
Net actuarial gain recognized in the period
|
| | | | (46) | | | | | | (12) | | |
Expenses recognized in the consolidated statement of operations
|
| | | $ | 69 | | | | | $ | 91 | | |
Particulars
|
| |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Actuarial (gain) / loss on arising from change in financial assumption
|
| | | $ | (34) | | | | | $ | 30 | | |
Actuarial gain on arising from experience adjustment
|
| | | | (12) | | | | | | (42) | | |
Total Actuarial gain on obligation
|
| | | $ | (46) | | | | | $ | (12) | | |
Particulars
|
| |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2021
|
| ||||||
Discount rate
|
| | | | 7.06% | | | | | | 6.55% | | |
Rate of compensation increase
|
| | | | 7.00% | | | | | | 7.00% | | |
December 31:
|
| | | | | | |
2022
|
| | | $ | 18 | | |
2023
|
| | | | 31 | | |
2024
|
| | | | 31 | | |
2025
|
| | | | 54 | | |
2026
|
| | | | 54 | | |
2027 – 2031
|
| | | | 364 | | |
| | | | $ | 552 | | |
| | |
Year ended December 31,
|
| |||||||||
Transactions with Related Parties
|
| |
2021
|
| |
2020
|
| ||||||
Offshore IT, sales support and other services from | | | | | | | | | | | | | |
Metaminds Software
|
| | | | 90 | | | | | | 428 | | |
Metaminds Technologies
|
| | | | 230 | | | | | | 243 | | |
Metaminds Global
|
| | | | 208 | | | | | | 720 | | |
Offshore software development services from | | | | | | | | | | | | | |
Metaminds Software
|
| | | | 362 | | | | | | 1,230 | | |
Metaminds Technologies
|
| | | | 919 | | | | | | 374 | | |
Metaminds Global
|
| | | | 831 | | | | | | 1,036 | | |
Repayment – Note to Mondee Group LLC(e)
|
| | | | — | | | | | | 5,034 | | |
Interest Income from Mondee Group Loan(b)
|
| | | | 505 | | | | | | 496 | | |
Repayment – Note to LBF Travel Inc.(d)
|
| | | | — | | | | | | 1,750 | | |
Service fee from Mondee Group LLC(a)
|
| | | | 1,223 | | | | | | — | | |
Rent expense – from Mike Melham(f)
|
| | | | 86 | | | | | | 86 | | |
| | |
Year ended December 31, 2021
|
| |||||||||||||||
| | |
Travel Marketplace
|
| |
SAAS Platform
|
| |
Total
|
| |||||||||
Third-party revenue
|
| | | $ | 92,038 | | | | | $ | 1,156 | | | | | $ | 93,194 | | |
Intersegment revenue
|
| | | | — | | | | | | — | | | | | | — | | |
Revenue
|
| | | $ | 92,038 | | | | | $ | 1,156 | | | | | $ | 93,194 | | |
Adjusted EBITDA
|
| | | $ | (3,745) | | | | | $ | (1,710) | | | | | $ | (5,455) | | |
Depreciation and amortization
|
| | | | (12,296) | | | | | | (565) | | | | | | (12,861) | | |
Stock-based compensation
|
| | | | (3,936) | | | | | | — | | | | | | (3,936) | | |
Operating loss
|
| | | $ | (19,977) | | | | | $ | (2,275) | | | | | $ | (22,252) | | |
Other expense, net
|
| | | | | | | | | | | | | | | | (16,330) | | |
Loss before income taxes
|
| | | | | | | | | | | | | | | | (38,582) | | |
Provision for income taxes
|
| | | | | | | | | | | | | | | | (323) | | |
Net loss
|
| | | | | | | | | | | | | | | $ | (38,905) | | |
| | |
Year ended December 31, 2020
|
| |||||||||||||||
| | |
Travel Marketplace
|
| |
SAAS Platform
|
| |
Total
|
| |||||||||
Third-party revenue
|
| | | $ | 65,057 | | | | | $ | 739 | | | | | $ | 65,796 | | |
Intersegment revenue
|
| | | | — | | | | | | — | | | | | | — | | |
Revenue
|
| | | $ | 65,057 | | | | | $ | 739 | | | | | $ | 65,796 | | |
Adjusted EBITDA
|
| | |
$
|
(23,529)
|
| | | | $ | (899) | | | | | $ | (24,428) | | |
Depreciation and amortization
|
| | | | (11,235) | | | | | | (179) | | | | | | (11,414) | | |
Stock-based compensation
|
| | | | (15) | | | | | | — | | | | | | (15) | | |
Operating loss
|
| | | $ | (34,779) | | | | | $ | (1,078) | | | | | $ | (35,857) | | |
Other expense, net
|
| | | | | | | | | | | | | | | | (19,919) | | |
Loss before income taxes
|
| | | | | | | | | | | | | | | | (55,776) | | |
Benefit from income taxes
|
| | | | | | | | | | | | | | | | 14,042 | | |
Net loss
|
| | | | | | | | | | | | | | | $ | (41,734) | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
United States
|
| | | $ | 91,432 | | | | | $ | 64,156 | | |
International
|
| | | | 1,762 | | | | | | 1,640 | | |
| | | | $ | 93,194 | | | | | $ | 65,796 | | |
| | |
2021 Grants
|
|
Expected term (in years)
|
| |
0 – 2.5
|
|
Risk-free interest rate
|
| |
0.81% – 1.26%
|
|
Expected volatility
|
| |
50.92% – 53.85%
|
|
Expected dividend rate
|
| |
0%
|
|
Weighted average contractual life
|
| |
0 – 2.5
|
|
| | |
2018, 2017
and 2016 Grants |
|
Expected term (in years)
|
| |
0 – 2.5
|
|
Risk-free interest rate
|
| |
2.9%
|
|
Expected volatility
|
| |
26.0%
|
|
Expected dividend rate
|
| |
0%
|
|
Weighted average contractual life
|
| |
0 – 2.5
|
|
| | |
Number of Class D
Incentive Units Outstanding |
| |
Weighted average
grant date fair value of units |
| |
Weighted average
remaining contractual life (Years) |
| |
Weighted
average exercise price |
| ||||||||||||
Unvested – December 31, 2019
|
| | | | 6,136,479 | | | | | $ | 0.003 | | | | | | 0.84 | | | | | $ | 0.01 | | |
Granted
|
| | | | — | | | | | | — | | | | | | — | | | | | | — | | |
Vested
|
| | | | (5,741,810) | | | | | | 0.003 | | | | | | — | | | | | | 0.01 | | |
Forfeited or canceled
|
| | | | — | | | | | | — | | | | | | — | | | | | | 0.01 | | |
Unvested – December 31, 2020
|
| | | | 394,669 | | | | | | 0.003 | | | | | | 0.67 | | | | | | 0.01 | | |
Granted
|
| | | | 42,288,769 | | | | | | 0.12 | | | | | | — | | | | | | 0.07 | | |
Vested
|
| | | | (29,036,941) | | | | | | 0.13 | | | | | | — | | | | | | 0.01 | | |
Forfeited or canceled
|
| | | | (3,368,011) | | | | | | 0.002 | | | | | | — | | | | | | 0.71 | | |
Unvested – December 31, 2021
|
| | | | 10,278,486 | | | | | $ | 0.13 | | | | | | 2 | | | | | $ | 0.03 | | |
| | |
Year ended December 31,
|
| |||||||||
| | |
2021
|
| |
2020
|
| ||||||
Personnel expense
|
| | | $ | 3,920 | | | | | $ | 15 | | |
Sales and other expenses
|
| | | | 16 | | | | | | — | | |
| | | | $ | 3,936 | | | | | $ | 15 | | |
| | |
Page
|
| | |||||
| | | | A-5 | | | | |||
| | | | A-5 | | | | |||
| | | | A-6 | | | | |||
| | | | A-6 | | | | |||
| | | | A-6 | | | | |||
| | | | A-7 | | | | |||
|
| | | | A-7 | | | | ||
ARTICLE II
|
| | ||||||||
CONVERSION OF SECURITIES
|
| | ||||||||
| | | | A-7 | | | | |||
| | | | A-7 | | | | |||
| | | | A-8 | | | | |||
|
| | | | A-8 | | | | ||
ARTICLE III
|
| | ||||||||
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
|
| | | | ||||||
| | | | A-8 | | | | |||
| | | | A-8 | | | | |||
| | | | A-9 | | | | |||
| | | | A-9 | | | | |||
| | | | A-9 | | | | |||
| | | | A-10 | | | | |||
| | | | A-10 | | | | |||
| | | | A-11 | | | | |||
| | | | A-12 | | | | |||
| | | | A-12 | | | | |||
| | | | A-13 | | | | |||
| | | | A-14 | | | | |||
| | | | A-15 | | | | |||
| | | | A-16 | | | | |||
| | | | A-18 | | | | |||
| | | | A-18 | | | | |||
| | | | A-19 | | | | |||
| | | | A-20 | | | | |||
| | | | A-20 | | | | |||
| | | | A-20 | | | | |||
| | | | A-20 | | | | |||
| | | | A-21 | | | | |||
| | | | A-21 | | | | |||
| | | | A-21 | | | | |||
| | | | A-21 | | | | |||
| | | | A-21 | | | |
| | |
Page
|
| |||
ARTICLE IV
|
| ||||||
REPRESENTATIONS AND WARRANTIES OF ITHAX, MERGER SUB I AND MERGER SUB II
|
| ||||||
| | | | A-22 | | | |
| | | | A-22 | | | |
| | | | A-22 | | | |
| | | | A-23 | | | |
| | | | A-23 | | | |
| | | | A-24 | | | |
| | | | A-24 | | | |
| | | | A-25 | | | |
| | | | A-25 | | | |
| | | | A-25 | | | |
| | | | A-26 | | | |
| | | | A-26 | | | |
| | | | A-26 | | | |
| | | | A-27 | | | |
| | | | A-28 | | | |
| | | | A-28 | | | |
| | | | A-28 | | | |
ARTICLE V
|
| ||||||
CONDUCT OF BUSINESS PENDING THE MERGERS
|
| ||||||
| | | | A-29 | | | |
| | | | A-30 | | | |
| | | | A-32 | | | |
ARTICLE VI
|
| ||||||
ADDITIONAL AGREEMENTS
|
| ||||||
| | | | A-32 | | | |
| | | | A-33 | | | |
| | | | A-34 | | | |
| | | | A-34 | | | |
| | | | A-34 | | | |
| | | | A-35 | | | |
| | | | A-35 | | | |
| | | | A-36 | | | |
| | | | A-36 | | | |
| | | | A-37 | | | |
| | | | A-37 | | | |
| | | | A-37 | | | |
| | | | A-38 | | | |
| | | | A-38 | | | |
| | | | A-38 | | | |
| | | | A-39 | | | |
| | | | A-39 | | | |
| | | | A-39 | | | |
| | | | A-39 | | |
| | |
Page
|
| |||
ARTICLE VII
|
| ||||||
CONDITIONS TO THE MERGERS
|
| ||||||
| | | | A-40 | | | |
| | | | A-40 | | | |
| | | | A-41 | | | |
ARTICLE VIII
|
| ||||||
TERMINATION, AMENDMENT AND WAIVER
|
| ||||||
| | | | A-42 | | | |
| | | | A-42 | | | |
| | | | A-43 | | | |
| | | | A-43 | | | |
| | | | A-43 | | | |
ARTICLE IX
|
| ||||||
GENERAL PROVISIONS
|
| ||||||
| | | | A-43 | | | |
| | | | A-44 | | | |
| | | | A-44 | | | |
| | | | A-53 | | | |
| | | | A-53 | | | |
| | | | A-53 | | | |
| | | | A-53 | | | |
| | | | A-54 | | | |
| | | | A-54 | | | |
| | | | A-55 | | | |
| | | | A-55 | | | |
| | | | A-55 | | |
|
EXHIBIT A
Form of Amended and Restated Certificate of Incorporation of Ithax
|
| | | |
|
EXHIBIT B
Form of Amended and Restated Bylaws of Ithax
|
| | | |
|
EXHIBIT C
Form of Subscription Agreement
|
| | | |
|
EXHIBIT D
Form of Second Surviving Company Amended and Restated Limited Liability Company Agreement
|
| | | |
|
EXHIBIT E
Directors and Officers of Ithax
|
| | | |
|
EXHIBIT F-1
IRS Notice
|
| | | |
|
EXHIBIT F-2
FIRPTA Notification Letter
|
| | | |
|
EXHIBIT G
Form of Registration Rights Agreement
|
| | | |
|
SCHEDULE 4.12
Brokers
|
| |
Defined Term
|
| |
Location of Definition
|
|
2021 Balance Sheet | | | § 3.07(b) | |
ACA | | | § 3.10(j) | |
Action | | | § 3.09 | |
Agreement | | | Preamble | |
Antitrust Laws | | | § 6.15(a) | |
Audited Financial Statements | | | § 3.07(a) | |
Blue Sky Laws | | | § 3.05(b) | |
Cayman Islands Companies Act | | | Recitals | |
Claims | | | § 5.03 | |
Closing | | | § 1.02 | |
Closing Date | | | § 1.02 | |
Code | | | Recitals | |
Company | | | Preamble | |
Company Acquisition Agreement | | | § 6.05 | |
Company Board | | | Recitals | |
Company Disclosure Schedule | | | Article III | |
Company Permits | | | § 3.06 | |
Company Related Party | | | § 3.22 | |
Company Stockholder Approval | | | § 3.18(b) | |
Company Subsidiary | | | § 3.01(a) | |
Data Security Requirements | | | § 3.13(h) | |
DGCL | | | Recitals | |
DLLCA | | | Recitals | |
Domestication | | | Recitals | |
Earn-Out Agreement | | | Recitals | |
Environmental Permits | | | § 3.15 | |
ERISA | | | § 3.10(a) | |
ESPP | | | § 6.18(b) | |
Exchange Act | | | § 3.05(b) | |
First Certificate of Merger | | | § 1.03(a) | |
First Effective Time | | | § 1.03(a) | |
Final Ithax Certificate of Incorporation | | | § 1.05(b) | |
First Merger | | | Recitals | |
First Surviving Company | | | § 1.01(a) | |
First Surviving Company Common Stock | | | § 2.01(c) | |
Defined Term
|
| |
Location of Definition
|
|
Foreign Person | | | § 4.15 | |
GAAP | | | § 3.07(a) | |
Governmental Authority | | | § 3.05(b) | |
HSR Act | | | § 3.05(b) | |
Intended Tax Treatment | | | § 6.09(b) | |
Interim Ithax Certificate of Incorporation | | | § 1.05(a) | |
Investors | | | Recitals | |
IRS | | | § 3.10(b) | |
IRS Notice | | | § 6.09(e) | |
Ithax | | | Preamble | |
Ithax Acquisition Agreement | | | § 6.13 | |
Ithax Board | | | Recitals | |
Ithax Proposals | | | § 6.01(a) | |
Ithax Recommendation | | | § 6.02(a) | |
Ithax Related Party | | | § 4.16 | |
Ithax SEC Reports | | | Article IV | |
Ithax Sponsor | | | Recitals | |
Ithax Shareholders’ Meeting | | | § 4.10(a) | |
Ithax Warrant Conversion | | | § 6.12 | |
Law | | | § 3.05(a) | |
Material Contracts | | | § 3.16(a) | |
Mergers | | | Recitals | |
Merger Consideration | | | § 2.01(a) | |
Merger Sub I | | | Preamble | |
Merger Sub II | | | Preamble | |
Merger Sub Governing Documents | | | § 4.02 | |
Merger Sub I Units | | | § 4.03(a) | |
Merger Sub II Units | | | § 4.03(a) | |
Mondee, Inc. | | | § 3.07(a) | |
Mondee LLC | | | Recitals | |
Non-disclosure Agreement | | | § 6.04(b) | |
Order | | | § 7.01(b) | |
Outside Date | | | § 8.01(b) | |
Party | | | Preamble | |
PCAOB Audited Financials | | | § 6.16 | |
Plans | | | § 3.10(a) | |
Private Placements | | | Recitals | |
Proxy Statement | | | § 6.01(a) | |
Registration Rights Agreement | | | § 7.02(f) | |
Registration Statement | | | § 6.01(a) | |
Reimbursable Expenses | | | § 8.03 | |
Representatives | | | § 6.04(a) | |
SEC | | | Article IV | |
Defined Term
|
| |
Location of Definition
|
|
Second Certificate of Merger | | | § 1.03(b) | |
Second Effective Time | | | § 1.03(b) | |
Second Merger | | | Recitals | |
Second Surviving Company | | | § 1.01(b) | |
Securities Act | | | § 3.03(b) | |
Sponsor | | | Recitals | |
Sponsor Support Agreement | | | Recitals | |
Stock Incentive Plan | | | § 6.18(a) | |
Stockholder Support Agreement | | | Recitals | |
Subscription Agreements | | | Recitals | |
Surviving Company Governing Documents | | | § 1.05(d) | |
Terminating Company Breach | | | § 8.01(e) | |
Terminating Ithax Breach | | | § 8.01(f) | |
Trust Account | | | § 4.13 | |
Trust Agreement | | | § 1.07 | |
Trust Fund | | | § 4.13 | |
Trustee | | | § 4.13 | |
Written Consent | | | § 3.18(b) | |
By: |
|
| | |
Page
|
| |||
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 72 | | | |
| | | | 75 | | | |
| | | | 77 | | | |
| | | | 78 | | | |
| | | | 78 | | | |
| | | | 78 | | | |
| | | | 79 | | | |
| | | | 79 | | | |
| | | | 79 | | | |
| | | | 80 | | | |
| | | | 80 | | | |
| | | | 81 | | | |
| | | | 81 | | | |
| | | | 81 | | | |
| | | | 81 | | | |
| | | | 81 | | | |
| | | | 81 | | | |
| | | | 82 | | | |
| | | | 82 | | | |
| | | | 82 | | | |
| | | | 82 | | | |
