Delaware
|
001-40049
|
88-2789488
|
||
(State or other jurisdiction
of incorporation)
|
(Commission
File Number)
|
(IRS Employer
Identification No.)
|
☐ |
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
☐ |
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
☐ |
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
☐ |
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Title of each class
|
Trading Symbol(s)
|
Name of each exchange on
which registered
|
||
Common Stock, par value $0.0001 per share
|
SBIG
|
The Nasdaq Global Market
|
||
Warrants, each exercisable for one share of Common Stock, at an exercise price of $11.50 per share |
SBIGW
|
The Nasdaq Global Market
|
Item 1.01. |
Entry into a Material Definitive Agreement.
|
• |
file within 30 days after the Closing Date a registration statement with the SEC for a secondary offering of shares of our Common Stock issued to the PIPE Investors;
|
• |
cause such registration statement to be declared effective promptly thereafter, but in no event later than the earlier of (i) the 60th calendar day (or 90th calendar day if the SEC notifies New SpringBig
that it will “review” the registration statement) after closing and (ii) the 5th business day after the date New SpringBig is notified (orally or in writing, whichever is earlier) by the SEC that the registration statement will not be
“reviewed” or will not be subject to further review, as the case may be; and
|
• |
maintain the effectiveness of such registration statement until the earliest of (A) the date on which the PIPE Investors cease to hold any shares of Common Stock issued pursuant to the Subscription
Agreements, or (B) on the first date on which the PIPE Investors can sell all of their shares issues pursuant to the Subscription Agreements (or shares received in exchange therefor) under Rule 144 of the Securities Act without limitation
as to the manner of sale or amount of such securities that may be sold. New SpringBig will bear the cost of registering these securities.
|
Item 2.01.
|
Completion of Acquisition or Disposition of Assets.
|
• |
the expected benefits of the Business Combination;
|
• |
our financial performance following the Business Combination, including financial projections and business metrics and any underlying assumptions thereunder;
|
• |
trends in the cannabis industry and New SpringBig market size, including with respect to the potential total addressable market in the industry;
|
• |
New SpringBig’s growth prospects;
|
• |
new product and service offerings New SpringBig may introduce in the future;
|
• |
the ability to maintain the listing of New SpringBig’s securities on the Nasdaq stock exchange;
|
• |
the price of New SpringBig’s securities, including volatility resulting from changes in the competitive and highly regulated industry in which New SpringBig plans to operate, variations in performance
across competitors, changes in laws and regulations affecting New SpringBig’s business and changes in the combined capital structure;
|
• |
the ability to implement business plans, forecasts, and other expectations after the completion of the proposed business combination, and identify and realize additional opportunities;
|
• |
the impact of the COVID-19 pandemic on our business and the actions we may take in response thereto;
|
• |
our directors and officers potentially having conflicts of interest with our business, as a result of which they would receive compensation;
|
• |
the effect of legal, tax and regulatory changes; and
|
• |
the outcome of any known and unknown litigation and regulatory proceedings.
|
•
|
each person known to be the beneficial owner of more than 5% of the outstanding shares of New SpringBig Common Stock;
|
•
|
each of executive officers and directors of New SpringBig; and
|
•
|
all executive officers and directors as a group.
|
Name of Beneficial Owner
|
Number of Shares of Common Stock
Beneficially Owned
|
Percentage of
Outstanding
Common
Stock(1)
|
||||||
5% Shareholders
|
||||||||
Medici Holdings V, Inc.
|
4,743,120
|
18.8%
|
||||||
Tuatara Capital Fund II, L.P.(2)
|
3,496,000 | 13.8% | ||||||
TVC Capital IV, L.P.(3)
|
2,495,499
|
10.0%
|
||||||
Altitude Investment Partners, LP(4)
|
1,528,295
|
6.0%
|
||||||
Gamson Family Revocable Trust
|
1,306,326
|
5.2%
|
||||||
Executive Officer and Directors of the Company
|
||||||||
Jeffrey Harris(5)
|
5,242,254
|
18.8%
|
||||||
Paul Sykes(6)
|
106,371
|
*
|
||||||
Navin Anand(7)
|
88,316
|
*
|
||||||
Steven Bernstein
|
–
|
*
|
||||||
Patricia Glassford
|
–
|
*
|
||||||
Amanda Lannert
|
–
|
*
|
||||||
Phil Schwarz
|
474,312
|
1.9%
|
||||||
Sergey Sherman
|
–
|
*
|
||||||
Jon Trauben
|
–
|
*
|
||||||
All directors and named executive officers of New SpringBig as a group post-business combination (9 individuals):
|
5,911,253
|
23.4%
|
(1) |
The percentage of beneficial ownership of the Company is calculated based on 25,290,270 shares of common stock outstanding as of June 14, 2022, which includes the shares of common stock issued to the stockholders of SpringBig in
connection with the Business Combination. Unless otherwise indicated, the business address or “c/o” address for each of the foregoing entities or individuals is 621 NW 53rd Street, Ste. 260, Boca Raton, FL 33487.
|
(2) |
Includes 2,896,000 shares of common stock held by TCAC Sponsor, LLC and 600,000 shares of common stock held by Tuatara Capital Fund II, L.P. Tuatara Capital Fund II, L.P. (“Fund II”) is the sole member of
TCAC Sponsor, LLC. Accordingly, shares of common stock held by TCAC Sponsor, LLC may be attributed to Fund II. Fund II is controlled by a board of managers comprised of three individuals - Albert Foreman, Mark Zittman and Marc Riiska. Any
action by our sponsor with respect to our company or the founders’ shares, including voting and dispositive decisions, requires a majority vote of the managers of the
board of managers of Fund II. Under the so-called “rule of three,” because voting and dispositive decisions are made by a majority of Fund II’s managers, none of the managers is deemed to be a beneficial owner of our sponsor’s securities,
even those in which he holds a pecuniary interest. Accordingly, none of the managers is deemed to have or share beneficial ownership of the founders’ shares held by our
sponsor.
|
(3) |
TVC Capital IV, L.P. is an affiliate of TVC Capital Partners IV, L.P. Each of TVC Capital IV, L.P. and TVC Capital Partners IV, L.P. is directly controlled by TVC Capital IV GP, LLC (“GP IV”). Each of Steven Hamerslag and Jeb S.
Spencer is a managing member of GP IV and may be deemed to have shared voting and dispositive power over the shares held by the foregoing entities. The foregoing is not an admission by any of Steven Hamerslag and Jeb S. Spencer that he is
the beneficial owner of the shares held by the foregoing entities. The address for each of the foregoing persons is 11710 El Camino Real, Suite 100, San Diego, CA 92130.
|
(4) |
The address for Altitude Investment Partners, LP is 73 Bal Bay Drive, Bal Harbor, FL 33154.
|
(5) |
Includes the shares of common stock held by Medici Holdings V, Inc., an estate planning vehicle through which Mr. Harris shares ownership with family members of Mr. Harris and for which Mr. Harris may be deemed to have investment
discretion and voting power. Also, includes 10,000 shares of common stock to be purchased by Mr. Harris as part of the PIPE subscription financing.
|
(6) |
Includes 9,219 options exercisable for shares of common stock within 60 days of the business combination.
|
(7) |
Includes 6,761 options exercisable for shares of common stock within 60 days of the business combination.
|
Item 2.03 |
Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
|
Item 3.02. |
Unregistered Sales of Equity Securities.
|
Item 3.03.
|
Material Modification to Rights of Security Holders.
|
Item 4.01 |
Changes in Registrant’s Certifying Accountant.
|
Item 5.01. |
Changes in Control of Registrant.
|
Item 5.02. |
Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
|
Item 5.03. |
Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
|
Item 5.05 |
Amendments to the Registrant’s Code of Ethics, or Waiver of a Provision of the Code of Ethics
|
Item 5.06. |
Change in Shell Company Status.
|
Item 8.01 |
Other Events.
|
Item 9.01. |
Financial Statements and Exhibits.
|
(d)
|
Exhibits
|
|
Exhibit No.
|
Description of Exhibit
|
Amended and Restated Merger Agreement with Amendment No. 1 (included as Annex A to the Proxy Statement/Prospectus filed with the SEC on May 17, 2022).
|
|
Form of Certificate of Incorporation of New SpringBig (incorporated by reference to Annex B to the Proxy Statement / Prospectus of Tuatara filed with the SEC on May 17, 2022).
|
|
Form of By-Laws of New SpringBig (incorporated by reference to Annex C to the Proxy Statement / Prospectus of Tuatara filed with the SEC on May 17, 2022).
|
|
Senior Secured Original Issue Discount Convertible Promissory Note dated June 14, 2022 between SpringBig Holdings, Inc. and the holder party thereto.*
|
|
Common Stock Purchase Warrant SpringBig Holdings Inc.*
|
|
Form of Sponsor Escrow Agreement.*
|
|
Amended and Restated Registration Rights Agreement, dated June 14, 2022, by and among New SpringBig, the Sponsor and other holders party thereto.*
|
|
Form of Subscription Agreement (incorporated by reference to Exhibit 10.2 to Tuatara Capital Acquisition Corporation Form 8-K filed on November 9, 2021).
|
|
Securities Purchase Agreement, dated April 29, 2022, among Tuatara Capital Acquisition Corporation, and the purchasers party thereto (incorporated by reference to Exhibit 10.1 to Tuatara’s Current Report on Form 8-K filed with the SEC
on May 2, 2022).
|
|
Registration Rights Agreement, dated June 14, 2022, among SpringBig Holdings, Inc. and the investors party thereto.*
|
|
SpringBig Holdings, Inc. 2022 Long-Term Incentive Plan.*
|
|
Executive Employment Agreement, dated November 8, 2021 by and between SpringBig and Jeffrey Harris.*
|
|
Executive Employment Agreement, dated November 8, 2021 by and between SpringBig and Paul Sykes.*
|
|
Letter from WithumSmith+Brown PC to the SEC, dated June 21, 2022.*
|
|
Unaudited Consolidated Financial Statements of SpringBig as of and for the three months ended March 31, 2022.*
|
|
Management’s Discussion and Analysis of Financial Condition and Results of Operations of SpringBig as of and for the three months ended March 31, 2022.*
|
|
Unaudited Pro Forma Condensed Combined Financial Information as of March 31, 2022 and for the three months ended March 31, 2022.*
|
|
99.4 |
Press Release, dated June 21, 2022.*
|
#
|
Indicates management contract or compensatory plan or arrangement.
|
SPRINGBIG HOLDINGS, INC.
|
||
June 21, 2022
|
By:
|
/s/ Jeffrey Harris
|
Name: Jeffrey Harris
|
||
Title: Chief Executive Officer
|
Original Issuance Date: June 14, 2022
|
Principal: $11,000,000
|
Maturity Date: June 14, 2024
|
Loan Amount: $10,000,000
|
SPRINGBIG HOLDINGS, INC.
|
||
By:
|
/s/ Paul Sykes
|
Name:
|
Paul Sykes
|
|
Title:
|
Chief Financial Officer
|
[HOLDER]
|
||
By:
|
||
Name:
|
||
Title:
|
||
Address:
|
Initial Exercise Price: $12.00
|
|
Warrant Shares: 586,980
|
Initial Exercise Date: June 14, 2022
|
(A) |
= |
the number of Warrant Shares that would be issuable upon exercise of this Warrant in accordance with the terms of this Warrant if such exercise were by means of a cash exercise rather than a cashless exercise; |
(B) |
= |
the greater of (i) the arithmetic average of the VWAPs (as defined in the Notes or Additional Notes, as applicable) for the five consecutive Trading Days ending on the date immediately preceding the date on which the Holder elects to exercise this Warrant by means of a “cashless exercise,” as set forth in the applicable Notice of Exercise or (ii) the VWAP for the Trading Day immediately prior to the date on which the Holder makes such “cashless exercise” election; |
(C) |
= |
the Exercise Price of this Warrant, as adjusted hereunder, at the time of such exercise; and |
(D) |
= |
the lesser of (i) the arithmetic average of the VWAPs for the five consecutive Trading Days ending on the date immediately preceding the date on which the Holder elects to exercise this Warrant by means of a “cashless exercise,” as set forth in the applicable Notice of Exercise or (ii) the VWAP for the Trading Day immediately prior to the date on which the Holder makes such “cashless exercise” election. |
SPRINGBIG HOLDINGS, INC.
|
||
By:
|
/s/ Paul Sykes
|
Name:
|
Paul Sykes
|
|
Title:
|
Chief Financial Officer
|
|
|
|
|
||
|
||
|
Name of Investing Entity:
|
|
Signature of Authorized Signatory of Investing Entity:
|
|
Name of Authorized Signatory:
|
|
Title of Authorized Signatory:
|
|
Date:
|
|
|
whose address is
|
|
|
|
|
Dated:
|
Holder’s Signature:
|
|
||
Holder’s Address:
|
|
||
|
Signature Guaranteed:
|
|
By:
|
|||
Name:
|
|||
Title:
|
|||
Telephone:
|
By:
|
||
Name:
|
||
Title:
|
By:
|
||
Name:
|
||
Title:
|
2.1. |
Demand Registration.
|
2.1.1. |
Request for Registration. Subject to the provisions of subsection 2.1.4, subsection 2.1.6 and Section 2.4, at any time and from time to time on or after the date the Company consummates the initial Business Combination, either (i) one or more Holders
(other than the Sponsor or its affiliates or transferees) or (ii) the Sponsor or its affiliates or transferees, in either case of clause (i) or (ii) representing Registrable Securities with a total offering price reasonably expected to
exceed, in the aggregate, the Minimum Demand Threshold, may make a written demand for Registration of all or part of their Registrable Securities, which written demand shall describe the amount and type of securities to be included in
such Registration and the intended method(s) of distribution thereof (such written demand, a “Demand Registration” and such persons making such written demand, the “Demanding
Holders”). The Company shall, within five (5) days of the Company’s receipt of the Demand Registration, notify, in writing, all other Holders of Registrable Securities of such demand, and each Holder of Registrable Securities who
thereafter wishes to include all or a portion of such Holder’s Registrable Securities in a Registration pursuant to a Demand Registration (each such Holder that includes all or a portion of such Holder’s Registrable Securities in such
Registration, a “Requesting Holder”) shall so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. Upon receipt by the Company of any
such written notification from a Requesting Holder(s) to the Company, such Requesting Holder(s) shall be entitled to have their Registrable Securities included in a Registration pursuant to a Demand Registration and the Company shall (i)
file a Registration Statement in respect of all Registrable Securities requested by the Demanding Holders and Requesting Holder(s) pursuant such Demand Registration, not more than thirty (30) days immediately after the Company’s receipt
of the Demand Registration, and (ii) shall effect the registration thereof as soon as practicable thereafter. Under no circumstances shall the Company be obligated to effect more than an (x) aggregate of four (4) Registrations pursuant to
a Demand Registration initiated by one or more Holders (other than the Sponsor or its affiliates or transferees) and (y) an aggregate of three (3) Registrations pursuant to a Demand Registration initiated by the Sponsor or its affiliates
or transferees, in each case under this subsection 2.1.1 with respect to any or all Registrable Securities; provided, however, that a Registration shall not be counted for such purposes unless a Form S-1 has become effective and all of
the Registrable Securities requested by the Requesting Holders to be registered on behalf of the Requesting Holders in such registration have been sold, in accordance with Section 3.1 of this Agreement. For the avoidance of doubt, each of
(i) the holders of a majority-in-interest of the Registrable Securities held by the Holders and (ii) the Sponsor shall be permitted to exercise a Demand Registration Statement pursuant to this subsection 2.1.1 with respect to their
Registrable Securities.
