As filed with
the Securities and Exchange Commission on November 28, 2018
Registration No. 333-228494
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-1
REGISTRATION
STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Schultze
Special Purpose Acquisition Corp.
(Exact name of registrant as specified
in its charter)
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Delaware
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6770
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83-0891815
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(State or other jurisdiction of
incorporation or organization)
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(Primary Standard Industrial
Classification Code Number)
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(I.R.S. Employer
Identification Number)
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800 Westchester Avenue
Suite 632
Rye Brook, NY 10573
(914) 701-5260
(Address, including zip code, and telephone
number, including area code, of registrant’s principal executive offices)
George J. Schultze, Chairman, Chief Executive
Officer and President
Scarlett Du, Secretary
Schultze Special Purpose Acquisition
Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
(914) 701-5260
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
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Alan I. Annex, Esq.
Jason T. Simon, Esq.
Greenberg Traurig, LLP
Met Life Building
200 Park Avenue
New York, NY 10166
(212) 801-9200
(212) 801-6400 —
Facsimile
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David Alan Miller, Esq.
Jeffrey M. Gallant, Esq.
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, NY 10174
(212) 818-8800
(212) 818-8881 — Facsimile
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Approximate date of commencement of proposed sale to the
public:
As soon as practicable after the effective date of this registration statement.
If
any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under
the Securities Act of 1933 check the following box.
☐
If
this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check
the following box and list the Securities Act registration statement number of the earlier effective registration statement for
the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
☐
If
this Form is a post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list
the Securities Act registration statement number of the earlier effective registration statement for the same offering.
☐
Indicate by check mark whether the registrant is a large accelerated
filer, an accelerated filer, a non-accelerated filer, a smaller reporting company or an emerging growth company. See the definitions
of “large accelerated filer,” “accelerated filer,” “smaller reporting company” and “emerging
growth company” in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer
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☐
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Accelerated filer
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☐
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Non-accelerated filer
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☒
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Smaller reporting company
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☐
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Emerging growth company
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☒
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If an emerging growth company, indicate by check mark if the
registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards
provided pursuant to Section 7(a)(2)(B) of the Securities Act. ☐
The registrant hereby amends this registration statement
on such date or dates as may be necessary to delay its effective date until the registrant shall file a further amendment which
specifically states that this registration statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until the registration statement shall become effective on such date as the Commission, acting pursuant
to said Section 8(a), may determine.
EXPLANATORY NOTE
This Amendment No. 1 (the “Amendment”) to the Registration Statement on Form S-1 (File
No. 333-228494) (the “Form S-1”) of Schultze Special Purpose Acquisition Corp. is being filed solely for the purpose
of filing Exhibits 3.2, 3.3, 4.1, 4.2, 4.3, 4.4, 5.1, 10.1, 10.2, 10.3, 10.4, 10.5, 10.6, 14, 23.2, 99.5, 99.6 and 99.7
to the Form S-1. Accordingly, the Amendment consists solely of the facing page, this explanatory note, Part II of the Form S-1
and the signatures, and is not intended to amend or delete any part of the Form S-1 except as specifically noted herein.
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 13. Other Expenses of Issuance and Distribution.
The estimated expenses payable by us in connection with the
offering described in this registration statement (other than the underwriting discount and commissions) will be as follows:
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SEC registration fee
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20,907
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FINRA filing fee
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26,375
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Accounting fees and expenses
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32,500
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Nasdaq listing fees
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75,000
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Printing and engraving expenses
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50,000
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Legal fees and expenses
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300,000
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Directors & Officers insurance
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125,000
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Miscellaneous
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20,218
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(1)
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Total
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$
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650,000
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(1)
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This amount represents additional expenses that may be incurred by the Company in connection with the offering over and above those specifically listed above, including distribution and mailing costs.
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Item 14. Indemnification of Directors and Officers.
Our certificate of incorporation provides that all directors,
officers, employees and agents of the registrant shall be entitled to be indemnified by us to the fullest extent permitted by Section 145
of the Delaware General Corporation Law.
Section 145 of the Delaware General Corporation Law concerning
indemnification of officers, directors, employees and agents is set forth below.
“Section 145. Indemnification of officers, directors,
employees and agents; insurance.
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(a)
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A
corporation shall have power to indemnify any person who was or is a party or is threatened to be made a party to any threatened,
pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action
by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent
of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another
corporation, partnership, joint venture, trust or other enterprise, against expenses (including attorneys’ fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by the person in connection with such action, suit or proceeding
if the person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests
of the corporation, and, with respect to any criminal action or proceeding, had no reasonable cause to believe the person’s
conduct was unlawful. The termination of any action, suit or proceeding by judgment, order, settlement, conviction, or upon a
plea of nolo contendere or its equivalent, shall not, of itself, create a presumption that the person did not act in good faith
and in a manner which the person reasonably believed to be in or not opposed to the best interests of the corporation, and, with
respect to any criminal action or proceeding, has reasonable cause to believe that the person’s conduct was unlawful.
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(b)
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A corporation shall have power to indemnify any person
who was or is a party or is threatened to be made a party to any threatened, pending or completed action or suit by or in the
right of the corporation to procure a judgment in its favor by reason of the fact that the person is or was a director, officer,
employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee
or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys’
fees) actually and reasonably incurred by the person in connection with the defense or settlement of such action or suit if the
person acted in good faith and in a manner the person reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any claim, issue or matter as to which such person
shall have been adjudged to be liable to the corporation unless and only to the extent that the Court of Chancery or the court
in which such action or suit was brought shall determine upon application that, despite the adjudication of liability but in view
of all the circumstances of the case, such person is fairly and reasonably entitled to indemnity for such expenses which the Court
of Chancery or such other court shall deem proper.
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(c)
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To
the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim,
issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably
incurred by such person in connection therewith.
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(d)
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Any indemnification under subsections (a) and (b) of this section (unless ordered by a court) shall be made by the corporation only as authorized in the specific case upon a determination that indemnification of the present or former director, officer, employee or agent is proper in the circumstances because the person has met the applicable standard of conduct set forth in subsections (a) and (b) of this section. Such determination shall be made, with respect to a person who is a director or officer at the time of such determination, (1) by a majority vote of the directors who are not parties to such action, suit or proceeding, even though less than a quorum, or (2) by a committee of such directors designated by majority vote of such directors, even though less than a quorum, or (3) if there are no such directors, or if such directors so direct, by independent legal counsel in a written opinion, or (4) by the stockholders.
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(e)
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Expenses (including attorneys’ fees) incurred by an officer or director in defending any civil, criminal, administrative or investigative action, suit or proceeding may be paid by the corporation in advance of the final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf of such director or officer to repay such amount if it shall ultimately be determined that such person is not entitled to be indemnified by the corporation as authorized in this section. Such expenses (including attorneys’ fees) incurred by former directors and officers or other employees and agents may be so paid upon such terms and conditions, if any, as the corporation deems appropriate.
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(f)
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The indemnification and advancement of expenses provided by, or granted pursuant to, the other subsections of this section shall not be deemed exclusive of any other rights to which those seeking indemnification or advancement of expenses may be entitled under any bylaw, agreement, vote of stockholders or disinterested directors or otherwise, both as to action in such person’s official capacity and as to action in another capacity while holding such office.
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(g)
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A corporation shall have power to purchase and maintain insurance on behalf of any person who is or was director, officer, employee or agent of the corporation, or is or was serving at the request of the corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise against any liability asserted against such person and incurred by such person in any such capacity, or arising out of such person’s status as such, whether or not the corporation would have the power to indemnify such person against such liability under this section.
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(h)
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For purposes of this section, references to “the corporation” shall include, in addition to the resulting corporation, any constituent corporation (including any constituent of a constituent) absorbed in a consolidation or merger which, if its separate existence had continued, would have had power and authority to indemnify its directors, officers, and employees or agents, so that any person who is or was a director, officer, employee or agent of such constituent corporation, or is or was serving at the request of such constituent corporation as a director, officer, employee or agent of another corporation, partnership, joint venture, trust or other enterprise, shall stand in the same position under this section with respect to the resulting or surviving corporation as such person would have with respect to such constituent corporation if its separate existence had continued.
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(i)
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For purposes of this section, references to “other enterprises” shall include employee benefit plans; references to “fines” shall include any excise taxes assessed on a person with respect to any employee benefit plan; and references to “serving at the request of the corporation” shall include any service as a director, officer, employee or agent of the corporation which imposes duties on, or involves services by, such director, officer, employee or agent with respect to an employee benefit plan, its participants or beneficiaries; and a person who acted in good faith and in a manner such person reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to have acted in a manner “not opposed to the best interests of the corporation” as referred to in this section.
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(j)
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The indemnification and advancement of expenses provided by, or granted pursuant to, this section shall, unless otherwise provided when authorized or ratified, continue as to a person who has ceased to be a director, officer, employee or agent and shall inure to the benefit of the heirs, executors and administrators of such a person.
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(k)
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The Court of Chancery is hereby vested with exclusive jurisdiction to hear and determine all actions for advancement of expenses or indemnification brought under this section or under any bylaw, agreement, vote of stockholders or disinterested directors, or otherwise. The Court of Chancery may summarily determine a corporation’s obligation to advance expenses (including attorneys’ fees).”
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Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to our directors, officers, and controlling persons pursuant to the foregoing provisions, or otherwise,
we have been advised that, in the opinion of the SEC, such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment
of expenses incurred or paid by a director, officer or controlling person in a successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being registered, we will, unless
in the opinion of its counsel the matter has been settled by controlling precedent, submit to the court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
Section 8.2(a) of our certificate of incorporation provides:
“To the fullest extent permitted by applicable law, as the same exists or may hereafter be amended,
the Corporation shall indemnify, defend and hold harmless each person who is or was made a party or is threatened to be made a
party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “proceeding”) by reason of the fact that he or she is or was a director or officer
of the Corporation or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as
a director, officer, employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit
entity, including service with respect to an employee benefit plan (an “indemnitee”), whether the basis of such proceeding
is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as
a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’
fees, judgments, fines, the Employee Retirement Income Security Act of 1974 (ERISA) excise taxes and penalties and amounts paid
in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest
extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending
or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required
by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt
of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that
the indemnitee is not entitled to be indemnified under this
Section 8.2
or otherwise. The rights to indemnification and
advancement of expenses conferred by this
Section 8.2
shall be contract rights and such rights shall continue as to an
indemnitee who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors
and administrators. Notwithstanding the foregoing provisions of this
Section 8.2(a)
, except for proceedings to enforce
rights to indemnification and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in
connection with a proceeding (or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized
by the Board.”
Pursuant to the Underwriting Agreement filed as Exhibit 1.1
to this Registration Statement, we have agreed to indemnify the underwriters and the underwriters have agreed to indemnify us against
certain civil liabilities that may be incurred in connection with this offering, including certain liabilities under the Securities
Act.
Item 15. Recent Sales of Unregistered Securities.
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(a)
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During the past three years, we sold the following shares of common stock without registration under the Securities Act:
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Stockholder
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Number of
Shares
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Schultze Special Purpose Acquisition Sponsor, LLC
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4,312,500
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Such shares were issued in September 2018, pursuant to the exemption
from registration contained in Section 4(a)(2) of the Securities Act as the shares were sold to an accredited investor. The
shares issued were sold for an aggregate offering price of $25,000 at an average purchase price of approximately $0.006 per share.
Our sponsor has also committed to purchase from us 4,550,000
private placement warrants at $1.00 per warrant (for an aggregate purchase price of $4,550,000). This purchase will take place
on a private placement basis simultaneously with the consummation of our initial public offering. Our sponsor has also committed
to purchase up to a maximum of 450,000 additional private placement warrants in proportion to the amount of the underwriters’
over-allotment option that is exercised. These issuances will be made pursuant to the exemption from registration contained in
Section 4(a)(2) of the Securities Act.
No underwriting discounts or commissions were paid with respect
to such sales.
Item 16. Exhibits and Financial Statement Schedules.
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(a)
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The
following exhibits are filed as part of this Registration Statement:
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*
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Previously filed.
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**
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Filed herewith.
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***
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To be filed by amendment.
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Item 17. Undertakings.
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(a)
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The
undersigned registrant hereby undertakes:
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(1)
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To
file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement:
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i.
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To
include any prospectus required by Section 10(a)(3) of the Securities Act of 1933;
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ii.
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To
reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if
the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule
424(b) if, in the aggregate, the changes in volume and price represent no more than 20 percent change in the maximum aggregate
offering price set forth in the “Calculation of Registration Fee” table in the effective registration statement;
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iii.
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To
include any material information with respect to the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration statement.
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(2)
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That,
for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial
bona fide
offering thereof.
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(3)
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To
remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at
the termination of the offering.
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(4)
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That
for the purpose of determining any liability under the Securities Act of 1933 in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser,
if the securities are offered or sold to such purchaser by means of any of the following communications, the undersigned registrant
will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser:
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(i)
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Any
preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule
424;
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(ii)
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Any
free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to
by the undersigned registrant;
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(iii)
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The
portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant
or its securities provided by or on behalf of the undersigned registrant; and
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(iv)
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Any
other communication that is an offer in the offering made by the undersigned registrant to the purchaser.
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(b)
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The
undersigned hereby undertakes to provide to the underwriter at the closing specified in the underwriting agreements, certificates
in such denominations and registered in such names as required by the underwriter to permit prompt delivery to each purchaser.
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(c)
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Insofar
as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion
of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant
of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court
of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
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(d)
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The
undersigned registrant hereby undertakes that:
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(1)
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For
purposes of determining any liability under the Securities Act of 1933, the information omitted from the form of prospectus filed
as part of this registration statement in reliance upon Rule 430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424(b)(1) or (4) or 497(h) under the Securities Act shall be deemed to be part of this registration statement
as of the time it was declared effective.
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(2)
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For
the purpose of determining any liability under the Securities Act of 1933, each post-effective amendment that contains a form
of prospectus shall be deemed to be a new registration statement relating to the securities offered therein, and the offering
of such securities at that time shall be deemed to be the initial
bona fide
offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933,
the registrant has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized,
in Rye Brook, New York, on the 28
th
day of November, 2018.
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SCHULTZE SPECIAL PURPOSE ACQUISITION CORP.
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By:
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/s/
George J. Schultze
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George J. Schultze
Chief Executive Officer
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Pursuant to the requirements of the Securities Act of 1933,
this Registration Statement has been signed by the following persons in the capacities and on the dates indicated.
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Name
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Position
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Date
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/s/
George
J. Schultze
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Chief Executive Officer (Principal
Executive Officer)
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November 28
, 2018
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George
J. Schultze
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/s/
Jeffrey
M. Glick
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Chief
Financial Officer (Principal Financial and
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November
28, 2018
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Jeffrey
M. Glick
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Accounting
Officer)
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Exhibit 3.2
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
Schultze
Special Purpose Acquisition Corp.
_____________, 2018
Schultze Special Purpose
Acquisition Corp., a corporation organized and existing under the laws of the State of Delaware (the “
Corporation
”),
DOES HEREBY CERTIFY AS FOLLOWS:
1. The
name of the Corporation is “
Schultze Special Purpose Acquisition Corp.
”. The original certificate of
incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on June 11, 2018 (the “
Original
Certificate
”).
2. This
Amended and Restated Certificate of Incorporation (the “
Amended and Restated Certificate
”), which both
restates and amends the provisions of the Original Certificate, was duly adopted in accordance with Sections 228, 242 and 245 of
the General Corporation Law of the State of Delaware, as amended from time to time (the “
DGCL
”).
3. This
Amended and Restated Certificate shall become effective on the date of filing with the Secretary of State of Delaware.
4. The
text of the Original Certificate is hereby restated and amended in its entirety to read as follows:
ARTICLE I
NAME
The name of the corporation is Schultze
Special Purpose Acquisition Corp. (the “
Corporation
”).
ARTICLE II
PURPOSE
The purpose of the
Corporation is to engage in any lawful act or activity for which corporations may be organized under the DGCL. In addition to the
powers and privileges conferred upon the Corporation by law and those incidental thereto, the Corporation shall possess and may
exercise all the powers and privileges that are necessary or convenient to the conduct, promotion or attainment of the business
or purposes of the Corporation, including, but not limited to, effecting a merger, stock exchange, asset acquisition, stock purchase,
recapitalization, reorganization or other similar business combination with one or more businesses or entities (a “
Business
Combination
”).
ARTICLE III
REGISTERED AGENT
The address of the
Corporation’s registered office in the State of Delaware is 251 Little Falls Drive, Wilmington, New Castle County, Delaware,
19808, and the name of the Corporation’s registered agent at such address is Corporation Service Company.
ARTICLE IV
CAPITALIZATION
Section 4.1
Authorized
Capital Stock
. The total number of shares of all classes of capital stock which the Corporation is authorized to issue is 101,000,000
shares, consisting of (a) 100,000,000 shares of common stock, par value $0.0001 per share (the “
Common Stock
”),
and (b) 1,000,000 shares of preferred stock, par value $0.0001 per share (the “
Preferred Stock
”).
Section 4.2
Preferred
Stock
. Subject to
Article IX
of this Amended and Restated Certificate, the Board of Directors of the Corporation (the
“
Board
”) is hereby expressly authorized to provide out of the unissued shares of the Preferred Stock
for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series
and to fix the voting rights, if any, designations, powers, preferences and relative, participating, optional, special and other
rights, if any, of each such series and any qualifications, limitations and restrictions thereof, as shall be stated in the resolution
or resolutions adopted by the Board providing for the issuance of such series and included in a certificate of designation (a “
Preferred
Stock Designation
”) filed pursuant to the DGCL, and the Board is hereby expressly vested with the authority to the
full extent provided by law, now or hereafter, to adopt any such resolution or resolutions. The number of authorized shares of
Preferred Stock may be increased or decreased (but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the outstanding shares of Common Stock, without a vote of the holders of the Preferred Stock,
or any series thereof, unless a vote of any such holders of Preferred Stock is required pursuant to another provision of this Certificate,
including any Preferred Stock Designation.
Section 4.3
Common
Stock
.
(a)
Voting.
(i) Except
as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders
of the shares of Common Stock shall exclusively possess all voting power with respect to the Corporation.