| | | | 83 | | | |
| | | | 83 | | | |
| | | | 83 | | | |
| | | | 83 | | | |
| | | | 83 | | | |
| | | | 83 | | | |
| | | | 84 | | | |
| | | | 84 | | | |
| | | | 84 | | | |
| | | | 84 | | |
| | |
Page
|
| |||
| | | | 84 | | | |
| | | | 84 | | | |
| | | | 84 | | | |
| | | | 84 | | | |
| | | | 85 | | | |
| | | | 85 | | | |
| | | | 85 | | | |
| | | | 85 | | | |
| | | | 85 | | | |
| | | | 85 | | | |
| | | | 86 | | | |
| | | | 86 | | | |
| | | | 86 | | | |
| | | | 86 | | | |
| | | | 86 | | | |
| | | | 86 | | | |
| | | | 86 | | | |
| | | | 87 | | | |
| | | | 87 | | | |
| | | | 87 | | | |
| | | | 87 | | | |
| | | | 87 | | | |
| | | | 87 | | | |
| | | | 88 | | | |
| | | | 88 | | | |
| | | | 88 | | | |
| | | | 89 | | | |
| | | | 89 | | | |
| | | | 89 | | | |
| | | | 89 | | | |
| | | | 89 | | | |
| | | | 90 | | | |
| | | | 90 | | | |
| | | | 90 | | | |
Section 9.11
Primacy of Indemnification
|
| | | | 90 | | |
| | | | 90 | | | |
| | | | 91 | | | |
| | | | 91 | | |
By: |
|
| Signature of Subscriber: | | | Signature of Joint Subscriber, if applicable: | | |||
|
Name:
Title: |
| |
Name:
Title: |
| |
| Name of Subscriber: | | | Name of Joint Subscriber, if applicable: | |
|
|
| |
|
|
|
(Please print. Please indicate name and
capacity of person signing above) |
| |
(Please print. Please indicate name and
capacity of person signing above) |
|
|
Name in which securities are to be registered
(if different) |
| | | |
| Email Address: | | | | |
| If there are joint investors, please check one: | | | | |
|
☐
Joint Tenants with Rights of Survivorship
|
| | | |
|
☐
Tenants-in-Common
|
| | | |
|
☐
Community Property
|
| | | |
|
Subscriber’s EIN:
|
| |
|
|
| Business Address-Street: | | | Mailing Address-Street (if different): | |
|
|
| |
|
|
|
|
| |
|
|
| City, State, Zip: | | | City, State, Zip: | |
| Attn: | | | Attn: | |
|
Telephone
|
| |
Telephone
|
|
|
Facsimile
|
| |
Facsimile
|
|
| ITHAX ACQUISITION CORP. | | | ||
|
Name: Orestes Fintiklis
Title: Chief Executive Officer |
| | | |
| President | | | [•] | |
| Secretary and Treasurer | | | [•] | |
| Vice President and Assistant Secretary | | | [•] | |
Company Member
|
| |
Company Units
|
| |
Member Interest
Percentage |
| ||||||
Mondee Holdings, Inc.
|
| | | | 1 | | | | | | 100% | | |
|
Name:
|
| |
Mondee Holdings II, Inc.
|
|
|
Address:
|
| | [•] | |
| | | | [•] | |
|
Taxpayer ID Number:
|
| | [•] | |
|
Name:
|
| |
ITHAX Acquisition Corp.
|
|
|
Address:
|
| | 555 Madison Avenue, Suite 11A | |
| | | | New York, NY 10022 | |
|
Taxpayer ID Number:
|
| | [•] | |
| | | | | | | MONDEE HOLDINGS II, INC. | |
| | | | | | |
|
|
| | | | | | |
Name:
[•]
Title:
[•]
|
|
By: |
|
|
Print Name of Stockholder |
| | | |
| Its: | | | | |
| Address: | | | | |
| Agreed and Accepted as of | | | | |
|
By:
|
| | ||
|
Name:
Its: |
| | | |
By: |
|
| | |
Page
|
| |||
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-5 | | | |
| | | | C-8 | | | |
| | | | C-10 | | | |
| | | | C-11 | | | |
| | | | C-11 | | | |
| | | | C-11 | | | |
| | | | C-12 | | | |
| | | | C-12 | | | |
| | | | C-12 | | | |
| | | | C-13 | | | |
| | | | C-13 | | | |
| | | | C-14 | | | |
| | | | C-14 | | | |
| | | | C-14 | | | |
| | | | C-14 | | | |
| | | | C-14 | | | |
| | | | C-14 | | | |
| | | | C-15 | | | |
| | | | C-15 | | | |
| | | | C-15 | | | |
| | | | C-15 | | | |
| | | | C-16 | | | |
| | | | C-16 | | | |
| | | | C-16 | | | |
| | | | C-16 | | | |
| | | | C-16 | | | |
| | | | C-16 | | | |
| | | | C-17 | | | |
| | | | C-17 | | | |
| | | | C-17 | | | |
| | | | C-17 | | |
| | |
Page
|
| |||
| | | | C-17 | | | |
| | | | C-17 | | | |
| | | | C-17 | | | |
| | | | C-17 | | | |
| | | | C-18 | | | |
| | | | C-18 | | | |
| | | | C-18 | | | |
| | | | C-18 | | | |
| | | | C-18 | | | |
| | | | C-18 | | | |
| | | | C-19 | | | |
| | | | C-19 | | | |
| | | | C-19 | | | |
| | | | C-19 | | | |
| | | | C-19 | | | |
| | | | C-19 | | | |
| | | | C-19 | | | |
| | | | C-20 | | | |
| | | | C-20 | | | |
| | | | C-20 | | | |
| | | | C-20 | | | |
| | | | C-20 | | | |
| | | | C-20 | | | |
| | | | C-21 | | | |
| | | | C-21 | | | |
| | | | C-21 | | | |
| | | | C-22 | | | |
| | | | C-22 | | | |
| | | | C-22 | | | |
| | | | C-22 | | | |
| | | | C-22 | | | |
| | | | C-23 | | | |
| | | | C-23 | | | |
| | | | C-23 | | | |
Section 9.11
Primacy of Indemnification
|
| | | | C-90 | | |
| | | | C-23 | | | |
| | | | C-24 | | | |
| | | | C-24 | | |
By: |
|
| Signature of Subscriber: | | | Signature of Joint Subscriber, if applicable: | | |||
|
Name:
Title: |
| |
Name:
Title: |
| |
| Name of Subscriber: | | | Name of Joint Subscriber, if applicable: | |
|
|
| |
|
|
|
(Please print. Please indicate name and
capacity of person signing above) |
| |
(Please print. Please indicate name and
capacity of person signing above) |
|
|
Name in which securities are to be registered
(if different) |
| | | |
| Email Address: | | | | |
| If there are joint investors, please check one: | | | | |
|
☐
Joint Tenants with Rights of Survivorship
|
| | | |
|
☐
Tenants-in-Common
|
| | | |
|
☐
Community Property
|
| | | |
|
Subscriber’s EIN:
|
| |
|
|
| Business Address-Street: | | | Mailing Address-Street (if different): | |
|
|
| |
|
|
|
|
| |
|
|
| City, State, Zip: | | | City, State, Zip: | |
| Attn: | | | Attn: | |
|
Telephone
|
| |
Telephone
|
|
|
Facsimile
|
| |
Facsimile
|
|
| ITHAX ACQUISITION CORP. | | | ||
|
Name: Orestes Fintiklis
Title: Chief Executive Officer |
| | | |
|
Print Name of Stockholder |
| | | |
| Its: | | | | |
| Address: | | | | |
| Agreed and Accepted as of | | | | |
|
By:
|
| | ||
|
Name:
Its: |
| | | |
| | | | | H-1 | | | |
| | | | | H-1 | | | |
| | | | | H-4 | | | |
| | | | | H-4 | | | |
| | | | | H-5 | | | |
| | | | | H-5 | | | |
| | | | | H-6 | | | |
| | | | | H-6 | | | |
| | | | | H-6 | | | |
| | | | | H-6 | | | |
| | | | | H-7 | | | |
| | | | | H-7 | | | |
| | | | | H-7 | | | |
| | | | | H-7 | | | |
| | | | | H-7 | | | |
| | | | | H-8 | | | |
| | | | | H-8 | | | |
| | | | | H-8 | | | |
| | | | | H-8 | | | |
| | | | | H-9 | | | |
| | | | | H-9 | | | |
| | | | | H-9 | | | |
| | | | | H-9 | | | |
| | | | | H-9 | | | |
| | | | | H-10 | | | |
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Method for giving notices
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| |
When taken to be given
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| Personally | | | At the time and date of delivery | |
| By leaving it at the member’s registered address | | | At the time and date it was left | |
| If the recipient has an address within the Cayman Islands, by posting it by prepaid post to the street or postal address of that recipient | | | 48 hours after it was posted | |
| If the recipient has an address outside the Cayman Islands, by posting it by prepaid airmail to the street or postal address of that recipient | | | 3 Clear Days after posting | |
| By Electronic Record (other than publication on a website), to recipient’s Electronic address | | | Within 24 hours after it was sent | |
| By publication on a website | | | See the Articles about the time when notice of a meeting of Members or accounts and reports, as the case may be, are published on a website | |
By: |
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Exhibit
No. |
| |
Description
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2.1**
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3.1**
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3.2**
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3.3**
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3.4**
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4.1**
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4.2**
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4.3**
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4.4**
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4.5**
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4.6
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4.7
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Exhibit
No. |
| |
Description
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|
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5.1*
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| | Opinion of Reed Smith LLP. | |
|
8.1
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| | | |
|
10.1**
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| | | |
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10.2**
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10.3**
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10.4+**
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10.5+**
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10.6+**
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10.7+**
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10.8**
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10.9**
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10.10**
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10.11**
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10.12**
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10.13**
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10.14**
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10.15**
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10.16**†
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10.17**†
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10.18**
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10.19+**
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10.20**†
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Exhibit
No. |
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Description
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10.21**†
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10.22**†
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10.23**†
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10.24**†
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10.25**
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10.26**
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10.27**†
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10.28**†
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10.29**†
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10.30**†
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10.31**†
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10.32**†
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10.33**†
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10.34**†
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10.35**†
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10.36**†
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10.37**†
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10.38**†
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10.39**†
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10.40**†
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Exhibit
No. |
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Description
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10.41
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21.1**
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| | | |
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23.1
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| | Consent of Marcum LLP, independent registered public accounting firm for ITHAX Acquisition Corp. | |
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23.2
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| | Consent of KNAV P.A., independent registered public accounting firm for Mondee Holdings II, Inc. | |
|
23.3*
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| | Consent of Reed Smith LLP (included in Exhibit 5.1). | |
|
23.4
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| | | |
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24.1**
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| | Power of Attorney (reference is made to the signature page to the Registration Statement). | |
|
107
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| | |
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NAME
|
| |
POSITION
|
| |
DATE
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|
|
/s/ Orestes Fintiklis
Orestes Fintiklis
|
| |
Chief Executive Officer and Director
(Principal Executive Officer) |
| | April 26, 2022 | |
|
/s/ Dimitrios Athanasopoulos
Dimitrios Athanasopoulos
|
| |
Chief Financial Officer and Director
(Principal Financial and Accounting Officer) |
| | April 26, 2022 | |
|
*
Carlos N. Guimarães
|
| | Director | | | April 26, 2022 | |
|
*
George Syllantavos
|
| | Director | | | April 26, 2022 | |
|
*
Rahul Vir
|
| | Director | | | April 26, 2022 | |
|
*By:
/s/ Orestes Fintiklis
Orestes Fintiklis
Attorney-in-Fact |
| | |
Exhibit 4.6
AMENDED AND RESTATED WARRANT AGREEMENT
THIS AMENDED AND RESTATED WARRANT AGREEMENT (as amended, supplemented, or otherwise modified from time to time, this “Agreement”), dated as of [●], 2022 (the “Effective Date”), is by and among Mondee Holdings, Inc., a Delaware corporation (formerly known as ITHAX Acquisition Corp., a Cayman Islands exempted company (“ITHAX”)) (the “Company”) and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”, also referred to herein as the “Transfer Agent”).