|
2.1.2. |
Effective Registration. Notwithstanding the provisions of subsection 2.1.1 above or any other part of this Agreement, a Registration pursuant to a Demand Registration shall not count as a Registration unless and until (i) the Registration Statement
filed with the Commission with respect to a Registration pursuant to a Demand Registration has been declared effective by the Commission and (ii) the Company has complied with all of its obligations under this Agreement with respect
thereto; provided, further, that if, after such Registration Statement has been declared effective, an offering of Registrable Securities in a Registration pursuant to a Demand Registration is subsequently interfered with by any stop
order or injunction of the Commission, federal or state court or any other governmental agency the Registration Statement with respect to such Registration shall be deemed not to have been declared effective (and, accordingly, shall not
count as a Registration), unless and until, (i) such stop order or injunction is removed, rescinded or otherwise terminated, and (ii) a majority-in-interest of the Demanding Holders initiating such Demand Registration thereafter
affirmatively elects to continue with such Registration and accordingly notify the Company in writing, but in no event later than five (5) days, of such election; provided, further, that the Company shall not be obligated or required to
file another Registration Statement until the Registration Statement that has been previously filed with respect to a Registration pursuant to a Demand Registration becomes effective or is subsequently terminated.
|
2.1.3. |
Underwritten Offering. Subject to the provisions of subsection 2.1.4, subsection 2.1.6 and Section 2.4 hereof, if a majority-in-interest of the Demanding Holders so elect and such Demanding Holders advise the Company as part of its Demand Registration
that the offering of the Registrable Securities pursuant to such Demand Registration shall be in the form of an Underwritten Offering, then the right of each Demanding Holder and Requesting Holder to include its Registrable Securities in
such Registration shall be conditioned upon such Holder’s participation in such Underwritten Offering and the inclusion of such Holder’s Registrable Securities in such Underwritten Offering to the extent provided herein; provided that
such Demanding Holder(s) (a) reasonably expect aggregate gross proceeds in excess of the Minimum Demand Threshold from such Underwritten Offerings (it being understood that the Company shall not be required to conduct more than two
Underwritten Offerings where the expected aggregate proceeds are below $25,000,000 but in excess of the Minimum Demand Threshold in any 12-month period) or (b) reasonably expects to sell all of the Registrable Securities held by such
Holder in such Underwritten Offering but in no event less than $5,000,000 in aggregate gross proceeds. All such Holders proposing to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.1.3
shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by a majority-in-interest of the holders initiating the Demand Registration.
|
2.1.4. |
Reduction of Underwritten Offering. If the managing Underwriter or Underwriters in an Underwritten Registration pursuant to a Demand Registration, in good faith, advises the Company and the Requesting Holders in writing that the dollar amount or number
of Registrable Securities that such Holders desire to sell, taken together with all other shares of Common Stock or other equity securities that the Company desires to sell and the shares of Common Stock, if any, as to which a
Registration has been requested pursuant to separate written contractual piggy-back registration rights held by any other shareholders who desire to sell, exceeds the maximum dollar amount or maximum number of equity securities that can
be sold in the Underwritten Offering without adversely affecting the proposed offering price, the timing, the distribution method, or the probability of success of such offering (such maximum dollar amount or maximum number of such
securities, as applicable, the “Maximum Number of Securities”), then the Company shall include in such Underwritten Offering, as follows: (i) first, the Registrable Securities of the Demanding
Holders and Requesting Holders (pro rata based on the respective number of Registrable Securities that each Demanding Holder and Requesting Holder has requested be included in such Underwritten Registration and the aggregate number of
Registrable Securities that the Demanding Holders and Requesting Holders have requested be included in such Underwritten Registration) that can be sold without exceeding the Maximum Number of Securities; (ii) second, to the extent that
the Maximum Number of Securities has not been reached under the foregoing clause (i), the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of
Securities; and (iii) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (i) and (ii), the shares of Common Stock or other equity securities of other persons or entities that the
Company is obligated to register in a Registration pursuant to separate written contractual arrangements with such persons and that can be sold without exceeding the Maximum Number of Securities.
|
2.1.5. |
Demand Registration Withdrawal. Any Demanding Holder or Requesting Holder shall have the right to withdraw from a Registration pursuant to such Demand Registration for any or no reason whatsoever upon written notification to the Company and the
Underwriter or Underwriters (if any) of their intention to withdraw from such Registration prior to (x) in the case of a Demand Registration not involving an Underwritten Offering, the effectiveness of the Registration Statement filed
with the Commission with respect to the Registration of their Registrable Securities pursuant to such Demand Registration or (y) in the case of a Demand Registration involving an Underwritten Offering, the pricing of such Underwritten
Offering; provided, however, that upon withdrawal by a majority-in-interest of the Demanding Holders initiating a Demand Registration, the Company shall cease all efforts to secure effectiveness of the applicable Registration Statement or
complete the Underwritten Offering, as applicable. If withdrawn, such requested Demand Registration or Shelf Underwritten Offering shall constitute a demand for a Demand Registration or Underwritten Offering for purposes of Section 2.1.1
or Section 2.1.3, as applicable, unless either (i) the Demanding Holders have not previously withdrawn any Demand Registration or (ii) the Demanding Holders reimburse the Company for all Registration Expenses with respect to such Demand
Registration. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with a Registration pursuant to a Demand Registration prior to its withdrawal
under this subsection 2.1.5.
|
2.1.6. |
Shelf Registration.
The Company shall file within 30 days of the Closing, and use commercially reasonable efforts to cause to be declared effective as soon as practicable thereafter, a Registration Statement for a Shelf Registration on Form S-1 (the “Form S-1 Shelf”) or, if the Company is eligible to use a Registration Statement on Form S-3, a Shelf Registration on Form S-3 (the “Form S-3 Shelf” and together
with the Form S-1 Shelf, each a “Shelf”), in each case, covering the resale of all the Registrable Securities (determined as of two Business Days prior to such filing) on a delayed or continuous
basis. Such Shelf shall provide for the resale of the Registrable Securities included therein pursuant to any method or combination of methods legally available to, and requested by, any Holder named therein. Notwithstanding anything to
the contrary herein, to the extent there is an active Shelf under this subsection 2.1.6, covering a Holder’s or Holders’ Registrable Securities, such Holder shall not have rights to make a Demand Registration with respect to subsection
2.1.1, but if such Holder or Holders qualify as Demanding Holders pursuant to subsection 2.1.1, then such Holder or Holders may request an Underwritten Offering from such Shelf, in which case such Underwritten Offering shall follow the
procedures of subsection 2.1 (including subsection 2.1.3 and subsection 2.1.4) and such Underwritten Offering shall count against the number of Demand Registrations that may be made pursuant to subsection 2.1.1.
|
2.1.7. |
Holder Information Required for Participation in Underwritten Offering. At least five (5) Business Days prior to the first anticipated filing date of a Registration Statement pursuant to this Section 2, the Company shall use reasonable best efforts to
notify each Holder in writing (which may be by email) of the information reasonably necessary about the Holder to include such Holder’s Registrable Securities in such Registration Statement. Notwithstanding anything else in this
Agreement, the Company shall not be obligated to include such Holder’s Registrable Securities to the extent the Company has not received such information, and received any other reasonably requested agreements or certificates, on or prior
to the second (2nd) Business Day prior to the first anticipated filing date of a Registration Statement pursuant to this Section 2.
|
2.2. |
Piggyback Registration.
|
2.2.1. |
Piggyback Rights.
If, at any time on or after the date hereof, the Company proposes to file a Registration Statement under the Securities Act with respect to an offering of equity securities, or securities or other obligations exercisable or exchangeable
for, or convertible into equity securities, for its own account or for the account of shareholders of the Company (or by the Company and by the shareholders of the Company including, without limitation, pursuant to Section 2.1 hereof),
other than a Registration Statement (i) filed in connection with any employee stock option or other benefit plan, (ii) for an exchange offer or offering of securities solely to the Company’s existing shareholders, (iii) for an offering of
debt that is convertible into equity securities of the Company, (iv) for a dividend reinvestment plan, (v) filed in connection with the securities purchase agreement by and between the Company, and the purchasers signatory thereto, dated
as of April 29, 2022 or (vi) filed in connection with the common stock purchase agreement and the registration rights agreement by and between CF Principal Investments LLC and the Company, dated as of April 29, 2022, then the Company
shall give written notice of such proposed filing to all of the Holders of Registrable Securities as soon as practicable but not less than five (5) days before the anticipated filing date of such Registration Statement, which notice shall
(A) describe the amount and type of securities to be included in such offering, the intended method(s) of distribution, and the name of the proposed managing Underwriter or Underwriters, if any, in such offering, and (B) offer to all of
the Holders of Registrable Securities the opportunity to register the sale of such number of Registrable Securities as such Holders may request in writing within five (5) days after receipt of such written notice (such Registration, a “Piggyback Registration”). The Company shall, in good faith, cause such Registrable Securities to be included in such Piggyback Registration and shall use its best efforts to cause the managing
Underwriter or Underwriters of a proposed Underwritten Offering to permit the Registrable Securities requested by the Holders pursuant to this subsection 2.2.1 to be included in a Piggyback Registration on the same terms and conditions as
any similar securities of the Company included in such Registration and to permit the sale or other disposition of such Registrable Securities in accordance with the intended method(s) of distribution thereof. All such Holders proposing
to distribute their Registrable Securities through an Underwritten Offering under this subsection 2.2.1 shall enter into an underwriting agreement in customary form with the Underwriter(s) selected for such Underwritten Offering by the
Company.
|
2.2.2. |
Reduction of Piggyback Registration. If the managing Underwriter or Underwriters in an Underwritten Registration that is to be a Piggyback Registration, in good faith, advises the Company and the Holders of Registrable Securities participating in the
Piggyback Registration in writing that the dollar amount or number of the shares of Common Stock that the Company desires to sell, taken together with (i) the shares of Common Stock, if any, as to which Registration has been demanded
pursuant to separate written contractual arrangements with persons or entities other than the Holders of Registrable Securities hereunder (ii) the Registrable Securities as to which registration has been requested pursuant to Section 2.2
hereof, and (iii) the shares of Common Stock, if any, as to which Registration has been requested pursuant to separate written contractual piggy-back registration rights of other shareholders of the Company, exceeds the Maximum Number of
Securities, then:
|
(a) |
If the Registration is undertaken for the Company’s account, the Company shall include in any such Registration (A) first, the shares of Common Stock or other equity securities that the Company desires to sell, which can be sold without
exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their
Registrable Securities pursuant to subsection 2.2.1 hereof, pro rata, based on the respective number of Registrable Securities that each Holder has so requested, which can be sold without exceeding the Maximum Number of Securities; and (C)
third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock, if any, as to which Registration has been requested pursuant to written contractual
piggy-back registration rights of other shareholders of the Company, which can be sold without exceeding the Maximum Number of Securities; and
|
(b) |
If the Registration is pursuant to a request by persons or entities other than the Holders of Registrable Securities, then the Company shall include in any such Registration (A) first, the shares of Common Stock or other equity
securities, if any, of such requesting persons or entities, other than the Holders of Registrable Securities, which can be sold without exceeding the Maximum Number of Securities; (B) second, to the extent that the Maximum Number of
Securities has not been reached under the foregoing clause (A), the Registrable Securities of Holders exercising their rights to register their Registrable Securities pursuant to subsection 2.2.1, pro rata, based on the respective number of
Registrable Securities that each Holder has requested be included in such Underwritten Registration and the aggregate number of Registrable Securities that the Holders have requested to be included in such Underwritten Registration, which
can be sold without exceeding the Maximum Number of Securities; (C) third, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock or other equity
securities that the Company desires to sell, which can be sold without exceeding the Maximum Number of Securities; and (D) fourth, to the extent that the Maximum Number of Securities has not been reached under the foregoing clauses (A), (B)
and (C), the shares of Common Stock or other equity securities for the account of other persons or entities that the Company is obligated to register pursuant to separate written contractual arrangements with such persons or entities, which
can be sold without exceeding the Maximum Number of Securities.
|
2.2.3. |
Piggyback Registration Withdrawal. Any Holder of Registrable Securities shall have the right to withdraw from a Piggyback Registration for any or no reason whatsoever upon written notification to the Company and the Underwriter or Underwriters (if any)
of his, her or its intention to withdraw from such Piggyback Registration prior to the effectiveness of the Registration Statement filed with the Commission with respect to such Piggyback Registration. The Company (whether on its own good
faith determination or as the result of a request for withdrawal by persons pursuant to separate written contractual obligations) may withdraw a Registration Statement filed with the Commission in connection with a Piggyback Registration
at any time prior to the effectiveness of such Registration Statement. Notwithstanding anything to the contrary in this Agreement, the Company shall be responsible for the Registration Expenses incurred in connection with the Piggyback
Registration prior to its withdrawal under this subsection 2.2.3.
|
2.2.4. |
Unlimited Piggyback Registration Rights. For purposes of clarity, any Registration effected pursuant to Section 2.2 hereof shall not be counted as a Registration pursuant to a Demand Registration effected under Section 2.1 hereof.
|
2.2.5. |
Notwithstanding anything in this Agreement to the contrary, the rights of any Holder set forth in this Agreement shall be subject to any lock-up agreement that such Holder has entered into.
|
2.3. |
Registrations on Form S-3. The Holders of Registrable Securities may at any time, and from time to time, request in writing that the Company, pursuant to Rule 415 under the Securities Act (or any successor rule promulgated thereafter by the Commission),
register the resale of any or all of their Registrable Securities on Form S-3 or any similar short-form registration statement that may be available at such time (“Form S-3”); provided, however,
that the Company shall not be obligated to effect such request through an Underwritten Offering. Within five (5) days of the Company’s receipt of a written request from a Holder or Holders of Registrable Securities for a Registration on
Form S-3, the Company shall promptly give written notice of the proposed Registration on Form S-3 to all other Holders of Registrable Securities, and each Holder of Registrable Securities who thereafter wishes to include all or a portion
of such Holder’s Registrable Securities in such Registration on Form S-3 shall so notify the Company, in writing, within five (5) days after the receipt by the Holder of the notice from the Company. As soon as practicable thereafter, but
not more than twelve (12) days after the Company’s initial receipt of such written request for a Registration on Form S-3, the Company shall register all or such portion of such Holder’s Registrable Securities as are specified in such
written request, together with all or such portion of Registrable Securities of any other Holder or Holders joining in such request as are specified in the written notification given by such Holder or Holders; provided, however, that the
Company shall not be obligated to effect any such Registration pursuant to Section 2.3 hereof if (i) a Form S-3 is not available for such offering; or (ii) the Holders of Registrable Securities, together with the Holders of any other
equity securities of the Company entitled to inclusion in such Registration, propose to sell the Registrable Securities and such other equity securities (if any) at any aggregate price to the public of less than $10,000,000.
|
2.3.1. |
To the extent the Company is a well-known seasoned issuer (as defined in Rule 405 under the Securities Act) (a “WKSI”) at the time any Demand Registration is received by the Company, and such
Demand Registration requests that the Company file an automatic shelf registration statement (as defined in Rule 405 under the Securities Act) (an “automatic shelf registration statement”) on Form
S-3, the Company shall file an automatic shelf registration statement which covers those Registrable Securities which are requested to be registered. The Company shall use its reasonable best efforts to remain a WKSI (and not become an
ineligible issuer (as defined in Rule 405 under the Securities Act)) during the period during which the Registrable Securities remain Registrable Securities. If the Company does not pay the filing fee covering the Registrable Securities at
the time the automatic shelf registration statement is filed, the Company agrees to pay such fee at such time or times as the Registrable Securities are to be sold. If the automatic shelf registration statement has been outstanding for at
least three years, at the end of the third year the Company shall refile a new automatic shelf registration statement covering the Registrable Securities. If at any time when the Company is required to re-evaluate its WKSI status the
Company determines that it is not a WKSI, the Company shall use its reasonable best efforts to refile the shelf registration statement on Form S-3 and, if such form is not available, Form S-1 and keep such registration statement effective
during the period during which such registration statement is required to be kept effective.
|
2.3.2. |
If the Company files any shelf registration statement for the benefit of the holders of any of its securities other than the Holders, the Company agrees that it shall include in such registration statement such disclosures as may be
required by Rule 430B under the Securities Act (referring to the unnamed selling security holders in a generic manner by identifying the initial offering of the securities to the Holders) in order to ensure that the Holders may be added to
such shelf registration statement at a later time through the filing of a prospectus supplement rather than a post-effective amendment.
|
2.4. |
Restrictions on Registration Rights. If (A) during the period starting with the date sixty (60) days prior to the Company’s good faith estimate of the date of the filing of, and ending on a date one hundred and twenty (120) days after the effective date
of, a Company-initiated Registration and provided that the Company has delivered written notice to the Holders prior to receipt of a Demand Registration pursuant to subsection 2.1.1 and it continues to actively employ, in good faith, all
reasonable efforts to cause the applicable Registration Statement to become effective; (B) the Holders have requested an Underwritten Registration and the Company and the Holders are unable to obtain the commitment of underwriters to
firmly underwrite the offer; or (C) in the good faith judgment of the Board such Registration would be seriously detrimental to the Company and the Board concludes as a result that it is essential to defer the filing of such Registration
Statement at such time, then in each case the Company shall furnish to such Holders a certificate signed by the Chairman of the Board stating that in the good faith judgment of the Board it would be seriously detrimental to the Company
for such Registration Statement to be filed in the near future and that it is therefore essential to defer the filing of such Registration Statement. In such event, the Company shall have the right to defer such filing for a period of not
more than thirty (30) days; provided, however, that the Company shall not defer its obligation in this manner more than once in any 12-month period.
|
3.1. |
General Procedures.