(ii) Except
as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), the holders
of shares of Common Stock shall be entitled to one vote for each such share on each matter properly submitted to the stockholders
of the Corporation on which the holders of the shares of Common Stock are entitled to vote.
(iii) Except
as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), at any annual
or special meeting of the stockholders of the Corporation, the holders of the shares of Common Stock shall have the exclusive right
to vote for the election of directors and on all other matters properly submitted to a vote of the stockholders of the Corporation.
Notwithstanding the foregoing, except as otherwise required by law or this Amended and Restated Certificate (including any Preferred
Stock Designation), the holders of the shares of Common Stock shall not be entitled to vote on any amendment to this Amended and
Restated Certificate (including any amendment to any Preferred Stock Designation) that relates solely to the terms of one or more
outstanding series of Preferred Stock if the holders of such affected series of Preferred Stock are entitled, either separately
or together with the holders of one or more other such series, to vote thereon pursuant to this Amended and Restated Certificate
(including any Preferred Stock Designation) or the DGCL.
(b)
Dividends.
Subject to applicable law, the rights, if any, of the holders of any outstanding series of the Preferred Stock and the provisions
of
Article IX
hereof, the holders of the shares of Common Stock shall be entitled to receive such dividends and other distributions
(payable in cash, property or capital stock of the Corporation) when, as and if declared thereon by the Board from time to time
out of any assets or funds of the Corporation legally available therefor and shall share equally on a per share basis in such dividends
and distributions.
(c)
Liquidation,
Dissolution or Winding Up of the Corporation.
Subject to applicable law, the rights, if any, of the holders of any outstanding
series of the Preferred Stock and the provisions of
Article IX
hereof, in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, after payment or provision for payment of the debts and other liabilities of the
Corporation, the holders of the shares of Common Stock shall be entitled to receive all the remaining assets of the Corporation
available for distribution to its stockholders, ratably in proportion to the number of shares of Common Stock held by them.
Section 4.4
Rights
and Options
. The Corporation has the authority to create and issue rights, warrants and options entitling the holders thereof
to acquire from the Corporation any shares of its capital stock of any class or classes, with such rights, warrants and options
to be evidenced by or in instrument(s) approved by the Board. The Board is empowered to set the exercise price, duration, times
for exercise and other terms and conditions of such rights, warrants or options; provided, however, that the consideration to be
received for any shares of capital stock issuable upon exercise thereof may not be less than the par value thereof.
ARTICLE V
BOARD OF DIRECTORS
Section 5.1
Board
Powers
. The business and affairs of the Corporation shall be managed by, or under the direction of, the Board. In addition
to the powers and authority expressly conferred upon the Board by statute, this Amended and Restated Certificate or the By-Laws
of the Corporation (“
Bylaws
”), the Board is hereby empowered to exercise all such powers and do all such
acts and things as may be exercised or done by the Corporation, subject, nevertheless, to the provisions of the DGCL, this Amended
and Restated Certificate, and any Bylaws adopted by the stockholders of the Corporation; provided, however, that no Bylaws hereafter
adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that would have been valid if such Bylaws
had not been adopted.
Section 5.2
Number,
Election and Term
.
(a) The
number of directors of the Corporation, other than those who may be elected by the holders of one or more series of the Preferred
Stock voting separately by class or series, shall be fixed from time to time exclusively by the Board pursuant to a resolution
adopted by a majority of the Board.
(b) Subject
to
Section 5.5
hereof, the Board shall be divided into two classes, as nearly equal in number as possible and designated
Class I and Class II. The Board is authorized to assign members of the Board already in office to Class I or Class II. The term
of the initial Class I Directors shall expire at the first annual meeting of the stockholders of the Corporation following the
effectiveness of this Amended and Restated Certificate and the term of the initial Class II Directors shall expire at the second
annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate. Beginning
with the first annual meeting of the stockholders of the Corporation following the effectiveness of this Amended and Restated Certificate,
each of the successors elected to replace the class of directors whose term expires at that annual meeting shall be elected for
a two-year term or until the election and qualification of their respective successors in office, subject to their earlier death,
resignation or removal. Subject to
Section 5.5
hereof, if the number of directors that constitutes the Board is changed,
any increase or decrease shall be apportioned by the Board among the classes so as to maintain the number of directors in each
class as nearly equal as possible, but in no case shall a decrease in the number of directors constituting the Board shorten the
term of any incumbent director. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately
by class or series, to elect directors pursuant to the terms of one or more series of Preferred Stock, the election of directors
shall be determined by a plurality of the votes cast by the stockholders present in person or represented by proxy at the meeting
and entitled to vote thereon. The Board is hereby expressly authorized, by resolution or resolutions thereof, to assign members
of the Board already in office to the aforesaid classes at the time this Amended and Restated Certificate (and therefore such classification)
becomes effective in accordance with the DGCL.
(c) Subject
to
Section 5.5
hereof, a director shall hold office until the annual meeting for the year in which his or her term expires
and until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation,
retirement, disqualification or removal.
(d) Unless
and except to the extent that the Bylaws shall so require, the election of directors need not be by written ballot. The holders
of shares of Common Stock shall not have cumulative voting rights.
Section 5.3
Newly
Created Directorships and Vacancies
. Subject to
Section 5.5
hereof, newly created directorships resulting from an increase
in the number of directors and any vacancies on the Board resulting from death, resignation, retirement, disqualification, removal
or other cause may be filled solely and exclusively by a majority vote of the remaining directors then in office, even if less
than a quorum, or by a sole remaining director (and not by stockholders), and any director so chosen shall hold office for the
remainder of the full term of the class of directors to which the new directorship was added or in which the vacancy occurred and
until his or her successor has been elected and qualified, subject, however, to such director’s earlier death, resignation,
retirement, disqualification or removal.
Section 5.4
Removal
.
Subject to
Section 5.5
hereof, any or all of the directors may be removed from office at any time, but only for cause and
only by the affirmative vote of holders of a majority of the voting power of all then outstanding shares of capital stock of the
Corporation entitled to vote generally in the election of directors, voting together as a single class.
Section 5.5
Preferred
Stock - Directors
. Notwithstanding any other provision of this
Article V
, and except as otherwise required by law, whenever
the holders of one or more series of the Preferred Stock shall have the right, voting separately by class or series, to elect one
or more directors, the term of office, the filling of vacancies, the removal from office and other features of such directorships
shall be governed by the terms of such series of the Preferred Stock as set forth in this Amended and Restated Certificate (including
any Preferred Stock Designation) and such directors shall not be included in any of the classes created pursuant to this
Article
V
unless expressly provided by such terms.
ARTICLE VI
BYLAWS
In furtherance and
not in limitation of the powers conferred upon it by law, the Board shall have the power and is expressly authorized to adopt,
amend, alter or repeal the Bylaws by the affirmative vote of a majority of the total number of directors present at a regular or
special meeting of the Board at which there is a quorum or by unanimous written consent. The Bylaws also may be adopted, amended,
altered or repealed by the stockholders of the Corporation; provided, however, that in addition to any vote of the holders of any
class or series of capital stock of the Corporation required by law or by this Amended and Restated Certificate (including any
Preferred Stock Designation), the affirmative vote of the holders of at least a majority of the voting power of all then outstanding
shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting together as a single
class, shall be required for the stockholders of the Corporation to adopt, amend, alter or repeal the Bylaws; and provided further,
however, that no Bylaws hereafter adopted by the stockholders of the Corporation shall invalidate any prior act of the Board that
would have been valid if such Bylaws had not been adopted.
ARTICLE VII
SPECIAL MEETINGS OF STOCKHOLDERS; ACTION
BY WRITTEN CONSENT
Section 7.1
Special
Meetings
. Subject to the rights, if any, of the holders of any outstanding series of the Preferred Stock, and to the requirements
of applicable law, special meetings of stockholders of the Corporation may be called only by the Chairman of the Board, the Chief
Executive Officer of the Corporation, or the Board pursuant to a resolution adopted by a majority of the Board, and the ability
of the stockholders of the Corporation to call a special meeting is hereby specifically denied. Except as provided in the foregoing
sentence, special meetings of stockholders of the Corporation may not be called by another person or persons.
Section 7.2
Advance
Notice
. Advance notice of stockholder nominations for the election of directors and of business to be brought by stockholders
before any meeting of the stockholders of the Corporation shall be given in the manner provided in the Bylaws.
Section 7.3
Action
by Written Consent
. Except as may be otherwise provided for or fixed pursuant to this Amended and Restated Certificate (including
any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, subsequent
to the consummation of the Corporation’s initial public offering of securities (the “
Offering
”),
any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or
special meeting of such stockholders and may not be effected by written consent of the stockholders of the Corporation.
ARTICLE VIII
LIMITED LIABILITY; INDEMNIFICATION
Section 8.1
Limitation
of Director Liability
. A director of the Corporation shall not be personally liable to the Corporation or its stockholders
for monetary damages for breach of fiduciary duty as a director, except to the extent such exemption from liability or limitation
thereof is not permitted under the DGCL as the same exists or may hereafter be amended unless a director violated his or her duty
of loyalty to the Corporation or its stockholders, acted in bad faith, knowingly or intentionally violated the law, authorized
unlawful payments of dividends, unlawful stock purchases or unlawful redemptions, or derived improper personal benefit from his
or her actions as a director. Any amendment, modification or repeal of the foregoing sentence shall not adversely affect any right
or protection of a director of the Corporation hereunder in respect of any act or omission occurring prior to the time of such
amendment, modification or repeal.
Section 8.2
Indemnification
and Advancement of Expenses
.
(a) To
the fullest extent permitted by applicable law, as the same exists or may hereafter be amended, the Corporation shall indemnify,
defend and hold harmless each person who is or was made a party or is threatened to be made a party to or is otherwise involved
in any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative (a
“
proceeding
”) by reason of the fact that he or she is or was a director or officer of the Corporation
or, while a director or officer of the Corporation, is or was serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint venture, trust, other enterprise or nonprofit entity, including
service with respect to an employee benefit plan (an “
indemnitee
”), whether the basis of such proceeding
is alleged action in an official capacity as a director, officer, employee or agent, or in any other capacity while serving as
a director, officer, employee or agent, against all liability and loss suffered and expenses (including, without limitation, attorneys’
fees, judgments, fines, the Employee Retirement Income Security Act of 1974 (ERISA) excise taxes and penalties and amounts paid
in settlement) reasonably incurred by such indemnitee in connection with such proceeding. The Corporation shall to the fullest
extent not prohibited by applicable law pay the expenses (including attorneys’ fees) incurred by an indemnitee in defending
or otherwise participating in any proceeding in advance of its final disposition; provided, however, that, to the extent required
by applicable law, such payment of expenses in advance of the final disposition of the proceeding shall be made only upon receipt
of an undertaking, by or on behalf of the indemnitee, to repay all amounts so advanced if it shall ultimately be determined that
the indemnitee is not entitled to be indemnified under this
Section 8.2
or otherwise. The rights to indemnification and
advancement of expenses conferred by this
Section 8.2
shall be contract rights and such rights shall continue as to an indemnitee
who has ceased to be a director, officer, employee or agent and shall inure to the benefit of his or her heirs, executors and administrators.
Notwithstanding the foregoing provisions of this
Section 8.2(a)
, except for proceedings to enforce rights to indemnification
and advancement of expenses, the Corporation shall indemnify and advance expenses to an indemnitee in connection with a proceeding
(or part thereof) initiated by such indemnitee only if such proceeding (or part thereof) was authorized by the Board.
(b) The
rights to indemnification and advancement of expenses conferred on any indemnitee by this
Section 8.2
shall not be exclusive
of any other rights that any indemnitee may have or hereafter acquire under law, this Amended and Restated Certificate, the Bylaws,
an agreement, vote of stockholders or disinterested directors, or otherwise.
(c) Any
repeal or amendment of this
Section 8.2
by the stockholders of the Corporation or by changes in law, or the adoption of
any other provision of this Amended and Restated Certificate inconsistent with this
Section 8.2
, shall, unless otherwise
required by law, be prospective only (except to the extent such amendment or change in law permits the Corporation to provide broader
indemnification rights on a retroactive basis than permitted prior thereto), and shall not in any way diminish or adversely affect
any right or protection existing at the time of such repeal or amendment or adoption of such inconsistent provision in respect
of any proceeding (regardless of when such proceeding is first threatened, commenced or completed) arising out of, or related to,
any act or omission occurring prior to such repeal or amendment or adoption of such inconsistent provision.
(d) This
Section 8.2
shall not limit the right of the Corporation, to the extent and in the manner authorized or permitted by law,
to indemnify and to advance expenses to persons other than indemnitees.
ARTICLE IX
BUSINESS COMBINATION REQUIREMENTS; EXISTENCE
Section 9.1
General
.
(a) The
provisions of this
Article IX
shall apply during the period commencing upon the effectiveness of this Amended and Restated
Certificate and terminating upon the consummation of the Corporation’s initial Business Combination and no amendment to
this
Article IX
shall be effective prior to the consummation of the initial Business Combination unless approved by the
affirmative vote of the holders of at least sixty-five percent (65%) of all then outstanding shares of the Common Stock and the
Corporation complies with
Section 9.7
.
(b) Immediately
after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds
of any exercise of the underwriters’ option to purchase additional units) and certain other amounts specified in the Corporation’s
registration statement on Form S-1, as initially filed with the Securities and Exchange Commission on November 20, 2018 (SEC File
No. 333-228494), as amended (the “
Registration Statement
”), shall be deposited in a trust account (the
“
Trust Account
”), established for the benefit of the Public Stockholders (as defined below) pursuant
to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay taxes, none of the funds
held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust
Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the
Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination within 18 months from
the closing of the Offering and (iii) the redemption of Offering Shares in connection with a vote seeking to amend any provisions
of this Amended and Restated Certificate relating to pre-initial Business Combination activity (as described in
Section 9.7
)
and related stockholders’ rights, including the ability of holders of Offering Shares to exercise Redemption Rights (as defined
in Section 9.2(a)) pursuant to Section 9.2(a) or the substance or timing of the Corporation’s obligation to redeem the Offering
Shares pursuant to
Section 9.2(d)
. Holders of shares of Common Stock included as part of the units sold in the Offering
(the “
Offering Shares
”) (whether such Offering Shares were purchased in the Offering or in the secondary
market following the Offering and whether or not such holders are affiliates of the Corporation, Schultze Special Purpose Acquisition
Sponsor, LLC (the “
Sponsor
”) or officers or directors of the Corporation) are referred to herein as “
Public
Stockholders.
”
Section 9.2
Redemption
Rights
.
(a) In
connection with the consummation of an initial Business Combination, the Corporation shall provide all holders of Offering Shares
with the opportunity to have their Offering Shares redeemed upon the consummation of the initial Business Combination pursuant
to, and subject to the limitations of,
Sections 9.2(b)
and
9.2(c)
(such rights of such holders to have their Offering
Shares redeemed pursuant to such Sections, the “
Redemption Rights
”) hereof for cash equal to the applicable
redemption price per share determined in accordance with
Section 9.2(b)
hereof (the “
Redemption Price
”);
provided, however, that the Corporation shall not redeem Offering Shares to the extent that such redemption would result in the
Corporation’s failure to have net tangible assets of at least $5,000,001 or any greater net tangible asset or cash requirement
upon consummation of the Corporation’s initial Business Combination which may be contained in the agreement relating to the
initial Business Combination (such limitation hereinafter called the “
Redemption Limitation
”). Notwithstanding
anything to the contrary contained in this Amended and Restated Certificate, there shall be no Redemption Rights or liquidating
distributions with respect to any warrant issued pursuant to the Offering.
(b) If
the Corporation offers to redeem the Offering Shares other than in conjunction with a stockholder vote on an initial Business Combination
with a proxy solicitation pursuant to Regulation 14A of the Securities Exchange Act of 1934, as amended (“
Exchange
Act
”) (or any successor rules or regulations), and filing proxy materials with the Securities and Exchange Commission
(the “
SEC
”), the Corporation shall offer to redeem the Offering Shares upon the consummation of the initial
Business Combination, subject to lawfully available funds therefor, in accordance with the provisions of
Section 9.2(a)
hereof pursuant to a tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act (or any successor rule or
regulation) (such rules and regulations hereinafter called the “
Tender Offer Rules
”) which it shall commence
prior to the consummation of the initial Business Combination and shall file tender offer documents with the SEC prior to the consummation
of the initial Business Combination that contain substantially the same financial and other information about the initial Business
Combination and the Redemption Rights as is required under Regulation 14A of the Exchange Act (or any successor rule or regulation)
(such rules and regulations hereinafter called the “
Proxy Solicitation Rules
”), even if such information
is not required under the Tender Offer Rules; provided, however, that if a stockholder vote is required by law to approve the proposed
initial Business Combination, or the Corporation decides to submit the proposed initial Business Combination to the stockholders
for their approval for any reason, the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds
therefor, in accordance with the provisions of
Section 9.2(a)
hereof in conjunction with a proxy solicitation pursuant to
the Proxy Solicitation Rules (and not the Tender Offer Rules) at a price per share equal to the Redemption Price calculated in
accordance with the following provisions of this
Section 9.2(b)
. The Redemption Price per share of the Common Stock payable
to holders of the Offering Shares, whether the Corporation is following the Tender Offer Rules or Proxy Solicitation Rules, shall
be equal to the quotient obtained by dividing: (i) the aggregate amount on deposit in the Trust Account as of two business days
prior to the consummation of the initial Business Combination, including interest which shall be net of taxes payable, by (ii)
the total number of then outstanding Offering Shares.
(c) If
the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination
pursuant to a proxy solicitation, a Public Stockholder, together with any affiliate of such stockholder or any other person with
whom such stockholder is acting in concert or as a “
group
” (as defined under Section 13(d)(3) of the
Exchange Act), shall be restricted from seeking Redemption Rights with respect to more than an aggregate of 15% of the Offering
Shares without the prior consent of the Corporation.
(d) In
the event that the Corporation has not consummated an initial Business Combination within 18 months from the closing of the Offering,
the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but
not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in
consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on
deposit in the Trust Account, including interest (which shall be net of taxes payable and less up to $150,000 to pay dissolution
expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the
Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and
(iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the
Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under
the DGCL to provide for claims of creditors and other requirements of applicable law.