WHEREAS, ITHAX and the Warrant Agent entered into that certain warrant agreement, dated as of January 27, 2021 (the “Existing Warrant Agreement”); and
WHEREAS, as part of its initial public offering (the “Offering”), ITHAX issued 24,825,000 units, each such unit comprised of one Class A ordinary share of the ITHAX, par value $0.001 per share (the “Class A Ordinary Shares”), and one-half of one redeemable Public Warrant (as defined below) (the “Units”), including (i) 24,150,000 Units sold by ITHAX to the public (including 3,150,000 Units issued pursuant to the underwriters’ full exercise of their over-allotment option) and (ii) 675,000 sold by ITHAX to ITHAX Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”) and the representatives of the underwriters in the Offering (the “Representative”), respectively, in each case on the terms and conditions set forth in their respective private placement unit purchase agreements (together, the “Private Placement Units Purchase Agreements”); and
WHEREAS, in connection with the Private Placement Units Purchase Agreements, ITHAX issued and delivered (i) 232,500 whole warrants to Sponsor and 105,000 whole warrants to the Representative (collectively, the “Private Placement Warrants”) and (ii) 12,075,000 warrants to the public shareholders (collectively, the “Public Warrants”), in each case, on the terms and conditions set forth in the Existing Warrant Agreement; and
[WHEREAS, to finance certain transaction costs in connection with its Business Combination (as defined below), the Sponsor, an affiliate of the Sponsor, or certain of ITHAX’s executive officers and directors [loaned] to ITHAX $[●], of which [up to $1,500,000] of such loans may be convertible into up to an additional [150,000 Units] at a price of [$10.00 per Unit,] and in connection therewith ITHAX will issue and deliver [75,000] warrants (the “Working Capital Warrants”); and]
WHEREAS, following consummation of the Offering, the Company may issue additional warrants (“Post IPO Warrants”; together with the Private Placement Warrants, [the Working Capital Warrants] and the Public Warrants, the “Warrants”) in connection with, or following the consummation by the Company of its Business Combination (defined below); and
WHEREAS, the Company filed with the Securities and Exchange Commission (the “Commission”) a registration statement on Form S-1, File No. 333-251964 and Form S-1, File No. 333-252496 (collectively, the “Registration Statement”) and prospectus, for the registration, under the Securities Act of 1933, as amended (the “Securities Act”), of the Units, the Public Warrants and the Class A Ordinary Shares included in the Units; and
WHEREAS, on December 20, 2021, ITHAX, Ithax Merger Sub I, LLC, a Delaware limited liability company (“Merger Sub I”), Ithax Merger Sub II, LLC, a Delaware limited liability company (“Merger Sub II”) and Mondee Holdings II, Inc., a Delaware corporation (“Mondee Holdings”), entered into that certain Business Combination Agreement (the “Business Combination Agreement”); and
WHEREAS, in connection with the closing of the Business Combination Agreement, (a) on [●], 2022 ITHAX changed its jurisdiction of incorporation by deregistering as a Cayman Islands exempted company and continuing and domesticating as a corporation incorporated under the laws of the State of Delaware (the “Domestication”), (b) upon the terms and subject to the conditions of the Business Combination Agreement, on the Effective Date, Merger Sub I merged with and into Mondee Holdings, with Mondee Holdings surviving as a wholly owned subsidiary of the Company and (c) immediately following, Mondee Holdings merged with and into Merger Sub II, with Merger Sub II surviving as a wholly owned subsidiary of the Company (together, the “Mergers,” and together with Domestication and the other transactions contemplated by the Business Combination Agreement, the “Business Combination”);
WHEREAS, in connection with the Domestication, each issued and outstanding Class A Ordinary Share and each issued and outstanding Class B ordinary share of ITHAX, par value $0.001 per share, converted into one share of Class A common stock, par value $0.0001 per share, of the Company (the “Common Stock”);
WHEREAS, the Company desires the Warrant Agent to continue to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration, transfer, exchange, redemption and exercise of the Warrants; and
WHEREAS, in connection with the Business Combination and pursuant to Section 9.8 of the Existing Warrant Agreement, the Company and the Warrant Agent now desire to amend and restate the Existing Warrant Agreement in its entirety to provide that each issued and outstanding whole Warrant representing the right to purchase one Class A Ordinary Share of ITHAX will convert into the right to purchase one share of Common Stock at an exercise price of $11.50 per share, and may such other updates to reflect the consummation of the Business Combination;
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, as provided herein, the valid, binding and legal obligations of the Company, and to authorize the execution and delivery of this Agreement.
NOW, THEREFORE, in consideration of the mutual agreements herein contained, the parties hereto agree as follows:
1. Appointment of Warrant Agent. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this Agreement.
2. Warrants.
2.1 Form of Warrant. Each Warrant shall be issued in registered form only, and, if a physical certificate is issued, shall be in substantially the form of Exhibit A hereto, the provisions of which are incorporated herein and shall be signed by, or bear the electronic or facsimile signature of, the Chairman of the Board of Directors, Chief Executive Officer, Chief Financial Officer, Treasurer or other principal officer of the Company. In the event the person whose electronic or 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.
2.2 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.
(a) 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, 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. All of the Public Warrants shall initially be represented by one or more book-entry certificates (each, a “Book-Entry Warrant Certificate”) deposited with The Depository Trust Company (the “Depositary”) and registered in the name of Cede & Co., a nominee of the Depositary. 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 (i) the Depositary or its nominee for each Book-Entry Warrant Certificate, or (ii) institutions that have accounts with the Depositary (each such institution, with respect to a Warrant in its account, a “Participant”).
(b) 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 Warrant Certificate, and the Company shall instruct the Warrant Agent to deliver to the Depositary definitive certificates in physical form evidencing such Warrants (“Definitive Warrant Certificate”). Such Definitive Warrant Certificate shall be in the form annexed hereto as Exhibit A, with appropriate insertions, modifications and omissions, as provided above.
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 a Definitive Warrant 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 No Fractional Warrants. The Company shall not issue fractional Warrants. If 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.
2.5 [Private Placement Warrants [and 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 the initial purchasers or any of their respective Permitted Transferees (as defined below), as applicable, the Private Placement Warrants [and the Working Capital Warrants]: (i) may be exercised for cash or on a cashless basis, pursuant to Section 4.3.1(c) hereof, (ii) may not be transferred, assigned or sold until 30 days after the Effective Date, and (iii) shall not be redeemable by the Company; provided, however, that in the case of (ii), the Private Placement Warrants [and the Working Capital Warrants] and any shares of Common Stock held by the initial purchasers or any of their respective Permitted Transferees, as applicable, and issued upon exercise of the Private Placement Warrants [and the Working Capital Warrants] may be transferred by the holders thereof:
2.5.1 to the Company’s officers or directors or those of the Representative, any affiliates or family members of the Company officers or directors or those of the Representative, any members of the Sponsor or the Representative, or any affiliates of the Sponsor or the Representative,
2.5.2 in the case of an individual, by gift to a member such individual’s immediate family or to a trust, the beneficiary of which is a member of such individual’s immediate family, an affiliate of such individual, or to a charitable organization;
2.5.3 in the case of an individual, by virtue of the laws of descent and distribution upon death of such person;
2.5.4 in the case of an individual, pursuant to a qualified domestic relations order;
2.5.5 [by private sales or transfers made in connection with any forward purchase agreement or similar arrangements or in connection with the consummation of a Business Combination at prices no greater than the price at which the shares were originally purchased;]
2.5.6 [in the event of the Company’s liquidation prior to consummation of the Company’s initial Business Combination;] or
2.5.7 by virtue of the laws of the State of Delaware or the Sponsor’s limited liability company agreement upon dissolution of the Sponsor or the organizational documents of the Representative, upon dissolution of the Representative;
provided, however, that, in the case of Section 2.5.1 through [Section 2.5.5 or] Section 2.5.7], these transferees (the “Permitted Transferees”) must enter into a written agreement with the Company agreeing to be bound by the transfer restrictions in this Agreement and all other transfer restrictions contained in any agreement between the Company and the Warrant holder.]
2.6 [Working Capital Warrants. The Working Capital Warrants shall be identical to the Private Placement Warrants.]
2.7 Post IPO Warrants. The Post IPO Warrants, when and if issued, shall have the same terms and be in the same form as the Public Warrants, except as may be agreed upon by the Company.
3. Terms and Exercise of Warrants.
3.1 Warrant Price. Each Warrant, when countersigned by the Warrant Agent, 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 last reported sales price per share at which shares of Common Stock may be purchased at the time a Warrant is exercised. The Company in its discretion may lower the Warrant Price at any time prior to the Expiration Date (as defined below) for a period of not less than 20 days on which banks in New York City are generally open for normal business (a “Business Day”), provided, that the Company shall provide at least 20 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”) commencing on the date that is 30 days after the Effective Date, and terminating at 5:00 p.m., New York City time on the earlier to occur of: (x) the date that is five years after the Effective Date, (y) the liquidation of the Company in accordance with the Company’s amended and restated certificate of incorporation, as amended from time to time (the “Amended and Restated Certificate of Incorporation”), or (z) other than with respect to the Private Placement Warrants [and the Working Capital Warrants], to the extent then held by the initial purchasers or their respective Permitted Transferees, as applicable, the Redemption Date (as defined below) as provided in Section 6.2 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 Section 3.3.2 below with respect to an effective registration statement. 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], to the extent then held by the initial purchasers or any of their respective Permitted Transferees) in the event of a redemption (as set forth in Section 6 hereof), each outstanding Warrant (other than a Private Placement Warrant [or Working Capital Warrant], to the extent then held by the initial purchasers or their respective Permitted Transferees in the event of a redemption) not exercised on or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement shall cease at 5:00 p.m. New York City time on the Expiration Date. The Company in its sole discretion may extend the duration of the Warrants by delaying the Expiration Date; provided, that the Company shall provide at least 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. Notwithstanding anything contained in this Agreement to the contrary, so long as the Private Placement Warrants held by the Representative are held by the Representative or its designees or affiliates, such Private Placement Warrants may not be exercised after five years from the effective date of the Registration Statement.
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 Book-Entry Warrant Certificate, 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”) shares 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 Certificate, properly delivered by the Participant in accordance with the Depositary’s procedures, and (iii) payment in full of the Warrant Price for each full 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 good bank draft payable to the order of the Warrant Agent or by wire transfer;
(b) in the event of a redemption pursuant to Section 6 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 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 Section 3.3.1(b) over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(b) and Section 6.3, the “Fair Market Value” shall mean the average last sale price of the shares of Common Stock for the 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 the Working Capital Warrants], so long as such Private Placement Warrant [or Working Capital Warrant] is held by the initial purchasers or their respective Permitted Transferees, as applicable, by surrendering the Warrants for that number of shares of Common Stock equal 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 “Fair Market Value”, as defined in this Section 3.3.1(c), over the Warrant Price by (y) the Fair Market Value. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value” shall mean the average reported last sale price of the shares of Common Stock for the 10 trading days ending on the third trading day prior to the date on which notice of exercise of the Warrant is sent to the Warrant Agent; or
(d) as provided in Section 7.4 hereof.