If at any time on or after the date hereof the Company is required to effect the Registration of Registrable Securities, the Company shall use its best efforts to effect such Registration to permit the sale of such Registrable Securities
in accordance with the intended plan of distribution thereof, and pursuant thereto the Company shall, as expeditiously as possible:
|
3.1.1. |
prepare and file with the Commission as soon as practicable a Registration Statement with respect to such Registrable Securities and use its reasonable best efforts to cause such Registration Statement to become effective and remain
effective until all Registrable Securities covered by such Registration Statement have been sold;
|
3.1.2. |
prepare and file with the Commission such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be reasonably requested by the majority-in-interest of the Holders with
Registrable Securities registered on such Registration Statement or any Underwriter of Registrable Securities or as may be required by the rules, regulations or instructions applicable to the registration form used by the Company or by the
Securities Act or rules and regulations thereunder to keep the Registration Statement effective until all Registrable Securities covered by such Registration Statement are sold in accordance with the intended plan of distribution set forth
in such Registration Statement or supplement to the Prospectus;
|
3.1.3. |
prior to filing a Registration Statement or Prospectus, or any amendment or supplement thereto, furnish without charge to the Underwriters, if any, and the Holders of Registrable Securities included in such Registration, and such
Holders’ legal counsel, copies of such Registration Statement as proposed to be filed, each amendment and supplement to such Registration Statement (in each case including all exhibits thereto and documents incorporated by reference
therein), the Prospectus included in such Registration Statement (including each preliminary Prospectus), and such other documents as the Underwriters and the Holders of Registrable Securities included in such Registration or the legal
counsel for any such Holders may request in order to facilitate the disposition of the Registrable Securities owned by such Holders;
|
3.1.4. |
prior to any public offering of Registrable Securities, use its best efforts to (i) register or qualify the Registrable Securities covered by the Registration Statement under such securities or “blue sky” laws of such jurisdictions in
the United States as the Holders of Registrable Securities included in such Registration Statement (in light of their intended plan of distribution) may request and (ii) take such action necessary to cause such Registrable Securities
covered by the Registration Statement to be registered with or approved by such other governmental authorities as may be necessary by virtue of the business and operations of the Company and do any and all other acts and things that may be
necessary or advisable to enable the Holders of Registrable Securities included in such Registration Statement to consummate the disposition of such Registrable Securities in such jurisdictions; provided, however, that the Company shall not
be required to qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify or take any action to which it would be subject to general service of process or taxation in any such jurisdiction where
it is not then otherwise so subject;
|
3.1.5. |
cause all such Registrable Securities to be listed on each securities exchange or automated quotation system on which similar securities issued by the Company are then listed;
|
3.1.6. |
provide a transfer agent or warrant agent, as applicable, and registrar for all such Registrable Securities no later than the effective date of such Registration Statement;
|
3.1.7. |
advise each seller of such Registrable Securities, promptly after it shall receive notice or obtain knowledge thereof, of the issuance of any stop order by the Commission suspending the effectiveness of such Registration Statement or the
initiation or threatening of any proceeding for such purpose and promptly use its reasonable best efforts to prevent the issuance of any stop order or to obtain its withdrawal if such stop order should be issued;
|
3.1.8. |
at least five (5) days prior to the filing of any Registration Statement or Prospectus or any amendment or supplement to such Registration Statement or Prospectus furnish a copy thereof to each seller of such Registrable Securities or
its counsel;
|
3.1.9. |
notify the Holders at any time when a Prospectus relating to such Registration Statement is required to be delivered under the Securities Act, of the happening of any event as a result of which the Prospectus included in such
Registration Statement, as then in effect, includes a Misstatement, and then to correct such Misstatement as set forth in Section 3.4 hereof;
|
3.1.10. |
permit a representative of the Holders, the Underwriters, if any, and any attorney or accountant retained by such Holders or Underwriter to participate, at each such person’s own expense, in the preparation of the Registration Statement,
and cause the Company’s officers, directors and employees to supply all information reasonably requested by any such representative, Underwriter, attorney or accountant in connection with the Registration; provided, however, that such
representatives or Underwriters enter into a confidentiality agreement, in form and substance reasonably satisfactory to the Company, prior to the release or disclosure of any such information;
|
3.1.11. |
obtain a “cold comfort” letter from the Company’s independent registered public accountants in the event of an Underwritten Registration, in customary form and covering such matters of the type customarily covered by “cold comfort”
letters as the managing Underwriter may reasonably request, and reasonably satisfactory to a majority-in-interest of the participating Holders;
|
3.1.12. |
on the date the Registrable Securities are delivered for sale pursuant to such Registration, obtain an opinion, dated such date, of counsel representing the Company for the purposes of such Registration, addressed to the Holders, the
placement agent or sales agent, if any, and the Underwriters, if any, covering such legal matters with respect to the Registration in respect of which such opinion is being given as the Holders, placement agent, sales agent, or Underwriter
may reasonably request and as are customarily included in such opinions and negative assurance letters, and reasonably satisfactory to a majority in interest of the participating Holders;
|
3.1.13. |
in the event of any Underwritten Offering, enter into and perform its obligations under an underwriting agreement, in usual and customary form, with the managing Underwriter of such offering;
|
3.1.14. |
make available to its security holders, as soon as reasonably practicable, an earnings statement covering the period of at least twelve (12) months beginning with the first day of the Company’s first full calendar quarter after the
effective date of the Registration Statement which satisfies the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder (or any successor rule promulgated thereafter by the Commission);
|
3.1.15. |
if the Registration involves the Registration of Registrable Securities involving gross proceeds in excess of $10,000,000, use its reasonable efforts to make available senior executives of the Company to participate in customary “road
show” presentations that may be reasonably requested by the Underwriter in any Underwritten Offering; and
|
3.1.16. |
otherwise, in good faith, cooperate reasonably with, and take such customary actions as may reasonably be requested by the Holders, in connection with such Registration.
|
3.2. |
Registration Expenses. The Registration Expenses of all Registrations shall be borne by the Company. It is acknowledged by the Holders that the Holders shall bear all incremental selling expenses relating to the sale of Registrable Securities, such as
Underwriters’ commissions and discounts, brokerage fees, Underwriter marketing costs and, other than as set forth in the definition of “Registration Expenses,” all reasonable fees and expenses of any legal counsel representing the
Holders.
|
3.3. |
Requirements for Participation in Underwritten Offerings. No person may participate in any Underwritten Offering for equity securities of the Company pursuant to a Registration initiated by the Company hereunder unless such person (i) agrees to sell such
person’s securities on the basis provided in any underwriting arrangements approved by the Company and (ii) completes and executes all customary questionnaires, powers of attorney, indemnities, lock-up agreements, underwriting agreements
and other customary documents as may be reasonably required under the terms of such underwriting arrangements.
|
3.4. |
Suspension of Sales; Adverse Disclosure. Upon receipt of written notice from the Company that a Registration Statement or Prospectus contains a Misstatement, each of the Holders shall forthwith discontinue disposition of Registrable Securities until
he, she or it has received copies of a supplemented or amended Prospectus correcting the Misstatement (it being understood that the Company hereby covenants to prepare and file such supplement or amendment as soon as practicable after the
time of such notice), or until he, she or it is advised in writing by the Company that the use of the Prospectus may be resumed. If the filing, initial effectiveness or continued use of a Registration Statement in respect of any
Registration at any time would require the Company to make an Adverse Disclosure or would require the inclusion in such Registration Statement of financial statements that are unavailable to the Company for reasons beyond the Company’s
control, the Company may, upon giving prompt written notice of such action to the Holders, delay the filing or initial effectiveness of, or suspend use of, such Registration Statement for the shortest period of time, but in no event more
than thirty (30) days, determined in good faith by the Company to be necessary for such purpose. In the event the Company exercises its rights under the preceding sentence, the Holders agree to suspend, immediately upon their receipt of
the notice referred to above, their use of the Prospectus relating to any Registration in connection with any sale or offer to sell Registrable Securities. The Company shall immediately notify the Holders of the expiration of any period
during which it exercised its rights under this Section 3.4.
|
3.5. |
Reporting Obligations. As long as any Holder shall own Registrable Securities, the Company, at all times while it shall be a reporting company under the Exchange Act, covenants to file timely (or obtain extensions in respect thereof and file within the
applicable grace period) all reports required to be filed by the Company after the date hereof pursuant to Sections 13(a) or 15(d) of the Exchange Act and to promptly furnish the Holders with true and complete copies of all such filings.
The Company further covenants that it shall take such further action as any Holder may reasonably request, all to the extent required from time to time to enable such Holder to sell the shares of Common Stock held by such Holder without
registration under the Securities Act within the limitation of the exemptions provided by Rule 144 promulgated under the Securities Act (or any successor rule promulgated thereafter by the Commission), including providing any legal
opinions. Upon the request of any Holder, the Company shall deliver to such Holder a written certification of a duly authorized officer as to whether it has complied with such requirements.
|
4.1. |
Indemnification.
|
4.1.1. |
The Company agrees to indemnify, to the extent permitted by law, each Holder of Registrable Securities, its officers and directors and agents and each person who controls such Holder (within the meaning of the Securities Act) against all
losses, claims, damages, liabilities and expenses (including attorneys’ fees) caused by any untrue or alleged untrue statement of material fact contained in any Registration Statement, Prospectus or preliminary Prospectus or any amendment
thereof or supplement thereto or any omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as the same are caused by or contained in any
information furnished in writing to the Company by such Holder expressly for use therein. The Company shall indemnify the Underwriters, their officers and directors and each person who controls such Underwriters (within the meaning of the
Securities Act) to the same extent as provided in the foregoing with respect to the indemnification of the Holder.
|
4.1.2. |
In connection with any Registration Statement in which a Holder of Registrable Securities is participating, such Holder shall furnish to the Company in writing such information and affidavits as the Company reasonably requests for use in
connection with any such Registration Statement or Prospectus and, to the extent permitted by law, shall indemnify the Company, its directors and officers and agents and each person who controls the Company (within the meaning of the
Securities Act) against any losses, claims, damages, liabilities and expenses (including without limitation reasonable attorneys’ fees) resulting from any untrue statement of material fact contained in the Registration Statement, Prospectus
or preliminary Prospectus or any amendment thereof or supplement thereto or any omission of a material fact required to be stated therein or necessary to make the statements therein not misleading, but only to the extent that such untrue
statement or omission is contained in any information or affidavit so furnished in writing by such Holder expressly for use therein; provided, however, that the obligation to indemnify shall be several, not joint and several, among such
Holders of Registrable Securities, and the liability of each such Holder of Registrable Securities shall be in proportion to and limited to the net proceeds received by such Holder from the sale of Registrable Securities pursuant to such
Registration Statement. The Holders of Registrable Securities shall indemnify the Underwriters, their officers, directors and each person who controls such Underwriters (within the meaning of the Securities Act) to the same extent as
provided in the foregoing with respect to indemnification of the Company.
|
4.1.3. |
Any person entitled to indemnification herein shall (i) give prompt written notice to the indemnifying party of any claim with respect to which it seeks indemnification (provided that the failure to give prompt notice shall not impair
any person’s right to indemnification hereunder to the extent such failure has not materially prejudiced the indemnifying party) and (ii) unless in such indemnified party’s reasonable judgment a conflict of interest between such indemnified
and indemnifying parties may exist with respect to such claim, permit such indemnifying party to assume the defense of such claim with counsel reasonably satisfactory to the indemnified party. If such defense is assumed, the indemnifying
party shall not be subject to any liability for any settlement made by the indemnified party without its consent (but such consent shall not be unreasonably withheld). An indemnifying party who is not entitled to, or elects not to, assume
the defense of a claim shall not be obligated to pay the fees and expenses of more than one counsel for all parties indemnified by such indemnifying party with respect to such claim, unless in the reasonable judgment of any indemnified
party a conflict of interest may exist between such indemnified party and any other of such indemnified parties with respect to such claim. No indemnifying party shall, without the consent of the indemnified party, consent to the entry of
any judgment or enter into any settlement which cannot be settled in all respects by the payment of money (and such money is so paid by the indemnifying party pursuant to the terms of such settlement) or which settlement does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such indemnified party of a release from all liability in respect to such claim or litigation.
|
4.1.4. |
The indemnification provided for under this Agreement shall remain in full force and effect regardless of any investigation made by or on behalf of the indemnified party or any officer, director or controlling person of such indemnified
party and shall survive the transfer of securities. The Company and each Holder of Registrable Securities participating in an offering also agrees to make such provisions as are reasonably requested by any indemnified party for contribution
to such party in the event the Company’s or such Holder’s indemnification is unavailable for any reason.
|
4.1.5. |
If the indemnification provided under Section 4.1 hereof from the indemnifying party is unavailable or insufficient to hold harmless an indemnified party in respect of any losses, claims, damages, liabilities and expenses referred to
herein, then the indemnifying party, in lieu of indemnifying the indemnified party, shall contribute to the amount paid or payable by the indemnified party as a result of such losses, claims, damages, liabilities and expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying party and the indemnified party, as well as any other relevant equitable considerations. The relative fault of the indemnifying party and indemnified party shall
be determined by reference to, among other things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact, was made by, or relates to
information supplied by, such indemnifying party or indemnified party, and the indemnifying party’s and indemnified party’s relative intent, knowledge, access to information and opportunity to correct or prevent such action; provided,
however, that the liability of any Holder under this subsection 4.1.5 shall be limited to the amount of the net proceeds received by such Holder in such offering giving rise to such liability. The amount paid or payable by a party as a
result of the losses or other liabilities referred to above shall be deemed to include, subject to the limitations set forth in subsections 4.1.1, 4.1.2 and 4.1.3 above, any legal or other fees, charges or expenses reasonably incurred by
such party in connection with any investigation or proceeding. The parties hereto agree that it would not be just and equitable if contribution pursuant to this subsection 4.1.5 were determined by pro rata allocation or by any other method
of allocation, which does not take account of the equitable considerations referred to in this subsection 4.1.5. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution pursuant to this subsection 4.1.5 from any person who was not guilty of such fraudulent misrepresentation.