(e) If
the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination,
the Corporation shall consummate such proposed initial Business Combination only if (i) such initial Business Combination is approved
by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting
held to consider such initial Business Combination and (ii) the Redemption Limitation is not exceeded.
(f) If
the Corporation conducts a tender offer pursuant to
Section 9.2(b)
, the Corporation shall consummate the proposed initial
Business Combination only if the Redemption Limitation is not exceeded.
Section 9.3
Distributions
from the Trust Account
.
(a) A
Public Stockholder shall be entitled to receive funds from the Trust Account only as provided in
Sections 9.2(a)
,
9.2(b)
,
9.2(d)
or
9.7
hereof. In no other circumstances shall a Public Stockholder have any right or interest of any kind
in or to distributions from the Trust Account, and no stockholder other than a Public Stockholder shall have any interest in or
to the Trust Account.
(b) Each
Public Stockholder that does not exercise its Redemption Rights shall retain its interest in the Corporation and shall be deemed
to have given its consent to the release of the remaining funds in the Trust Account to the Corporation, and following payment
to any Public Stockholders exercising their Redemption Rights, the remaining funds in the Trust Account shall be released to the
Corporation.
(c) The
exercise by a Public Stockholder of the Redemption Rights shall be conditioned on such Public Stockholder following the specific
procedures for redemptions set forth by the Corporation in any applicable tender offer or proxy materials sent to the Public Stockholders
relating to such proposed initial Business Combination. Payment of the amounts necessary to satisfy the Redemption Rights properly
exercised shall be made as promptly as practical after the consummation of the initial Business Combination.
Section 9.4
Share
Issuances
. Prior to the consummation of the Corporation’s initial Business Combination, the Corporation shall not issue
any additional shares of capital stock of the Corporation that would entitle the holders thereof to receive funds from the Trust
Account or vote on any initial Business Combination, on any pre-Business Combination activity or on any amendment to this
Article
IX
.
Section 9.5
Transactions
with Affiliates
. In the event the Corporation enters into an initial Business Combination with a target business that is affiliated
with the Sponsor, or the directors or officers of the Corporation, the Corporation, or a committee of the independent directors
of the Corporation, shall obtain an opinion from an independent investment banking firm, or another independent entity that commonly
renders valuation opinions, that such Business Combination is fair to the Corporation from a financial point of view.
Section 9.6
Intentionally
Omitted
.
Section 9.7
Additional
Redemption Rights
. If, in accordance with
Section 9.1(a)
, any amendment is made to this
Article IX
, the Public
Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at
a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest which
shall be net of taxes payable, divided by the number of then outstanding Offering Shares. No such amendment may be effectuated
if the Redemption Limitation would be exceeded upon approval of such amendment.
Section 9.8
Minimum
Value of Target
. The initial Business Combination must occur with one or more target businesses that together have a fair market
value of at least 80% of the assets held in the Trust Account (excluding any deferred underwriting commissions and taxes payable
on interest earned) at the time of the agreement to enter into the Business Combination.
ARTICLE X
CORPORATE OPPORTUNITY
The Corporation renounces,
to the fullest extent permitted by law, any interest or expectancy of the Corporation in, or in being offered an opportunity to
participate in, any Excluded Opportunity pursuant to Section 122(17) of the DGCL. An “
Excluded Opportunity
”
is any matter, transaction or interest that is presented to, or acquired, created or developed by, or which otherwise comes into
the possession of (i) any director of the Corporation who is not an employee of the Corporation or any of its subsidiaries, or
(ii) any holder of Common Stock or Preferred Stock or any partner, member, director, stockholder, employee or agent of any such
holder, other than someone who is an employee of the Corporation or any of its subsidiaries (collectively, “
Covered
Persons
”), unless such matter, transaction or interest is presented to, or acquired, created or developed by, or
otherwise comes into the possession of, a Covered Person expressly and solely in such Covered Person’s capacity as a director
of the Corporation, such opportunity is one the Corporation is legally and contractually permitted to undertake and would otherwise
be reasonable for the Corporation to pursue, and to the extent the director is permitted to refer that opportunity to the Corporation
without violating any legal or contractual obligation. Any amendment, repeal or modification of the foregoing provisions of this
Article X
shall not adversely affect any right or protection of any director, officer or other agent of the Corporation
existing at the time of such amendment, repeal or modification.
ARTICLE XI
AMENDMENT OF AMENDED AND RESTATED CERTIFICATE
OF INCORPORATION
The Corporation reserves
the right at any time and from time to time to amend, alter, change or repeal any provision contained in this Amended and Restated
Certificate (including any Preferred Stock Designation), and other provisions authorized by the laws of the State of Delaware at
the time in force that may be added or inserted, in the manner now or hereafter prescribed by this Amended and Restated Certificate
and the DGCL; and, except as set forth in
Article VIII
, all rights, preferences and privileges of whatever nature herein
conferred upon stockholders, directors or any other persons by and pursuant to this Amended and Restated Certificate in its present
form or as hereafter amended are granted subject to the right reserved in this
Article XI
;
provided
,
however
,
that
Article IX
of this Amended and Restated Certificate may be amended only as provided therein.
ARTICLE XII
EXCLUSIVE FORUM FOR CERTAIN LAWSUITS
Section 12.1
Forum
.
Unless the Corporation consents in writing to the selection of an alternative forum, and except as otherwise set forth in the
immediately following sentence, the Court of Chancery of the State of Delaware shall be the sole and exclusive forum for any stockholder
(including a beneficial owner) to bring (i) any derivative action or proceeding brought on behalf of the Corporation, (ii) any
action asserting a claim of breach of a fiduciary duty owed by any director, officer or other employee of the Corporation to the
Corporation or the Corporation’s stockholders, (iii) any action asserting a claim against the Corporation, its directors,
officers or employees arising pursuant to any provision of the DGCL or this Amended and Restated Certificate or the Bylaws, or
(iv) any action asserting a claim against the Corporation, its directors, officers or employees governed by the internal affairs
doctrine, except for, as to each of (i) through (iv) above, any claim as to which the Court of Chancery determines that there
is an indispensable party not subject to the jurisdiction of the Court of Chancery (and the indispensable party does not consent
to the personal jurisdiction of the Court of Chancery within ten days following such determination), which is vested in the exclusive
jurisdiction of a court or forum other than the Court of Chancery, or for which the Court of Chancery does not have subject matter
jurisdiction. Notwithstanding the foregoing, (a) the provisions of this
Section 12.1
will not apply to suits brought to
enforce any liability or duty created by the Exchange Act or any other claim for which the federal courts have exclusive jurisdiction
and (b) unless the Corporation consents in writing to the selection of an alternative forum, the federal district courts of the
United States of America shall be the exclusive forum for the resolution of any complaint asserting a cause of action against
the Corporation or any director, officer, employee or agent of the Corporation and arising under the Securities Act of 1933, as
amended.
Section 12.2
Consent
to Jurisdiction
. If any action the subject matter of which is within the scope of
Section 12.1
immediately above is
filed in a court other than a court located within the State of Delaware (a “
Foreign Action
”) in the
name of any stockholder, such stockholder shall be deemed to have consented to (i) the personal jurisdiction of the state and federal
courts located within the State of Delaware in connection with any action brought in any such court to enforce
Section 12.1
immediately above (an “
FSC Enforcement Action
”) and (ii) having service of process made upon such stockholder
in any such FSC Enforcement Action by service upon such stockholder’s counsel in the Foreign Action as agent for such stockholder.
ARTICLE XIII
SEVERABILITY
If any provision or
provisions (or any part thereof) of this Amended and Restated Certificate shall be held to be invalid, illegal or unenforceable
as applied to any person, entity or circumstance for any reason whatsoever, then, to the fullest extent permitted by law, (i) the
validity, legality and enforceability of such provisions in any other circumstance and of the remaining provisions of this Amended
and Restated Certificate (including, without limitation, each portion of any paragraph of this Amended and Restated Certificate
containing any such provision held to be invalid, illegal or unenforceable that is not itself held to be invalid, illegal or unenforceable)
and the application of such provision to other persons or entities and circumstances shall not in any way be affected or impaired
thereby, and (ii) the provisions of this Amended and Restated Certificate (including, without limitation, each portion of any paragraph
of this Amended and Restated Certificate containing any such provision held to be invalid, illegal or unenforceable) shall be construed
so as to permit the Corporation to protect its directors, officers, employees and agents from personal liability in respect of
their good faith service or for the benefit of the Corporation to the fullest extent permitted by law.
ARTICLE XIV
APPLICATION
OF DGCL SECTION 203
Section 14.1
Section
203 of the DGCL
. The Corporation hereby expressly elects not to be governed by Section 203 of the DGCL.
Section 14.2
Limitation
on Business Combinations
. Notwithstanding the foregoing, the Corporation shall not engage in any business combination (as defined
below), at any point in time at which the Corporation’s Common Stock is registered under Section 12(b) or 12(g) of the Exchange
Act with any interested stockholder (as defined below) for a period of three (3) years following the time that such stockholder
became an interested stockholder, unless:
(a) prior
to such time, the Board approved either the business combination or the transaction which resulted in the stockholder becoming
an interested stockholder, or
(b) upon
consummation of the transaction that resulted in the stockholder becoming an interested stockholder, the interested stockholder
owned at least eighty-five percent (85%) of the voting stock outstanding at the time the transaction commenced, excluding for purposes
of determining the voting stock outstanding (but not the outstanding voting stock owned by the interested stockholder) those shares
owned by (i) persons who are directors and also officers of the Corporation and (ii) employee stock plans in which employee participants
do not have the right to determine confidentially whether shares held subject to the plan will be tendered in a tender or exchange
offer, or
(c) at
or subsequent to that time, the business combination is approved by the Board and authorized at an annual or special meeting of
stockholders, and not by written consent, by the affirmative vote of at least 66-2/3% of the outstanding voting stock that is not
owned by the interested stockholder.
Section 14.3.
Certain
Definitions
. Solely for purposes of this
Article XIV
, references to:
(a) “
affiliate
”
means a person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common
control with, another person.
(b) “
associate
,”
when used to indicate a relationship with any person, means: (i) any corporation, partnership, unincorporated association or other
entity of which such person is a director, officer or partner or is, directly or indirectly, the owner of twenty percent (20%)
or more of any class of voting stock; (ii) any trust or other estate in which such person has at least a twenty percent (20%) beneficial
interest or as to which such person serves as trustee or in a similar fiduciary capacity; and (iii) any relative or spouse of such
person, or any relative of such spouse, who has the same residence as such person.
(c) “
business
combination
,” when used in reference to the Corporation and any interested stockholder of the Corporation, means:
(i) any
merger or consolidation of the Corporation or any direct or indirect majority-owned subsidiary of the Corporation (a) with the
interested stockholder, or (b) with any other corporation, partnership, unincorporated association or other entity if the merger
or consolidation is caused by the interested stockholder and as a result of such merger or consolidation
Section 14.2
is
not applicable to the surviving entity;
(ii) any
sale, lease, exchange, mortgage, pledge, transfer or other disposition (in one transaction or a series of transactions), except
proportionately as a stockholder of the Corporation, to or with the interested stockholder, whether as part of a dissolution or
otherwise, of assets of the Corporation or of any direct or indirect majority-owned subsidiary of the Corporation which assets
have an aggregate market value equal to ten percent (10%) or more of either the aggregate market value of all the assets of the
Corporation determined on a consolidated basis or the aggregate market value of all the outstanding stock of the Corporation;
(iii) any
transaction which results in the issuance or transfer by the Corporation or by any direct or indirect majority-owned subsidiary
of the Corporation of any stock of the Corporation or of such subsidiary to the interested stockholder, except: (a) pursuant to
the exercise, exchange or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation
or any such subsidiary which securities were outstanding prior to the time that the interested stockholder became such; (b) pursuant
to a merger under Section 251(g) of the DGCL; (c) pursuant to a dividend or distribution paid or made, or the exercise, exchange
or conversion of securities exercisable for, exchangeable for or convertible into stock of the Corporation or any such subsidiary
which security is distributed, pro rata to all stockholders of a class or series of stock of the Corporation subsequent to the
time the interested stockholder became such; (d) pursuant to an exchange offer by the Corporation to purchase stock made on the
same terms to all stockholders of said stock; or (e) any issuance or transfer of stock by the Corporation;
provided
,
however
,
that in no case under items (c)-(e) of this subsection (iii) shall there be an increase in the interested stockholder’s proportionate
share of the stock of any class or series of the Corporation or of the voting stock of the Corporation (except as a result of immaterial
changes due to fractional share adjustments); or
(iv) any
transaction involving the Corporation or any direct or indirect majority-owned subsidiary of the Corporation which has the effect,
directly or indirectly, of increasing the proportionate share of the stock of any class or series, or securities convertible into
the stock of any class or series, of the Corporation or of any such subsidiary which is owned by the interested stockholder, except
as a result of immaterial changes due to fractional share adjustments or as a result of any purchase or redemption of any shares
of stock not caused, directly or indirectly, by the interested stockholder.
(d) “
control
,”
including the terms “
controlling
,” “
controlled by
” and “
under common control with
,”
means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a
person, whether through the ownership of voting stock, by contract, or otherwise. A person who is the owner of twenty percent (20%)
or more of the voting power of the outstanding voting stock of the Corporation, partnership, unincorporated association or other
entity shall be presumed to have control of such entity, in the absence of proof by a preponderance of the evidence to the contrary.
Notwithstanding the foregoing, a presumption of control shall not apply where such person holds voting stock, in good faith and
not for the purpose of circumventing this
Article XIV
, as an agent, bank, broker, nominee, custodian or trustee for one
or more owners who do not individually or as a group have control of such entity.
(e) “
Exempted
Person
” means Schultze Asset Management, LP, the Sponsor and their respective affiliates, any of their respective direct
or indirect transferees of at least 15% of the Corporation’s outstanding common stock and any “group” of which
any such person is a part under Rule 13d-5 of the Exchange Act.
(f) “
interested
stockholder
” means any person (other than the Corporation or any direct or indirect majority-owned subsidiary of the
Corporation) that (i) is the owner of fifteen percent (15%) or more of the voting stock of the Corporation, or (ii) is an affiliate
or associate of the Corporation and was the owner of fifteen percent (15%) or more of the voting stock of the Corporation at any
time within the three (3) year period immediately prior to the date on which it is sought to be determined whether such person
is an interested stockholder; and the affiliates and associates of such person; but “interested stockholder” shall
not include (a) any Exempted Person, or (b) any person whose ownership of shares in excess of the fifteen percent (15%) limitation
set forth herein is the result of any action taken solely by the Corporation; provided that with respect to clause (b) such person
shall be an interested stockholder if thereafter such person acquires additional shares of voting stock of the Corporation, except
as a result of further corporate action not caused, directly or indirectly, by such person. For the purpose of determining whether
a person is an interested stockholder, the voting stock of the Corporation deemed to be outstanding shall include stock deemed
to be owned by the person through application of the definition of “owner” below but shall not include any other unissued
stock of the Corporation which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of conversion
rights, warrants or options, or otherwise.
(g) “
owner
,”
including the terms “
own
” and “
owned
,” when used with respect to any stock, means a person
that individually or with or through any of its affiliates or associates:
(i) beneficially
owns such stock, directly or indirectly; or
(ii) has
(a) the right to acquire such stock (whether such right is exercisable immediately or only after the passage of time) pursuant
to any agreement, arrangement or understanding, or upon the exercise of conversion rights, exchange rights, warrants or options,
or otherwise;
provided
,
however
, that a person shall not be deemed the owner of stock tendered pursuant
to a tender or exchange offer made by such person or any of such person’s affiliates or associates until such tendered stock
is accepted for purchase or exchange; or (b) the right to vote such stock pursuant to any agreement, arrangement or understanding;
provided, however, that a person shall not be deemed the owner of any stock because of such person’s right to vote such stock
if the agreement, arrangement or understanding to vote such stock arises solely from a revocable proxy or consent given in response
to a proxy or consent solicitation made to ten (10) or more persons; or
(iii) has
any agreement, arrangement or understanding for the purpose of acquiring, holding, voting (except voting pursuant to a revocable
proxy or consent as described in item (b) of subsection (ii) above), or disposing of such stock with any other person that beneficially
owns, or whose affiliates or associates beneficially own, directly or indirectly, such stock.
(h) “
person
”
means any individual, corporation, partnership, unincorporated association or other entity.
(i) “
stock
”
means, with respect to any corporation, capital stock and, with respect to any other entity, any equity interest.
(j) “
voting
stock
” means stock of any class or series entitled to vote generally in the election of directors.
IN WITNESS WHEREOF,
Schultze Special Purpose Acquisition Corp. has caused this Amended and Restated Certificate to be duly executed and acknowledged
in its name and on its behalf by an authorized officer as of the date first set forth above.
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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[Signature Page to Amended and Restated
Certificate of Incorporation]
Exhibit 3.3
BY LAWS
OF
Schultze Special Purpose Acquisition Corp.
(THE “CORPORATION”)
Article
I
OFFICES
Section
1.1. Registered Office
. The registered office of the Corporation within the State of Delaware
shall be located at either (a) the principal place of business of the Corporation in the State of Delaware or (b) the office of
the corporation or individual acting as the Corporation’s registered agent in Delaware.
Section
1.2. Additional Offices
. The Corporation may, in addition to its registered office in
the State of Delaware, have such other offices and places of business, both within and outside the State of Delaware, as the Board
of Directors of the Corporation (the “
Board
”) may from time to time determine or as the business and
affairs of the Corporation may require.
Article
II
STOCKHOLDERS MEETINGS
Section
2.1. Annual Meetings
. The annual meeting of stockholders shall be held at such place,
either within or without the State of Delaware, and time and on such date as shall be determined by the Board and stated in the
notice of the meeting, provided that the Board may in its sole discretion determine that the meeting shall not be held at any
place, but may instead be held solely by means of remote communication pursuant to
Section 9.5(a)
. At each annual
meeting, the stockholders shall elect those directors of the Corporation to fill any term of a directorship that expires on the
date of such annual meeting and may transact any other business as may properly be brought before the meeting.