3.3.2 Issuance of Shares of Common Stock on Exercise. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the Warrant Price (if payment is pursuant to Section 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 such Registered Holder is entitled, registered in such name or names as may be directed by such Registered Holder, 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. If fewer than all the Warrants evidenced by a Book Entry Warrant Certificate are exercised, a notation shall be made to the records maintained by the Depositary, its nominee for each Book Entry Warrant Certificate, or a Participant, as appropriate, evidencing the balance of the Warrants remaining after such exercise. Notwithstanding the foregoing, the Company shall not be obligated to issue any shares of Common Stock pursuant to the exercise of a Warrant and shall have no obligation to settle such Warrant exercise unless a registration statement under the Securities Act with respect to the offer and sale of the shares of Common Stock underlying the Public Warrants is then effective and a prospectus relating thereto is current, subject to the Company’s satisfying its obligations under Section 7.4. 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 shares of Common Stock issuable upon such Warrant exercise have been registered, qualified or deemed to be exempt from registration or qualification under the securities laws of the state of residence of the Registered Holder of the Warrants, except pursuant to Section 7.4. In the event that the conditions in the two immediately preceding sentences are not satisfied with respect to a Warrant, the holder of such Warrant shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless. The Company may require holders of Public Warrants to settle the Warrant on a “cashless basis” pursuant to Section 3.3.1(b) and 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 and the Amended and Restated Certificate of Incorporation shall be validly issued, fully paid and non-assessable.
3.3.4 Date of Issuance. Upon proper exercise of a Warrant, the Company shall instruct the Warrant Agent, in writing, to make the necessary entries in the register of members of the Company in respect of the shares of Common Stock and to issue a certificate if requested by the holder of such Warrant. Each person in whose name any book-entry position in the register of members of the Company 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 in the register of members of the Company representing such Warrant, was surrendered and payment of the Warrant Price was made, irrespective of the date of delivery of such certificate in the case of a certificated Warrant, except that, if the date of such surrender and payment is a date when the register of members or 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 register of members, share transfer books or book-entry system are open.
3.3.5 Maximum Percentage. A holder of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this Section 3.3.5; however, no holder of a Warrant shall be subject to this Section 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 issued and 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 its affiliates 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 its affiliates and (y) exercise or conversion of the unexercised or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including, without limitation, any convertible notes or convertible preference shares or Warrants) subject to a limitation on conversion or exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph, beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). For purposes of the Warrant, in determining the number of issued and outstanding shares of Common Stock, the holder may rely on the number of issued and 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 issued and outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then issued and outstanding. In any case, the number of issued and 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 its affiliates since the date as of which such number of issued and 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 61st day after such notice is delivered to the Company.
4. Adjustments.
4.1 Share Capitalizations.
4.1.1 Subdivision. If after the date hereof, and subject to the provisions of Section 4.6 below, the number of issued and outstanding shares of Common Stock is increased by a capitalization of shares of Common Stock, or by a subdivision of shares of Common Stock or other similar event, then, on the effective date of such share capitalization, subdivision 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 issued and outstanding shares of Common Stock. A rights offering to holders of the shares of Common Stock entitling holders to purchase shares of Common Stock at a price less than the “Fair Market Value” (as defined below) shall be deemed a capitalization 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 Common Stock) and (ii) one minus the quotient of (x) the price per share of Common Stock paid in such rights offering divided by (y) the Fair Market Value. For purposes of this Section 4.1.1, (i) if the rights offering is for securities convertible into or exercisable for the shares of Common Stock, in determining the price payable for shares of 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) “Fair Market Value” means the volume weighted average price of the shares of Common Stock as reported during the 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.
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 the holders of shares of Common Stock on account of such shares of Common Stock (or other shares of the Company into which the Warrants are convertible), other than (a) as described in Section 4.1.1 above, or (b) Ordinary Cash Dividends (as defined below) (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 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 Section 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 shares of 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.
4.2 Aggregation of Shares. If after the date hereof, and subject to the provisions of Section 4.6 hereof, the number of issued and outstanding shares of Common Stock is decreased by a consolidation, combination or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation, combination, reverse share split, redesignation, 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 issued and outstanding shares of Common Stock.
4.3 Adjustments in Warrant Price.
4.3.1 Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted, as provided in Section 4.1.1 or Section 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of 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 the Company issues additional shares of Common Stock or equity-linked securities for capital raising purposes in connection with the closing of its initial Business Combination at an issue price or effective issue price of less than $9.20 per share shares of Common Stock (as adjusted for share subdivisions, share consolidations, share capitalizations, rights issuances, reorganizations, recapitalizations and the like), with such issue price or effective issue price to be determined in good faith by the Board (and in the case of any such issuance to the Sponsor or its affiliates, without taking into account any founder shares held by the Sponsor or such affiliates, as applicable, prior to such issuance) (the “New Issuance Price”), (y) the aggregate gross proceeds from such issuances represent more than 60% of the total equity proceeds, and interest thereon, available for the funding of the Company’s initial Business Combination on the date of the consummation of the initial Business Combination (net of redemptions), and (z) the volume weighted average trading price of the shares of Common Stock during the 20 trading-day period starting on the trading day prior to the day on which the Company consummates its initial Business Combination (such price, the “Market Value”) is below $9.20 per share (as adjusted for share subdivisions, share consolidations, share capitalizations, rights issuances, reorganizations, recapitalizations and the like), then the Warrant Price shall be adjusted (to the nearest cent) to be equal to 115% of the higher of the Market Value and the New Issuance Price and the Redemption Trigger Price (as defined below) will be adjusted (to the nearest cent) to be equal to 180% of the higher of the Market Value and the New Issuance Price.]
4.4 Replacement of Securities upon Reorganization, etc. In case of any redesignation or reorganization of the issued and outstanding shares of Common Stock (other than a change under Section 4.1.1 or Section 4.1.2 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 is not a subsidiary of another entity whose shareholders did not own all or substantially all of the shares of Common Stock of the Company in substantially the same proportions immediately before such transaction and that does not result in any redesignation or reorganization of the issued and outstanding shares of Common Stock), or in the case of any sale or conveyance to another 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 liquidated or 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 or other securities or property (including cash) receivable upon such redesignation, 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 in connection with the closing of any such consolidation, merger, sale or conveyance, the successor or purchasing entity shall execute an amendment hereto with the Warrant Agent providing for delivery of such Alternative Issuance; provided, further, that (i) if the holders of the shares of 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 shares of 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 shares of Common Stock (other than a tender, exchange or redemption offer made by the Company in connection with redemption rights held by shareholders of the Company as provided for in the Company’s Amended and Restated 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 shareholders of the Company for approval) under circumstances in which, upon completion of such tender or exchange offer, the maker thereof, together with members of any group (within the meaning of Rule 13d-5(b)(1) under the Exchange Act (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 issued and 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 shareholder if such Warrant holder had exercised the Warrant prior to the expiration of such tender or exchange offer, accepted such offer and all of the shares of 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 shares of Common Stock in the applicable event is payable in the form of shares in the successor entity that is listed for trading on a national securities exchange or is quoted in an established over-the-counter market, or is to be so listed for trading or quoted immediately following such event, and if the Registered Holder properly exercises the Warrant within 30 days following the public disclosure of the consummation of such applicable event by the Company pursuant to a Current Report on Form 8-K filed with the Commission, the Warrant Price shall be reduced by an amount (in dollars) equal to the difference of (but in no event less than zero) (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 shares of Common Stock as reported during the 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 shares of Common Stock consists exclusively of cash, the amount of such cash per share of Common Stock, and (ii) in all other cases, the amount of cash per share of Common Stock, if any, plus the volume weighted average price of the shares of Common Stock as reported during the 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 Section 4.1.1, then such adjustment shall be made pursuant to Section 4.1.1 or Sections 4.2, Section 4.3 and this Section 4.4. The provisions of this Section 4.4 shall similarly apply to successive reclassification, 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.
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, Sections 4.2, Section 4.3 or Section 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 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 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.
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 in any Book Entry Warrant Certificate or Definitive Warrant Certificate, each Book Entry Warrant Certificate and Definitive Warrant Certificate 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 [and Working Capital Warrants]), the Warrant Agent shall not cancel such Warrant and issue new Warrants in exchange thereof until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3 Fractional Warrants. The Warrant Agent shall not be required to effect any registration of transfer or exchange that shall result in the issuance of a Warrant certificate or book-entry position for a fraction of a Warrant.
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 Instrument of Transfer. The instrument of transfer of any Warrant may be executed for and on behalf of the transferor by any party designated by, or pursuant to resolutions of, the Board of the Company for such purpose, and the Company or any other party designated by, or pursuant to resolutions of, the Board of the Company for such purpose shall be deemed to have been irrevocably appointed agent for the transferor of such Warrant or Warrants with full power to execute, complete and deliver in the name of and on behalf of the transferor of such Warrant or Warrants all such transfers of Warrants held by the Warrant holders.
6. Redemption.
6.1 Redemption. Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at any time while they are exercisable and prior to their expiration, at the office of the Warrant Agent, upon notice to the Registered Holders of the Warrants, as described in Section 6.2 below, at the price of $0.01 per Warrant (the “Redemption Price”), provided that the last reported sales price of the shares of Common Stock has been at least $18.00 per share (subject to adjustment in compliance with Section 4) (the “Redemption Trigger Price”), on each of 20 trading days within the 30 trading-day period ending on the third trading day prior to the date on which notice of the redemption is given and provided that there is an effective registration statement covering 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 6.2 below)) or the Company has elected to require the exercise of the Warrants on a “cashless basis” pursuant to Section 3.1; provided, however, that if and when the Public Warrants become redeemable by the Company, the Company may not exercise such redemption right if the issuance of shares of Common Stock upon exercise of the Public Warrants is not exempt from registration or qualification under applicable state blue sky laws or the Company is unable to effect such registration or qualification.
6.2 Date Fixed for, and Notice of, Redemption. In the event that the Company elects to redeem all of the Warrants, 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 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.
6.3 Exercise After Notice of Redemption. The Warrants may be exercised, for cash (or on a “cashless basis” in accordance with Section 3.3.1(b) of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section 6.2 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 Section 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 Section 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.
6.4 Exclusion of Private Placement Warrants [and the Working Capital Warrants]. The Company agrees that the redemption rights provided in this Section 6 shall not apply to either (a) the Private Placement Warrants [or the Working Capital Warrants] if at the time of the redemption such Private Placement Warrants [or the Working Capital Warrants] continue to be held by the initial purchasers or any of their Permitted Transferees, as applicable or (b) Post IPO Warrants if such Warrants provide that they are non-redeemable by the Company. However, once such Private Placement Warrants [and Working Capital Warrants] are transferred (other than to Permitted Transferees under Section 2.5), the Company may redeem the Private Placement Warrants [and the Working Capital Warrants], 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 [and the Working Capital Warrants] prior to redemption pursuant to Section 7.3. 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 [or Working Capital Warrants] and shall become Public Warrants under this Agreement.
7. Other Provisions Relating to Rights of Holders of Warrants.
7.1 No Rights as Shareholder. A Warrant does not entitle the Registered Holder thereof to any of the rights of a shareholder of the Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights to vote or to consent or to receive notice as shareholders in respect of general meetings or the appointment 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 Shares 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 subject to the terms and conditions of this Agreement.
7.4 Registration of Shares of Common Stock; Cashless Exercise at Company’s Option.
7.4.1 Registration of the Shares of Common Stock. In connection with the Domestication, the Company filed with the Commission a registration statement on Form S-4 (File No. 333-263727) for the registration, under the Securities Act, of the shares of Common Stock issuable upon exercise of the Warrants. The Company shall use its best efforts to maintain the effectiveness of such registration statement, and a current prospectus relating thereto, until the expiration of the Warrants in accordance with the provisions of this Agreement. If any such registration statement has not been maintained, holders of the Warrants shall have the right, during any 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,” 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 quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined below) by (y) the Fair Market Value. Solely for purposes of this Section 7.4.1, “Fair Market Value” shall mean the volume weighted average price of the shares of Common Stock as reported during the 10 trading-day period ending on the trading day prior to the date that notice of exercise is received by the Warrant Agent from the holder of such Warrants or its securities broker or intermediary. The date that notice of cashless exercise is received by the Warrant Agent shall be conclusively determined by the Warrant Agent. In connection with the “cashless exercise” of a Public Warrant, the Company shall, upon request, provide the Warrant Agent with an opinion of counsel for the Company (which shall be an outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance with this Section 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 Section 7.4.2, for the avoidance of any 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 Section 7.4.1.
7.4.2 Cashless Exercise at Company’s Option. If the shares of Common Stock are 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 Section 7.4.1 and (ii) in the event the Company so elects, the Company shall not be required to file or maintain in effect a registration statement for the registration, under the Securities Act, of the offer and sale of the shares of Common Stock issuable upon exercise of the Warrants, notwithstanding anything in this Agreement to the contrary. If the Company does not elect at the time of exercise to require a holder of Public Warrants who exercises Public Warrants to exercise such Public Warrants on a “cashless basis,” it agrees to use its best efforts to register or qualify for sale the offer and sale of the shares of Common Stock issuable upon exercise of the Public Warrant under the blue sky laws of the state of residence of the exercising Public Warrant 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 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 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 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 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.
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 Chief Executive Officer, Chief Financial Officer, Treasurer, or 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 or bad faith. The Company agrees to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable 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 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.
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 established for the benefit of the ITHAX’s public shareholders (the “Trust Account”), which is maintained by Continental Stock Transfer & Trust Company, a New York corporation, as trustee, 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 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:
Mondee Holdings, Inc.
951 Mariners Island Blvd, Ste. 130
San Mateo, CA 94404
Attention: Dan Figenshu
Email: dan.figenshu@mondee.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 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
Attention: Compliance Department
in each case, with copies to:
[Company Legal Counsel]
[Address]
[City], [State] [Zip Code]
Attention: [Name]
and
Cantor Fitzgerald & Co.
499 Park Avenue
New York, New York, 10022
Attn: General Counsel
and
Ellenoff Grossman & Schole LLP
1345 Avenue of the Americas
New York, NY 10105
Attn: Stuart Neuhauser, Esq.
Email: sneuhauser@egsllp.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.