|
5.1. |
Notices. Any
notice or communication under this Agreement must be in writing and given by (i) deposit in the United States mail, addressed to the party to be notified, postage prepaid and registered or certified with return receipt requested, (ii)
delivery in person or by courier service providing evidence of delivery, or (iii) transmission by hand delivery, electronic mail, telecopy, telegram or facsimile. Each notice or communication that is mailed, delivered, or transmitted in
the manner described above shall be deemed sufficiently given, served, sent, and received, in the case of mailed notices, on the third Business Day following the date on which it is mailed and, in the case of notices delivered by courier
service, hand delivery, electronic mail, telecopy, telegram or facsimile, at such time as it is delivered to the addressee (with the delivery receipt or the affidavit of messenger) or at such time as delivery is refused by the addressee
upon presentation. Any notice or communication under this Agreement must be addressed, if to the Company, to: SpringBig Holdings, Inc., 621 NW 53rd Street, Ste. 250, Boca Raton, Florida 33487, with a copy to Benesch Friedlander Coplan
& Aronoff LLP, 71 South Wacker Drive, Suite 1600, and, if to any Holder, at such Holder’s address or facsimile number as set forth in the Company’s books and records. Any party may change its address for notice at any time and from
time to time by written notice to the other parties hereto, and such change of address shall become effective thirty (30) days after delivery of such notice as provided in this Section 5.1.
|
5.2. |
Assignment; No Third Party Beneficiaries.
|
5.2.1. |
This Agreement and the rights, duties and obligations of the Company hereunder may not be assigned or delegated by the Company in whole or in part.
|
5.2.2. |
The Sponsor and any Holder may assign or delegate such Holder’s rights, duties or obligations under this Agreement, in whole or in part, if (i) the transferee receives Registrable Securities that constitute at least 1% of the Company’s
Common Stock and/or Common Stock Equivalents, (ii) such transfer is not pursuant to Rule 144 under the Securities Act or a registration statement filed pursuant to this Agreement and (iii) the transferee agrees to become bound by the
transfer restrictions set forth in this Agreement and other applicable agreements; provided that the 1% limitation in clause (i) shall not apply in the case of a distribution in kind by the Sponsor to the direct or indirect economic owners
of the Registrable Securities held by the Sponsor in the first year after the date of this Agreement.
|
5.2.3. |
This Agreement and the provisions hereof shall be binding upon and shall inure to the benefit of each of the parties and its successors and the permitted assigns of the Holders.
|
5.2.4. |
This Agreement shall not confer any rights or benefits on any persons that are not parties hereto, other than as expressly set forth in this Agreement and Section 5.2 hereof.
|
5.2.5. |
No assignment by any party hereto of such party’s rights, duties and obligations hereunder shall be binding upon or obligate the Company unless and until the Company shall have received (i) written notice of such assignment as provided
in Section 5.1 hereof and (ii) the written agreement of the assignee, in a form reasonably satisfactory to the Company, to be bound by the terms and provisions of this Agreement (which may be accomplished by an addendum or certificate of
joinder to this Agreement). Any transfer or assignment made other than as provided in this Section 5.1 shall be null and void.
|
5.3. |
Counterparts. This
Agreement may be executed in multiple counterparts (including facsimile or PDF counterparts), each of which shall be deemed an original, and all of which together shall constitute the same instrument, but only one of which need be
produced.
|
5.4. |
Governing Law; Venue. NOTWITHSTANDING THE PLACE WHERE THIS AGREEMENT MAY BE EXECUTED BY ANY OF THE PARTIES HERETO, THE PARTIES EXPRESSLY AGREE THAT (I) THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED UNDER THE LAWS OF THE STATE OF NEW YORK AS
APPLIED TO AGREEMENTS AMONG NEW YORK RESIDENTS ENTERED INTO AND TO BE PERFORMED ENTIRELY WITHIN NEW YORK AND (II) THE VENUE FOR ANY ACTION TAKEN WITH RESPECT TO THE AGREEMENT SHALL BE ANY STATE OR FEDERAL COURT IN NEW YORK COUNTY IN THE
STATE OF NEW YORK. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS
AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
|
5.5. |
Amendments and Modifications. Upon the written consent of the Company and the Holders of at least a majority-in-interest of the Registrable Securities at the time in question, compliance with any of the provisions, covenants and conditions set
forth in this Agreement may be waived, or any of such provisions, covenants or conditions may be amended or modified; provided, however, that notwithstanding the foregoing, any amendment hereto or waiver hereof that adversely affects one
Holder, solely in his, her or its capacity as a holder of the shares of the Company, in a manner that is materially different from the other Holders (in such capacity) shall require the consent of the Holder so affected. No course of
dealing between any Holder or the Company and any other party hereto or any failure or delay on the part of a Holder or the Company in exercising any rights or remedies under this Agreement shall operate as a waiver of any rights or
remedies of any Holder or the Company. No single or partial exercise of any rights or remedies under this Agreement by a party shall operate as a waiver or preclude the exercise of any other rights or remedies hereunder or thereunder by
such party.
|
5.6. |
Other Registration Rights. The Company represents and warrants that no person, other than a Holder of Registrable Securities or those certain investors that agreed on or about the date hereof to purchase shares of Common Stock in a transaction exempt from
registration under the Securities Act pursuant to those certain Subscription Agreements dated on or about the date hereof, has any right to require the Company to register any securities of the Company for sale or to include such
securities of the Company in any Registration filed by the Company for the sale of securities for its own account or for the account of any other person. Further, the Company represents and warrants that this Agreement supersedes any
other registration rights agreement or agreement with similar terms and conditions and in the event of a conflict between any such agreement or agreements and this Agreement, the terms of this Agreement shall prevail.
|
5.7. |
Term. This
Agreement shall terminate upon the earlier of (i) the tenth anniversary of the date hereof or (ii) the date as of which (A) all of the Registrable Securities have been sold pursuant to a Registration Statement (but in no event prior to
the applicable period referred to in Section 4(a)(3) of the Securities Act and Rule 174 thereunder (or any successor rule promulgated thereafter by the Commission)) or (B) the Holders of all Registrable Securities are permitted to sell
the Registrable Securities without registration pursuant to Rule 144 (or any similar provision) under the Securities Act without limitation on the amount of securities sold or the manner of sale. The provisions of Section 3.5 and Article
IV shall survive any termination.
|
SPRINGBIG HOLDINGS, INC.,
|
||
a Delaware corporation
|
||
By:
|
/s/ Jeff Harris
|
|
Name: Jeff Harris
|
||
Title: Chief Executive Officer
|
TCAC SPONSOR, LLC,
|
||
a Delaware limited liability company
|
||
By:
|
/s/ Albert Foreman
|
|
Name: Albert Foreman
|
||
Title: Member
|
HOLDERS:
|
||
MICHAEL FINKERMAN
|
||
/s/ Michael Finkerman
|
||
KEY INVESTMENT PARTNERS FUND I LP
|
||
By:
|
/s/ Jordan Youkilis
|
|
Name: Jordan Youkilis
|
||
Title: Founding Partner
|
||
KP CAPITAL LLC
|
||
By:
|
/s/ Brian Burke
|
|
Name: Brian Burke
|
||
Title: CFO
|
||
JEFF HARRIS
|
||
/s/ Jeff Harris
|
||
MEDICI HOLDINGS V, INC.
|
||
By:
|
/s/ Jeff Harris
|
|
Name: Jeff Harris
|
||
Title: CEO
|
||
ABG, LLC
|
||
By:
|
/s/ Anthony Georgiadis
|
|
Name: Anthony Georgiadis
|
||
Title: Manager
|
ARGONAUTIC VENTURES MASTER SPC
|
||
By:
|
/s/ Viken Douzdjian
|
|
Name: Viken Douzdjian
|
||
Title: Partner
|
||
ARGONAUTIC VERTICAL SERIES SPRINGBIG FUND I SP
|
||
By:
|
/s/ Viken Douzdjian
|
|
Name: Viken Douzdjian
|
||
Title: Partner
|
||
PAUL SYKES
|
||
/s/ Paul Sykes
|
||
SALEX CAPITAL, LLC
|
||
By:
|
/s/ Scott Lewin
|
|
Name: Scott Lewin
|
||
Title: Managing Director
|
||
Manja Lyssy Revocable Trust
|
||
By:
|
/s/ Manja Lyssy Revocable Trust
|
|
Name: Manja Lyssy
|
||
Title: Trustee
|
||
HALLEY VENTURE FUND I LP
|
||
By:
|
/s/ Steven J Schuman
|
|
Name: Steven J Schuman
|
||
Title: Managing Director
|
HALLEY VENTURE FUND II LP
|
|||
By:
|
/s/ Steven J Schuman
|
||
Name: Steven J Schuman
|
|||
Title: Managing Director
|
|||
ALTITUDE INVESTMENT PARTNERS, LP
|
|||
By:
|
JRC Capital Partners, LLC, its General Partner
|
||
By:
|
/s/ Michael Goldberg
|
||
Name: Michael Goldberg
|
|||
Title: Managing Partner
|
|||
SOCTECH ISRAEL, LLC
|
|||
By:
|
/s/ Steven Soclof
|
||
Name: Steven Soclof
|
|||
Title: CEO
|
|||
GAMSON FAMILY REVOCABLE TRUST
|
|||
By:
|
/s/ Michael Gamson | ||
|
Name: Michael Gamson | ||
|
Title: Trustee | ||
GREEN ACRE CAPITAL FUND I LP
|
|||
By:
|
|||
|
Name:
|
||
|
Title:
|
||
TVC CAPITAL IV, L.P.
|
|||
By:
|
/s/ Andrew Albert | ||
|
Name: Andrew Albert | ||
|
Title:
|
Company:
|
||
SpringBig Holdings, Inc.
|
||
By:
|
/s/ Paul Sykes
|
Name:
|
Paul Sykes
|
|
Title:
|
Chief Financial Officer
|
|
Investors:
|
||
L1 Capital Global Opportunities Master Fund
|
||
By:
|
/s/ David Feldman
|
Name:
|
David Feldman
|
|
Title:
|
Portfolio Manager
|
1.
|
General.
|
2.
|
Shares Subject to the Plan.
|
3.
|
Eligibility and Limitations.
|
4.
|
Options and Stock Appreciation Rights.
|
5.
|
Awards Other Than Options and Stock Appreciation Rights.
|
6.
|
Adjustments upon Changes in Common Stock; Other Corporate Events.
|
7.
|
Administration.
|
8.
|
Tax Withholding
|
9.
|
Miscellaneous.
|
10.
|
Covenants of the Company.
|
11.
|
Additional Rules for Awards Subject to Section 409A.
|
12.
|
Severability.
|
13.
|
Termination of the Plan.
|
14.
|
Definitions.
|
1. |
General.
|
2. |
Shares Subject to the Plan.
|
3. |
Eligibility and Limitations.
|
5. |
Awards Other Than Options and Stock Appreciation Rights.
|
6. |
Adjustments upon Changes in Common Stock; Other Corporate Events.
|
7. |
Administration.
|
8. |
Tax Withholding
|
9. |
Miscellaneous.
|
10. |
Covenants of the Company.
|
SPRINGBIG, INC., a Delaware corporation
|
||
By:
|
/s/ Paul Sykes
|
|
Name:
|
Paul Sykes
|
|
Title:
|
Chief Financial Officer
|
|
EXECUTIVE
|
||
/s/ Jeff Harris
|
||
Name: Jeffrey Harris
|
Acknowledged by:
|
||
TUATARA CAPITAL ACQUISITION CORPORATION
|
||
By: /s/ Albert Foreman
|
||
Name: Albert Foreman
|
||
Title: Chief Executive Officer
|
i. |
“Company” shall mean SpringBig, Inc., a Delaware corporation, and any entity controlled by, controlling, or under common control with it, including affiliates and subsidiaries. “Control” for this purpose means the direct or indirect
possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise.
|
ii. |
“Competing Business” shall mean any person, firm, association, corporation or any other legal entity that is engaged in a business that is competitive with any aspect of the Business of the Company.
|
iii. |
“Business of the Company” shall mean the business of providing messaging, customer loyalty management and/or customer experiences in the cannabis industry, including, without limitation, the research, design, development, marketing,
sales, operations, maintenance and commercial exploitation pertaining to the operation of, and providing products and services for such business.
|
iv. |
“Confidential Information” shall mean all information or a compilation of information, in any form (tangible or intangible or otherwise), that is not generally known to competitors or the public, which Company considers to be
confidential and/or proprietary, including but not limited to: research and development; techniques; methodologies; strategies; product information, designs, prototypes and technical specifications; algorithms, source codes, object codes,
trade secrets or technical data; training materials methods; internal policies and procedures; marketing plans and strategies; pricing and cost policies; customer, supplier, vendor and partner lists and accounts; customer and supplier
preferences; contract terms and rates; financial data, information, reports, and forecasts; inventions, improvements and other intellectual property; product plans or proposed product plans; know-how; designs, processes or formulas; software
and website applications; computer passwords; market or sales information, plans or strategies; business plans, prospects and opportunities (including, but not limited to, possible acquisitions or dispositions of businesses or facilities);
information concerning existing or potential customers, partners or vendors. Confidential Information shall also mean information of or related to Company’s current or potential customers, vendors or partners that is considered to be
confidential or proprietary to the applicable customer, vendor or partner.
|
11. |
Return of Property. Employee agrees that, within ten (10) days
of the time of termination of Employee’s employment (for any reason), Employee will return immediately to the Company, in good condition, all property of the Company. This return of property includes, without limitation, a return of
physical property (such as computer, phone or other mobile devices, credit card, promotional materials, etc.) and intangible property (such as computer passwords).
|
12. |
Litigation and Regulatory Cooperation. During and after the
Employee’s relationship with the Company, Employee shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or that may be brought in the future against or on behalf of the Company
by/against third parties that relate to events or occurrences that transpired while the Employee was employed by the Company. Employee’s full cooperation in connection with such claims or actions shall include, but not be limited to, being
available to meet with counsel to prepare for discovery or trial and to act as a witness at mutually convenient times. During and after the Employee’s employment, Employee also shall cooperate fully with the Company in connection with any
investigation or review of any federal, state, or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Employee was employed by the Company, unless such claim is brought
by Employee. As consideration for the Employee’s services under this Section 12, the Company shall remit to Employee, as agreed between the parties in advance, (a) reasonable expenses related to such cooperation, and (b) an hourly
rate equal to Employee’s last base salary divided by 2,000.
|
13. |
Communication to Future Employers. Employee agrees to
communicate the contents of all post-relationship obligations in this Agreement to any Competing Business that Employee intends to be employed by, associated with, or represent. Employee understands and agrees that the Company may, in its
discretion, also share any post-employment obligation set out in this Agreement with any future employer or potential employer of Employee, or any entity which seeks to be associated with Employee for Employee’s services.
|
14. |
Miscellaneous. Any waiver by the Company of a breach of any
provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. If a court determines that one or more of the provisions contained in this Agreement shall be invalid or unenforceable, such court
shall construe, reform or otherwise revise such provision(s) so as to render it/them enforceable to the maximum extent allowed by law, without invalidating the remaining provisions of this Agreement. The obligations of each party hereto
under this Agreement shall survive the termination of the Employee’s relationship with the Company regardless of the manner of such termination to the extent expressly provided in, or logically would be expected under, this Agreement. All
covenants and agreements hereunder shall inure to the benefit of and be enforceable by the successors of the Company. This Agreement amends, supplants and supersedes any agreement previously executed between the parties regarding the
subject matter of this Agreement.
|
SpringBig Inc.
|
Employee
|
|
/s/ Paul Sykes
|
/s/ Jeff Harris
|
|
By: Paul Sykes
|
Name: Jeffrey Harris
|
|
Title: Chief Financial Officer
|
Right, Title or Interest
(If none, please write “NONE”.)