Section
2.2. Special Meetings
. Subject to the rights of the holders of any outstanding series
of the preferred stock of the Corporation (“
Preferred Stock
”), special meetings of stockholders, for
any purpose or purposes, may be called only by the Chairman of the Board, Chief Executive Officer, or the Board pursuant to a
resolution adopted by a majority of the Board, and may not be called by any other person. Special meetings of stockholders shall
be held at such place, either within or without the State of Delaware, and time and on such date as shall be determined by the
Board and stated in the Corporation’s notice of the meeting, provided that the Board may in its sole discretion determine
that the meeting shall not be held at any place, but may instead be held solely by means of remote communication pursuant to
Section 9.5(a)
.
Section
2.3. Notices
. Written notice of each stockholders meeting stating the place, if any, date,
and time of the meeting, and the means of remote communication, if any, by which stockholders and proxy holders may be deemed
to be present in person and vote at such meeting, and the record date for determining the stockholders entitled to vote at the
meeting, if such date is different from the record date for determining stockholders entitled to notice of the meeting, shall
be given in the manner permitted by
Section 9.3
to each stockholder entitled to vote thereat as of the record date
for determining the stockholders entitled to notice of the meeting, by the Corporation not less than 10 nor more than 60 days
before the date of the meeting unless otherwise required by the General Corporation Law of the State of Delaware (the “
DGCL
”).
If said notice is for a stockholders meeting other than an annual meeting, it shall in addition state the purpose or purposes
for which the meeting is called, and the business transacted at such meeting shall be limited to the matters so stated in the
Corporation’s notice of meeting (or any supplement thereto). Any meeting of stockholders as to which notice has been given
may be postponed, and any meeting of stockholders as to which notice has been given may be cancelled, by the Board upon public
announcement (as defined in
Section 2.7(c)
) given before the date previously scheduled for such meeting.
Section
2.4. Quorum
. Except as otherwise provided by applicable law, the Corporation’s Certificate
of Incorporation, as the same may be amended or restated from time to time (the “
Certificate of Incorporation
”)
or these By Laws, the presence, in person or by proxy, at a stockholders meeting of the holders of shares of outstanding capital
stock of the Corporation representing a majority of the voting power of all outstanding shares of capital stock of the Corporation
entitled to vote at such meeting shall constitute a quorum for the transaction of business at such meeting, except that when specified
business is to be voted on by a class or series of stock voting as a class, the holders of shares representing a majority of the
voting power of the outstanding shares of such class or series shall constitute a quorum of such class or series for the transaction
of such business. If a quorum shall not be present or represented by proxy at any meeting of the stockholders of the Corporation,
the chairman of the meeting may adjourn the meeting from time to time in the manner provided in
Section 2.6
until
a quorum shall attend. The stockholders present at a duly convened meeting may continue to transact business until adjournment,
notwithstanding the withdrawal of enough stockholders to leave less than a quorum. Shares of its own stock belonging to the Corporation
or to another corporation, if a majority of the voting power of the shares entitled to vote in the election of directors of such
other corporation is held, directly or indirectly, by the Corporation, shall neither be entitled to vote nor be counted for quorum
purposes; provided, however, that the foregoing shall not limit the right of the Corporation or any such other corporation to
vote shares held by it in a fiduciary capacity.
Section
2.5. Voting of Shares
.
(a)
Voting
Lists
. The officer who has charge of the stock ledger of the Corporation shall prepare and make, at least 10 days before
every meeting of stockholders, a complete list of the stockholders of record entitled to vote at such meeting; provided, however,
if the record date for determining the stockholders entitled to vote is less than 10 days before the meeting date, the list shall
reflect the stockholders entitled to vote as of the tenth day before the meeting date, arranged in alphabetical order and showing
the address and the number of shares registered in the name of each stockholder. Nothing contained in this
Section 2.5(a)
shall require the Corporation to include electronic mail addresses or other electronic contact information on such list. Such
list shall be open to the examination of any stockholder, for any purpose germane to the meeting, during ordinary business hours
for a period of at least 10 days prior to the meeting: (i) on a reasonably accessible electronic network, provided that the information
required to gain access to such list is provided with the notice of the meeting, or (ii) during ordinary business hours, at the
principal place of business of the Corporation. In the event that the Corporation determines to make the list available on an
electronic network, the Corporation may take reasonable steps to ensure that such information is available only to stockholders
of the Corporation. If the meeting is to be held at a place, then the list shall be produced and kept at the time and place of
the meeting during the whole time thereof, and may be examined by any stockholder who is present. If a meeting of stockholders
is to be held solely by means of remote communication as permitted by
Section 9.5(a)
, the list shall be open to the
examination of any stockholder during the whole time of the meeting on a reasonably accessible electronic network, and the information
required to access such list shall be provided with the notice of meeting. The stock ledger shall be the only evidence as to who
are the stockholders entitled to examine the list required by this
Section 2.5(a)
or to vote in person or by proxy
at any meeting of stockholders.
(b)
Manner
of Voting
. At any stockholders meeting, every stockholder entitled to vote may vote in person or by proxy. If authorized
by the Board, the voting by stockholders or proxy holders at any meeting conducted by remote communication may be effected by
a ballot submitted by electronic transmission (as defined in
Section 9.3
), provided that any such electronic transmission
must either set forth or be submitted with information from which the Corporation can determine that the electronic transmission
was authorized by the stockholder or proxy holder. The Board, in its discretion, or the chairman of the meeting of stockholders,
in such person’s discretion, may require that any votes cast at such meeting shall be cast by written ballot.
(c)
Proxies
.
Each stockholder entitled to vote at a meeting of stockholders or to express consent or dissent to corporate action in writing
without a meeting may authorize another person or persons to act for such stockholder by proxy, but no such proxy shall be voted
or acted upon after three years from its date, unless the proxy provides for a longer period. Without limiting the manner in which
a stockholder may authorize another person or persons to act for such stockholder as proxy, either of the following shall constitute
a valid means by which a stockholder may grant such authority.
(i) A
stockholder may execute a writing authorizing another person or persons to act for such stockholder as proxy. Execution may be
accomplished by the stockholder or such stockholder’s authorized officer, director, employee or agent signing such writing
or causing such person’s signature to be affixed to such writing by any reasonable means, including, but not limited to,
by facsimile signature.
(ii) A
stockholder may authorize another person or persons to act for such stockholder as proxy by transmitting or authorizing the transmission
of an electronic transmission to the person who will be the holder of the proxy or to a proxy solicitation firm, proxy support
service organization or like agent duly authorized by the person who will be the holder of the proxy to receive such transmission,
provided that any such electronic transmission must either set forth or be submitted with information from which it can be determined
that the electronic transmission was authorized by the stockholder.
Any copy, facsimile telecommunication or other reliable reproduction
of the writing or transmission authorizing another person or persons to act as proxy for a stockholder may be substituted or used
in lieu of the original writing or transmission for any and all purposes for which the original writing or transmission could be
used; provided that such copy, facsimile telecommunication or other reproduction shall be a complete reproduction of the entire
original writing or transmission.
(d)
Required
Vote
. Subject to the rights of the holders of one or more series of Preferred Stock, voting separately by class or
series, to elect directors pursuant to the terms of one or more series of Preferred Stock, at all meetings of stockholders at
which a quorum is present, the election of directors shall be determined by a plurality of the votes cast by the stockholders
present in person or represented by proxy at the meeting and entitled to vote thereon. All other matters presented to the stockholders
at a meeting at which a quorum is present shall be determined by the vote of a majority of the votes cast by the stockholders
present in person or represented by proxy at the meeting and entitled to vote thereon, unless the matter is one upon which, by
applicable law, the Certificate of Incorporation, these By Laws or applicable stock exchange rules, a different vote is required,
in which case such provision shall govern and control the decision of such matter.
(e)
Inspectors
of Election
. The Board may, and shall if required by law, in advance of any meeting of stockholders, appoint one or
more persons as inspectors of election, who may be employees of the Corporation or otherwise serve the Corporation in other capacities,
to act at such meeting of stockholders or any adjournment thereof and to make a written report thereof. The Board may designate
one or more persons as alternate inspectors to replace any inspector who fails to act. If no inspectors of election or alternates
are appointed by the Board, the chairman of the meeting shall appoint one or more inspectors to act at the meeting. Each inspector,
before discharging his or her duties, shall take and sign an oath faithfully to execute the duties of inspector with strict impartiality
and according to the best of his or her ability. The inspectors shall ascertain and report the number of outstanding shares and
the voting power of each; determine the number of shares present in person or represented by proxy at the meeting and the validity
of proxies and ballots; count all votes and ballots and report the results; determine and retain for a reasonable period a record
of the disposition of any challenges made to any determination by the inspectors; and certify their determination of the number
of shares represented at the meeting and their count of all votes and ballots. No person who is a candidate for an office at an
election may serve as an inspector at such election. Each report of an inspector shall be in writing and signed by the inspector
or by a majority of them if there is more than one inspector acting at such meeting. If there is more than one inspector, the
report of a majority shall be the report of the inspectors.
Section
2.6. Adjournments
. Any meeting of stockholders, annual or special, may be adjourned, from
time to time, whether or not there is a quorum, to reconvene at the same or some other place. Notice need not be given of any
such adjourned meeting if the date, time, and place, if any, thereof, and the means of remote communication, if any, by which
stockholders and proxy holders may be deemed to be present in person and vote at such adjourned meeting are announced at the meeting
at which the adjournment is taken. At the adjourned meeting the stockholders, or the holders of any class or series of stock entitled
to vote separately as a class, as the case may be, may transact any business that might have been transacted at the original meeting.
If the adjournment is for more than 30 days, notice of the adjourned meeting shall be given to each stockholder of record entitled
to vote at the meeting. If after the adjournment a new record date for stockholders entitled to vote is fixed for the adjourned
meeting, the Board shall fix a new record date for notice of such adjourned meeting in accordance with
Section 9.2
, and
shall give notice of the adjourned meeting to each stockholder of record entitled to vote at such adjourned meeting as of the
record date fixed for notice of such adjourned meeting.
Section
2.7. Advance Notice for Business.
(a)
Annual
Meetings of Stockholders
. No business (other than nominations of individual(s) for election to the Board) may be transacted
at an annual meeting of stockholders, other than business that is either (i) specified in the Corporation’s notice of meeting
(or any supplement thereto), (ii) otherwise properly brought before the annual meeting by or at the direction of the Board or
(iii) otherwise properly brought before the annual meeting by any stockholder of the Corporation (x) who is a stockholder of record
on the date of the giving of the notice provided for in this
Section 2.7(a)
and on the record date for the determination
of stockholders entitled to vote at such annual meeting and (y) who complies with the notice procedures set forth in this
Section 2.7(a)
.
Notwithstanding anything in this
Section 2.7(a)
to the contrary, only persons nominated for election as a director
to fill any term of a directorship that expires on the date of the annual meeting pursuant to
Section 3.2
will be
considered for election at such meeting.
(i) In
addition to any other applicable requirements, for business (other than nominations) to be properly brought before an annual meeting
by a stockholder, such stockholder must have given timely notice thereof in proper written form to the Secretary of the Corporation
and such business must otherwise be a proper matter for stockholder action. Subject to
Section 2.7(a)(iii)
, a stockholder’s
notice to the Secretary with respect to such business, to be timely, must be delivered to the Secretary at the principal executive
offices of the Corporation not later than the close of business on the 90th day nor earlier than the close of business on the 120th
day before the anniversary date of the immediately preceding annual meeting of stockholders; provided, however, that in the event
that the annual meeting is more than 30 days before or more than 70 days after such anniversary date, notice by the stockholder
to be timely must be so delivered not earlier than the close of business on the 120th day before the meeting and not later than
the later of (x) the close of business on the 90th day before the meeting or (y) the close of business on the 10th day following
the day on which public announcement of the date of the annual meeting is first made by the Corporation. The public announcement
of an adjournment or postponement of an annual meeting shall not commence a new time period (or extend any time period) for the
giving of a stockholder’s notice as described in this
Section 2.7(a)
.
(ii) To
be in proper written form, a stockholder’s notice to the Secretary with respect to any business (other than nominations)
must set forth as to each such matter such stockholder proposes to bring before the annual meeting (A) a brief description of
the business desired to be brought before the annual meeting, the text of the proposal or business (including the text of any
resolutions proposed for consideration and in the event such business includes a proposal to amend these By Laws, the language
of the proposed amendment) and the reasons for conducting such business at the annual meeting, (B) the name and record address
of such stockholder and the name and address of the beneficial owner, if any, on whose behalf the proposal is made, (C) the class
or series and number of shares of capital stock of the Corporation that are owned beneficially and of record by such stockholder
and by the beneficial owner, if any, on whose behalf the proposal is made, (D) a description of all arrangements or understandings
between such stockholder and the beneficial owner, if any, on whose behalf the proposal is made and any other person or persons
(including their names) in connection with the proposal of such business by such stockholder, (E) any material interest of such
stockholder and the beneficial owner, if any, on whose behalf the proposal is made in such business and (F) a representation that
such stockholder (or a qualified representative of such stockholder) intends to appear in person or by proxy at the annual meeting
to bring such business before the meeting.
(iii) The
foregoing notice requirements of this
Section 2.7(a)
shall be deemed satisfied by a stockholder as to any proposal
(other than nominations) if the stockholder has notified the Corporation of such stockholder’s intention to present such
proposal at an annual meeting in compliance with Rule 14a-8 (or any successor thereof) of the Securities Exchange Act of 1934,
as amended (the “
Exchange Act
”), and such stockholder has complied with the requirements of such Rule
for inclusion of such proposal in a proxy statement prepared by the Corporation to solicit proxies for such annual meeting. No
business shall be conducted at the annual meeting of stockholders except business brought before the annual meeting in accordance
with the procedures set forth in this
Section 2.7(a)
, provided, however, that once business has been properly brought
before the annual meeting in accordance with such procedures, nothing in this
Section 2.7(a)
shall be deemed to preclude
discussion by any stockholder of any such business. If the Board or the chairman of the annual meeting determines that any stockholder
proposal was not made in accordance with the provisions of this
Section 2.7(a)
or that the information provided in
a stockholder’s notice does not satisfy the information requirements of this
Section 2.7(a)
, such proposal shall
not be presented for action at the annual meeting. Notwithstanding the foregoing provisions of this
Section 2.7(a)
,
if the stockholder (or a qualified representative of the stockholder) does not appear at the annual meeting of stockholders of
the Corporation to present the proposed business, such proposed business shall not be transacted, notwithstanding that proxies
in respect of such matter may have been received by the Corporation.
(iv) In
addition to the provisions of this
Section 2.7(a)
, a stockholder shall also comply with all applicable requirements
of the Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this
Section 2.7(a)
shall be deemed to affect any rights of stockholders to request inclusion of proposals in the Corporation’s proxy statement
pursuant to Rule 14a-8 under the Exchange Act.
(b)
Special
Meetings of Stockholders
. Only such business shall be conducted at a special meeting of stockholders as shall have
been brought before the meeting pursuant to the Corporation’s notice of meeting. Nominations of persons for election to
the Board may be made at a special meeting of stockholders at which directors are to be elected pursuant to the Corporation’s
notice of meeting only pursuant to
Section 3.2
.
(c)
Public
Announcement
. For purposes of these By Laws, “
public announcement
” shall mean disclosure
in a press release reported by the Dow Jones News Service, Associated Press or comparable national news service or in a document
publicly filed by the Corporation with the Securities and Exchange Commission pursuant to Sections 13, 14 or 15(d) of the Exchange
Act (or any successor thereto).
Section
2.8. Conduct of Meetings
. The chairman of each annual and special meeting of stockholders
shall be the Chairman of the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief
Executive Officer (if he or she shall be a director) or, in the absence (or inability or refusal to act of the Chief Executive
Officer or if the Chief Executive Officer is not a director, the President (if he or she shall be a director) or, in the absence
(or inability or refusal to act) of the President or if the President is not a director, such other person as shall be appointed
by the Board. The Board may adopt such rules and regulations for the conduct of the meeting of stockholders as it shall deem appropriate.
Except to the extent inconsistent with these By Laws or such rules and regulations as adopted by the Board, the chairman of any
meeting of stockholders shall have the right and authority to convene and to adjourn the meeting, to prescribe such rules, regulations
and procedures and to do all such acts as, in the judgment of such chairman, are appropriate for the proper conduct of the meeting.
Such rules, regulations or procedures, whether adopted by the Board or prescribed by the chairman of the meeting, may include,
without limitation, the following: (a) the establishment of an agenda or order of business for the meeting; (b) rules and procedures
for maintaining order at the meeting and the safety of those present; (c) limitations on attendance at or participation in the
meeting to stockholders of record of the Corporation, their duly authorized and constituted proxies or such other persons as the
chairman of the meeting shall determine; (d) restrictions on entry to the meeting after the time fixed for the commencement thereof;
and (e) limitations on the time allotted to questions or comments by participants. Unless and to the extent determined by the
Board or the chairman of the meeting, meetings of stockholders shall not be required to be held in accordance with the rules of
parliamentary procedure. The secretary of each annual and special meeting of stockholders shall be the Secretary or, in the absence
(or inability or refusal to act) of the Secretary, an Assistant Secretary so appointed to act by the chairman of the meeting.
In the absence (or inability or refusal to act) of the Secretary and all Assistant Secretaries, the chairman of the meeting may
appoint any person to act as secretary of the meeting.
Section
2.9. Consents in Lieu of Meeting
. Unless otherwise provided by the Certificate of Incorporation,
until the Corporation consummates an initial public offering (“
Offering
”), any action required to be
taken at any annual or special meeting of stockholders, or any action which may be taken at any annual or special meeting of such
stockholders, may be taken without a meeting, without prior notice and without a vote, if a consent in writing, setting forth
the action so taken, shall be signed by the holders of outstanding stock having not less than the minimum number of votes that
would be necessary to authorize or take such action at a meeting at which all shares entitled to vote thereon were present and
voted, and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal
place of business, or an officer or agent of the Corporation having custody of the book in which proceedings of meetings of stockholders
are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail,
return receipt requested.
Every written consent shall bear the date of signature of each
stockholder who signs the consent, and no written consent shall be effective to take the corporate action referred to therein unless,
within 60 days of the earliest dated consent delivered in the manner required by this section and the DGCL to the Corporation,
written consents signed by a sufficient number of holders to take action are delivered to the Corporation by delivery to its registered
office in Delaware, its principal place of business or an officer or agent of the Corporation having custody of the book in which
proceedings of meetings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand
or by certified or registered mail, return receipt requested.