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, and for the purposes of Section 7.4 (Registration of Shares of Common Stock; Cashless Exercise at Company’s Option), Section 9.4 (Persons Having Rights under this Agreement) and Section 9.8 (Amendments) the Representative, any right, remedy, or claim under or by reason of this Agreement or of any covenant, condition, stipulation, promise, or agreement hereof. The Representative shall be deemed to be a third-party beneficiary of this Agreement with respect to Section 7.4, Section 9.4, and Section 9.8. All covenants, conditions, stipulations, promises, and agreements contained in this Agreement shall be for the sole and exclusive benefit of the parties hereto (and the Representative with respect to Section 7.4, Section 9.4, and Section 9.8) 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. This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7 Effect of Headings. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the interpretation thereof.
9.8 Amendments. This Agreement may be amended by the parties hereto without the consent of any Registered Holder (i) for the purpose of curing any ambiguity, 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, shall require the vote or written consent of the Registered Holders of a majority of the then outstanding Public Warrants. Any amendment solely to the Private Placement Warrants [or the Working Capital Warrants] shall require the vote or written consent of a majority of the holders of the then outstanding Private Placement Warrants [and the Working Capital Warrants]. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend the duration of the Exercise Period pursuant to Sections 3.1 and Section 3.2, respectively, without the consent of the Registered Holders.
9.9 Severability. This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the date first above written.
MONDEE HOLDINGS, INC. as the Company | ||
By: | ||
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
By: | ||
Name: | ||
Title: |
[Signature Page to Amended and Restated Warrant Agreement]
EXHIBIT A
[Form of Warrant Certificate]
[FACE]
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
MONDEE HOLDINGS, INC.
Incorporated Under the Laws of Delaware
CUSIP [●]
Warrant Certificate
This 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 one share of Class A common stock, of $0.001 par value per share (“Common Stock”), of Mondee Holdings, Inc., 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 “Warrant 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 Warrant 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 Warrants, a holder would be entitled to receive a fractional interest in a share of Common Stock, the Company will, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the Warrant holder. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Warrant Price per share of Common Stock for any Warrant is equal to $11.50 per share. The Warrant Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Redemption Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become 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, without regard to conflicts of laws principles thereof.
MONDEE HOLDINGS, INC., as the Company | ||
By: | ||
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
By: | ||
Name: | ||
Title: |
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to an Amended and Restated Warrant Agreement dated as of March [●], 2022 (the “Warrant Agreement”), duly executed and delivered by the Company, Mondee Holdings, Inc., a Delaware corporation, to Continental Stock Transfer & Trust Company, a New York corporation, as Warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Warrant Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the offer and sale of 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 principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.
Election to Purchase
(To Be Executed Upon Exercise of Warrant)
The undersigned hereby irrevocably elects to exercise the right, represented by this Warrant Certificate, to receive shares of Common Stock and herewith tenders payment for such shares of Common Stock to the order of Mondee Holdings, Inc., a Delaware corporation (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 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with Section 3.3.1(b) and Section 6.3 of the Warrant Agreement.
In the event that the Warrant is a Private Placement Warrant [or Working Capital Warrant] that is to be exercised on a “cashless” basis pursuant to Section 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 Section 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 [●].
[Signature Page Follows]
Date: [●], 2022 | |
(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 S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
Exhibit 4.7
[Form of Warrant Certificate]
[FACE]
Number
Warrants
THIS WARRANT SHALL BE VOID IF NOT EXERCISED PRIOR TO
THE EXPIRATION OF THE EXERCISE PERIOD PROVIDED FOR
IN THE WARRANT AGREEMENT DESCRIBED BELOW
MONDEE HOLDINGS, INC.
Incorporated Under the Laws of Delaware
CUSIP [●]
Warrant Certificate
This 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 one share of Class A common stock, of $0.001 par value per share (“Common Stock”), of Mondee Holdings, Inc., 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 “Warrant 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 Warrant 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 Warrants, a holder would be entitled to receive a fractional interest in a share of Common Stock, the Company will, upon exercise, round down to the nearest whole number of shares of Common Stock to be issued to the Warrant holder. The number of shares of Common Stock issuable upon exercise of the Warrants is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
The initial Warrant Price per share of Common Stock for any Warrant is equal to $11.50 per share. The Warrant Price is subject to adjustment upon the occurrence of certain events set forth in the Warrant Agreement.
Subject to the conditions set forth in the Warrant Agreement, the Warrants may be exercised only during the Redemption Period and to the extent not exercised by the end of such Exercise Period, such Warrants shall become 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, without regard to conflicts of laws principles thereof.
MONDEE HOLDINGS, INC., as the Company | ||
By: | ||
Name: | ||
Title: | ||
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Warrant Agent | ||
By: | ||
Name: | ||
Title: |
[Form of Warrant Certificate]
[Reverse]
The Warrants evidenced by this Warrant Certificate are part of a duly authorized issue of Warrants entitling the holder on exercise to receive shares of Common Stock and are issued or to be issued pursuant to an Amended and Restated Warrant Agreement dated as of March [●], 2022 (the “Warrant Agreement”), duly executed and delivered by the Company, Mondee Holdings, Inc., a Delaware corporation, to Continental Stock Transfer & Trust Company, a New York corporation, as Warrant agent (the “Warrant Agent”), which Warrant Agreement is hereby incorporated by reference in and made a part of this instrument and is hereby referred to for a description of the rights, limitation of rights, obligations, duties and immunities thereunder of the Warrant Agent, the Company and the holders (the words “holders” or “holder” meaning the Registered Holders or Registered Holder, respectively) of the Warrants. A copy of the Warrant Agreement may be obtained by the holder hereof upon written request to the Company. Defined terms used in this Warrant Certificate but not defined herein shall have the meanings given to them in the Warrant Agreement.
Warrants may be exercised at any time during the Exercise Period set forth in the Warrant Agreement. The holder of Warrants evidenced by this Warrant Certificate may exercise them by surrendering this Warrant Certificate, with the form of election to purchase set forth hereon properly completed and executed, together with payment of the Warrant Price as specified in the Warrant Agreement (or through “cashless exercise” as provided for in the Warrant Agreement) at the principal corporate trust office of the Warrant Agent. In the event that upon any exercise of Warrants evidenced hereby the number of Warrants exercised shall be less than the total number of Warrants evidenced hereby, there shall be issued to the holder hereof or his, her or its assignee, a new Warrant Certificate evidencing the number of Warrants not exercised.
Notwithstanding anything else in this Warrant Certificate or the Warrant Agreement, no Warrant may be exercised unless at the time of exercise (i) a registration statement covering the offer and sale of 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 principal corporate trust office of the Warrant Agent by the Registered Holder thereof in person or by legal representative or attorney duly authorized in writing, may be exchanged, in the manner and subject to the limitations provided in the Warrant Agreement, but without payment of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor evidencing in the aggregate a like number of Warrants.
Upon due presentation for registration of transfer of this Warrant Certificate at the office of the Warrant Agent a new Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee(s) in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for any tax or other governmental charge imposed in connection therewith.
The Company and the Warrant Agent may deem and treat the Registered Holder(s) hereof as the absolute owner(s) of this Warrant Certificate (notwithstanding any notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the holder(s) hereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary. Neither the Warrants nor this Warrant Certificate entitles any holder hereof to any rights of a shareholder of the Company.
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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 Mondee Holdings, Inc., a Delaware corporation (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 of the Warrant Agreement and the Company has required cashless exercise pursuant to Section 6.3 of the Warrant Agreement, the number of shares of Common Stock that this Warrant is exercisable for shall be determined in accordance with Section 3.3.1(b) and Section 6.3 of the Warrant Agreement.
In the event that the Warrant is a Private Placement Warrant [or Working Capital Warrant] that is to be exercised on a “cashless” basis pursuant to Section 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 Section 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 [●].
[Signature Page Follows]
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Date: [●], 2022 | |
(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 S.E.C. RULE 17Ad-15 UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED (OR ANY SUCCESSOR RULE)).
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Exhibit 8.1
Reed Smith llp +1 212 521 5400 Fax +1 212 521 5450 reedsmith.com |
April 26, 2022
ITHAX Acquisition Corp.
555 Madison Ave.
Suite 11A
New York, NY 10022
Ladies and Gentlemen:
We have acted as U.S. counsel to ITHAX Acquisition Corp., a Cayman Islands exempted company (“Ithax”), in connection with the preparation of the Registration Statement on Form S-4 filed on March 21, 2022, Registration No. 333-263727, as amended and supplemented through the date hereof (the “Registration Statement”), with the Securities and Exchange Commission (the “Commission”) pursuant to the Securities Act of 1933, as amended (the “Act”). The Registration Statement relates to the transactions contemplated by the Business Combination Agreement, dated as of December 20, 2021 (the “Business Combination Agreement”), by and among Ithax, Ithax Merger Sub I, LLC, a Delaware limited liability company, Ithax Merger Sub II, LLC, a Delaware limited liability company, and Mondee Holdings II, Inc., a Delaware corporation, which transactions include the Domestication (as defined below). At your request, we are rendering this opinion concerning certain U.S. federal income tax considerations for filing as Exhibit 8.1 to the Registration Statement. Unless otherwise indicated, capitalized terms used herein have the meanings set forth in the Business Combination Agreement.
Pursuant to the Business Combination Agreement, Ithax will domesticate to a Delaware corporation by way of continuation out of the Cayman Islands from the Register of Companies in the Cayman Islands pursuant to Part XII of the Cayman Islands Companies Act (Revised) and domesticating as a corporation in the State of Delaware by complying with Section 388 of the Delaware General Corporation Law (the “Domestication”).
In rendering the opinion set forth below, we have examined and relied upon the accuracy and completeness (which we have neither independently investigated nor verified) of the facts, information, statements, representations, warranties and covenants contained in the originals or copies, certified or otherwise, identified to our satisfaction, of the Business Combination Agreement, including the exhibits thereto, and the Registration Statement, each as amended or supplemented through the date hereof, and such other documents as we have deemed necessary or appropriate to enable us to render the opinion set forth below. We have also relied, with the consent of Ithax, upon statements and representations made by an officer of Ithax, including in the letter delivered to us for purposes of rendering our opinion (the “Tax Certificate”), and have assumed that the Tax Certificate will be complete and accurate as of the Closing Date. Our opinion is expressly conditioned on, among other things, the accuracy and completeness, both initially and continuing as of the Closing Date, of the facts, information, statements, representations, warranties, covenants and assumptions set forth in the documents referred to above and that all such statements and representations made to the knowledge of any person or entity or with similar qualification are and will be accurate and complete as if made without such qualification.
ABU DHABI ¨ ATHENS ¨ BEIJING ¨ BRUSSELS ¨ CENTURY CITY ¨ CHICAGO ¨ DALLAS ¨ DUBAI ¨ FRANKFURT ¨ HONG KONG
HOUSTON
¨ KAZAKHSTAN ¨ LONDON ¨
LOS ANGELES ¨ MIAMI ¨ MUNICH ¨
NEW YORK ¨ PARIS ¨ PHILADELPHIA ¨
PITTSBURGH
¨PRINCETON RICHMOND ¨ SAN
FRANCISCO ¨ SHANGHAI ¨ SILICON VALLEY ¨
SINGAPORE ¨ TYSONS ¨ WASHINGTON, D.C.
¨ WILMINGTON
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For purposes of this opinion, we have assumed that the Domestication will be consummated in the manner described in the Business Combination Agreement and the Registration Statement and that none of the terms and conditions contained therein have been waived or modified in any respect.
In our examination, we have assumed the legal capacity of all natural persons, the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity to original documents of all documents submitted to us as certified, conformed or photostatic copies, and the authenticity of the originals of such latter documents. In making our examination of documents executed, or to be executed, by the parties indicated therein, we have assumed that each party has, or will have, the power, corporate or other, to enter into and perform all obligations thereunder. We have also assumed the due authorization by all requisite action, corporate or other, and execution and delivery by each party indicated in the documents and that such documents constitute, or will constitute, valid and binding obligations of each party.
Our opinion is based upon the applicable provisions of the Internal Revenue Code of 1986, as amended, Treasury Regulations promulgated thereunder, pertinent judicial authorities, interpretive rulings of the Internal Revenue Service (“IRS”) and such other authorities as we have considered relevant, all as in effect on the date hereof and all of which are subject to change at any time (possibly with retroactive effect). Additionally, our opinion is not binding on the IRS or the courts and no rulings have been requested or received from the IRS as to any of the matters discussed herein. Accordingly, there can be no assurance that positions contrary to our opinion will not be taken by the IRS, or if challenged, by a court. In addition, a change in any of the authorities, or the inaccuracy or failure to be complete, of any of the facts, information, documents, corporate records, covenants, warranties, statements, representations, or assumptions upon which our opinion is based could affect our conclusions expressed herein.
Based on our examination of the foregoing items and subject to the assumptions, limitations, and qualifications set forth herein and in the Registration Statement, the discussion in the section of the Registration Statement entitled “U.S. Federal Income Tax Considerations—U.S. Holders—Effects of the Domestication to U.S. Holders” constitutes our opinion as to the material U.S. federal income tax consequences of the Domestication to U.S. Holders (as defined in the Registration Statement).
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Except as expressly set forth above, we express no other opinion. This opinion is being delivered prior to the consummation of the Domestication and the other business combination transactions and, therefore, is prospective and dependent on future events. This opinion is expressed as of the date hereof, and we are under no obligation to supplement or revise our opinion to reflect any changes (including changes that have retroactive effect) in applicable law or in any fact, information, document, corporate record, covenant, warranty, statement, representation, or assumption stated herein which becomes untrue, incomplete, or incorrect. Any such change may affect the conclusions stated herein.
This opinion has been prepared solely in connection with the filing of the Registration Statement and may not be relied upon for any other purpose without our prior written consent.
We hereby consent to the filing of this opinion as Exhibit 8.1 to the Registration Statement and the use of our name wherever appearing in the Registration Statement in connection with the material U.S. federal income tax consequences of the Domestication. In giving this consent, we do not admit that we come within the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission issued thereunder.