|
Date Acquired
|
Identifying Number or Brief Description of Inventions or Improvements
|
||
NONE
|
||||
Name of Employee:
|
|||
Jeffrey Harris
|
|||
Print
|
|||
/s/ Jeff Harris
|
|||
Sign
|
|||
11/8/21
|
|||
Date
|
|||
(a) |
During the period of your relationship with Company, you, Jeffrey Harris (hereinafter “you”) agree to not, anywhere within the Restricted Area (defined below), acting individually, or as an owner, shareholder, partner, employee,
contractor, agent or otherwise (other than on behalf of Company): provide services to a Competing Business (defined below). For a period of twelve (12) months following termination of your relationship with Company (for any reason), you agree
to not, anywhere within the Restricted Area, acting individually, or as an owner, shareholder, partner, employee, contractor, agent or otherwise (other than on behalf of Company): directly or indirectly, provide services to a Competing
Business that relate to any aspect of the Business of the Company (i.e., providing messaging and customer experiences in the cannabis industry) for which you performed services or received Confidential Information at any time. The foregoing
shall not be construed to preclude you from: (i) owning up to one percent (1%) of the outstanding stock of a publicly held corporation that constitutes or is affiliated with a Competing Business; (ii) becoming a passive shareholder, partner,
employee or member of a private equity, venture capital or other investment firm; or (iii) continuing the activities set forth on Schedule 1 of the Employment Agreement. The foregoing shall, however, be construed to specifically prevent you
from (x) acting individually, or as an owner, shareholder, partner, employee, contractor, agent or otherwise (other than on behalf of Company) anywhere within the Restricted Area, during the period of your relationship with the Company and
for a period of twelve (12) months following termination of your relationship with Company (for any reason other than referenced below in section (b)), and (y) providing services that relate to any aspect of the Business of the Company for
any private equity, venture capital or other investment firm that owns or controls a Competing Business; provided that you may work for a division, entity or subgroup of any companies that engage in a Competing Business (a “Separate
BU”) so long as such Separate BU does not engage in any Competing Business and you do not provide any service, investment advice or consulting related service to any Competing Business. To the extent that you act individually, or as an
owner, shareholder, partner, employee, contractor, agent or otherwise and provide services unrelated to the Business of the Company for any Separate BU or private equity, venture capital or other investment firm at any time during such twelve
(12) month period, you agree to institute an ethical screen that prevents your access to communications, information and participation in all services related to the Business of the Company.
|
i. |
“Company” shall mean any entity controlled by, controlling, or under common control with SpringBig, Inc., a Delaware corporation,
including affiliates and subsidiaries. Control means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise.
|
ii. |
“Restricted Area” shall mean the entire United States since the Business of the Company encompasses the entire United States, of which
you acknowledge and agree.
|
iii. |
“Competing Business” shall mean any person, firm, association, corporation or any other legal entity that is engaged in a business that
is competitive with any aspect of the Business of the Company.
|
iv. |
“Business of the Company” shall mean providing messaging, customer loyalty management and/or and customer experiences in the cannabis
industry, including, without limitation, the research, design, development, marketing, sales, operations, maintenance and commercial exploitation pertaining to the operation of, and providing products and services for such business.
|
v. |
“Confidential Information” shall mean all information or a compilation of information, in any form (tangible or intangible or
otherwise), that is not generally known to competitors or the public, which Company considers to be confidential and/or proprietary, including but not limited to: research and development; techniques; methodologies; strategies; product
information, designs, prototypes and technical specifications; algorithms, source codes, object codes, trade secrets or technical data; training materials methods; internal policies and procedures; marketing plans and strategies; pricing
and cost policies; customer, supplier, vendor and partner lists and accounts; customer and supplier preferences; contract terms and rates; financial data, information, reports, and forecasts; inventions, improvements and other intellectual
property; product plans or proposed product plans; know-how; designs, processes or formulas; software and website applications; computer passwords; market or sales information, plans or strategies; business plans, prospects and
opportunities (including, but not limited to, possible acquisitions or dispositions of businesses or facilities); information concerning existing or potential customers, partners or vendors. Confidential Information shall also mean
information of or related to Company’s current or potential customers, vendors or partners that is considered to be confidential or proprietary to the applicable customer, vendor or partner.
|
(b)
|
You agree to communicate the contents of all post-relationship obligations in this Noncompetition Covenant to any Competing Business that you intend to be employed by, associated with, or represent. You
understand and agree that the Company may, in its discretion, also share any post-relationship obligation in this Noncompetition Covenant with any future (or potential) employer or association that is a Competing Business that seeks to be
associated with you or employ you for your services.
|
(c)
|
You agree that the enforcement of the Noncompetition Covenant is necessary, among other things, to ensure the preservation, protection and continuity of the Company’s Confidential Information, trade secrets and
goodwill of the Company. You agree that, due to the proprietary nature of the Business of the Company and relationships with others, the post-employment restrictions set forth above are reasonable as to duration and scope.
|
(d)
|
You agree that any action that violates this Noncompetition Covenant would cause the Company irreparable harm for which monetary damages are inadequate. Accordingly, in the event of a breach, or threatened
breach, of this Noncompetition Covenant, the Company shall be entitled to an injunction restraining such breach or threatened breach, or requiring specific performance, in addition to any and all rights and remedies at law and equity. The
Company shall not be obligated to present additional evidence of irreparable harm or the insufficiency of monetary damages and, to the extent permitted by law or under applicable court rule, does not need to post a bond or other surety.
Nothing herein shall be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or threatened breach.
|
(e)
|
You and the Company hereby mutually agree to the exclusive jurisdiction of the 15th Judicial Circuit Court of the State of Florida or the United States District Court for the Southern District of Florida for
any dispute arising hereunder. Accordingly, with respect to any such court action, you (a) submit to the personal jurisdiction of such courts; (b) consent to service of process by regular mail to your last known address; and (c) waive any
other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process. If either party hereto commences a legal action or other proceeding against the other party hereto
concerning a dispute arising from or relating to this Noncompetition Covenant outside of Florida, such commencing party shall reimburse such other party for its or his reasonable attorneys’ fees, costs and expenses if such other party
prevails in staying, transferring, dismissing or otherwise defending such action or proceeding based on the location of the action or proceeding, regardless of whether such fees, costs and expenses are incurred in the forum where such
commencing party commenced the action or in a Florida forum. This Noncompetition Covenant shall be governed by the internal substantive laws of Florida, without regard to the doctrine of conflicts of law.
|
(f)
|
The failure of you or Company to insist upon strict performance of this Noncompetition Covenant irrespective of the length of time for which such failure continues, shall not be a waiver of such party’s rights
herein. No term or provision of this Noncompetition Covenant may be waived unless such waiver is in writing.
|
(g)
|
If a court determines that one or more of the provisions contained in this Noncompetition Covenant shall be invalid or unenforceable, such court shall construe, reform or otherwise revise such provision(s) so
as to render it/them enforceable to the maximum extent allowed by law, without invalidating the remaining provisions of this Noncompetition Covenant.
|
(h)
|
Your obligations under this Noncompetition Covenant shall survive the termination of your relationship with the Company regardless of the manner of such termination.
|
(i)
(j)
|
The rights granted to the Company under the Noncompetition Covenant shall inure to the benefit of, and be enforceable by, the successors or assigns of Company.
The parties agree that you are employed “at will” and nothing in this Noncompetition Covenant is intended to guarantee employment for any period of time. Even though the nature of your relationship with the
Company is as an “at will” employee, the parties enter this Noncompetition Covenant with the understanding that your position, title, duties and responsibilities could change in a material way in the future and, in light of that
understanding, the parties intend that this Noncompetition Covenant shall follow you throughout the entire course of your employment with the Company, and such subsequent material change shall not affect the enforceability or validity of this
Noncompetition Covenant.
|
SpringBig, Inc.
|
Employee
|
|
/s/ Paul Sykes
|
/s/ Jeff Harris
|
|
By: Paul Sykes
|
Name: Jeffrey Harris
|
|
Title: Chief Financial Officer
|
Date:
|
||||
Name:
|
Jeffrey Harris
|
|||
Date:
|
||||
By:
|
||||
Its:
|
SPRINGBIG, INC., a Delaware corporation
|
||
By:
|
/s/ Jeff Harris
|
|
Name:
|
Jeff Harris
|
|
Title:
|
CEO
|
|
EXECUTIVE
|
||
/s/ Paul Sykes
|
||
Name: Paul Sykes
|
Acknowledged by:
|
||
TUATARA CAPITAL ACQUISITION CORPORATION
|
||
By: /s/ Albert Foreman
|
||
Name: Albert Foreman
|
||
Title: Chief Executive Officer
|
i.
|
“Company” shall mean SpringBig, Inc., a Delaware corporation, and any entity controlled by, controlling, or under common control with it, including affiliates and subsidiaries. “Control” for
this purpose means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract or otherwise.
|
ii.
|
“Competing Business” shall mean any person, firm, association, corporation or any other legal entity that is engaged in a business that is competitive with any aspect of the Business of the
Company.
|
iii.
iv.
|
“Business of the Company” shall mean the business of providing messaging, customer loyalty management and/or customer experiences in the cannabis industry, including, without limitation, the
research, design, development, marketing, sales, operations, maintenance and commercial exploitation pertaining to the operation of, and providing products and services for such business.
“Confidential Information” shall mean all information or a compilation of information, in any form (tangible or intangible or otherwise), that is not generally known to competitors or the
public, which Company considers to be confidential and/or proprietary, including but not limited to: research and development; techniques; methodologies; strategies; product information, designs, prototypes and technical specifications;
algorithms, source codes, object codes, trade secrets or technical data; training materials methods; internal policies and procedures; marketing plans and strategies; pricing and cost policies; customer, supplier, vendor and partner lists and
accounts; customer and supplier preferences; contract terms and rates; financial data, information, reports, and forecasts; inventions, improvements and other intellectual property; product plans or proposed product plans; know-how; designs,
processes or formulas; software and website applications; computer passwords; market or sales information, plans or strategies; business plans, prospects and opportunities (including, but not limited to, possible acquisitions or dispositions
of businesses or facilities); information concerning existing or potential customers, partners or vendors. Confidential Information shall also mean information of or related to Company’s current or potential customers, vendors or partners
that is considered to be confidential or proprietary to the applicable customer, vendor or partner.
Confidential Information does not include: information in the public domain (other than as a result of disclosure directly or indirectly by Employee); information approved in writing for unrestricted release by
Company; information that Employee discovered outside of the course and scope of his employment with Company; or information produced or disclosed pursuant to a valid court order, provided Employee has given Company written notice of such
request such that Company has an actual, reasonable opportunity to defend, limit or protect such production or disclosure.
|
11.
|
Return of Property. Employee agrees that, within
ten (10) days of the time of termination of Employee’s employment (for any reason), Employee will return immediately to the Company, in good condition, all property of the Company. This return of property includes, without limitation, a
return of physical property (such as computer, phone or other mobile devices, credit card, promotional materials, etc.) and intangible property (such as computer passwords).
|
12.
|
Litigation and Regulatory Cooperation. During
and after the Employee’s relationship with the Company, Employee shall cooperate fully with the Company in the defense or prosecution of any claims or actions now in existence or that may be brought in the future against or on behalf
of the Company by/against third parties that relate to events or occurrences that transpired while the Employee was employed by the Company. Employee’s full cooperation in connection with such claims or actions shall include, but not
be limited to, being available to meet with counsel to prepare for discovery or trial and to act as a witness at mutually convenient times. During and after the Employee’s employment, Employee also shall cooperate fully with the
Company in connection with any investigation or review of any federal, state, or local regulatory authority as any such investigation or review relates to events or occurrences that transpired while the Employee was employed by the
Company, unless such claim is brought by Employee. As consideration for the Employee’s services under this Section 12, the Company shall remit to Employee, as agreed between the parties in advance, (a) reasonable expenses related to
such cooperation, and (b) an hourly rate equal to Employee’s last base salary divided by 2,000.
|
13.
|
Communication to Future Employers. Employee
agrees to communicate the contents of all post-relationship obligations in this Agreement to any Competing Business that Employee intends to be employed by, associated with, or represent. Employee understands and agrees that the
Company may, in its discretion, also share any post-employment obligation set out in this Agreement with any future employer or potential employer of Employee, or any entity which seeks to be associated with Employee for Employee’s
services.
|
14.
|
Miscellaneous. Any waiver by the Company of a
breach of any provision of this Agreement shall not operate or be construed as a waiver of any subsequent breach hereof. If a court determines that one or more of the provisions contained in this Agreement shall be invalid or
unenforceable, such court shall construe, reform or otherwise revise such provision(s) so as to render it/them enforceable to the maximum extent allowed by law, without invalidating the remaining provisions of this Agreement. The
obligations of each party hereto under this Agreement shall survive the termination of the Employee’s relationship with the Company regardless of the manner of such termination to the extent expressly provided in, or logically would
be expected under, this Agreement. All covenants and agreements hereunder shall inure to the benefit of and be enforceable by the successors of the Company. This Agreement amends, supplants and supersedes any agreement previously
executed between the parties regarding the subject matter of this Agreement, other than the obligations of Executive in favor of the Company with respect to any restrictive covenants, which shall continue in effect in addition to the
terms hereof.
|
|
Employee recognizes and agrees that the enforcement of this Agreement is necessary, among other things, to ensure the preservation, protection and continuity of Confidential Information, trade secrets and
goodwill of the Company. Employee agrees that, due to the proprietary nature of the Business of the Company and relationships with others, the post-employment restrictions set forth above are reasonable as to duration and scope.
Employee is advised to consult with an attorney before entering into this Agreement.
|
SpringBig Inc.
|
Employee
|
|
/s/ Jeff Harris
|
/s/ Paul Sykes
|
|
By: Jeff Harris
|
Name: Paul Sykes
|
|
Title: CEO
|
Right, Title or Interest
(If none, please write “NONE”.)
|
Date Acquired
|
Identifying Number or Brief Description of Inventions or Improvements
|
||
NONE
|
||||
Name of Employee:
|
|||
Paul Sykes
|
|||
Print
|
|||
/s/ Paul Sykes
|
|||
Sign
|
|||
11/8/21
|
|||
Date
|
|||
(a)
|
During the period of your relationship with Company, you, Paul Sykes (hereinafter “you”), agree to not, anywhere within the Restricted Area (defined below), acting individually, or as an owner, shareholder,
partner, employee, contractor, agent or otherwise (other than on behalf of Company): provide services to a Competing Business (defined below). For a period of twelve (12) months following termination of your relationship with Company (for any
reason), you agree to not, anywhere within the Restricted Area, acting individually, or as an owner, shareholder, partner, employee, contractor, agent or otherwise (other than on behalf of Company): directly or indirectly, provide services
to a Competing Business that relate to any aspect of the Business of the Company (i.e., providing messaging and customer experiences in the cannabis industry) for which you performed services or received Confidential Information at any time.