Article
III
DIRECTORS
Section
3.1. Powers
. The business and affairs of the Corporation shall be managed by or under
the direction of the Board, which may exercise all such powers of the Corporation and do all such lawful acts and things as are
not by statute or by the Certificate of Incorporation or by these By Laws required to be exercised or done by the stockholders.
Directors need not be stockholders or residents of the State of Delaware.
Section
3.2. Advance Notice for Nomination of Directors
.
(a) Only persons
who are nominated in accordance with the following procedures shall be eligible for election as directors of the Corporation, except
as may be otherwise provided by the terms of one or more series of Preferred Stock with respect to the rights of holders of one
or more series of Preferred Stock to elect directors. Nominations of persons for election to the Board at any annual meeting of
stockholders, or at any special meeting of stockholders called for the purpose of electing directors as set forth in the Corporation’s
notice of such special meeting, may be made (i) by or at the direction of the Board or (ii) by any stockholder of the Corporation
(x) who is a stockholder of record on the date of the giving of the notice provided for in this
Section 3.2
and on
the record date for the determination of stockholders entitled to vote at such meeting and (y) who complies with the notice procedures
set forth in this
Section 3.2
.
(b) In addition
to any other applicable requirements, for a nomination to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the Secretary of the Corporation. To be timely, a stockholder’s notice to the Secretary
must be delivered to the Secretary at the principal executive offices of the Corporation (i) in the case of an annual meeting,
not later than the close of business on the 90th day nor earlier than the close of business on the 120th day before the anniversary
date of the immediately preceding annual meeting of stockholders; provided, however, that in the event that the annual meeting
is more than 30 days before or more than 70 days after such anniversary date, notice by the stockholder to be timely must be so
delivered not earlier than the close of business on the 120th day before the meeting and not later than the later of (x) the close
of business on the 90th day before the meeting or (y) the close of business on the 10th day following the day on which public announcement
of the date of the annual meeting was first made by the Corporation; and (ii) in the case of a special meeting of stockholders
called for the purpose of electing directors, not later than the close of business on the 10th day following the day on which public
announcement of the date of the special meeting is first made by the Corporation. In no event shall the public announcement of
an adjournment or postponement of an annual meeting or special meeting commence a new time period (or extend any time period) for
the giving of a stockholder’s notice as described in this
Section 3.2
.
(c) Notwithstanding
anything in paragraph (b) to the contrary, in the event that the number of directors to be elected to the Board at an annual meeting
is greater than the number of directors whose terms expire on the date of the annual meeting and there is no public announcement
by the Corporation naming all of the nominees for the additional directors to be elected or specifying the size of the increased
Board before the close of business on the 100th day prior to the anniversary date of the immediately preceding annual meeting of
stockholders, a stockholder’s notice required by this
Section 3.2
shall also be considered timely, but only with
respect to nominees for the additional directorships created by such increase that are to be filled by election at such annual
meeting, if it shall be delivered to the Secretary at the principal executive offices of the Corporation not later than the close
of business on the 10th day following the date on which such public announcement was first made by the Corporation.
(d) To be in
proper written form, a stockholder’s notice to the Secretary must set forth (i) as to each person whom the stockholder proposes
to nominate for election as a director (A) the name, age, business address and residence address of the person, (B) the principal
occupation or employment of the person, (C) the class or series and number of shares of capital stock of the Corporation, if any,
that are owned beneficially or of record by the person, (D) any other information relating to the person that would be required
to be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder, without regard
to the application of the Exchange Act to either the nomination or the Corporation; and (ii) as to the stockholder giving the notice
(A) the name and record address of such stockholder as they appear on the Corporation’s books and the name and address of
the beneficial owner, if any, on whose behalf the nomination is made, (B) the class or series and number of shares of capital stock
of the Corporation that are owned beneficially and of record by such stockholder and the beneficial owner, if any, on whose behalf
the nomination is made, (C) a description of all arrangements or understandings relating to the nomination to be made by such stockholder
among such stockholder, the beneficial owner, if any, on whose behalf the nomination is made, each proposed nominee and any other
person or persons (including their names), (D) a representation that such stockholder (or a qualified representative of such stockholder)
intends to appear in person or by proxy at the meeting to nominate the persons named in its notice and (E) any other information
relating to such stockholder and the beneficial owner, if any, on whose behalf the nomination is made that would be required to
be disclosed in a proxy statement or other filings required to be made in connection with solicitations of proxies for election
of directors pursuant to Section 14 of the Exchange Act and the rules and regulations promulgated thereunder. Such notice
must be accompanied by a written consent of each proposed nominee to being named as a nominee and to serve as a director if elected.
(e) If the
Board or the chairman of the meeting of stockholders determines that any nomination was not made in accordance with the provisions
of this
Section 3.2
or that the information provided in a stockholder’s notice does not satisfy the information
requirements of this
Section 3.2
, then such nomination shall not be considered at the meeting in question. Notwithstanding
the foregoing provisions of this
Section 3.2
, if the stockholder (or a qualified representative of the stockholder)
does not appear at the meeting of stockholders of the Corporation to present the nomination, such nomination shall be disregarded,
notwithstanding that proxies in respect of such nomination may have been received by the Corporation.
(f) In addition
to the provisions of this
Section 3.2
, a stockholder shall also comply with all of the applicable requirements of the
Exchange Act and the rules and regulations thereunder with respect to the matters set forth herein. Nothing in this
Section 3.2
shall be deemed to affect any rights of the holders of Preferred Stock to elect directors pursuant to the Certificate of Incorporation.
Section
3.3. Compensation
. Unless otherwise restricted by the Certificate of Incorporation or
these By Laws, the Board shall have the authority to fix the compensation of directors, including for service on a committee of
the Board. The directors may be reimbursed their expenses, if any, of attendance at each meeting of the Board. No such payment
shall preclude any director from serving the Corporation in any other capacity and receiving compensation therefor. Members of
committees of the Board may be allowed like reimbursement of expenses for service on the committee.
Article
IV
BOARD MEETINGS
Section
4.1. Annual Meetings
. The Board shall meet as soon as practicable after the adjournment
of each annual stockholders meeting at the place of the annual stockholders meeting unless the Board shall fix another time and
place and give notice thereof in the manner required herein for special meetings of the Board. No notice to the directors shall
be necessary to legally convene this meeting, except as provided in this
Section 4.1
.
Section
4.2. Regular Meetings
. Regularly scheduled, periodic meetings of the Board may be held
without notice at such times, dates and places (within or without the State of Delaware) as shall from time to time be determined
by the Board.
Section
4.3. Special Meetings
. Special meetings of the Board (a) may be called by the Chairman
of the Board or President and (b) shall be called by the Chairman of the Board, President or Secretary on the written request
of at least a majority of directors then in office, or the sole director, as the case may be, and shall be held at such time,
date and place (within or without the State of Delaware) as may be determined by the person calling the meeting or, if called
upon the request of directors or the sole director, as specified in such written request. Notice of each special meeting of the
Board shall be given, as provided in
Section 9.3
, to each director (i) at least 24 hours before the meeting if such
notice is oral notice given personally or by telephone or written notice given by hand delivery or by means of a form of electronic
transmission and delivery; (ii) at least two days before the meeting if such notice is sent by a nationally recognized overnight
delivery service; and (iii) at least five days before the meeting if such notice is sent through the United States mail. If the
Secretary shall fail or refuse to give such notice, then the notice may be given by the officer who called the meeting or the
directors who requested the meeting. Any and all business that may be transacted at a regular meeting of the Board may be transacted
at a special meeting. Except as may be otherwise expressly provided by applicable law, the Certificate of Incorporation, or these
By Laws, neither the business to be transacted at, nor the purpose of, any special meeting need be specified in the notice or
waiver of notice of such meeting.
Section
4.4. Quorum; Required Vote
. A majority of the Board shall constitute a quorum for the
transaction of business at any meeting of the Board, and the act of a majority of the directors present at any meeting at which
there is a quorum shall be the act of the Board, except as may be otherwise specifically provided by applicable law, the Certificate
of Incorporation or these By Laws. If a quorum shall not be present at any meeting, a majority of the directors present may adjourn
the meeting from time to time, without notice other than announcement at the meeting, until a quorum is present.
Section
4.5. Consent In Lieu of Meeting
. Unless otherwise restricted by the Certificate of Incorporation
or these By Laws, any action required or permitted to be taken at any meeting of the Board or any committee thereof may be taken
without a meeting if all members of the Board or committee, as the case may be, consent thereto in writing or by electronic transmission,
and the writing or writings or electronic transmission or transmissions (or paper reproductions thereof) are filed with the minutes
of proceedings of the Board or committee. Such filing shall be in paper form if the minutes are maintained in paper form and shall
be in electronic form if the minutes are maintained in electronic form.
Section
4.6. Organization
. The chairman of each meeting of the Board shall be the Chairman of
the Board or, in the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he
or she shall be a director) or, in the absence (or inability or refusal to act) of the Chief Executive Officer or if the Chief
Executive Officer is not a director, the President (if he or she shall be a director) or in the absence (or inability or refusal
to act) of the President or if the President is not a director, a chairman elected from the directors present. The Secretary shall
act as secretary of all meetings of the Board. In the absence (or inability or refusal to act) of the Secretary, an Assistant
Secretary shall perform the duties of the Secretary at such meeting. In the absence (or inability or refusal to act) of the Secretary
and all Assistant Secretaries, the chairman of the meeting may appoint any person to act as secretary of the meeting.
Article
V
COMMITTEES OF DIRECTORS
Section
5.1. Establishment
. The Board may by resolution of the Board designate one or more committees,
each committee to consist of one or more of the directors of the Corporation. Each committee shall keep regular minutes of its
meetings and report the same to the Board when required by the resolution designating such committee. The Board shall have the
power at any time to fill vacancies in, to change the membership of, or to dissolve any such committee.
Section
5.2. Available Powers
. Any committee established pursuant to
Section 5.1
hereof,
to the extent permitted by applicable law and by resolution of the Board, shall have and may exercise all of the powers and authority
of the Board in the management of the business and affairs of the Corporation, and may authorize the seal of the Corporation to
be affixed to all papers that may require it.
Section
5.3. Alternate Members
. The Board may designate one or more directors as alternate members
of any committee, who may replace any absent or disqualified member at any meeting of such committee. In the absence or disqualification
of a member of the committee, the member or members thereof present at any meeting and not disqualified from voting, whether or
not he, she or they constitute a quorum, may unanimously appoint another member of the Board to act at the meeting in place of
any such absent or disqualified member.
Section
5.4. Procedures
. Unless the Board otherwise provides, the time, date, place, if any, and
notice of meetings of a committee shall be determined by such committee. At meetings of a committee, a majority of the number
of members of the committee (but not including any alternate member, unless such alternate member has replaced any absent or disqualified
member at the time of, or in connection with, such meeting) shall constitute a quorum for the transaction of business. The act
of a majority of the members present at any meeting at which a quorum is present shall be the act of the committee, except as
otherwise specifically provided by applicable law, the Certificate of Incorporation, these By Laws or the Board. If a quorum is
not present at a meeting of a committee, the members present may adjourn the meeting from time to time, without notice other than
an announcement at the meeting, until a quorum is present. Unless the Board otherwise provides and except as provided in these
By Laws, each committee designated by the Board may make, alter, amend and repeal rules for the conduct of its business. In the
absence of such rules each committee shall conduct its business in the same manner as the Board is authorized to conduct its business
pursuant to
Article IV
of these By Laws.
Article
VI
OFFICERS
Section
6.1. Officers
. The officers of the Corporation elected by the Board shall be a Chairman
of the Board, a Chief Executive Officer, a President, a Chief Financial Officer, a Treasurer, a Secretary and such other officers
(including without limitation, Vice Presidents and Assistant Secretaries) as the Board from time to time may determine. Officers
elected by the Board shall each have such powers and duties as generally pertain to their respective offices, subject to the specific
provisions of this
Article VI
. Such officers shall also have such powers and duties as from time to time may be conferred
by the Board. The Chief Executive Officer or President may also appoint such other officers (including without limitation one
or more Vice Presidents and Controllers) as may be necessary or desirable for the conduct of the business of the Corporation.
Such other officers shall have such powers and duties and shall hold their offices for such terms as may be provided in these
By Laws or as may be prescribed by the Board or, if such officer has been appointed by the Chief Executive Officer or President,
as may be prescribed by the appointing officer.
(a)
Chairman
of the Board
. The Chairman of the Board shall preside when present at all meetings of the stockholders and the Board.
The Chairman of the Board shall have general supervision and control of the acquisition activities of the Corporation subject
to the ultimate authority of the Board, and shall be responsible for the execution of the policies of the Board with respect to
such matters. In the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he
or she shall be a director) shall preside when present at all meetings of the stockholders and the Board. The powers and duties
of the Chairman of the Board shall not include supervision or control of the preparation of the financial statements of the Corporation
(other than through participation as a member of the Board). The position of Chairman of the Board and Chief Executive Officer
may be held by the same person.
(b)
Chief
Executive Officer
. The Chief Executive Officer shall be the chief executive officer of the Corporation, shall have
general supervision of the affairs of the Corporation and general control of all of its business subject to the ultimate authority
of the Board, and shall be responsible for the execution of the policies of the Board with respect to such matters, except to
the extent any such powers and duties have been prescribed to the Chairman of the Board pursuant to
Section 6.1(a)
above. In the absence (or inability or refusal to act) of the Chairman of the Board, the Chief Executive Officer (if he or she
shall be a director) shall preside when present at all meetings of the stockholders and the Board. The position of Chief Executive
Officer and President may be held by the same person.
(c)
President
.
The President shall make recommendations to the Chief Executive Officer on all operational matters that would normally be reserved
for the final executive responsibility of the Chief Executive Officer. In the absence (or inability or refusal to act) of the
Chairman of the Board and Chief Executive Officer, the President (if he or she shall be a director) shall preside when present
at all meetings of the stockholders and the Board. The President shall also perform such duties and have such powers as shall
be designated by the Board. The position of President and Chief Executive Officer may be held by the same person.
(d)
Vice
Presidents
. In the absence (or inability or refusal to act) of the President, the Vice President (or in the event there
be more than one Vice President, the Vice Presidents in the order designated by the Board) shall perform the duties and have the
powers of the President. Any one or more of the Vice Presidents may be given an additional designation of rank or function.
(e)
Chief
Financial Officer
. The Chief Financial Officer shall perform all duties commonly incident to that office (including,
without limitation, the care and custody of the funds and securities of the Corporation, which from time to time may come into
the Chief Financial Officer’s hands and the deposit of the funds of the Corporation in such banks or trust companies as
the Board, the Chief Executive Officer or the President may authorize).
(f)
Treasurer
.
The Treasurer shall have the custody of the corporate funds and securities, except as otherwise provided by the Board, and shall
keep full and accurate accounts of receipts and disbursements in books belonging to the Corporation and shall deposit all moneys
and other valuable effects in the name and to the credit of the Corporation in such depositories as may be designated by the Board.
The Treasurer shall disburse the funds of the Corporation as may be ordered by the Board, taking proper vouchers for such disbursements,
and shall render to the president and the directors, at the regular meetings of the Board, or whenever they may require it, an
account of all his or her transactions as Treasurer and of the financial condition of the Corporation.
(g)
Secretary
.
(i) The
Secretary shall attend all meetings of the stockholders, the Board and (as required) committees of the Board and shall record the
proceedings of such meetings in books to be kept for that purpose. The Secretary shall give, or cause to be given, notice of all
meetings of the stockholders and special meetings of the Board and shall perform such other duties as may be prescribed by the
Board, the Chairman of the Board, Chief Executive Officer or President. The Secretary shall have custody of the corporate seal
of the Corporation and the Secretary, or any Assistant Secretary, shall have authority to affix the same to any instrument requiring
it, and when so affixed, it may be attested by his or her signature or by the signature of such Assistant Secretary. The Board
may give general authority to any other officer to affix the seal of the Corporation and to attest the affixing thereof by his
or her signature.
(ii) The
Secretary shall keep, or cause to be kept, at the principal executive office of the Corporation or at the office of the Corporation’s
transfer agent or registrar, if one has been appointed, a stock ledger, or duplicate stock ledger, showing the names of the stockholders
and their addresses, the number and classes of shares held by each and, with respect to certificated shares, the number and date
of certificates issued for the same and the number and date of certificates cancelled.
(h)
Assistant
Secretaries
. The Assistant Secretary or, if there be more than one, the Assistant Secretaries in the order determined
by the Board shall, in the absence (or inability or refusal to act) of the Secretary, perform the duties and have the powers of
the Secretary.
Section
6.2. Term of Office; Removal; Vacancies
. The elected officers of the Corporation shall
hold office until their successors are duly elected and qualified or until their earlier death, resignation, retirement, disqualification,
or removal from office. Any officer may be removed, with or without cause, at any time by the Board. Any officer appointed by
the Chief Executive Officer or President may also be removed, with or without cause, by the Chief Executive Officer or President,
as the case may be, unless the Board otherwise provides. Any vacancy occurring in any elected office of the Corporation may be
filled by the Board. Any vacancy occurring in any office appointed by the Chief Executive Officer or President may be filled by
the Chief Executive Officer, or President, as the case may be, unless the Board then determines that such office shall thereupon
be elected by the Board, in which case the Board shall elect such officer.
Section
6.3. Multiple Officeholders; Stockholder and Director Officers
. Any number of offices
may be held by the same person unless the Certificate of Incorporation or these By Laws otherwise provide. Officers need not be
stockholders or residents of the State of Delaware.
Article
VII
SHARES
Section
7.1. Certificated and Uncertificated Shares
. The shares of the Corporation may be certificated
or uncertificated, subject to the sole discretion of the Board and the requirements of the DGCL.