Very truly yours, | |
/s/ Reed Smith LLP | |
Reed Smith LLP |
Exhibit 10.41
INDEMNIFICATION AND ADVANCEMENT AGREEMENT
This Indemnification and Advancement Agreement (“Agreement”) is made as of ________ __, 20__ by and between Mondee Holdings, Inc., a Delaware corporation (the “Company”), and ______________, [a member of the Board of Directors/an officer/an employee/an Agent/a fiduciary] of the Company (“Indemnitee”). This Agreement supersedes and replaces any and all previous Agreements between the Company and Indemnitee covering indemnification and advancement.
RECITALS
WHEREAS, the Board of Directors of the Company (the “Board”) believes that highly competent persons have become more reluctant to serve publicly-held corporations as directors, officers, or in other capacities unless they are provided with adequate protection through insurance or adequate indemnification and advancement of expenses against inordinate risks of claims and actions against them arising out of their service to and activities on behalf of the corporation;
WHEREAS, the Board has determined that, in order to attract and retain qualified individuals, the Company will attempt to maintain on an ongoing basis, at its sole expense, liability insurance to protect persons serving the Company and its subsidiaries from certain liabilities. Although the furnishing of such insurance has been a customary and widespread practice among United States-based corporations and other business enterprises, the Company believes that, given current market conditions and trends, such insurance may be available to it in the future only at higher premiums and with more exclusions. At the same time, directors, officers, and other persons in service to corporations or business enterprises are being increasingly subjected to expensive and time-consuming litigation relating to, among other things, matters that traditionally would have been brought only against the Company or business enterprise itself. The bylaws of the Company (the “Bylaws”) and amended and restated certificate of incorporation of the Company (the “Certificate of Incorporation”) require indemnification of the officers and directors of the Company. Indemnitee may also be entitled to indemnification pursuant to the General Corporation Law of the State of Delaware (the “DGCL”). The Bylaws, Certificate of Incorporation, and the DGCL expressly provide that the indemnification provisions set forth therein are not exclusive, and thereby contemplate that contracts may be entered into between the Company and members of the board of directors, officers and other persons with respect to indemnification and advancement of expenses;
WHEREAS, the uncertainties relating to such insurance, to indemnification, and to advancement of expenses may increase the difficulty of attracting and retaining such persons;
WHEREAS, the Board has determined that the increased difficulty in attracting and retaining such persons is detrimental to the best interests of the Company and its stockholders and that the Company should act to assure such persons that there will be increased certainty of such protection in the future;
WHEREAS, it is reasonable, prudent and necessary for the Company contractually to obligate itself to indemnify, and to advance expenses on behalf of, such persons to the fullest extent permitted by applicable law so that they will serve or continue to serve the Company free from undue concern that they will not be so indemnified;
WHEREAS, this Agreement is a supplement to and in furtherance of the Bylaws, Certificate of Incorporation and any resolutions adopted pursuant thereto, and is not a substitute therefor, nor diminishes or abrogates any rights of Indemnitee thereunder; and
WHEREAS, Indemnitee does not regard the protection available under the Bylaws, Certificate of Incorporation, DGCL and insurance as adequate in the present circumstances, and may not be willing to serve or continue to serve as an officer or director without adequate additional protection, and the Company desires Indemnitee to serve or continue to serve in such capacity. Indemnitee is willing to serve, continue to serve and to take on additional service for or on behalf of the Company on the condition that Indemnitee be so indemnified and be advanced expenses.
NOW, THEREFORE, in consideration of the premises and the covenants contained herein, the Company and Indemnitee do hereby covenant and agree as follows:
Section 1. Services to the Company. Indemnitee agrees to serve as [a/an] [director/officer/employee/Agent/fiduciary] of the Company. Indemnitee may at any time and for any reason resign from such position (subject to any other contractual obligation or any obligation imposed by operation of law). This Agreement does not create any obligation on the Company to continue Indemnitee in such position and is not an employment contract between the Company (or any of its subsidiaries or any Enterprise) and Indemnitee. Indemnitee specifically acknowledges that serving as [a/an] [director/officer/employee/Agent/fiduciary] of the Company or any of its subsidiaries or Enterprise is at will and the Indemnitee may be discharged at any time for any reason, with or without cause, except as may be otherwise provided in any written employment agreement between Indemnitee and the Company (or any of its subsidiaries or Enterprise), other applicable formal severance policies duly adopted by the Board or, with respect to service as a director or officer of the Company, by the Company's Bylaws or Certificate of Incorporation or Delaware law.
Section 2. Definitions. As used in this Agreement:
(a) “Agent” means any person who is authorized by the Company or an Enterprise to act for or represent the interests of the Company or an Enterprise, respectively.
(b) “Corporate Status” describes the status of a person who is or was acting as a director, officer, employee, fiduciary, or Agent of the Company or an Enterprise.
(c) “Disinterested Director” means a director of the Company who is not and was not a party to the Proceeding in respect of which indemnification is sought by Indemnitee.
(d) “Enterprise” means any other corporation, limited liability company, partnership, joint venture, trust, employee benefit plan or other entity for which Indemnitee is or was serving at the request of the Company as a director, officer, employee, or Agent.
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(e) “Exchange Act” means the Securities Exchange Act of 1934;
(f) “Expenses” includes all reasonable attorneys’ fees, retainers, court costs, transcript costs, fees of experts and other professionals, witness fees, travel expenses, duplicating costs, printing and binding costs, telephone charges, postage, delivery service fees, any federal, state, local or foreign taxes imposed on Indemnitee as a result of the actual or deemed receipt of any payments under this Agreement, ERISA excise taxes and penalties, and all other disbursements or expenses of the types customarily incurred in connection with prosecuting, defending, preparing to prosecute or defend, investigating, being or preparing to be a witness in, or otherwise participating in, a Proceeding. Expenses also include (i) Expenses incurred in connection with any appeal resulting from any Proceeding, including without limitation the premium, security for, and other costs relating to any cost bond, supersedeas bond, or other appeal bond or its equivalent, and (ii) for purposes of Section 14(d) only, Expenses incurred by Indemnitee in connection with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement, by litigation or otherwise. Expenses, however, do not include amounts paid in settlement by Indemnitee or the amount of judgments or fines against Indemnitee.
(g) “Independent Counsel” means a law firm, or a member of a law firm, that is experienced in matters of corporation law and neither presently is, nor in the past five years has been, retained to represent: (i) the Company or Indemnitee in any matter material to either such party (other than with respect to matters concerning the Indemnitee under this Agreement, or of other indemnitees under similar indemnification agreements), or (ii) any other party to the Proceeding giving rise to a claim for indemnification hereunder. Notwithstanding the foregoing, the term “Independent Counsel” does not include any person who, under the applicable standards of professional conduct then prevailing, would have a conflict of interest in representing either the Company or Indemnitee in an action to determine Indemnitee’s rights under this Agreement.
(h) The term “Proceeding” includes any threatened, pending or completed action, suit, claim, counterclaim, cross claim, arbitration, mediation, alternate dispute resolution mechanism, investigation, inquiry, administrative hearing or any other actual, threatened or completed proceeding, whether brought in the right of the Company or otherwise and whether of a civil, criminal, administrative, legislative, or investigative (formal or informal) nature, including any appeal therefrom, in which Indemnitee was, is or will be involved as a party, potential party, non-party witness or otherwise by reason of Indemnitee’s Corporate Status or by reason of any action taken by Indemnitee (or a failure to take action by Indemnitee) or of any action (or failure to act) on Indemnitee’s part while acting pursuant to Indemnitee’s Corporate Status, in each case whether or not serving in such capacity at the time any liability or Expense is incurred for which indemnification, reimbursement, or advancement of Expenses can be provided under this Agreement. A Proceeding also includes a situation the Indemnitee believes in good faith may lead to or culminate in the institution of a Proceeding.
Section 3. Indemnity in Third-Party Proceedings. The Company will indemnify Indemnitee in accordance with the provisions of this Section 3 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding, other than a Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 3, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses, judgments, fines and amounts paid in settlement (including all interest, assessments and other charges paid or payable in connection with or in respect of such Expenses, judgments, fines and amounts paid in settlement) actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company and, in the case of a criminal Proceeding had no reasonable cause to believe that Indemnitee’s conduct was unlawful.
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Section 4. Indemnity in Proceedings by or in the Right of the Company. The Company will indemnify Indemnitee in accordance with the provisions of this Section 4 if Indemnitee is, or is threatened to be made, a party to or a participant in any Proceeding by or in the right of the Company to procure a judgment in its favor. Pursuant to this Section 4, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with such Proceeding or any claim, issue or matter therein, if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in or not opposed to the best interests of the Company. The Company will not indemnify Indemnitee for Expenses under this Section 4 related to any claim, issue or matter in a Proceeding for which Indemnitee has been finally adjudged by a court to be liable to the Company, unless, and only to the extent that, the Delaware Court of Chancery or any court in which the Proceeding was brought determines upon application by Indemnitee that, despite the adjudication of liability but in view of all the circumstances of the case, Indemnitee is fairly and reasonably entitled to indemnification.
Section 5. Indemnification for Expenses of a Party Who is Wholly or Partly Successful. To the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee in connection with any Proceeding the extent that Indemnitee is successful, on the merits or otherwise. If Indemnitee is not wholly successful in such Proceeding but is successful, on the merits or otherwise, as to one or more but less than all claims, issues or matters in such Proceeding, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with or related to each successfully resolved claim, issue or matter to the fullest extent permitted by law. For purposes of this Section 5 and without limitation, the termination of any claim, issue or matter in such a Proceeding by dismissal, with or without prejudice, will be deemed to be a successful result as to such claim, issue or matter.
Section 6. Indemnification for Expenses of a Witness. To the fullest extent permitted by applicable law, the Company will indemnify Indemnitee against all Expenses actually and reasonably incurred by Indemnitee or on Indemnitee’s behalf in connection with any Proceeding to which Indemnitee is not a party but to which Indemnitee is a witness, deponent, interviewee, or otherwise asked to participate.
Section 7. Partial Indemnification. If Indemnitee is entitled under any provision of this Agreement to indemnification by the Company for some or a portion of Expenses, but not, however, for the total amount thereof, the Company will indemnify Indemnitee for the portion thereof to which Indemnitee is entitled.
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Section 8. Additional Indemnification. Notwithstanding any limitation in Sections 3, 4, or 5, the Company will indemnify Indemnitee to the fullest extent permitted by applicable law (including but not limited to, the DGCL and any amendments to or replacements of the DGCL adopted after the date of this Agreement that expand the Company’s ability to indemnify its officers and directors) if Indemnitee is a party to or threatened to be made a party to any Proceeding (including a Proceeding by or in the right of the Company to procure a judgment in its favor).
Section 9. Exclusions. Notwithstanding any provision in this Agreement, the Company is not obligated under this Agreement to make any indemnification payment to Indemnitee in connection with any Proceeding:
(a) for which payment has actually been made to or on behalf of Indemnitee under any insurance policy or other indemnity provision, except to the extent provided in Section 16(b) and except with respect to any excess beyond the amount paid under any insurance policy or other indemnity provision; or
(b) for (i) an accounting of profits made from the purchase and sale (or sale and purchase) by Indemnitee of securities of the Company within the meaning of Section 16(b) of the Exchange Act or similar provisions of state statutory law or common law, (ii) any reimbursement of the Company by the Indemnitee of any bonus or other incentive-based or equity-based compensation or of any profits realized by the Indemnitee from the sale of securities of the Company, as required in each case under the Exchange Act (including any such reimbursements that arise from an accounting restatement of the Company pursuant to Section 304 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”), or the payment to the Company of profits arising from the purchase and sale by Indemnitee of securities in violation of Section 306 of the Sarbanes-Oxley Act) or (iii) any reimbursement of the Company by Indemnitee of any compensation pursuant to any compensation recoupment or clawback policy adopted by the Board or the compensation committee of the Board, including but not limited to any such policy adopted to comply with stock exchange listing requirements implementing Section 10D of the Exchange Act; or
(c) initiated by Indemnitee, including any Proceeding (or any part of any Proceeding) initiated by Indemnitee against the Company or its directors, officers, employees or other indemnitees, unless (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to indemnification or advancement, of Expenses, including a Proceeding (or any part of any Proceeding) initiated pursuant to Section 14 of this Agreement, (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation or (iii) the Company provides the indemnification, in its sole discretion, pursuant to the powers vested in the Company under applicable law.
Section 10. Advances of Expenses.
(a) The Company will advance, to the extent not prohibited by law, the Expenses incurred by Indemnitee in connection with any Proceeding (or any part of any Proceeding) not initiated by Indemnitee or any Proceeding (or any part of any Proceeding) initiated by Indemnitee if (i) the Proceeding or part of any Proceeding is to enforce Indemnitee’s rights to obtain indemnification or advancement of Expenses from the Company or Enterprise, including a proceeding initiated pursuant to Section 14 or (ii) the Board authorized the Proceeding (or any part of any Proceeding) prior to its initiation. The Company will advance the Expenses within 45 days after the receipt by the Company of a statement or statements requesting such advances from time to time, whether prior to or after final disposition of any Proceeding.
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(b) Advances will be unsecured and interest free. Indemnitee undertakes to repay the amounts advanced (without interest) to the extent that it is ultimately determined that Indemnitee is not entitled to be indemnified by the Company, thus Indemnitee qualifies for advances upon the execution of this Agreement and delivery to the Company. No other form of undertaking is required other than the execution of this Agreement. The Company will make advances without regard to Indemnitee’s ability to repay the Expenses and without regard to Indemnitee’s ultimate entitlement to indemnification under the other provisions of this Agreement.
Section 11. Procedure for Notification of Claim for Indemnification or Advancement.