The foregoing shall not be construed to preclude you from: (i) owning up to one percent (1%) of the outstanding stock of a publicly held corporation that constitutes or is affiliated with a Competing Business; or (ii) becoming a passive
shareholder, partner, employee or member of a private equity, venture capital or other investment firm. The foregoing shall, however, be construed to specifically prevent you from (x) acting individually, or as an owner, shareholder, partner,
employee, contractor, agent or otherwise (other than on behalf of Company) anywhere within the Restricted Area, during the period of your relationship with the Company and for a period of twelve (12) months following termination of your
relationship with Company (for any reason other than referenced below in section (b)), and (y) providing services that relate to any aspect of the Business of the Company for any private equity, venture capital or other investment firm that
owns or controls a Competing Business; provided that you may work for a division, entity or subgroup of any companies that engage in a Competing Business (a “Separate BU”) so long as such Separate BU does not engage in any Competing Business
and you do not provide any service, investment advice or consulting related service to any Competing Business. To the extent that you act individually, or as an owner, shareholder, partner, employee, contractor, agent or otherwise and provide
services unrelated to the Business of the Company for any Separate BU or private equity, venture capital or other investment firm at any time during such twelve (12) month period, you agree to institute an ethical screen that prevents your
access to communications, information and participation in all services related to the Business of the Company.
|
i.
|
“Company” shall mean any entity controlled by, controlling, or under common control with SpringBig, Inc., a
Delaware corporation, including affiliates and subsidiaries. Control means the direct or indirect possession of the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract
or otherwise.
|
ii.
|
“Restricted Area” shall mean the entire United States since the Business of the Company encompasses the entire
United States, of which you acknowledge and agree.
|
iii.
|
“Competing Business” shall mean any person, firm, association, corporation or any other legal entity that is
engaged in a business that is competitive with any aspect of the Business of the Company.
|
iv.
|
“Business of the Company” shall mean providing messaging, customer loyalty management and/or and customer
experiences in the cannabis industry, including, without limitation, the research, design, development, marketing, sales, operations, maintenance and commercial exploitation pertaining to the operation of, and providing products and
services for such business.
|
v.
|
“Confidential Information” shall mean all information or a compilation of information, in any form (tangible or
intangible or otherwise), that is not generally known to competitors or the public, which Company considers to be confidential and/or proprietary, including but not limited to: research and development; techniques; methodologies;
strategies; product information, designs, prototypes and technical specifications; algorithms, source codes, object codes, trade secrets or technical data; training materials methods; internal policies and procedures; marketing plans and
strategies; pricing and cost policies; customer, supplier, vendor and partner lists and accounts; customer and supplier preferences; contract terms and rates; financial data, information, reports, and forecasts; inventions, improvements and
other intellectual property; product plans or proposed product plans; know-how; designs, processes or formulas; software and website applications; computer passwords; market or sales information, plans or strategies; business plans,
prospects and opportunities (including, but not limited to, possible acquisitions or dispositions of businesses or facilities); information concerning existing or potential customers, partners or vendors. Confidential Information shall also
mean information of or related to Company’s current or potential customers, vendors or partners that is considered to be confidential or proprietary to the applicable customer, vendor or partner.
|
(b)
|
You agree to communicate the contents of all post-relationship obligations in this Noncompetition Covenant to any Competing Business that you intend to be employed by, associated with, or represent. You
understand and agree that the Company may, in its discretion, also share any post-relationship obligation in this Noncompetition Covenant with any future (or potential) employer or association that is a Competing Business that seeks to be
associated with you or employ you for your services.
|
(c)
|
You agree that the enforcement of the Noncompetition Covenant is necessary, among other things, to ensure the preservation, protection and continuity of the Company’s Confidential Information, trade secrets and
goodwill of the Company. You agree that, due to the proprietary nature of the Business of the Company and relationships with others, the post-employment restrictions set forth above are reasonable as to duration and scope.
|
(d)
|
You agree that any action that violates this Noncompetition Covenant would cause the Company irreparable harm for which monetary damages are inadequate. Accordingly, in the event of a breach, or threatened
breach, of this Noncompetition Covenant, the Company shall be entitled to an injunction restraining such breach or threatened breach, or requiring specific performance, in addition to any and all rights and remedies at law and equity. The
Company shall not be obligated to present additional evidence of irreparable harm or the insufficiency of monetary damages and, to the extent permitted by law or under applicable court rule, does not need to post a bond or other surety.
Nothing herein shall be construed as prohibiting the Company from pursuing any other remedy available to the Company for such breach or threatened breach.
|
(e)
|
You and the Company hereby mutually agree to the exclusive jurisdiction of the 15th Judicial Circuit Court of the State of Florida or the United States District Court for the Southern District of Florida for
any dispute arising hereunder. Accordingly, with respect to any such court action, you (a) submit to the personal jurisdiction of such courts; (b) consent to service of process by regular mail to your last known address; and (c) waive any
other requirement (whether imposed by statute, rule of court, or otherwise) with respect to personal jurisdiction or service of process. If either party hereto commences a legal action or other proceeding against the other party hereto
concerning a dispute arising from or relating to this Noncompetition Covenant outside of Florida, such commencing party shall reimburse such other party for its or his reasonable attorneys’ fees, costs and expenses if such other party
prevails in staying, transferring, dismissing or otherwise defending such action or proceeding based on the location of the action or proceeding, regardless of whether such fees, costs and expenses are incurred in the forum where such
commencing party commenced the action or in a Florida forum. This Noncompetition Covenant shall be governed by the internal substantive laws of Florida, without regard to the doctrine of conflicts of law.
|
(f)
|
The failure of you or Company to insist upon strict performance of this Noncompetition Covenant irrespective of the length of time for which such failure continues, shall not be a waiver of such party’s rights
herein. No term or provision of this Noncompetition Covenant may be waived unless such waiver is in writing.
|
(g)
|
If a court determines that one or more of the provisions contained in this Noncompetition Covenant shall be invalid or unenforceable, such court shall construe, reform or otherwise revise such provision(s) so
as to render it/them enforceable to the maximum extent allowed by law, without invalidating the remaining provisions of this Noncompetition Covenant.
|
(h)
|
Your obligations under this Noncompetition Covenant shall survive the termination of your relationship with the Company regardless of the manner of such termination.
|
(i)
(j)
|
The rights granted to the Company under the Noncompetition Covenant shall inure to the benefit of, and be enforceable by, the successors or assigns of Company.
The parties agree that you are employed “at will” and nothing in this Noncompetition Covenant is intended to guarantee employment for any period of time. Even though the nature of your relationship with the
Company is as an “at will” employee, the parties enter this Noncompetition Covenant with the understanding that your position, title, duties and responsibilities could change in a material way in the future and, in light of that
understanding, the parties intend that this Noncompetition Covenant shall follow you throughout the entire course of your employment with the Company, and such subsequent material change shall not affect the enforceability or validity of this
Noncompetition Covenant.
|
SpringBig, Inc.
|
Employee
|
|
/s/ Jeff Harris
|
/s/ Paul Sykes
|
|
By: Jeff Harris
|
Name: Paul Sykes
|
|
Title: CEO
|
Date:
|
||||
Name:
|
Paul Sykes
|
Date:
|
||||
By:
|
||||
Its:
|
Page
|
||
Financial Statements
|
||
Consolidated Balance Sheets as of March 31, 2022 and December 31, 2021
|
1
|
|
Consolidated Statements of Operations for the three months ended March 31, 2022 and 2021
|
2
|
|
Consolidated Statements of Stockholders’ Equity for the three months ended March 31, 2022 and 2021
|
3
|
|
Consolidated Statements of Cash Flows for the three months ended March 31, 2022 and 2021
|
4
|
|
Notes to Consolidated Financial Statements
|
5
|
March 31, 2022
|
December 31, 2021
|
* |
||||||
(Unaudited)
|
||||||||
(In thousands except share data)
|
||||||||
ASSETS
|
||||||||
Assets
|
||||||||
Current assets:
|
||||||||
Cash and cash equivalents
|
$
|
6,761
|
$
|
2,227
|
||||
Accounts receivable, net
|
2,645
|
3,045
|
||||||
Contract assets
|
303
|
364
|
||||||
Prepaid expenses and other current assets
|
1,297
|
843
|
||||||
Total current assets
|
11,006
|
6,479
|
||||||
Property and equipment, net
|
495
|
480
|
||||||
Deposits
|
84
|
84
|
||||||
Total assets
|
$
|
11,585
|
$
|
7,043
|
||||
LIABILITIES AND STOCKHOLDERS’ EQUITY
|
||||||||
Liabilities
|
||||||||
Current liabilities:
|
||||||||
Accounts payable
|
$
|
580
|
$
|
412
|
||||
Related party payable
|
33
|
5
|
||||||
Accrued wages and commissions
|
691
|
805
|
||||||
Accrued expenses
|
888
|
855
|
||||||
Other liabilities
|
39
|
57
|
||||||
Interest payable - 15% convertible promissory note
|
89
|
—
|
||||||
Notes payable - 15% convertible promissory note
|
7,000
|
—
|
||||||
Contract liabilities
|
485
|
450
|
||||||
Total liabilities
|
$
|
9,805
|
$
|
2,584
|
||||
Commitments and Contingencies
|
||||||||
Stockholders’ Equity
|
||||||||
Series B Preferred (par value $0.001 per shares, 4,584,202 authorized, issued and outstanding at March 31, 2022 and December 31, 2021)
|
$
|
5
|
$
|
5
|
||||
Series A Preferred (par value $0.001 per shares, 5,088,944 authorized issued and outstanding at March 31, 2022 and December 31, 2021)
|
5
|
5
|
||||||
Series Seed Preferred (par value $0.001 per shares, 6,911,715 authorized issued and outstanding at March 31, 2022 and December 31, 2021)
|
7
|
7
|
||||||
Common stock (par value $0.001 per shares, 38,395,870 authorized at March 31, 2022 and 2021; 13,576,115 and 13,540,824 issued and outstanding as of March 31, 2022 and December 31, 2021)
|
14
|
14
|
||||||
Additional paid-in-capital
|
17,840
|
17,653
|
||||||
Accumulated deficit
|
(16,091
|
)
|
(13,225
|
)
|
||||
Total stockholders’ equity
|
1,780
|
4,459
|
||||||
Total liabilities and stockholders’ equity
|
$
|
11,585
|
$
|
7,043
|
2022
|
2021
|
|||||||
(In thousands, except share and per share data)
|
||||||||
Revenues
|
$
|
6,364
|
$
|
5,209
|
||||
Cost of revenues
|
1,843
|
1,594
|
||||||
Gross profit
|
4,521
|
3,615
|
||||||
Operating expenses
|
||||||||
Selling, servicing and marketing
|
2,943
|
2,071
|
||||||
Technology and software development
|
2,637
|
1,551
|
||||||
General and administrative
|
1,718
|
1,112
|
||||||
7,298
|
4,734
|
|||||||
Loss from operations
|
(2,777
|
)
|
(1,119
|
)
|
||||
Interest income
|
—
|
1
|
||||||
Interest expense
|
(89
|
)
|
—
|
|||||
Loss before provision for income taxes
|
(2,866
|
)
|
(1,118
|
)
|
||||
Provision for income taxes
|
—
|
—
|
||||||
Net loss
|
$
|
(2,866
|
)
|
$
|
(1,118
|
)
|
||
Net loss per common share:
|
||||||||
Basic and diluted
|
$
|
(0.21
|
)
|
$
|
(0.08
|
)
|
||
Weighted-average common shares outstanding - basic and diluted
|
13,571,872
|
13,319,512
|
Series B Preferred
|
Series A Preferred
|
Series Seed
Preferred
|
Common Stock
|
Additional Paid-in- Capital
|
Accumulated Deficit
|
Total
|
||||||||||||||||||||||||||||||||||||||
Shares
|
Amount
|
Shares
|
Amount
|
Shares
|
Amount
|
Shares
|
Amount
|
|||||||||||||||||||||||||||||||||||||
(In thousands )
|
||||||||||||||||||||||||||||||||||||||||||||
Balance - January 1, 2021
|
4,584
|
$
|
5
|
5,089
|
$
|
5
|
6,912
|
$
|
7
|
13,200
|
$
|
14
|
$
|
16,970
|
$
|
(7,475
|
)
|
$
|
9,526
|
|||||||||||||||||||||||||
Stock-based compensation
|
—
|
—
|
—
|
—
|
—
|
—
|
114
|
—
|
119
|
—
|
119
|
|||||||||||||||||||||||||||||||||
Issuance of common stock
|
—
|
—
|
—
|
—
|
—
|
—
|
67
|
—
|
50
|
—
|
50
|
|||||||||||||||||||||||||||||||||
Net loss
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(1,118
|
)
|
(1,118
|
)
|
|||||||||||||||||||||||||||||||
Balance - March 31, 2021
|
4,584
|
$
|
5
|
5,089
|
$
|
5
|
6,912
|
$
|
7
|
13,381
|
$
|
14
|
$
|
17,139
|
$
|
(8,593
|
)
|
$
|
8,577
|
|||||||||||||||||||||||||
Balance - January 1, 2022
|
4,584
|
5
|
5,089
|
$
|
5
|
6,912
|
$
|
7
|
13,541
|
$
|
14
|
$
|
17,653
|
$
|
(13,225
|
)
|
$
|
4,459
|
||||||||||||||||||||||||||
Stock-based compensation
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
181
|
—
|
181
|
|||||||||||||||||||||||||||||||||
Exercise of stock options
|
—
|
—
|
—
|
—
|
—
|
—
|
35
|
—
|
6
|
—
|
6
|
|||||||||||||||||||||||||||||||||
Net loss
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
—
|
(2,866
|
)
|
(2,866
|
)
|
|||||||||||||||||||||||||||||||
Balance - March 31, 2022
|
4,584
|
$
|
5
|
5,089
|
$
|
5
|
6,912
|
$
|
7
|
13,576
|
$
|
14
|
$
|
17,840
|
$
|
(16,091
|
)
|
$
|
1,780
|
|||||||||||||||||||||||||
For The Three Months
Ended March 31,
|
||||||||
2022
|
2021
|
|||||||
( In thousands)
|
||||||||
Cash flows from operating activities:
|
||||||||
Net loss
|
$
|
(2,866
|
)
|
$
|
(1,118
|
)
|
||
Adjustments to reconcile net loss to net cash used in operating activities:
|
||||||||
Depreciation and amortization
|
59
|
6
|
||||||
Stock-based compensation expense
|
181
|
119
|
||||||
Changes in operating assets and liabilities:
|
||||||||
Accounts receivable
|
400
|
(110
|
)
|
|||||
Related party receivable
|
—
|
77
|
||||||
Prepaid expenses and other current assets
|
(453
|
)
|
(84
|
)
|
||||
Contract assets
|
61
|
(8
|
)
|
|||||
Accounts payable and other liabilities
|
67
|
(27
|
)
|
|||||
Related party payable
|
28
|
(56
|
)
|
|||||
Interest payable - 15% convertible promissory note
|
89
|
—
|
||||||
Contract liabilities
|
35
|
50
|
||||||
Net cash used in operating activities
|
(2,399
|
)
|
(1,151
|
)
|
||||
Cash flows from investing activities:
|
||||||||
Business combination, net of cash acquired
|
—
|
(122
|
)
|
|||||
Purchases of property and equipment
|
(73
|
)
|
(42
|
)
|
||||
Net cash used in investing activities
|
(73
|
)
|
(164
|
)
|
||||
Cash flows from financing activities:
|
||||||||
Notes payable - 15% convertible promissory note
|
7,000
|
—
|
||||||
Proceeds from exercise of stock options, net
|
6
|
—
|
||||||
Net cash provided by financing activities
|
7,006
|
—
|
||||||
Net increase (decrease) in cash and cash equivalents
|
4,534
|
(1,315
|
)
|
|||||
Cash and cash equivalents at beginning of the period
|
2,227
|
10,447
|
||||||
Cash and cash equivalents at end of the period
|
$
|
6,761
|
$
|
9,132
|
||||
Supplemental disclosure of non-cash financing activities
|
||||||||
Issue of common stock for business combination
|
$
|
—
|
$
|
50
|
||||
Indemnity holdback for business combination
|
$
|
—
|
$
|
23
|
March 31,
|
December 31
|
|||||||
2022
|
2021
|
|||||||
Accounts receivable
|
$
|
2,093
|
$
|
2,533
|
||||
Unbilled receivables
|
849
|
809
|
||||||
2,942
|
3,342
|
|||||||
Less allowance for doubtful accounts
|
(297
|
)
|
(297
|
)
|
||||
Accounts receivable, net
|
$
|
2,645
|
$
|
3,045
|
March 31,
|
December 31
|
|||||||
2022
|
2021
|
|||||||
Computer equipment
|
$
|
268
|
$
|
225
|
||||
Data warehouse
|
286
|
256
|
||||||
Software
|
196
|
196
|
||||||
750
|
677
|
|||||||
Less accumulated depreciation and amortization
|
(255
|
)
|
(197
|
)
|
||||
Property and Equipment
|
$
|
495
|
$
|
480
|
a. |
If the closing of the merger contemplated by the Agreement and Plan of Merger, dated as of November 8, 2021 as amended through by and among the Company, TCAC and the other parties thereto, occurs on or prior to the Maturity Date, then (i)
the outstanding principal balance of the Convertible Notes shall become due and payable (and will be satisfied by the issuance to Holder of all shares of common stock at a rate of $10.00 per share; and (ii) all accrued and unpaid interest
under the Convertible Notes shall become due and payable and shall be satisfied by dividing the outstanding unpaid accrued interest of the Convertible Notes, by $10.00.