Section
7.2. Multiple Classes of Stock
. If the Corporation shall be authorized to issue more than
one class of stock or more than one series of any class, the Corporation shall (a) cause the powers, designations, preferences
and relative, participating, optional or other special rights of each class of stock or series thereof and the qualifications,
limitations or restrictions of such preferences and/or rights to be set forth in full or summarized on the face or back of any
certificate that the Corporation issues to represent shares of such class or series of stock or (b) in the case of uncertificated
shares, within a reasonable time after the issuance or transfer of such shares, send to the registered owner thereof a written
notice containing the information required to be set forth on certificates as specified in clause (a) above; provided, however,
that, except as otherwise provided by applicable law, in lieu of the foregoing requirements, there may be set forth on the face
or back of such certificate or, in the case of uncertificated shares, on such written notice a statement that the Corporation
will furnish without charge to each stockholder who so requests the powers, designations, preferences and relative, participating,
optional or other special rights of each class of stock or series thereof and the qualifications, limitations or restrictions
of such preferences or rights.
Section
7.3. Signatures
. Each certificate representing capital stock of the Corporation shall
be signed by or in the name of the Corporation by (a) the Chairman of the Board, the Chief Executive Officer, the President or
a Vice President and (b) the Chief Financial Officer, Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary
of the Corporation. Any or all the signatures on the certificate may be a facsimile. In case any officer, transfer agent or registrar
who has signed or whose facsimile signature has been placed upon a certificate shall have ceased to be such officer, transfer
agent or registrar before such certificate is issued, such certificate may be issued by the Corporation with the same effect as
if such person were such officer, transfer agent or registrar on the date of issue.
Section
7.4. Consideration and Payment for Shares
.
(a) Subject
to applicable law and the Certificate of Incorporation, shares of stock may be issued for such consideration, having in the case
of shares with par value a value not less than the par value thereof, and to such persons, as determined from time to time by the
Board. The consideration may consist of cash, tangible or intangible property or any benefit to the Corporation or any combination
thereof.
(b) Subject
to applicable law and the Certificate of Incorporation, shares may not be issued until the full amount of the consideration has
been paid, unless upon the face or back of each certificate issued to represent any partly paid shares of capital stock or upon
the books and records of the Corporation in the case of partly paid uncertificated shares, there shall have been set forth the
total amount of the consideration to be paid therefor and the amount paid thereon up to and including the time said certificate
representing certificated shares or said uncertificated shares are issued.
Section
7.5. Lost, Destroyed or Wrongfully Taken Certificates
.
(a) If an owner
of a certificate representing shares claims that such certificate has been lost, destroyed or wrongfully taken, the Corporation
shall issue a new certificate representing such shares or such shares in uncertificated form if the owner: (i) requests such a
new certificate before the Corporation has notice that the certificate representing such shares has been acquired by a protected
purchaser; (ii) if requested by the Corporation, delivers to the Corporation a bond sufficient to indemnify the Corporation against
any claim that may be made against the Corporation on account of the alleged loss, wrongful taking or destruction of such certificate
or the issuance of such new certificate or uncertificated shares; and (iii) satisfies other reasonable requirements imposed by
the Corporation.
(b) If a certificate
representing shares has been lost, apparently destroyed or wrongfully taken, and the owner fails to notify the Corporation of that
fact within a reasonable time after the owner has notice of such loss, apparent destruction or wrongful taking and the Corporation
registers a transfer of such shares before receiving notification, the owner shall be precluded from asserting against the Corporation
any claim for registering such transfer or a claim to a new certificate representing such shares or such shares in uncertificated
form.
Section
7.6. Transfer of Stock
.
(a) If a certificate
representing shares of the Corporation is presented to the Corporation with an endorsement requesting the registration of transfer
of such shares or an instruction is presented to the Corporation requesting the registration of transfer of uncertificated shares,
the Corporation shall register the transfer as requested if:
(i) in
the case of certificated shares, the certificate representing such shares has been surrendered;
(ii) (A)
with respect to certificated shares, the endorsement is made by the person specified by the certificate as entitled to such shares;
(B) with respect to uncertificated shares, an instruction is made by the registered owner of such uncertificated shares; or (C)
with respect to certificated shares or uncertificated shares, the endorsement or instruction is made by any other appropriate
person or by an agent who has actual authority to act on behalf of the appropriate person;
(iii) the
Corporation has received a guarantee of signature of the person signing such endorsement or instruction or such other reasonable
assurance that the endorsement or instruction is genuine and authorized as the Corporation may request;
(iv) the
transfer does not violate any restriction on transfer imposed by the Corporation that is enforceable in accordance with
Section 7.8(a)
;
and
(v) such
other conditions for such transfer as shall be provided for under applicable law have been satisfied.
(b) Whenever any transfer of shares shall be made for collateral security and not absolutely, the Corporation shall so
record such fact in the entry of transfer if, when the certificate for such shares is presented to the Corporation for
transfer or, if such shares are uncertificated, when the instruction for registration of transfer thereof is presented to the
Corporation, both the transferor and transferee request the Corporation to do so.
Section
7.7. Registered Stockholders
. Before due presentment for registration of transfer of a
certificate representing shares of the Corporation or of an instruction requesting registration of transfer of uncertificated
shares, the Corporation may treat the registered owner as the person exclusively entitled to inspect for any proper purpose the
stock ledger and the other books and records of the Corporation, vote such shares, receive dividends or notifications with respect
to such shares and otherwise exercise all the rights and powers of the owner of such shares, except that a person who is the beneficial
owner of such shares (if held in a voting trust or by a nominee on behalf of such person) may, upon providing documentary evidence
of beneficial ownership of such shares and satisfying such other conditions as are provided under applicable law, may also so
inspect the books and records of the Corporation.
Section
7.8. Effect of the Corporation’s Restriction on Transfer
.
(a) A written
restriction on the transfer or registration of transfer of shares of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, if permitted by the DGCL and noted conspicuously on the certificate representing
such shares or, in the case of uncertificated shares, contained in a notice sent pursuant to
Section 7.2
, may be enforced
against the holder of such shares or any successor or transferee of the holder including an executor, administrator, trustee, guardian
or other fiduciary entrusted with like responsibility for the person or estate of the holder.
(b) A restriction
imposed by the Corporation on the transfer or the registration of shares of the Corporation or on the amount of shares of the Corporation
that may be owned by any person or group of persons, even if otherwise lawful, is ineffective against a person without actual knowledge
of such restriction unless: (i) the shares are certificated and such restriction is noted conspicuously on the certificate; or
(ii) the shares are uncertificated and such restriction was contained in a notice sent pursuant to
Section 7.2
.
Section
7.9. Regulations
. The Board shall have power and authority to make such additional rules
and regulations, subject to any applicable requirement of law, as the Board may deem necessary and appropriate with respect to
the issue, transfer or registration of transfer of shares of stock or certificates representing shares. The Board may appoint
one or more transfer agents or registrars and may require for the validity thereof that certificates representing shares bear
the signature of any transfer agent or registrar so appointed.
Article
VIII
INDEMNIFICATION
Section
8.1. Right to Indemnification
. To the fullest extent permitted by applicable law, as the
same exists or may hereafter be amended, the Corporation shall indemnify and hold harmless each person who was or is made a party
or is threatened to be made a party to or is otherwise involved in any threatened, pending or completed action, suit or proceeding,
whether civil, criminal, administrative or investigative (hereinafter a “
proceeding
”), by reason of
the fact that he or she is or was a director or officer of the Corporation or, while a director or officer of the Corporation,
is or was serving at the request of the Corporation as a director, officer, employee or agent of another corporation or of a partnership,
joint venture, trust, other enterprise or nonprofit entity, including service with respect to an employee benefit plan (hereinafter
an “
Indemnitee
”), whether the basis of such proceeding is alleged action in an official capacity as
a director, officer, employee or agent, or in any other capacity while serving as a director, officer, employee or agent, against
all liability and loss suffered and expenses (including, without limitation, attorneys’ fees, judgments, fines, ERISA excise
taxes and penalties and amounts paid in settlement) reasonably incurred by such Indemnitee in connection with such proceeding;
provided, however, that, except as provided in
Section 8.3
with respect to proceedings to enforce rights to indemnification,
the Corporation shall indemnify an Indemnitee in connection with a proceeding (or part thereof) initiated by such Indemnitee only
if such proceeding (or part thereof) was authorized by the Board.
Section
8.2. Right to Advancement of Expenses
. In addition to the right to indemnification conferred
in
Section 8.1
, an Indemnitee shall also have the right to be paid by the Corporation to the fullest extent not prohibited
by applicable law the expenses (including, without limitation, attorneys’ fees) incurred in defending or otherwise participating
in any such proceeding in advance of its final disposition (hereinafter an “
advancement of expenses
”);
provided, however, that, if the DGCL requires, an advancement of expenses incurred by an Indemnitee in his or her capacity as
a director or officer of the Corporation (and not in any other capacity in which service was or is rendered by such Indemnitee,
including, without limitation, service to an employee benefit plan) shall be made only upon the Corporation’s receipt of
an undertaking (hereinafter an “
undertaking
”), by or on behalf of such Indemnitee, to repay all amounts
so advanced if it shall ultimately be determined that such Indemnitee is not entitled to be indemnified under this
Article VIII
or otherwise.
Section
8.3. Right of Indemnitee to Bring Suit
. If a claim under
Section 8.1
or
Section 8.2
is not paid in full by the Corporation within 60 days after a written claim therefor has been received by the Corporation,
except in the case of a claim for an advancement of expenses, in which case the applicable period shall be 20 days, the Indemnitee
may at any time thereafter bring suit against the Corporation to recover the unpaid amount of the claim. If successful in whole
or in part in any such suit, or in a suit brought by the Corporation to recover an advancement of expenses pursuant to the terms
of an undertaking, the Indemnitee shall also be entitled to be paid the expense of prosecuting or defending such suit. In (a)
any suit brought by the Indemnitee to enforce a right to indemnification hereunder (but not in a suit brought by an Indemnitee
to enforce a right to an advancement of expenses) it shall be a defense that, and (b) in any suit brought by the Corporation to
recover an advancement of expenses pursuant to the terms of an undertaking, the Corporation shall be entitled to recover such
expenses upon a final judicial decision from which there is no further right to appeal (hereinafter a “
final adjudication
”)
that, the Indemnitee has not met any applicable standard for indemnification set forth in the DGCL. Neither the failure of the
Corporation (including its directors who are not parties to such action, a committee of such directors, independent legal counsel,
or its stockholders) to have made a determination prior to the commencement of such suit that indemnification of the Indemnitee
is proper in the circumstances because the Indemnitee has met the applicable standard of conduct set forth in the DGCL, nor an
actual determination by the Corporation (including a determination by its directors who are not parties to such action, a committee
of such directors, independent legal counsel, or its stockholders) that the Indemnitee has not met such applicable standard of
conduct, shall create a presumption that the Indemnitee has not met the applicable standard of conduct or, in the case of such
a suit brought by the Indemnitee, shall be a defense to such suit. In any suit brought by the Indemnitee to enforce a right to
indemnification or to an advancement of expenses hereunder, or by the Corporation to recover an advancement of expenses pursuant
to the terms of an undertaking, the burden of proving that the Indemnitee is not entitled to be indemnified, or to such advancement
of expenses, under this
Article VIII
or otherwise shall be on the Corporation.
Section
8.4. Non-Exclusivity of Rights
. The rights provided to any Indemnitee pursuant to this
Article VIII
shall not be exclusive of any other right, which such Indemnitee may have or hereafter acquire under
applicable law, the Certificate of Incorporation, these By Laws, an agreement, a vote of stockholders or disinterested directors,
or otherwise.
Section
8.5. Insurance
. The Corporation may maintain insurance, at its expense, to protect itself
and/or any director, officer, employee or agent of the Corporation or another corporation, partnership, joint venture, trust or
other enterprise against any expense, liability or loss, whether or not the Corporation would have the power to indemnify such
person against such expense, liability or loss under the DGCL.
Section
8.6. Indemnification of Other Persons
. This
Article VIII
shall not limit the
right of the Corporation to the extent and in the manner authorized or permitted by law to indemnify and to advance expenses to
persons other than Indemnitees. Without limiting the foregoing, the Corporation may, to the extent authorized from time to time
by the Board, grant rights to indemnification and to the advancement of expenses to any employee or agent of the Corporation and
to any other person who is or was serving at the request of the Corporation as a director, officer, employee or agent of another
corporation or of a partnership, joint venture, trust or other enterprise, including service with respect to an employee benefit
plan, to the fullest extent of the provisions of this
Article VIII
with respect to the indemnification and advancement
of expenses of Indemnitees under this
Article VIII
.
Section
8.7. Amendments
. Any repeal or amendment of this
Article VIII
by the Board
or the stockholders of the Corporation or by changes in applicable law, or the adoption of any other provision of these By Laws
inconsistent with this
Article VIII
, will, to the extent permitted by applicable law, be prospective only (except
to the extent such amendment or change in applicable law permits the Corporation to provide broader indemnification rights to
Indemnitees on a retroactive basis than permitted prior thereto), and will not in any way diminish or adversely affect any right
or protection existing hereunder in respect of any act or omission occurring prior to such repeal or amendment or adoption of
such inconsistent provision; provided however, that amendments or repeals of this
Article VIII
shall require the affirmative
vote of the stockholders holding at least 65% of the voting power of all outstanding shares of capital stock of the Corporation.
Section
8.8. Certain Definitions
. For purposes of this
Article VIII
, (a) references
to “other enterprise” shall include any employee benefit plan; (b) references to “fines” shall include
any excise taxes assessed on a person with respect to an employee benefit plan; (c) references to “serving at the request
of the Corporation” shall include any service that imposes duties on, or involves services by, a person with respect to
any employee benefit plan, its participants, or beneficiaries; and (d) a person who acted in good faith and in a manner such person
reasonably believed to be in the interest of the participants and beneficiaries of an employee benefit plan shall be deemed to
have acted in a manner “not opposed to the best interest of the Corporation” for purposes of Section 145 of the
DGCL.
Section
8.9. Contract Rights
. The rights provided to Indemnitees pursuant to this
Article VIII
shall be contract rights and such rights shall continue as to an Indemnitee who has ceased to be a director, officer, agent
or employee and shall inure to the benefit of the Indemnitee’s heirs, executors and administrators.
Section
8.10. Severability
. If any provision or provisions of this
Article VIII
shall
be held to be invalid, illegal or unenforceable for any reason whatsoever: (a) the validity, legality and enforceability of the
remaining provisions of this
Article VIII
shall not in any way be affected or impaired thereby; and (b) to the fullest
extent possible, the provisions of this
Article VIII
(including, without limitation, each such portion of this
Article VIII
containing any such provision held to be invalid, illegal or unenforceable) shall be construed so as to give effect to the
intent manifested by the provision held invalid, illegal or unenforceable.
Article
IX
MISCELLANEOUS
Section
9.1. Place of Meetings
. If the place of any meeting of stockholders, the Board or committee
of the Board for which notice is required under these By Laws is not designated in the notice of such meeting, such meeting shall
be held at the principal business office of the Corporation; provided, however, if the Board has, in its sole discretion, determined
that a meeting shall not be held at any place, but instead shall be held by means of remote communication pursuant to
Section 9.5
hereof, then such meeting shall not be held at any place.
Section
9.2. Fixing Record Dates.
(a) In order
that the Corporation may determine the stockholders entitled to notice of any meeting of stockholders or any adjournment thereof,
the Board may fix a record date, which shall not precede the date upon which the resolution fixing the record date is adopted by
the Board, and which record date shall not be more than 60 nor less than 10 days before the date of such meeting. If the Board
so fixes a date, such date shall also be the record date for determining the stockholders entitled to vote at such meeting unless
the Board determines, at the time it fixes such record date, that a later date on or before the date of the meeting shall be the
date for making such determination. If no record date is fixed by the Board, the record date for determining stockholders entitled
to notice of and to vote at a meeting of stockholders shall be at the close of business on the business day next preceding the
day on which notice is given, or, if notice is waived, at the close of business on the business day next preceding the day on which
the meeting is held. A determination of stockholders of record entitled to notice of or to vote at a meeting of stockholders shall
apply to any adjournment of the meeting; provided, however, that the Board may fix a new record date for the adjourned meeting,
and in such case shall also fix as the record date for stockholders entitled to notice of such adjourned meeting the same or an
earlier date as that fixed for determination of stockholders entitled to vote in accordance with the foregoing provisions of this
Section 9.2(a)
at the adjourned meeting.
(b) In order
that the Corporation may determine the stockholders entitled to receive payment of any dividend or other distribution or allotment
of any rights or the stockholders entitled to exercise any rights in respect of any change, conversion or exchange of stock, or
for the purpose of any other lawful action, the Board may fix a record date, which record date shall not precede the date upon
which the resolution fixing the record date is adopted, and which record date shall be not more than 60 days prior to such action.
If no record date is fixed, the record date for determining stockholders for any such purpose shall be at the close of business
on the day on which the Board adopts the resolution relating thereto.
Section
9.3. Means of Giving Notice
.
(a)
Notice
to Directors
. Whenever under applicable law, the Certificate of Incorporation or these By Laws notice is required to
be given to any director, such notice shall be given either (i) in writing and sent by mail, or by a nationally recognized delivery
service, (ii) by means of facsimile telecommunication or other form of electronic transmission, or (iii) by oral notice given
personally or by telephone. A notice to a director will be deemed given as follows: (i) if given by hand delivery, orally, or
by telephone, when actually received by the director, (ii) if sent through the United States mail, when deposited in the United
States mail, with postage and fees thereon prepaid, addressed to the director at the director’s address appearing on the
records of the Corporation, (iii) if sent for next day delivery by a nationally recognized overnight delivery service, when deposited
with such service, with fees thereon prepaid, addressed to the director at the director’s address appearing on the records
of the Corporation, (iv) if sent by facsimile telecommunication, when sent to the facsimile transmission number for such director
appearing on the records of the Corporation, (v) if sent by electronic mail, when sent to the electronic mail address for such
director appearing on the records of the Corporation, or (vi) if sent by any other form of electronic transmission, when sent
to the address, location or number (as applicable) for such director appearing on the records of the Corporation.
(b)
Electronic
Transmission
. “
Electronic transmission
” means any form of communication, not directly involving
the physical transmission of paper, that creates a record that may be retained, retrieved and reviewed by a recipient thereof,
and that may be directly reproduced in paper form by such a recipient through an automated process.