(a) Indemnitee will notify the Company in writing of any Proceeding with respect to which Indemnitee intends to seek indemnification or advancement of Expenses hereunder as soon as reasonably practicable following the receipt by Indemnitee of written notice thereof. Indemnitee will include in the written notification to the Company a description of the nature of the Proceeding and the facts underlying the Proceeding and provide such documentation and information as is reasonably available to Indemnitee and is reasonably necessary to determine whether and to what extent Indemnitee is entitled to indemnification following the final disposition of such Proceeding. Indemnitee’s failure to notify the Company will not relieve the Company from any obligation it may have to Indemnitee under this Agreement, and any delay in so notifying the Company will not constitute a waiver by Indemnitee of any rights under this Agreement. The Secretary of the Company will, promptly upon receipt of such a request for indemnification or advancement, advise the Board in writing that Indemnitee has requested indemnification or advancement.
(b) The Company will be entitled to participate in the Proceeding at its own expense.
Section 12. Procedure Upon Application for Indemnification.
(a) The determination of Indemnitee’s entitlement to indemnification will be made:
(i) by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
(ii) by a committee of Disinterested Directors designated by a majority vote of the Disinterested Directors, even though less than a quorum of the Board;
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(iii) if there are no such Disinterested Directors or, if such Disinterested Directors so direct, by written opinion provided by Independent Counsel selected by the Board; or
(iv) if so directed by the Board, by the stockholders of the Company.
(b) The party selecting Independent Counsel pursuant to subsection (a)(iii) of this Section 12 will provide written notice of the selection to the other party. The notified party may, within ten days after receiving written notice of the selection of Independent Counsel, deliver to the selecting party a written objection to such selection; provided, however, that such objection may be asserted only on the ground that the Independent Counsel so selected does not meet the requirements of “Independent Counsel” as defined in Section 2 of this Agreement, and the objection will set forth with particularity the factual basis of such assertion. Absent a proper and timely objection, the person so selected will act as Independent Counsel. If such written objection is so made and substantiated, the Independent Counsel so selected may not serve as Independent Counsel unless and until such objection is withdrawn or the Delaware Court has determined that such objection is without merit. If, within 30 days after the later of submission by Indemnitee of a written request for indemnification pursuant to Section 11(a) hereof and the final disposition of the Proceeding, Independent Counsel has not been selected or, if selected, any objection to has not been resolved, either the Company or Indemnitee may petition the Delaware Court for the appointment as Independent Counsel of a person selected by such court or by such other person as such court designates. Upon the due commencement of any judicial proceeding or arbitration pursuant to Section 14(a) of this Agreement, Independent Counsel will be discharged and relieved of any further responsibility in such capacity (subject to the applicable standards of professional conduct then prevailing).
(c) Indemnitee will cooperate with the person, persons or entity making the determination with respect to Indemnitee’s entitlement to indemnification, including providing to such person, persons or entity upon reasonable advance request any documentation or information which is not privileged or otherwise protected from disclosure and which is reasonably available to Indemnitee and reasonably necessary to such determination. The Company will advance and pay any Expenses incurred by Indemnitee in so cooperating with the person, persons or entity making the indemnification determination irrespective of the determination as to Indemnitee’s entitlement to indemnification and the Company hereby indemnifies and agrees to hold Indemnitee harmless therefrom. The Company promptly will advise Indemnitee in writing of the determination that Indemnitee is or is not entitled to indemnification, including a description of any reason or basis for which indemnification has been denied and providing a copy of any written opinion provided to the Board by Independent Counsel.
(d) If it is determined that Indemnitee is entitled to indemnification, the Company will make payment to Indemnitee within 30 days after such determination.
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Section 13. Presumptions and Effect of Certain Proceedings.
(a) In making a determination with respect to entitlement to indemnification hereunder, the person or persons or entity making such determination will, to the fullest extent not prohibited by law, presume Indemnitee is entitled to indemnification under this Agreement if Indemnitee has submitted a request for indemnification in accordance with Section 11(a) of this Agreement, and the Company will, to the fullest extent not prohibited by law, have the burden of proof to overcome that presumption. Neither the failure of the Company (including by its directors or Independent Counsel) to have made a determination prior to the commencement of any action pursuant to this Agreement that indemnification is proper in the circumstances because Indemnitee has met the applicable standard of conduct, nor an actual determination by the Company (including by its directors or Independent Counsel) that Indemnitee has not met such applicable standard of conduct, will be a defense to the action or create a presumption that Indemnitee has not met the applicable standard of conduct.
(b) If the determination of the Indemnitee’s entitlement to indemnification has not made pursuant to Section 12 within 60 days after the later of (i) receipt by the Company of Indemnitee’s request for indemnification pursuant to Section 11(a) and (ii) the final disposition of the Proceeding for which Indemnitee requested Indemnification (the “Determination Period”), the requisite determination of entitlement to indemnification will, to the fullest extent not prohibited by law, be deemed to have been made and Indemnitee will be entitled to such indemnification, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law. The Determination Period may be extended for a reasonable time, not to exceed an additional 30 days, if the person, persons or entity making the determination with respect to entitlement to indemnification in good faith requires such additional time for the obtaining or evaluating of documentation and/or information relating thereto; and provided, further, the Determination Period may be extended an additional 15 days if the determination of entitlement to indemnification is to be made by the stockholders pursuant to Section 12(a)(iv) of this Agreement.
(c) The termination of any Proceeding or of any claim, issue or matter therein, by judgment, order, settlement or conviction, or upon a plea of nolo contendere or its equivalent, will not (except as otherwise expressly provided in this Agreement) of itself adversely affect the right of Indemnitee to indemnification or create a presumption that Indemnitee did not act in good faith and in a manner which Indemnitee reasonably believed to be in or not opposed to the best interests of the Company or, with respect to any criminal Proceeding, that Indemnitee had reasonable cause to believe that Indemnitee’s conduct was unlawful.
(d) For purposes of any determination of good faith, Indemnitee will be deemed to have acted in good faith if Indemnitee acted based on the records or books of account of the Company, its subsidiaries, or an Enterprise, including financial statements, or on information supplied to Indemnitee by the directors or officers of the Company, its subsidiaries, or an Enterprise in the course of their duties, or on the advice of legal counsel for the Company, its subsidiaries, or an Enterprise or on information or records given or reports made to the Company or an Enterprise by an independent certified public accountant or by an appraiser, financial advisor or other expert selected with reasonable care by or on behalf of the Company, its subsidiaries, or an Enterprise. Further, Indemnitee will be deemed to have acted in a manner “not opposed to the best interests of the Company,” as referred to in this Agreement if Indemnitee acted in good faith and in a manner Indemnitee reasonably believed to be in the best interests of the participants and beneficiaries of an employee benefit plan. The provisions of this Section 13(d) is not exclusive and does not limit in any way the other circumstances in which the Indemnitee may be deemed to have met the applicable standard of conduct set forth in this Agreement.
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(e) The knowledge and/or actions, or failure to act, of any director, officer, trustee, partner, managing member, fiduciary, agent or employee of the Enterprise may not be imputed to Indemnitee for purposes of determining Indemnitee’s right to indemnification under this Agreement.
Section 14. Remedies of Indemnitee.
(a) Indemnitee may commence litigation against the Company in the Delaware Court of Chancery to obtain indemnification or advancement of Expenses provided by this Agreement in the event that (i) a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification under this Agreement, (ii) the Company does not advance Expenses pursuant to Section 10 of this Agreement, (iii) the determination of entitlement to indemnification is not made pursuant to Section 12 of this Agreement within the Determination Period, (iv) the Company does not indemnify Indemnitee pursuant to Section 5 or 6 or the second to last sentence of Section 12(d) of this Agreement within 30 days after receipt by the Company of a written request therefor, (v) the Company does not indemnify Indemnitee pursuant to Section 3, 4, 7, or 8 of this Agreement within 30 days after a determination has been made that Indemnitee is entitled to indemnification, or (vi) in the event that the Company or any other person takes or threatens to take any action to declare this Agreement void or unenforceable, or institutes any litigation or other action or Proceeding designed to deny, or to recover from, the Indemnitee the benefits provided or intended to be provided to the Indemnitee hereunder. Indemnitee must commence such Proceeding seeking an adjudication or an award in arbitration within 180 days following the date on which Indemnitee first has the right to commence such Proceeding pursuant to this Section 14(a); provided, however, that the foregoing clause does not apply in respect of a Proceeding brought by Indemnitee to enforce Indemnitee’s rights under Section 5 of this Agreement. The Company will not oppose Indemnitee’s right to seek any such adjudication or award in arbitration.
(b) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is not entitled to indemnification, any judicial proceeding or arbitration commenced pursuant to this Section 14 will be conducted in all respects as a de novo trial, or arbitration, on the merits and Indemnitee may not be prejudiced by reason of that adverse determination. In any judicial proceeding or arbitration commenced pursuant to this Section 14 the Company will have the burden of proving Indemnitee is not entitled to indemnification or advancement of Expenses, as the case may be, and will not introduce evidence of the determination made pursuant to Section 12 of this Agreement.
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(c) If a determination is made pursuant to Section 12 of this Agreement that Indemnitee is entitled to indemnification, the Company will be bound by such determination in any judicial proceeding or arbitration commenced pursuant to this Section 14, absent (i) a misstatement by Indemnitee of a material fact, or an omission of a material fact necessary to make Indemnitee’s statement not materially misleading, in connection with the request for indemnification, or (ii) a prohibition of such indemnification under applicable law.
(d) The Company is, to the fullest extent not prohibited by law, precluded from asserting in any judicial proceeding or arbitration commenced pursuant to this Section 14 that the procedures and presumptions of this Agreement are not valid, binding and enforceable and will stipulate in any such court or before any such arbitrator that the Company is bound by all the provisions of this Agreement.
(e) It is the intent of the Company that, to the fullest extent permitted by law, the Indemnitee not be required to incur legal fees or other Expenses associated with the interpretation, enforcement or defense of Indemnitee’s rights under this Agreement by litigation or otherwise because the cost and expense thereof would substantially detract from the benefits intended to be extended to the Indemnitee hereunder. The Company, to the fullest extent permitted by law, will (within 30 days after receipt by the Company of a written request therefor) advance to Indemnitee such Expenses which are incurred by Indemnitee in connection with any action concerning this Agreement, Indemnitee’s right to indemnification or advancement of Expenses from the Company, or concerning any directors’ and officers’ liability insurance policies maintained by the Company, and will indemnify Indemnitee against any and all such Expenses unless the court determines that each of the Indemnitee’s claims in such action were made in bad faith or were frivolous or are prohibited by law.
Section 15. Non-exclusivity; Survival of Rights; Insurance; Subrogation.
(a) The indemnification and advancement of Expenses provided by this Agreement are not exclusive of any other rights to which Indemnitee may at any time be entitled under applicable law, the Certificate of Incorporation, the Bylaws, any agreement, a vote of stockholders or a resolution of directors, or otherwise. The indemnification and advancement of Expenses provided by this Agreement may not be limited or restricted by any amendment, alteration or repeal of this Agreement in any way with respect to any action taken or omitted by Indemnitee in Indemnitee’s Corporate Status occurring prior to any amendment, alteration or repeal of this Agreement. To the extent that a change in Delaware law, whether by statute or judicial decision, permits greater indemnification or advancement of Expenses than would be afforded currently under the Bylaws, Certificate of Incorporation, or this Agreement, it is the intent of the parties hereto that Indemnitee enjoy by this Agreement the greater benefits so afforded by such change. No right or remedy herein conferred is intended to be exclusive of any other right or remedy, and every other right and remedy is cumulative and in addition to every other right and remedy given hereunder or now or hereafter existing at law or in equity or otherwise. The assertion or employment of any right or remedy hereunder, or otherwise, will not prevent the concurrent assertion or employment of any other right or remedy.
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(b) The Company hereby acknowledges that Indemnitee may have certain rights to indemnification, advancement of Expenses and/or insurance provided by one or more other Persons with whom or which Indemnitee may be associated. The relationship between the Company and such other Persons, other than an Enterprise, with respect to the Indemnitee’s rights to indemnification, advancement of Expenses, and insurance is described by this subsection, subject to the provisions of subsection (d) of this Section 16 with respect to a Proceeding concerning Indemnitee’s Corporate Status with an Enterprise.
(i) The Company hereby acknowledges and agrees:
(1) the Company is the indemnitor of first resort with respect to any request for indemnification or advancement of Expenses made pursuant to this Agreement concerning any Proceeding;
(2) the Company is primarily liable for all indemnification and indemnification or advancement of Expenses obligations for any Proceeding, whether created by law, organizational or constituent documents, contract (including this Agreement) or otherwise;
(3) any obligation of any other Persons with whom or which Indemnitee may be associated to indemnify Indemnitee and/or advance Expenses to Indemnitee in respect of any proceeding are secondary to the obligations of the Company’s obligations;
(4) the Company will indemnify Indemnitee and advance Expenses to Indemnitee hereunder to the fullest extent provided herein without regard to any rights Indemnitee may have against any other Person with whom or which Indemnitee may be associated or insurer of any such Person; and
(ii) the Company irrevocably waives, relinquishes and releases (A) any other Person with whom or which Indemnitee may be associated from any claim of contribution, subrogation, reimbursement, exoneration or indemnification, or any other recovery of any kind in respect of amounts paid by the Company to Indemnitee pursuant to this Agreement and (B) any right to participate in any claim or remedy of Indemnitee against any Person, whether or not such claim, remedy or right arises in equity or under contract, statute or common law, including, without limitation, the right to take or receive from any Person, directly or indirectly, in cash or other property or by set-off or in any other manner, payment or security on account of such claim, remedy or right.
(iii) In the event any other Person with whom or which Indemnitee may be associated or their insurers advances or extinguishes any liability or loss for Indemnitee, the payor has a right of subrogation against the Company or its insurers for all amounts so paid which would otherwise be payable by the Company or its insurers under this Agreement. In no event will payment by any other Person with whom or which Indemnitee may be associated or their insurers affect the obligations of the Company hereunder or shift primary liability for the Company’s obligation to indemnify or advance of Expenses to any other Person with whom or which Indemnitee may be associated.
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(iv) Any indemnification or advancement of Expenses provided by any other Person with whom or which Indemnitee may be associated is specifically in excess over the Company’s obligation to indemnify and advance Expenses or any valid and collectible insurance (including but not limited to any malpractice insurance or professional errors and omissions insurance) provided by the Company.