|
b. |
If the SPAC Merger has not occurred on or prior to the Maturity Date, then, subject to Section 3(c), the outstanding principal balance and any unpaid accrued interest of the Convertible Notes shall automatically convert, without any
further action by the Holder, into a number of fully paid and non-assessable shares of Series B Preferred Stock of the Company at $2.508067 per share, with such shares of Series B Preferred Stock to be issued pursuant to the Company’s Amended
and Restated Certificate of Incorporation and otherwise on the same terms and conditions as given to the investors in that certain Series B Stock Purchase Agreement dated as of August 7, 2020, as amended (the “Series B Purchase Agreement”).
|
c. |
If the Company issues any additional equity securities on or prior to the Maturity Date and conversion of the Convertible Notes (“Other Securities”), then Holder shall have the option, in lieu of conversion pursuant to Section 3(b), to
convert the outstanding principal balance and any unpaid accrued interest of the Convertible Notes into a number of fully paid and non-assessable shares of such Other Securities of the Company, equal to the per share price of such Other
Securities.
|
March 31
|
||||||||
2022
|
2021
|
|||||||
Revenue
|
||||||||
Brand revenue
|
$
|
189
|
$
|
132
|
||||
Retail revenue
|
6,175
|
5,077
|
||||||
Total Revenue
|
$
|
6,364
|
$
|
5,209
|
March 31
|
||||||||
2022
|
2021
|
|||||||
Retail revenue
|
||||||||
United States
|
$
|
5,956
|
$
|
5,077
|
||||
Canada
|
219
|
—
|
||||||
Brand revenue
|
||||||||
United States
|
189
|
132
|
||||||
$
|
6,364
|
$
|
5,209
|
March 31
2022
|
December 31
2021
|
|||||||
Contract assets consisted of the following as of:
|
||||||||
Deferred sales commissions
|
$
|
303
|
$
|
364
|
March 31
2022
|
December 31
2021
|
|||||||
Contract liabilities consisted of the following as of:
|
||||||||
Deferred revenue retail
|
$
|
231
|
$
|
231
|
||||
Deferred set-up revenues
|
110
|
101
|
||||||
Deferred revenue brands
|
143
|
118
|
||||||
Contract liabilities
|
$
|
484
|
$
|
450
|
March 31
2022
|
December 31
2021
|
|||||||
The movement in the contract liabilities during each period comprised the following:
|
||||||||
Contract liabilities at start of the period
|
$
|
450
|
$
|
560
|
||||
Amounts invoiced during the period
|
6,114
|
13,512
|
||||||
Less revenue recognized during the period
|
(6,080
|
)
|
(13,622
|
)
|
||||
Contract liabilities at end of the period
|
$
|
484
|
$
|
450
|
March 31, 2021
|
||||
Fair value of shares
|
$
|
135
|
||
Less: Post combination cost - restricted stocks
|
(85
|
)
|
||
Fair value of net shares
|
50
|
|||
Cash consideration
|
132
|
|||
Indemnity holdback
|
23
|
|||
Fair value of purchase consideration
|
$
|
205
|
||
Assets
|
$
|
9
|
||
Goodwill
|
—
|
|||
Intangibles (Software)
|
196
|
|||
Fair value of assets
|
$
|
205
|
Options Outstanding
|
Options Vested and Exercisable
|
|||||||||||||||||||
Fixed Options
|
Number of Options
|
Weighted
Average
Exercise Price
(Per Share)
|
Number of Options
|
Weighted
Average
Remaining
Contractual
Life (Years)
|
Weighted
Average
Exercise
Price (Per
Share)
|
|||||||||||||||
Outstanding Balance, January 1, 2022
|
6,802,437
|
$
|
0.38
|
4,628,311
|
6.79
|
$
|
0.24
|
|||||||||||||
Options granted
|
—
|
$
|
—
|
|||||||||||||||||
Options exercised
|
(34,791
|
)
|
$
|
0.19
|
||||||||||||||||
Options forfeited
|
(18,334
|
)
|
$
|
0.75
|
||||||||||||||||
Options cancelled
|
—
|
$
|
—
|
|||||||||||||||||
Outstanding Balance, March 31, 2022
|
6,749,312
|
$
|
0.38
|
4,814,604
|
6.64
|
$
|
0.25
|
March 31
|
||||||||
2022
|
2021
|
|||||||
Loss per share:
|
||||||||
Numerator:
|
||||||||
Net loss
|
$
|
(2,866
|
)
|
$
|
(1,118
|
)
|
||
Denominator
|
||||||||
Weighted-average common shares outstanding - basic and diluted
|
13,571,872
|
13,319,512
|
||||||
Basic and diluted loss per common share
|
$
|
(0.21
|
)
|
$
|
(0.08
|
)
|
March 31
|
||||||||
2022
|
2021
|
|||||||
Shares subject to Series A Preferred Stock Conversion
|
5,088,944
|
5,088,944
|
||||||
Shares subject to Series B Preferred Stock Conversion
|
4,584,202
|
4,584,202
|
||||||
Shares subject to Seed Preferred Stock Conversion
|
6,911,715
|
6,911,715
|
||||||
Shares subject to 15% Convertible Promissory Notes Conversion
|
708,918
|
—
|
||||||
Shares vested and subject to exercise of stock options
|
4,814,604
|
4,020,032
|
||||||
Shares unvested and subject to exercise of stock options
|
1,934,708
|
2,099,238
|
March 31
2022
|
December 31
2021
|
|||||||
Deferred tax assets:
|
||||||||
Accrued expenses and other liabilities
|
$
|
76
|
$
|
76
|
||||
Property and equipment, net
|
—
|
|||||||
Net operating loss
|
4,115
|
3,402
|
||||||
Stock based compensation
|
147
|
132
|
||||||
Total gross deferred tax assets
|
4,338
|
3,610
|
||||||
Less: valuation allowance
|
(4,050
|
)
|
(3,385
|
)
|
||||
Total deferred tax assets
|
288
|
225
|
||||||
Deferred tax liabilities:
|
||||||||
Prepaid expenses and other assets
|
(214
|
)
|
(191.00
|
)
|
||||
Property and equipment, net
|
(74
|
)
|
(34.00
|
)
|
||||
Total deferred tax liabilities
|
(288
|
)
|
(225
|
)
|
||||
Net deferred income tax asset (liability)
|
$
|
—
|
$
|
—
|
Quarter ended March 31,
|
||||||||
2021
|
2022
|
|||||||
(dollars in thousands)
|
||||||||
Revenue
|
5,209
|
6,364
|
||||||
Net Loss
|
(1,118
|
)
|
(2,866
|
)
|
||||
EBITDA
|
(1,113
|
)
|
(2,718
|
)
|
||||
|
||||||||
Number of retail clients
|
890
|
1,475
|
||||||
Net revenue retention
|
112
|
%
|
107
|
%
|
||||
Number of messages (million)
|
394
|
436
|
• |
although depreciation is a non-cash charge, the assets being depreciated may have to be replaced in the future, and EBITDA does not reflect cash capital expenditure requirements for such
replacements or for new capital expenditure requirements;
|
• |
EBITDA does not reflect changes in, or cash requirements for, our working capital needs; and
|
• |
EBITDA does not reflect tax payments that may represent a reduction in cash available.
|
Quarter ended March 31,
|
||||||||
2021
|
2022
|
|||||||
(dollars in thousands)
|
||||||||
Net Loss
|
(1,118
|
)
|
(2,866
|
)
|
||||
Interest income
|
(1
|
)
|
—
|
|||||
Interest expense
|
—
|
89
|
||||||
Depreciation
expense
|
6
|
59
|
||||||
EBITDA
|
(1,113
|
)
|
(2,718
|
)
|
|
Quarter Ended March 31,
|
Change
|
||||||||||||||
|
2021
|
2022
|
($)
|
(%)
|
||||||||||||
|
(dollars in thousands)
|
|||||||||||||||
Revenue
|
5,209
|
6,364
|
1,115
|
22
|
%
|
|||||||||||
Cost of revenue
|
1,594
|
1,843
|
249
|
16
|
%
|
|||||||||||
Gross profit
|
3,615
|
4,521
|
906
|
25
|
%
|
|||||||||||
Operating expenses:
|
||||||||||||||||
Selling, servicing and marketing
|
2,071
|
2,943
|
872
|
42
|
%
|
|||||||||||
Technology and software development
|
1,551
|
2,637
|
1,086
|
70
|
%
|
|||||||||||
General and administrative
|
1,106
|
1,659
|
553
|
50
|
%
|
|||||||||||
Depreciation expense
|
6
|
59
|
53
|
883
|
%
|
|||||||||||
Total operating expenses
|
4,734
|
7,298
|
2,564
|
54
|
%
|
|||||||||||
Loss from operations
|
(1,119
|
)
|
(2,777
|
)
|
(1,658
|
)
|
148
|
%
|
||||||||
Interest income
|
1
|
—
|
||||||||||||||
Interest expense
|
—
|
(89
|
)
|
|||||||||||||
Net Income before taxes
|
(1,118
|
)
|
(2,866
|
)
|
(1,748
|
)
|
156
|
%
|
||||||||
Provision for income taxes
|
—
|
—
|
||||||||||||||
Net Loss
|
(1,118
|
)
|
(2,866
|
)
|
(1,748
|
)
|
156
|
%
|
Quarter ended March 31,
|
||||||||
2021
|
2022
|
|||||||
(dollars in thousands)
|
||||||||
Net cash used in operating activities
|
(1,151
|
)
|
(2,399
|
)
|
||||
Net cash used in investing activities
|
(164
|
)
|
(73
|
)
|
||||
Net cash provided by financing activities
|
—
|
7,006
|
||||||
Net increase (decrease) in cash
|
(1,315
|
)
|
4,543
|
•
|
the historical unaudited consolidated financial statements of Tuatara as of and for the three months ended March 31, 2022 and 2021;
|
•
|
the historical audited financial statements of Tuatara as of and for the year ended December 31, 2021 and as of December 31, 2020 and for the period from January 24, 2020 through December 31, 2020;
|
•
|
the historical unaudited consolidated financial statements of SpringBig as of and for the three months ended March 31, 2022 and 2021;
|
•
|
the historical audited consolidated financial statements of SpringBig as of and for the years ended December 31, 2021 and December 31, 2020;
|
•
|
the sections titled “Management’s Discussion and Analysis of Financial Condition and Results of Operations of SpringBig” and “Management’s Discussion and Analysis of Financial Condition and Results of Operations of Tuatara” and other financial information included elsewhere in the proxy statement/prospectus filed by Tuatara with the SEC on May 17, 2022; and
|
•
|
other information relating to Tuatara and SpringBig included in the proxy statement/prospectus, including the merger agreement and the description of certain terms thereof set forth under the
section entitled “The Business Combination.”
|
a)
|
7,000,000 Contingent Shares if the closing price of the New SpringBig common stock equals or exceeds $12.00 per share on any twenty (20) trading days in a thirty (30)-trading day period
at any time after the Closing Date and no later than 60 months following the Closing Date;
|
b)
|
2,250,000 Contingent Shares if the closing price of the New SpringBig common stock equals or exceeds $15.00 per share on any twenty (20) trading days in a thirty (30)-trading day
period at any time after the Closing Date and no later than 60 months following the Closing Date; and
|
c)
|
1,250,000 Contingent Shares if the closing price of the New SpringBig common stock equals or exceeds $18.00 per share on any twenty (20) trading days in a thirty (30)-trading day
period at any time after the Closing Date and no later than 60 months following the Closing Date.
|
|
•
|
SpringBig’s shareholders will have the largest voting interest in New SpringBig under the maximum redemption scenario;
|
•
|
The board of directors of the post-combination company has seven members, and SpringBig shareholders have the ability to nominate at least the majority of the members of the board of directors;
|
•
|
SpringBig’s senior management is the senior management of the post-combination company;
|
•
|
The business of SpringBig will comprise the ongoing operations of New SpringBig; and
|
•
|
SpringBig is the larger entity, in terms of substantive operations and employee base.
|
Weighted average shares calculation, basic and diluted
|
|
|
Tuatara public shares
|
|
1,752,388
|
Tuatara founder shares
|
|
3,000,000
|
Subscription investors
|
|
1,341,356
|
Combined company shares issued in business combination
|
|
18,196,526
|
Weighted average shares outstanding
|
|
24,290,270
|
Percent of shares owned by SpringBig shareholders
|
|
74.9%
|
Percent of shares owned by Tuatara holders
|
|
19.6%
|
Percent of shares owned by subscription investors(1)
|
|
5.5%
|
(1)
|
Of the shares owned by the subscription investors, 600,000 shares are attributable to affiliates of Tuatara and 10,000 shares are attributable to affiliates of SpringBig.