(c)
Notice
to Stockholders Sharing Same Address
. Without limiting the manner by which notice otherwise may be given effectively
by the Corporation to stockholders, any notice to stockholders given by the Corporation under any provision of the DGCL, the Certificate
of Incorporation or these By Laws shall be effective if given by a single written notice to stockholders who share an address
if consented to by the stockholders at that address to whom such notice is given. A stockholder may revoke such stockholder’s
consent by delivering written notice of such revocation to the Corporation. Any stockholder who fails to object in writing to
the Corporation within 60 days of having been given written notice by the Corporation of its intention to send such a single written
notice shall be deemed to have consented to receiving such single written notice.
(d)
Exceptions
to Notice Requirements
. Whenever notice is required to be given, under the DGCL, the Certificate of Incorporation or
these By Laws, to any person with whom communication is unlawful, the giving of such notice to such person shall not be required
and there shall be no duty to apply to any governmental authority or agency for a license or permit to give such notice to such
person. Any action or meeting that shall be taken or held without notice to any such person with whom communication is unlawful
shall have the same force and effect as if such notice had been duly given. In the event that the action taken by the Corporation
is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate shall state, if such
is the fact and if notice is required, that notice was given to all persons entitled to receive notice except such persons with
whom communication is unlawful.
Whenever notice is required to be given by the Corporation,
under any provision of the DGCL, the Certificate of Incorporation or these By Laws, to any stockholder to whom (1) notice of two
consecutive annual meetings of stockholders and all notices of stockholder meetings or of the taking of action by written consent
of stockholders without a meeting to such stockholder during the period between such two consecutive annual meetings, or (2) all,
and at least two payments (if sent by first-class mail) of dividends or interest on securities during a 12-month period, have been
mailed addressed to such stockholder at such stockholder’s address as shown on the records of the Corporation and have been
returned undeliverable, the giving of such notice to such stockholder shall not be required. Any action or meeting that shall be
taken or held without notice to such stockholder shall have the same force and effect as if such notice had been duly given. If
any such stockholder shall deliver to the Corporation a written notice setting forth such stockholder’s then current address,
the requirement that notice be given to such stockholder shall be reinstated. In the event that the action taken by the Corporation
is such as to require the filing of a certificate with the Secretary of State of Delaware, the certificate need not state that
notice was not given to persons to whom notice was not required to be given pursuant to Section 230 (b) of the DGCL. The exception
in subsection (1) of the first sentence of this paragraph to the requirement that notice be given shall not be applicable to any
notice returned as undeliverable if the notice was given by electronic transmission.
Section
9.4. Waiver of Notice
. Whenever any notice is required to be given under applicable law,
the Certificate of Incorporation, or these By Laws, a written waiver of such notice, signed by the person or persons entitled
to said notice, or a waiver by electronic transmission by the person entitled to said notice, whether before or after the time
stated therein, shall be deemed equivalent to such required notice. Attendance at a meeting shall constitute a waiver of notice
of such meeting, except where a person attends for the express purpose of objecting to the transaction of any business on the
ground that the meeting was not lawfully called or convened.
Section
9.5. Meeting Attendance via Remote Communication Equipment.
(a)
Stockholder
Meetings
. If authorized by the Board in its sole discretion, and subject to such guidelines and procedures as the Board
may adopt, stockholders and proxy holders not physically present at a meeting of stockholders may, by means of remote communication:
(i) participate
in a meeting of stockholders; and
(ii) be
deemed present in person and vote at a meeting of stockholders, whether such meeting is to be held at a designated place or solely
by means of remote communication, provided that (A) the Corporation shall implement reasonable measures to verify that each person
deemed present and permitted to vote at the meeting by means of remote communication is a stockholder or proxy holder, (B) the
Corporation shall implement reasonable measures to provide such stockholders and proxy holders a reasonable opportunity to participate
in the meeting and to vote on matters submitted to the stockholders, including an opportunity to read or hear the proceedings
of the meeting substantially concurrently with such proceedings, and (C) if any stockholder or proxy holder votes or takes other
action at the meeting by means of remote communication, a record of such votes or other action shall be maintained by the Corporation.
(b)
Board
Meetings
. Unless otherwise restricted by applicable law, the Certificate of Incorporation or these By Laws, members
of the Board or any committee thereof may participate in a meeting of the Board or any committee thereof by means of conference
telephone or other communications equipment by means of which all persons participating in the meeting can hear each other. Such
participation in a meeting shall constitute presence in person at the meeting.
Section
9.6. Dividends
. The Board may from time to time declare, and the Corporation may pay,
dividends (payable in cash, property or shares of the Corporation’s capital stock) on the Corporation’s outstanding
shares of capital stock, subject to applicable law and the Certificate of Incorporation.
Section
9.7. Reserves
. The Board may set apart out of the funds of the Corporation available for
dividends a reserve or reserves for any proper purpose and may abolish any such reserve.
Section
9.8. Contracts and Negotiable Instruments
. Except as otherwise provided by applicable
law, the Certificate of Incorporation or these By Laws, any contract, bond, deed, lease, mortgage or other instrument may be executed
and delivered in the name and on behalf of the Corporation by such officer or officers or other employee or employees of the Corporation
as the Board may from time to time authorize. Such authority may be general or confined to specific instances as the Board may
determine. The Chairman of the Board, the Chief Executive Officer, the President, the Chief Financial Officer, the Treasurer or
any Vice President may execute and deliver any contract, bond, deed, lease, mortgage or other instrument in the name and on behalf
of the Corporation. Subject to any restrictions imposed by the Board, the Chairman of the Board Chief Executive Officer, President,
the Chief Financial Officer, the Treasurer or any Vice President may delegate powers to execute and deliver any contract, bond,
deed, lease, mortgage or other instrument in the name and on behalf of the Corporation to other officers or employees of the Corporation
under such person’s supervision and authority, it being understood, however, that any such delegation of power shall not
relieve such officer of responsibility with respect to the exercise of such delegated power.
Section
9.9. Fiscal Year
. The fiscal year of the Corporation shall be fixed by the Board.
Section
9.10. Seal
. The Board may adopt a corporate seal, which shall be in such form as the Board
determines. The seal may be used by causing it or a facsimile thereof to be impressed, affixed or otherwise reproduced.
Section
9.11. Books and Records
. The books and records of the Corporation may be kept within or
outside the State of Delaware at such place or places as may from time to time be designated by the Board.
Section
9.12. Resignation
. Any director, committee member or officer may resign by giving notice
thereof in writing or by electronic transmission to the Chairman of the Board, the Chief Executive Officer, the President or the
Secretary. The resignation shall take effect at the time it is delivered unless the resignation specifies a later effective date
or an effective date determined upon the happening of an event or events. Unless otherwise specified therein, the acceptance of
such resignation shall not be necessary to make it effective.
Section
9.13. Surety Bonds
. Such officers, employees and agents of the Corporation (if any) as
the Chairman of the Board, Chief Executive Officer, President or the Board may direct, from time to time, shall be bonded for
the faithful performance of their duties and for the restoration to the Corporation, in case of their death, resignation, retirement,
disqualification or removal from office, of all books, papers, vouchers, money and other property of whatever kind in their possession
or under their control belonging to the Corporation, in such amounts and by such surety companies as the Chairman of the Board,
Chief Executive Officer, President or the Board may determine. The premiums on such bonds shall be paid by the Corporation and
the bonds so furnished shall be in the custody of the Secretary.
Section
9.14. Securities of Other Corporations
. Powers of attorney, proxies, waivers of notice
of meeting, consents in writing and other instruments relating to securities owned by the Corporation may be executed in the name
of and on behalf of the Corporation by the Chairman of the Board, Chief Executive Officer, President, or any officers authorized
by the Board. Any such officer, may, in the name of and on behalf of the Corporation, take all such action as any such officer
may deem advisable to vote in person or by proxy at any meeting of security holders of any corporation in which the Corporation
may own securities, or to consent in writing, in the name of the Corporation as such holder, to any action by such corporation,
and at any such meeting or with respect to any such consent shall possess and may exercise any and all rights and power incident
to the ownership of such securities and which, as the owner thereof, the Corporation might have exercised and possessed. The Board
may from time to time confer like powers upon any other person or persons.
Section
9.15. Amendments
. The Board shall have the power to adopt, amend, alter or repeal the
By Laws. The affirmative vote of a majority of the Board shall be required to adopt, amend, alter or repeal the By Laws. The By
Laws also may be adopted, amended, altered or repealed by the stockholders; provided, however, that in addition to any vote of
the holders of any class or series of capital stock of the Corporation required by applicable law or the Certificate of Incorporation,
the affirmative vote of the holders of at least a majority of the voting (except as otherwise provided in
Section 8.7
)
power of all outstanding shares of capital stock of the Corporation entitled to vote generally in the election of directors, voting
together as a single class, shall be required for the stockholders to adopt, amend, alter or repeal the By Laws.
Exhibit 4.1
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NUMBER
U-
____________
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UNITS
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SEE REVERSE FOR CERTAIN DEFINITIONS
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Schultze Special Purpose Acquisition Corp.
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CUSIP 80821R 208
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UNITS CONSISTING OF ONE SHARE OF COMMON
STOCK AND
ONE WARRANT
THIS CERTIFIES THAT _______________________________________________________________________________________
is the owner of ________________________________________________________________________________________________
Units.
Each Unit (“
Unit
”) consists
of one (1) share of common stock, par value $0.0001 per share (“
Common Stock
”), of Schultze Special Purpose
Acquisition Corp., a Delaware corporation (the “
Company
”), and one warrant (“
Warrant
”). Each
Warrant entitles the holder to purchase one share of Common Stock for $11.50 per share (subject to adjustment). Each Warrant will
become exercisable on the later of (i) 30 days after the Company’s completion of an initial merger, stock exchange,
asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with one or more businesses
or entities (a “
Business Combination
”) and (ii) 12 months from the closing of the Company’s initial public
offering (“
IPO
”), and will expire unless exercised before 5:00 p.m., New York City Time, on the fifth anniversary
of the completion of an initial Business Combination, or earlier upon redemption or liquidation. The Common Stock and Warrant(s)
comprising the Unit(s) represented by this certificate are not transferable separately until 90 days following the IPO, unless
the underwriters inform the Company of their decision to allow earlier separate trading, except that in no event will the Common
Stock and Warrants be separately tradeable until the Company has filed an audited balance sheet reflecting the Company’s
receipt of the gross proceeds of its IPO and issued a press release announcing when such separate trading will begin. The terms
of the Warrants are governed by a Warrant Agreement, dated as of
______ ___
, 2018, between the Company and Continental Stock
Transfer & Trust Company, as Warrant Agent, and are subject to the terms and provisions contained therein, all of which terms
and provisions the holder of this certificate consents to by acceptance hereof. Copies of the Warrant Agreement are on file at
the office of the Warrant Agent at 1 State Street, 30th Floor, New York, New York 10004, and are available to any Warrant holder
on written request and without cost.
This certificate is not valid unless countersigned
by the Transfer Agent and Registrar of the Company.
Witness the facsimile seal of the Company
and the facsimile signatures of its duly authorized officers.
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By
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Chief Executive Officer
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Chief Financial Officer
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Schultze Special Purpose Acquisition
Corp.
The Company will furnish
without charge to each shareholder who so requests, a statement of the powers, designations, preferences, and relative, participating,
optional, or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations,
or restrictions of such preferences and/or rights.
The following abbreviations,
when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according
to applicable laws or regulations:
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TEN COM –
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as tenants in common
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UNIF GIFT MIN ACT - _____ Custodian _______
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TEN ENT –
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as tenants by the entireties
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(Cust) (Minor)
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JT TEN –
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as joint tenants with right of survivorship
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under Uniform Gifts to Minors
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and not as tenants in common
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Act ______________
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(State)
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Additional abbreviations may also be used
though not in the above list.
For value received, ___________________________
hereby sell, assign, and transfer unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER
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IDENTIFYING NUMBER OF ASSIGNEE
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
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represented by the within Certificate,
and do hereby irrevocably constitute and appoint
to transfer the said Units on the books
of the within named Company with full power of substitution in the premises.
Dated _________________
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Notice:
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The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever.
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Signature(s) Guaranteed:
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION
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(BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH
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MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM,
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PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE) UNDER THE SECURITIES
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EXCHANGE ACT OF 1934, AS AMENDED).
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The holder(s) of this certificate shall be entitled to receive
a pro rata portion of the funds from the trust account with respect to the Common Stock underlying this certificate only in the
event that (i) the Company is forced to liquidate because it does not consummate an initial Business Combination within the period
of time set forth in the Company’s Certificate of Incorporation, as the same may be amended from time to time (the “
Charter
”)
or (ii) if the holder seeks to redeem his shares upon consummation of, or sell his shares in a tender offer in connection with,
an initial Business Combination or in connection with certain amendments to the Charter. In no other circumstances shall the holder(s)
have any right or interest of any kind in or to the trust account.
Exhibit 4.2
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NUMBER
___________C
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SHARES
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Schultze
Special Purpose Acquisition Corp.
INCORPORATED
UNDER THE LAWS OF DELAWARE
COMMON
STOCK
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SEE REVERSE FOR
CERTAIN DEFINITIONS
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This Certifies that
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CUSIP 80821R 109
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is the owner of
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FULLY PAID
AND NON-ASSESSABLE SHARES OF COMMON STOCK OF THE PAR VALUE OF $0.0001 EACH OF
Schultze
Special Purpose Acquisition Corp.
transferable on the books of the
Company in person or by duly authorized attorney upon surrender of this certificate properly endorsed.
The Company will be forced to liquidate if it is unable to complete an initial business combination within the time period set
forth in the Company’s Certificate of Incorporation, as the same may be amended from time to time.
This certificate is not valid unless countersigned by the Transfer Agent and registered by the Registrar.
Witness the facsimile seal of the Company and the facsimile signatures of its duly authorized officers.
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Dated:
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Chief Executive Officer
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Chief Financial Officer
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The following abbreviations,
when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according
to applicable laws or regulations:
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TEN COM –
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as tenants in common
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UNIF GIFT MIN ACT - _____ Custodian _______
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TEN ENT –
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as tenants by the entireties
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(Cust) (Minor)
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JT TEN –
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as joint tenants with right of survivorship
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under Uniform Gifts to Minors
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and not as tenants in common
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Act ______________
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(State)
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Additional Abbreviations may also be used
though not in the above list.
Schultze Special Purpose Acquisition
Corp.
The Company will furnish
without charge to each stockholder who so requests the powers, designations, preferences, and relative, participating, optional,
or other special rights of each class of stock or series thereof of the Company and the qualifications, limitations, or restrictions
of such preferences, and/or rights. This certificate and the shares represented thereby are issued and shall be held subject to
all the provisions of the Company’s Certificate of Incorporation and all amendments thereto and resolutions of the Board
of Directors (copies of which may be obtained from the secretary of the Company), to all of which the holder of this certificate
by acceptance hereof assents.
For value received,
___________________________ hereby sell, assign and transfer unto
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PLEASE INSERT SOCIAL SECURITY OR OTHER
IDENTIFYING NUMBER OF ASSIGNEE
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(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE)
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shares of the capital stock represented
by the within Certificate, and do hereby irrevocably constitute and appoint
to transfer the said stock on the books
of the within named Company with full power of substitution in the premises.
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Notice:
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The signature to this assignment must correspond with the name as written upon the face of the certificate in every particular, without alteration or enlargement or any change whatever.
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Signature(s) Guaranteed:
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THE SIGNATURE(S) MUST BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAM, PURSUANT TO S.E.C. RULE 17Ad-15 (OR ANY SUCCESSOR RULE) UNDER THE SECURITIES EXCHANGE ACT OF 1934, AS AMENDED).
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The holder(s) of this
certificate shall be entitled to receive a pro rata portion of the funds from the trust account only in the event that (i) the
Company is forced to liquidate because it does not consummate an initial business combination within the period of time set forth
in the Company’s Certificate of Incorporation, as the same may be amended from time to time (the “Charter”) or
(ii) if the holder seeks to redeem his shares upon consummation of, or sell his shares in a tender offer in connection with, an
initial business combination or in connection with certain amendments to the Charter. In no other circumstances shall the holder(s)
have any right or interest of any kind in or to the trust account.
Exhibit 4.3
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NUMBER
________-
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(SEE REVERSE SIDE FOR LEGEND)
THIS WARRANT WILL BE VOID IF NOT EXERCISED
PRIOR TO THE EXPIRATION DATE (DEFINED BELOW)
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WARRANTS
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Schultze
Special Purpose Acquisition Corp.
CUSIP 80821R 117
WARRANT
THIS CERTIFIES THAT, for value received
is the registered holder of a warrant or
warrants (the “
Warrant(s)
”) of Schultze Special Purpose Acquisition Corp., a Delaware corporation (the “
Company
”),
expiring at 5:00 p.m., New York City time, on the five year anniversary of the Company’s completion of an initial merger,
stock exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with
one or more businesses or entities (a “
Business Combination
”), to purchase one fully paid and non-assessable
share of common stock, par value $0.0001 per share (“
Shares
”), of the Company for each Warrant evidenced by
this Warrant Certificate. The Warrant entitles the holder thereof to purchase from the Company, commencing on the later of (a)
___________, 2019 and (b) 30 days after the Company’s completion of an initial Business Combination, such number of Shares
of the Company at the Warrant Price (as defined below), upon surrender of this Warrant Certificate and payment of the Warrant Price
at the office or agency of Continental Stock Transfer & Trust Company (the “
Warrant Agent
”), but only subject
to the conditions set forth herein and in the Warrant Agreement between the Company and Continental Stock Transfer & Trust
Company. In no event will the Company be required to net cash settle any warrant exercise. The Warrant Agreement provides that
upon the occurrence of certain events the Warrant Price and the number of Shares purchasable hereunder, set forth on the face hereof,
may, subject to certain conditions, be adjusted. The term “
Warrant Price
” as used in this Warrant Certificate
refers to the price per Share at which Shares may be purchased at the time the Warrant is exercised. The initial Warrant Price
per Share is equal to $11.50 per share.
No fraction of a Share
will be issued upon any exercise of a Warrant. If the holder of a Warrant would be entitled to receive a fraction of a Share upon
any exercise of a Warrant, the Company shall, upon such exercise, round up to the nearest whole number the number of Shares to
be issued to such holder.