(c) To the extent that the Company maintains an insurance policy or policies providing liability insurance for directors, officers, employees, or agents of the Company, the Company will obtain a policy or policies covering Indemnitee to the maximum extent of the coverage available for any such director, officer, employee or agent under such policy or policies, including coverage in the event the Company does not or cannot, for any reason, indemnify or advance Expenses to Indemnitee as required by this Agreement. If, at the time of the receipt of a notice of a claim pursuant to this Agreement, the Company has director and officer liability insurance in effect, the Company will give prompt notice of such claim or of the commencement of a Proceeding, as the case may be, to the insurers in accordance with the procedures set forth in the respective policies. The Company will thereafter take all necessary or desirable action to cause such insurers to pay, on behalf of the Indemnitee, all amounts payable as a result of such Proceeding in accordance with the terms of such policies. Indemnitee agrees to assist the Company efforts to cause the insurers to pay such amounts and will comply with the terms of such policies, including selection of approved panel counsel, if required.
(d) The Company’s obligation to indemnify or advance Expenses hereunder to Indemnitee for any Proceeding concerning Indemnitee’s Corporate Status with an Enterprise will be reduced by any amount Indemnitee has actually received as indemnification or advancement of Expenses from such Enterprise. The Company and Indemnitee intend that any such Enterprise (and its insurers) be the indemnitor of first resort with respect to indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise. The Company’s obligation to indemnify and advance Expenses to Indemnitee is secondary to the obligations the Enterprise or its insurers owe to Indemnitee. Indemnitee agrees to take all reasonably necessary and desirable action to obtain from an Enterprise indemnification and advancement of Expenses for any Proceeding related to or arising from Indemnitee’s Corporate Status with such Enterprise.
(e) In the event of any payment made by the Company under this Agreement, the Company will be subrogated to the extent of such payment to all of the rights of recovery of Indemnitee from any Enterprise or insurance carrier. Indemnitee will execute all papers required and take all action necessary to secure such rights, including execution of such documents as are necessary to enable the Company to bring suit to enforce such rights.
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Section 16. Duration of Agreement. This Agreement continues until and terminates upon the later of: (a) ten years after the date that Indemnitee ceases to have a Corporate Status or (b) one year after the final termination of any Proceeding then pending in respect of which Indemnitee is granted rights of indemnification or advancement of Expenses hereunder and of any Proceeding commenced by Indemnitee pursuant to Section 14 of this Agreement relating thereto. The indemnification and advancement of Expenses rights provided by or granted pursuant to this Agreement are binding upon and be enforceable by the parties hereto and their respective successors and assigns (including any direct or indirect successor by purchase, merger, consolidation or otherwise to all or substantially all of the business or assets of the Company), continue as to an Indemnitee who has ceased to be a director, officer, employee or agent of the Company or of any other Enterprise, and inure to the benefit of Indemnitee and Indemnitee’s spouse, assigns, heirs, devisees, executors and administrators and other legal representatives.
Section 17. Severability. If any provision or provisions of this Agreement is held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the remaining provisions of this Agreement (including without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will not in any way be affected or impaired thereby and remain enforceable to the fullest extent permitted by law; (b) such provision or provisions will be deemed reformed to the extent necessary to conform to applicable law and to give the maximum effect to the intent of the parties hereto; and (c) to the fullest extent possible, the provisions of this Agreement (including, without limitation, each portion of any Section of this Agreement containing any such provision held to be invalid, illegal or unenforceable, that is not itself invalid, illegal or unenforceable) will be construed so as to give effect to the intent manifested thereby.
Section 18. Interpretation. Any ambiguity in the terms of this Agreement will be resolved in favor of Indemnitee and in a manner to provide the maximum indemnification and advancement of Expenses permitted by law. The Company and Indemnitee intend that this Agreement provide to the fullest extent permitted by law for indemnification and advancement in excess of that expressly provided, without limitation, by the Certificate of Incorporation, the Bylaws, vote of the Company stockholders or disinterested directors, or applicable law.
Section 19. Enforcement.
(a) The Company expressly confirms and agrees that it has entered into this Agreement and assumed the obligations imposed on it hereby in order to induce Indemnitee to serve as a director or officer of the Company, and the Company acknowledges that Indemnitee is relying upon this Agreement in serving or continuing to serve as a director or officer of the Company.
(b) This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral, written and implied, between the parties hereto with respect to the subject matter hereof; provided, however, that this Agreement is a supplement to and in furtherance of the Certificate of Incorporation, the Bylaws and applicable law, and is not a substitute therefor, nor to diminish or abrogate any rights of Indemnitee thereunder.
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Section 20. Modification and Waiver. No supplement, modification or amendment of this Agreement is binding unless executed in writing by the parties hereto. No waiver of any of the provisions of this Agreement will be deemed or constitutes a waiver of any other provisions of this Agreement nor will any waiver constitute a continuing waiver.
Section 21. Notice by Indemnitee. Indemnitee agrees promptly to notify the Company in writing upon being served with any summons, citation, subpoena, complaint, indictment, information or other document relating to any Proceeding or matter which may be subject to indemnification or advancement of Expenses covered hereunder. The failure of Indemnitee to so notify the Company does not relieve the Company of any obligation which it may have to the Indemnitee under this Agreement or otherwise.
Section 22. Notices. All notices, requests, demands and other communications under this Agreement will be in writing and will be deemed to have been duly given if (a) delivered by hand to the other party, (b) sent by reputable overnight courier to the other party or (c) sent by facsimile transmission or electronic mail, with receipt of oral confirmation that such communication has been received:
(a) If to Indemnitee, at the address indicated on the signature page of this Agreement, or such other address as Indemnitee provides to the Company.
(b) If to the Company to:
Name: Mondee Holdings, Inc.
Address: 952 Mariners Island Blvd., Ste 130,
San Mateo, CA 94404
Attention: Chief Legal Officer
or to any other address as may have been furnished to Indemnitee by the Company.
Section 23. Contribution. To the fullest extent permissible under applicable law, if the indemnification provided for in this Agreement is unavailable to Indemnitee for any reason whatsoever, the Company, in lieu of indemnifying Indemnitee, will contribute to the amount incurred by Indemnitee, whether for judgments, fines, penalties, excise taxes, amounts paid or to be paid in settlement and/or for Expenses, in connection with any claim relating to an indemnifiable event under this Agreement, in such proportion as is deemed fair and reasonable in light of all of the circumstances of such Proceeding in order to reflect (i) the relative benefits received by the Company and Indemnitee as a result of the event(s) and/or transaction(s) giving cause to such Proceeding; and/or (ii) the relative fault of the Company (and its directors, officers, employees and agents) and Indemnitee in connection with such event(s) and/or transaction(s).
Section 24. Applicable Law and Consent to Jurisdiction. This Agreement and the legal relations among the parties are governed by, and construed and enforced in accordance with, the laws of the State of Delaware, without regard to its conflict of laws rules. Except with respect to any arbitration commenced by Indemnitee pursuant to Section 14(a) of this Agreement, the Company and Indemnitee hereby irrevocably and unconditionally (i) agree that any action or Proceeding arising out of or in connection with this Agreement may be brought only in the Delaware Court of Chancery and not in any other state or federal court in the United States of America or any court in any other country, (ii) consent to submit to the exclusive jurisdiction of the Delaware Court for purposes of any action or Proceeding arising out of or in connection with this Agreement, (iii) waive any objection to the laying of venue of any such action or Proceeding in the Delaware Court, and (iv) waive, and agree not to plead or to make, any claim that any such action or Proceeding brought in the Delaware Court has been brought in an improper or inconvenient forum.
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Section 25. Identical Counterparts. This Agreement may be executed in one or more counterparts, each of which will for all purposes be deemed to be an original but all of which together constitutes one and the same Agreement. Only one such counterpart signed by the party against whom enforceability is sought needs to be produced to evidence the existence of this Agreement.
Section 26. Headings. The headings of this Agreement are inserted for convenience only and do not constitute part of this Agreement or affect the construction thereof.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be signed as of the day and year first above written.
COMPANY | INDEMNITEE | |||
By: | ||||
Name: | Name: | |||
Office: | Address: |
Exhibit 23.1
Independent Registered Public Accounting Firm’s Consent
We consent to the inclusion in this Registration Statement of ITHAX Acquisition Corp. on Form S-4 Amendment No. 1 [FILE NO. 333-263727] of our report dated March 10, 2022, with respect to our audits of the consolidated financial statements of ITHAX Acquisition Corp. as of December 31, 2021 and 2020, and for the year ended December 31, 2021, and for the period from October 2, 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
Boston, MA
April 26, 2022
Exhibit 23.2
CONSENT OF INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
We hereby consent to the use in this Amendment No. 1 to the Registration Statement on Form S-4 [FILE NO. 333-263727] of ITHAX Acquisition Corp. of our audit report dated March 19, 2022, relating to the consolidated financial statements of Mondee Holdings II, Inc., and subsidiaries as of and for the years ended December 31, 2021 and 2020. We also consent to the reference to us under the heading “Experts” in such Registration Statement.
/s/ KNAV P.A.
KNAV P.A.
Atlanta, Georgia
April 26, 2022
EX-FILING FEES
Calculation of Filing Fee Tables
Form S-4
(Form Type)
ITHAX
Acquisition Corp.
(Exact Name of Registrant as Specified in its Charter)
Table 1: Newly Registered and Carry Forward Securities
Security Type | Security Class Title | Fee Calculation or Carry Forward Rule | Amount Registered | Proposed Maximum Offering Price Per Unit | Maximum Aggregate Offering Price | Fee Rate | Amount
of Registration Fee | Carry Forward Form Type | Carry Forward File Number | Carry Forward Initial effective date | Filing
Fee Previously Paid In Connection with Unsold Securities to be Carried Forward | |||||||||||||||||||||||
Newly Registered Securities | ||||||||||||||||||||||||||||||||||
Fees to be Paid | - | - | - | - | - | - | - | - | ||||||||||||||||||||||||||
Fees Previously Paid | Equity | New Mondee Class A Common Stock(1) (2) | 457(f)(1) | 30,862,500 | $ | 9.84 | (5) | $ | 303,687,000 | (5) | (8) | $ | 28,151.78 | |||||||||||||||||||||
Fees Previously Paid | Equity | New Mondee Class A Common Stock(3) (2) | 457(g) | 12,412,500 | $ | 11.50 | (6) | $ | 142,743,750 | (6) | (8) | $ | 13,232.35 | |||||||||||||||||||||
Fees Previously Paid | Equity | Warrants to purchase New Mondee Class A Common Stock(4) (2) | 457(f)(1) | 12,412,500 | $ | 0.36 | (7) | $ | 4,406,437.50 | (7) | (8) | $ | 408.48 | |||||||||||||||||||||
Carry Forward Securities | ||||||||||||||||||||||||||||||||||
Carry Forward Securities | ||||||||||||||||||||||||||||||||||
Total Offering Amounts | $ | 450,837,188 | $ | 41,792.61 | ||||||||||||||||||||||||||||||
Total Fees Previously Paid | $ | 41,792.61 | ||||||||||||||||||||||||||||||||
Total Fee Offsets | $ | 0 | ||||||||||||||||||||||||||||||||
Net Fee Due | $ | 0 |
(1) | The number of shares of Class A common stock, par value $0.0001 per share, of New Mondee (as defined below) being registered is equal to 30,862,500 and represents (i) 24,150,000 Class A ordinary shares underlying units issued in ITHAX’s (as defined below) initial public offering which will be canceled and automatically converted, on a one-for-one basis, into shares of Class A common stock, par value $0.0001 per share, of New Mondee (the “New Mondee Common Stock”); (ii) 675,000 Class A ordinary shares underlying units issued in a private placement simultaneously with the closing of ITHAX’s initial public offering, 465,000 of which are held by ITHAX Acquisition Sponsor LLC, a Delaware limited liability company (the “Sponsor”) and 210,000 of which are held by Cantor Fitzgerald & Co., the representative of the several underwriters of ITHAX’s initial public offering; and (iii) 6,037,500 Class B ordinary shares held by the Sponsor and ITHAX’s independent directors, which will be canceled and automatically converted, on a one-for-one basis, into shares of New Mondee Common Stock. |
(2) | Pursuant to Rule 416(a) of Securities Act of 1933, as amended (the “Securities Act”), there are also being registered an indeterminable number of additional securities as may be issued to prevent dilution resulting from stock splits, stock dividends or similar transactions. |
(3) | Represents shares of New Mondee Common Stock to be issued upon the exercise of (i) 12,075,000 warrants to purchase Class A ordinary shares underlying units issued in ITHAX’s initial public offering (“public warrants”) and (ii) 337,500 warrants (“private placement warrants”, together with the public warrants, the “warrants”) to purchase Class A ordinary shares underlying units issued in a private placement (“private placement units”) simultaneously with the closing of ITHAX’s initial public offering. Each warrant will convert into a warrant to purchase one share of New Mondee Common Stock in the Domestication (as defined below). |
(4) | The number of warrants to acquire shares of New Mondee Common Stock being registered represents (i) 12,075,000 public warrants and (ii) 337,500 private placement warrants. |
(5) | Estimated solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the Class A ordinary shares of ITHAX on the Nasdaq Capital Market (“Nasdaq”) on March 18, 2022 ($9.84 per Class A ordinary share). This calculation is in accordance with Rule 457(f)(1) of the Securities Act. |
(6) | Represents the exercise price of the warrants, as may be adjusted from time to time in accordance with the terms of the warrants. |
(7) | Estimated solely for the purpose of calculating the registration fee, based on the average of the high and low prices of the ITHAX public warrants on the Nasdaq on March 18, 2022 ($0.36 per warrant). This calculation is in accordance with Rule 457(f)(1) of the Securities Act. |
(8) | Applicable fee rate is $92.70 per $1,000,000. |
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