|
|
SpringBig
(Historical)
|
Tuatara
(Historical)
|
Transaction
Accounting
Adjustments
|
Pro Forma
Combined
|
|||||||||||||||
Assets
|
|||||||||||||||||||
Current assets:
|
|||||||||||||||||||
Cash and cash equivalents
|
$
|
6,761
|
$
|
417
|
$
|
200,039
|
(1
|
)
|
$
|
18,518
|
|||||||||
|
(191,438
|
)
|
(2
|
)
|
|||||||||||||||
|
(13,361
|
)
|
(3
|
)
|
|||||||||||||||
|
6,100
|
(4
|
)
|
||||||||||||||||
|
10,000
|
(8
|
)
|
||||||||||||||||
Accounts receivable, net
|
2,645
|
-
|
-
|
2,645
|
|||||||||||||||
Contract assets
|
303
|
-
|
-
|
303
|
|||||||||||||||
Prepaid expenses and other current assets
|
1,297
|
249
|
1,350
|
(3
|
)
|
2,896
|
|||||||||||||
Total Current Assets
|
11,006
|
666
|
12,690
|
24,362
|
|||||||||||||||
|
|||||||||||||||||||
Property, plant and equipment
|
495
|
-
|
-
|
495
|
|||||||||||||||
Deposits and other assets
|
84
|
-
|
-
|
84
|
|||||||||||||||
Investments held in Trust Account
|
-
|
200,039
|
(200,039
|
)
|
(1
|
)
|
-
|
||||||||||||
Total Assets
|
$
|
11,585
|
$
|
200,705
|
$
|
(187,349
|
)
|
$
|
24,941
|
||||||||||
|
|||||||||||||||||||
Liabilities and Stockholders' Equity
|
|||||||||||||||||||
Current Liabilities
|
|||||||||||||||||||
Accounts payable
|
$
|
580
|
$
|
2,252
|
$
|
(902
|
)
|
(3
|
)
|
$
|
1,930
|
||||||||
Related party payable
|
33
|
-
|
-
|
33
|
|||||||||||||||
Accrued wages and commissions
|
691
|
-
|
-
|
691
|
|||||||||||||||
Accrued expenses
|
888
|
108
|
-
|
996
|
|||||||||||||||
Contract liability
|
485
|
-
|
-
|
485
|
|||||||||||||||
Interest payable
|
89
|
-
|
(89
|
)
|
(4
|
)
|
-
|
||||||||||||
Notes payable
|
7,000
|
-
|
(7,000
|
)
|
(4
|
)
|
-
|
||||||||||||
Other liabilities
|
39
|
-
|
-
|
39
|
|||||||||||||||
Total current liabilities
|
9,805
|
2,360
|
(7,991
|
)
|
4,174
|
||||||||||||||
|
|||||||||||||||||||
Warrant liability
|
-
|
5,278
|
-
|
5,278
|
|||||||||||||||
Convertible notes
|
-
|
-
|
8,565
|
(8
|
)
|
8,565
|
|||||||||||||
Deferred underwriting fee payable
|
-
|
7,000
|
(7,000
|
)
|
(3
|
)
|
-
|
||||||||||||
Total Liabilities
|
9,805
|
14,638
|
(6,426
|
)
|
18,017
|
||||||||||||||
|
|||||||||||||||||||
Ordinary shares subject to possible redemption
|
-
|
200,000
|
(200,000
|
)
|
(2
|
)
|
-
|
||||||||||||
|
|||||||||||||||||||
Shareholders’ Equity
|
|||||||||||||||||||
Series B Preferred
|
5
|
-
|
(5
|
)
|
(5
|
)
|
-
|
||||||||||||
Series A Preferred
|
5
|
-
|
(5
|
)
|
(5
|
)
|
-
|
||||||||||||
Series Seed Preferred
|
7
|
-
|
(7
|
)
|
(5
|
)
|
-
|
||||||||||||
Common stock
|
14
|
-
|
-
|
(2
|
)
|
3
|
|||||||||||||
|
(14
|
)
|
(5
|
)
|
|||||||||||||||
|
2
|
(5
|
)
|
||||||||||||||||
|
1
|
(5
|
)
|
||||||||||||||||
Additional paid in capital
|
17,840
|
-
|
8,562
|
(2
|
)
|
27,121
|
|||||||||||||
|
13,189
|
(4
|
)
|
||||||||||||||||
|
(13,905
|
)
|
(5
|
)
|
|||||||||||||||
|
1,435
|
(8
|
)
|
||||||||||||||||
Class B ordinary shares
|
-
|
1
|
(1
|
)
|
(5
|
)
|
-
|
||||||||||||
Accumulated deficit
|
(16,091
|
)
|
(13,934
|
)
|
(4,109
|
)
|
(3
|
)
|
(20,200
|
)
|
|||||||||
|
13,934
|
(5
|
)
|
||||||||||||||||
Total Shareholders' Equity
|
1,780
|
(13,933
|
)
|
19,077
|
6,924
|
||||||||||||||
Total Liabilities and Shareholders’ Equity
|
$
|
11,585
|
$
|
200,705
|
$
|
(187,349
|
)
|
$
|
24,941 |
SpringBig
(Historical)
|
Tuatara
(Historical)
|
Transaction
Accounting
Adjustments
|
Pro Forma
Combined
|
||||||||||||||||
Revenue
|
$
|
6,364
|
$
|
-
|
$
|
-
|
$
|
6,364
|
|||||||||||
Cost of revenue
|
1,843
|
-
|
-
|
1,843
|
|||||||||||||||
Gross profit
|
4,521
|
-
|
-
|
4,521
|
|||||||||||||||
Selling, servicing and marketing
|
2,943
|
-
|
-
|
2,943
|
|||||||||||||||
Technology and software development
|
2,637
|
-
|
-
|
2,637
|
|||||||||||||||
General and administrative
|
1,537
|
-
|
-
|
1,537 | |||||||||||||||
Operating expenses
|
-
|
912
|
-
|
(2
|
)
|
912
|
|||||||||||||
Total operating expenses
|
7,117
|
912
|
-
|
8,029
|
|||||||||||||||
Loss from operations
|
(2,596
|
)
|
(912
|
)
|
-
|
(3,508
|
)
|
||||||||||||
|
|||||||||||||||||||
Interest income
|
-
|
-
|
-
|
-
|
|||||||||||||||
Interest expense
|
(89 | ) |
-
|
(469
|
)
|
(3
|
)
|
(558
|
)
|
||||||||||
Forgiveness of PPP Loan
|
-
|
-
|
-
|
-
|
|||||||||||||||
Change in fair value of warrants
|
-
|
4,162
|
-
|
4,162
|
|||||||||||||||
Compensation expense
|
(181 | ) |
-
|
-
|
(181 | ) |
|||||||||||||
Transaction costs allocated to warrants
|
-
|
-
|
-
|
-
|
|||||||||||||||
Interest earned on investments held in Trust Account
|
-
|
3
|
(3
|
)
|
(1
|
)
|
-
|
||||||||||||
(Loss) income before taxes
|
(2,866
|
)
|
3,253
|
(472
|
)
|
(85
|
)
|
||||||||||||
Provision for taxes
|
-
|
-
|
-
|
(4
|
)
|
-
|
|||||||||||||
Net (loss) income
|
$
|
(2,866
|
)
|
$
|
3,253
|
$
|
(472
|
)
|
$
|
(85
|
)
|
||||||||
|
|||||||||||||||||||
Weighted average shares outstanding, basic
|
13,571,872
|
25,000,000
|
(709,730
|
)
|
(5
|
)
|
24,290,270
|
||||||||||||
Basic net (loss) income per share
|
$
|
(0.21
|
)
|
$
|
0.13
|
$
|
-
|
||||||||||||
Weighted average shares outstanding, diluted
|
13,571,872
|
25,000,000
|
(709,730
|
)
|
(5
|
)
|
24,290,270
|
||||||||||||
Diluted net (loss) income per share
|
$
|
(0.21
|
)
|
$
|
0.13
|
$
|
-
|
SpringBig
(Historical)
|
Tuatara
(Historical)
|
Transaction
Accounting
Adjustments
|
Pro Forma
Combined
|
||||||||||||||||
Revenue
|
$
|
24,024
|
$
|
-
|
$
|
-
|
$
|
24,024
|
|||||||||||
Cost of revenue
|
6,929
|
-
|
-
|
6,929
|
|||||||||||||||
Gross profit
|
17,095
|
-
|
-
|
17,095
|
|||||||||||||||
Selling, servicing and marketing
|
10,185
|
-
|
-
|
10,185
|
|||||||||||||||
Technology and software development
|
8,410
|
-
|
-
|
8,410
|
|||||||||||||||
General and administrative
|
5,032
|
-
|
-
|
5,032
|
|||||||||||||||
Operating expenses
|
-
|
2,035
|
3,559
|
(2
|
)
|
5,594
|
|||||||||||||
Total operating expenses
|
23,627
|
2,035
|
3,559
|
29,221
|
|||||||||||||||
Loss from operations
|
(6,532
|
)
|
(2,035
|
)
|
(3,559
|
)
|
(12,126
|
)
|
|||||||||||
|
|||||||||||||||||||
Interest income
|
3
|
-
|
-
|
3
|
|||||||||||||||
Interest expense
|
-
|
-
|
(1,877
|
)
|
(3
|
)
|
(1,877
|
)
|
|||||||||||
Forgiveness of PPP Loan
|
781
|
-
|
-
|
781
|
|||||||||||||||
Change in fair value of warrants
|
-
|
12,960
|
-
|
12,960
|
|||||||||||||||
Compensation expense
|
-
|
(2,400
|
)
|
-
|
(2,400
|
)
|
|||||||||||||
Transaction costs allocated to warrants
|
-
|
(853
|
)
|
-
|
(853
|
)
|
|||||||||||||
Interest earned on investments held in Trust Account
|
-
|
35
|
(35
|
)
|
(1
|
)
|
-
|
||||||||||||
(Loss) income before taxes
|
(5,748
|
)
|
7,707
|
(5,471
|
)
|
(3,512
|
)
|
||||||||||||
Provision for taxes
|
(2
|
)
|
-
|
-
|
(4
|
)
|
(2
|
)
|
|||||||||||
Net (loss) income
|
$
|
(5,750
|
)
|
$
|
7,707
|
$
|
(5,471
|
)
|
$
|
(3,514
|
)
|
||||||||
|
|||||||||||||||||||
Weighted average shares outstanding, basic
|
13,385,267
|
22,287,671
|
2,002,599
|
(5
|
)
|
24,290,270
|
|||||||||||||
Basic net (loss) income per share
|
$
|
(0.43
|
)
|
$
|
0.35
|
$
|
(0.14
|
)
|
|||||||||||
Weighted average shares outstanding, diluted
|
13,385,267
|
22,369,863
|
1,920,407
|
(5
|
)
|
24,290,270
|
|||||||||||||
Diluted net (loss) income per share
|
$
|
(0.43
|
)
|
$
|
0.34
|
$
|
(0.14
|
)
|
1.
|
Basis of Presentation
|
•
|
SpringBig historical unaudited consolidated balance sheet as of March 31, 2022, included as an Exhibit in this Form 8-K.
|
•
|
Tuatara’s historical unaudited consolidated balance sheet as of March 31, 2022, included Tuatara’s Quarterly report on Form 10-Q, filed on May 16, 2022.
|
•
|
SpringBig historical unaudited consolidated statement of operations for the three months ended March 31, 2022, included as an Exhibit in this Form 8-K.
|
•
|
Tuatara’s historical unaudited consolidated statement of operations for the three months ended March 31, 2022, included Tuatara’s Quarterly report on Form 10-Q, filed on May 16, 2022.
|
•
|
SpringBig historical consolidated statement of operations for the year ended December 31, 2021, included in Tuatara’s prospectus.
|
•
|
Tuatara’s statement of operations for the year ended December 31, 2021, included in Tuatara’s prospectus.
|
2.
|
Adjustments to Unaudited Pro Forma Condensed Combined Balance Sheets as of March 31, 2022
|
(A)
|
Derived from the unaudited consolidated balance sheet of SpringBig as of March 31, 2022.
|
(B)
|
Derived from the unaudited consolidated balance sheet of Tuatara as of March 31, 2022.
|
(1)
|
To reflect the release of cash from marketable securities held in the trust account.
|
(2)
|
To reflect (a) the redemption of 19,123,806 Class A ordinary shares for cash payment of $191.4 million and (b) the reclassification of 876,194
Class A ordinary shares subject to redemption to permanent equity for shareholders who did not exercise their redemption rights.
|
(3)
|
To reflect the payment of an aggregate of $11.1 million of estimated legal, financial advisory and other professional fees related to the business
combination, the prepayment of $1.4 million of directors and officers’ insurance premium, the payment of $0.9 million of accounts payable and accrued expenses, the payment of $0.6 million in executive bonuses and the waiver of $7.0
million of deferred underwriting fees by the underwriters in Tuatara’s IPO of its deferred underwriting discount The direct, incremental costs of the business combination related to the legal, financial advisory, accounting and other
professional fees of approximately $11.1 million is reflected as an adjustment to accumulated deficit.
|
(4)
|
Reflects proceeds received of $13.1 million from the subscription investors in exchange for the issuance of 1,310,000 shares of New SpringBig
common stock at a price of $10.00 per share, plus 31,356 shares paid to the certain PIPE Investors pursuant to the convertible notes with certain PIPE Investors.
|
(5)
|
To reflect the recapitalization of SpringBig through (a) the contribution of all the share capital in SpringBig to New SpringBig common stock, (b)
the issuance of 18,196,526 shares of New SpringBig common stock, (c) the elimination of the historical accumulated deficit of Tuatara of $13.9 million, the accounting acquiree and (d) the conversion of 4,000,000 Class B ordinary shares
outstanding in Tuatara to New SpringBig common stock, on a one-for-one basis, at the consummation of the business combination.
|
(6)
|
To reflect the forfeiture of 1,000,000 shares of New SpringBig common stock by the sponsor. No entry is reflected due to rounding.
|
(7)
|
To reflect the issuance of 876,194 shares of New SpringBig common stock to non-redeeming public shareholders. No entry is reflected due to
rounding.
|
(8)
|
Reflects issuance of $11.0 million of 6% Senior Secured Original Issue Discount Convertible Notes (the “Notes”) for proceeds of $10.0 million and
a discount of $2.4 million. The Notes will be convertible at the option of the holders beginning at the earlier of (a) the date of effectiveness of a resale registration statement covering the resales of New SpringBig’s shares of common
stock underlying the Notes or (b) one year after the issuance of the Notes, in each case at an initial conversion share price of $12.00 per share. The Notes will bear interest at a rate of 6% per annum and amortize after six months,
which amortization may be settled in cash or shares of common stock.
|
3.
|
Adjustments to Unaudited Pro Forma Condensed Combined Statement of Operations for the Three Months Ended March 31, 2022
|
(A)
|
Derived from the unaudited consolidated statement of operations of SpringBig for the three months ended March 31, 2022.
|
(B)
|
Derived from the unaudited consolidated statements of operations of Tuatara for the three months ended March 31, 2022.
|
(C)
|
Derived from the audited consolidated statement of operations of SpringBig for the year ended December 31, 2021.
|
(D)
|
Derived from the audited statements of operations of Tuatara for the year ended December 31, 2021.
|
(1)
|
Represents an adjustment to eliminate interest income on marketable securities held in the trust account as of the beginning of the period.
|
(2)
|
Represents an adjustment to eliminate the effect of the pro forma balance sheet adjustment presented in Entry #2(3) above in the aggregate amount
of $3.6 million for the direct, incremental costs of the business combination, assuming those adjustments were made as of the beginning of the fiscal period presented. As these costs are directly related to the business combination,
they are not expected to recur in the income of the combined company beyond 12 months after the business combination.
|
(3)
|
Represents 6% interest expense incurred on the Notes in the amount of approximately $165,000 and $660,000 for the three months ended March 31,
2022 and the year ended December 31, 2021, respectively, the amortization of the discount on the Notes to interest expense in the amount of $179,000 and $717,000 for the three months ended March 31, 2022 and the year ended December 31,
2021, respectively, and the amortization of the original issue discount to interest expense in the amount of approximately $125,000 and $500,000 for the three months ended March 31, 2022 and the year ended December 31, 2021,
respectively,. See the discussion in adjustment (8) of Note 2 above for additional information regarding the Notes.
|
(4)
|
Although the blended statutory rate for the redomesticated entity post business combination would be 21%, the consolidated combined pro forma
under both scenarios results in a net loss for tax purposes. As such, a full valuation allowance has been applied resulting in no adjustment.
|
(5)
|
The calculation of weighted average shares outstanding for basic and diluted net income (loss) per share assumes that Tuatara’s initial public
offering occurred as of the beginning of the earliest period presented. In addition, as the business combination is being reflected as if it had occurred at the beginning of the periods presented, the calculation of weighted average
shares outstanding for basic and diluted net income (loss) per share assumes that the shares have been outstanding for the entire periods presented. This calculation is retroactively adjusted to eliminate the number of shares redeemed
for the entire period.
|
4.
|
Net Income (Loss) per Share
|
|
Pro Forma Combined
|
|||
Three Months Ended March 31, 2022
|
||||
Net loss
|
$
|
(85
|
) | |
Weighted average shares outstanding – basic and diluted
|
24,290,270
|
|||
Basic and diluted net loss per share
|
$
|
(0.00
|
) | |
Year Ended December 31, 2021
|
||||
Net loss
|
$
|
(3,514
|
) | |
Weighted average shares outstanding – basic and diluted
|
24,290,270
|
|||
Basic and diluted net loss per share
|
$
|
(0.14
|
) | |
Weighted average shares calculations, basic and diluted
|
Pro Forma Combined
|
|||
Tuatara’s public shares
|
1,752,388
|
|||
Tuatara initial stockholders
|
3,000,000
|
|||
Subscription investors
|
1,341,356
|
|||
SpringBig stockholders
|
18,196,526
|
|||
Weighted average shares outstanding – basic and diluted
|
24,290,270
|