Upon any exercise
of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered holder
hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the Warrant
has not been exercised.
Warrant Certificates,
when surrendered at the office or agency of the Warrant Agent by the registered holder in person or by attorney duly authorized
in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but without payment
of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants.
Upon due presentment
for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant Certificate
or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee
in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except for
any applicable tax or other governmental charge.
The Company and the
Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding any notation
of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to the registered
holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
This Warrant does
not entitle the registered holder to any of the rights of a stockholder of the Company.
The Company reserves
the right to call the Warrant at any time prior to its exercise with a notice of call in writing to the holders of record of the
Warrant, giving at least 30 days’ notice of such call, at any time while the Warrant is exercisable, if the last sale price
of the Shares has been at least $18.00 per share on each of 20 trading days within any 30 trading day period (the “
30-day
trading period
”) ending on the third business day prior to the date on which notice of such call is given and if, and
only if, there is a current registration statement in effect with respect to the Shares underlying the Warrants commencing five
business days prior to the 30-day trading period and continuing each day thereafter until the date of redemption. The call price
of the Warrants is to be $0.01 per Warrant. Any Warrant either not exercised or tendered back to the Company by the end of the
date specified in the notice of call shall be canceled on the books of the Company and have no further value except for the $0.01
call price.
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By
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Chief Executive Officer
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Chief Financial Officer
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SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder irrevocably
elects to exercise ______________ Warrants represented by this Warrant Certificate, and to purchase the Common Stock issuable
upon the exercise of such Warrants, and requests that Certificates for such shares shall be issued in the name of
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(PLEASE TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
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and be delivered to
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(PLEASE PRINT OR TYPE NAME AND ADDRESS)
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and, if such number of Warrants shall not
be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered
in the name of, and delivered to, the Registered Holder at the address stated below:
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Dated: _____________________
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(SIGNATURE)
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(ADDRESS)
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(TAX IDENTIFICATION NUMBER)
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ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
For Value Received, _______________________ hereby sell, assign,
and transfer unto
(PLEASE TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
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and be delivered to
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(PLEASE PRINT OR TYPE NAME AND ADDRESS)
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______________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitute and appoint _________________________________ Attorney to transfer this Warrant
Certificate on the books of the Company, with full power of substitution in the premises.
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Dated: _________________________
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(SIGNATURE)
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The
signature to the assignment of the Subscription Form must correspond to the name written upon the face of this Warrant Certificate
in every particular, without alteration or enlargement or any change whatsoever, and must be guaranteed by a commercial bank or
trust company or a member firm of the NYSE American, Nasdaq, New York Stock Exchange, Pacific Stock Exchange, or Chicago Stock
Exchange.
Exhibit 4.4
WARRANT AGREEMENT
This agreement (this “Agreement”)
is made as of ____________, 2018 between Schultze Special Purpose Acquisition Corp., a Delaware corporation, with offices at 800
Westchester Avenue, Suite 632, Rye Brook, NY 10573 (“
Company
”), and Continental Stock Transfer & Trust Company,
a New York corporation, with offices at 1 State Street, 30th Floor, New York, New York 10004 (“
Warrant Agent
”).
WHEREAS, the Company is engaged in a public
offering (“
Public Offering
”) of up to 17,250,000 units, each unit (“
Unit
”) comprised of one
share of common stock of the Company, par value $0.0001 per share (“
Common Stock
”), and one warrant, where each
warrant entitles the holder to purchase one share of Common Stock at a price of $11.50 per share, subject to adjustment as described
herein, and, in connection therewith, will issue and deliver up to 17,250,000 warrants (the “
Public Warrants
”)
to the public investors in connection with the Public Offering (including up to 2,250,000 Public Warrants to be issued to certain
underwriters upon the exercise of an over-allotment option); and
WHEREAS, the Company has filed with the
Securities and Exchange Commission (the “
SEC
”) a Registration Statement on Form S-1, No. 333-228494 (“
Registration
Statement
”), for the registration, under the Securities Act of 1933, as amended (“
Act
”) of, among
other securities, the Public Warrants; and
WHEREAS, the Company has received a binding
commitment (the “
Warrant Purchase Agreement
”) for the purchase of up to an aggregate of 5,000,000 warrants and,
in connection therewith, the Company will issue and deliver up to an aggregate of 5,000,000 warrants (the “
Private Warrants
”)
upon consummation of such private placement (“
Private Offering
”) bearing the legend set forth in Exhibit B hereto;
and
WHEREAS, the Company may issue up to an
additional 1,500,000 Warrants (“
Working Capital Warrants
”) in satisfaction of certain working capital loans
made by the Company’s officers, directors, initial stockholders, and affiliates; and
WHEREAS, following consummation of the Public
Offering, the Company may issue additional warrants (“
Post IPO Warrants
” and together with the Public Warrants,
Private Warrants and Working Capital Warrants, the “
Warrants
”) in connection with, or following the consummation
by the Company of, a Business Combination (as defined below); and
WHEREAS, the Company desires the Warrant
Agent to act on behalf of the Company, and the Warrant Agent is willing to so act, in connection with the issuance, registration,
transfer, exchange, redemption, and exercise of the Warrants; and
WHEREAS, the Company desires to provide
for the form and provisions of the Warrants, the terms upon which they shall be issued and exercised, and the respective rights,
limitation of rights, and immunities of the Company, the Warrant Agent, and the holders of the Warrants; and
WHEREAS, all acts and things have been done
and performed which are necessary to make the Warrants, when executed on behalf of the Company and countersigned by or on behalf
of the Warrant Agent, as provided herein, the valid, binding, and legal obligations of the Company, and to authorize the execution
and delivery of this Agreement.
NOW, THEREFORE, in consideration of the
mutual agreements herein contained, the parties hereto agree as follows:
1.
Appointment
of Warrant Agent
. The Company hereby appoints the Warrant Agent to act as agent for the Company for the Warrants, and the Warrant
Agent hereby accepts such appointment and agrees to perform the same in accordance with the terms and conditions set forth in this
Agreement.
2.
Warrants
.
2.1.
Form
of Warrant
. Each Warrant shall be issued in registered form only, shall be in substantially the form of Exhibit A hereto, the
provisions of which are incorporated herein and shall be signed by, or bear the facsimile signature of, the Chairman of the Board
of Directors or Chief Executive Officer and the Chief Financial Officer, Treasurer, Secretary or Assistant Secretary of the Company
and shall bear a facsimile of the Company’s seal. In the event the person whose facsimile signature has been placed upon
any Warrant shall have ceased to serve in the capacity in which such person signed the Warrant before such Warrant is issued, it
may be issued with the same effect as if he or she had not ceased to be such at the date of issuance.
2.2.
Uncertificated
Warrants
. Notwithstanding anything herein to the contrary, any Warrant, or portion thereof, may be issued as part of, and be
represented by, a Unit, and any Warrant may be issued in uncertificated or book-entry form through the Warrant Agent and/or the
facilities of The Depository Trust Company (the “
Depositary
”) or other book-entry depositary system, in each
case as determined by the Board of Directors of the Company or by an authorized committee thereof. Any Warrant so issued shall
have the same terms, force and effect as a certificated Warrant that has been duly countersigned by the Warrant Agent in accordance
with the terms of this Agreement.
2.3.
Effect
of Countersignature
. Except with respect to uncertificated Warrants as described above, unless and until countersigned by the
Warrant Agent pursuant to this Agreement, a Warrant shall be invalid and of no effect and may not be exercised by the holder thereof.
2.4.
Registration
.
2.4.1.
Warrant
Register
. The Warrant Agent shall maintain books (“
Warrant Register
”) for the registration of original issuance
and the registration of transfer of the Warrants. Upon the initial issuance of the Warrants, the Warrant Agent shall issue and
register the Warrants in the names of the respective holders thereof in such denominations and otherwise in accordance with instructions
delivered to the Warrant Agent by the Company.
2.4.2.
Registered
Holder
. Prior to due presentment for registration of transfer of any Warrant, the Company and the Warrant Agent may deem and
treat the person in whose name such Warrant is then registered in the Warrant Register (“
registered holder
”)
as the absolute owner of such Warrant and of each Warrant represented thereby (notwithstanding any notation of ownership or other
writing on the Warrant certificate made by anyone other than the Company or the Warrant Agent), for the purpose of any exercise
thereof, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice to the contrary.
2.5.
Detachability
of Warrants
. The securities comprising the Units will not be separately transferable until the 90
th
day following
the date of the prospectus or, if such 90
th
day is not on a day, other than Saturday, Sunday or federal holiday, on
which banks in New York City are generally open for normal business (a “
Business Day
”), then on the immediately
succeeding Business Day following such date, or earlier with the consent of EarlyBirdCapital, Inc. (“
EBC
”),
but in no event will EBC allow separate trading of the securities comprising the Units until (i) the Company has filed a Current
Report on Form 8-K which includes an audited balance sheet reflecting the receipt by the Company of the gross proceeds of the Public
Offering including the proceeds received by the Company from the exercise of the underwriters’ over-allotment option in the
Public Offering, if the over-allotment option is exercised prior to the filing of the Form 8-K, and (ii) the Company has issued
a press release and has filed a Current Report on Form 8-K announcing when such separate trading shall begin (the “
Detachment
Date
”).
2.6.
Private
Warrant and Working Capital Warrant Attributes
. The Private Warrants and Working Capital Warrants will be issued in the same
form as the Public Warrants but they (i) will not be redeemable by the Company and (ii) may be exercised for cash or on a cashless
basis at the holder’s option, in either case as long as they are held by the initial purchasers or their Permitted Transferees
(as defined below). Once a Private Warrant or Working Capital Warrant is transferred to a holder other than an affiliate or Permitted
Transferee, it shall be treated as a Public Warrant hereunder for all purposes.
2.7.
Post
IPO Warrants
. The Post IPO Warrants, when and if issued, shall have the same terms and be in the same form as the Public Warrants
except as may be agreed upon by the Company.
3.
Terms
and Exercise of Warrants
3.1.
Warrant
Price
. Each Warrant shall, when countersigned by the Warrant Agent, entitle the registered holder thereof, subject to the provisions
of such Warrant and of this Agreement, to purchase from the Company the number of shares of Common Stock stated therein, at the
price of $11.50 per share, subject to the adjustments provided in Section 4 hereof and in the last sentence of this Section 3.1.
The term “Warrant Price” as used in this Agreement refers to the price per share at which the shares of Common Stock
may be purchased at the time a Warrant is exercised. The Company in its sole discretion may lower the Warrant Price at any time
prior to the Expiration Date (as defined below) for a period of not less than ten (10) Business Days; provided, that the Company
shall provide at least ten (10) days prior written notice of such reduction to registered holders of the Warrants and, provided
further that any such reduction shall be applied consistently to all of the Warrants.
3.2.
Duration
of Warrants
. A Warrant may be exercised only during the period commencing on the later of 30 days after the consummation by
the Company of a merger, share exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business
combination with one or more businesses or entities (“
Business Combination
”) (as described more fully in the
Registration Statement) or 12 months from the closing of the Public Offering, and terminating at 5:00 p.m., New York City time
on the earlier to occur of (i) five years from the consummation of a Business Combination and (ii) the Redemption Date as provided
in Section 6.2 of this Agreement (“
Expiration Date
”). The period of time from the date the Warrants will first
become exercisable until the expiration of the Warrants shall hereafter be referred to as the “Exercise Period.” Except
with respect to the right to receive the Redemption Price (as set forth in Section 6 hereunder), each Warrant not exercised on
or before the Expiration Date shall become void, and all rights thereunder and all rights in respect thereof under this Agreement
shall cease at the close of business on the Expiration Date. The Company in its sole discretion may extend the duration of the
Warrants by delaying the Expiration Date; provided, however, that the Company will provide at least twenty (20) days prior written
notice of any such extension to registered holders and, provided further that any such extension shall be applied consistently
to all of the Warrants.
3.3.
Exercise
of Warrants
.
3.3.1.
Payment
.
Subject to the provisions of the Warrant and this Agreement, a Warrant, when countersigned by the Warrant Agent, may be exercised
by the registered holder thereof by surrendering it, at the office of the Warrant Agent, or at the office of its successor as Warrant
Agent, in the Borough of Manhattan, City and State of New York, with the subscription form, as set forth in the Warrant, duly executed,
and by paying in full the Warrant Price for each share of Common Stock as to which the Warrant is exercised and any and all applicable
taxes due in connection with the exercise of the Warrant, as follows:
(a) by
good certified check or wire payable to the order of the Warrant Agent; or
(b) in
the event of redemption pursuant to Section 6 hereof in which the Company’s management has elected to force all holders of
Warrants to exercise such Warrants on a “cashless basis,” by surrendering the Warrants for that number of shares of
Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common Stock underlying the
Warrants, multiplied by the difference between the Warrant Price and the “Fair Market Value” (as defined below) by
(y) the Fair Market Value. Solely for purposes of this Section 3.3.1(b), the “Fair Market Value” shall mean the average
reported last sale price of the Common Stock for the five (5) trading days ending on the third trading day prior to the date on
which the notice of redemption is sent to holders of the Warrants pursuant to Section 6 hereof; or
(c) with
respect to any Private Warrants or Working Capital Warrants, so long as such Private Warrants or Working Capital Warrants are held
by the initial purchasers or their Permitted Transferees, by surrendering such Private Warrants or Working Capital Warrants for
that number of shares of Common Stock equal to the quotient obtained by dividing (x) the product of the number of shares of Common
Stock underlying the Warrants, multiplied by the difference between the exercise price of the Warrants and the “Fair Market
Value” by (y) the Fair Market Value; provided, however, that no cashless exercise shall be permitted unless the Fair Market
Value is equal to or higher than the exercise price. Solely for purposes of this Section 3.3.1(c), the “Fair Market Value”
shall mean the average reported last sale price of the Common Stock for the ten (10) trading days ending on the third trading day
prior to the date on which the notice of warrant exercise is sent to the Warrant Agent; or
(d) in
the event the registration statement required by Section 7.4 hereof is not effective and current within ninety (90) days after
the closing of a Business Combination, by surrendering such Warrants for that number of shares of Common Stock equal to the quotient
obtained by dividing (x) the product of the number of shares of Common Stock underlying the Warrants, multiplied by the difference
between the exercise price of the Warrants and the “Fair Market Value” by (y) the Fair Market Value; provided, however,
that no cashless exercise shall be permitted unless the Fair Market Value is equal to or higher than the exercise price. Solely
for purposes of this Section 3.3.1(d), the “Fair Market Value” shall mean the average reported last sale price of the
Common Stock for the five (5) trading days ending on the trading day prior to the date of exercise.
3.3.2.
Issuance
of Certificates
. As soon as practicable after the exercise of any Warrant and the clearance of the funds in payment of the
Warrant Price (if any), the Company shall issue to the registered holder of such Warrant a certificate or certificates for the
number of shares of Common Stock to which he, she or it is entitled, registered in such name or names as may be directed by him,
her or it, and if such Warrant shall not have been exercised in full, a new countersigned Warrant for the number of shares as to
which such Warrant shall not have been exercised. Notwithstanding the foregoing, in no event will the Company be required to net
cash settle the Warrant exercise. No Warrant shall be exercisable and the Company shall not be obligated to issue shares of Common
Stock upon exercise of a Warrant unless the Common Stock issuable upon such Warrant exercise has been registered, qualified or
deemed to be exempt under the securities laws of the state of residence of the registered holder of the Warrants. In the event
that the condition in the immediately preceding sentence is not satisfied with respect to a Warrant, the holder of such Warrant
shall not be entitled to exercise such Warrant and such Warrant may have no value and expire worthless, in which case the purchaser
of a Unit containing such Public Warrants shall have paid the full purchase price for the Unit solely for the shares of Common
Stock underlying such Unit. Warrants may not be exercised by, or securities issued to, any registered holder in any state in which
such exercise would be unlawful.
3.3.3.
Valid
Issuance
. All shares of Common Stock issued upon the proper exercise of a Warrant in conformity with this Agreement shall be
validly issued, fully paid and nonassessable.
3.3.4.
Date
of Issuance
. Each person in whose name any such certificate for shares of Common Stock is issued shall for all purposes be
deemed to have become the holder of record of such shares on the date on which the Warrant was surrendered and payment of the Warrant
Price was made, irrespective of the date of delivery of such certificate, except that, if the date of such surrender and payment
is a date when the share transfer books of the Company are closed, such person shall be deemed to have become the holder of such
shares at the close of business on the next succeeding date on which the share transfer books are open.
3.3.5
Maximum Percentage
. A holder
of a Warrant may notify the Company in writing in the event it elects to be subject to the provisions contained in this subsection
3.3.5; however, no holder of a Warrant shall be subject to this subsection 3.3.5 unless he, she or it makes such election. If the
election is made by a holder, the Warrant Agent shall not effect the exercise of the holder’s Warrant, and such holder shall
not have the right to exercise such Warrant, to the extent that after giving effect to such exercise, such person (together with
such person’s affiliates), to the Warrant Agent’s actual knowledge, would beneficially own in excess of 9.8% (the “
Maximum
Percentage
”) of the shares of Common Stock outstanding immediately after giving effect to such exercise. For purposes
of the foregoing sentence, the aggregate number of shares of Common Stock beneficially owned by such person and its affiliates
shall include the number of shares of Common Stock issuable upon exercise of the Warrant with respect to which the determination
of such sentence is being made, but shall exclude shares of Common Stock that would be issuable upon (x) exercise of the remaining,
unexercised portion of the Warrant beneficially owned by such person and its affiliates and (y) exercise or conversion of the unexercised
or unconverted portion of any other securities of the Company beneficially owned by such person and its affiliates (including,
without limitation, any convertible notes or convertible preferred stock or warrants) subject to a limitation on conversion or
exercise analogous to the limitation contained herein. Except as set forth in the preceding sentence, for purposes of this paragraph,
beneficial ownership shall be calculated in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the
“
Exchange Act
”). For purposes of the Warrant, in determining the number of outstanding shares of Common Stock,
the holder may rely on the number of outstanding shares of Common Stock as reflected in (1) the Company’s most recent annual
report on Form 10-K, quarterly report on Form 10-Q, current report on Form 8-K or other public filing with the SEC as the case
may be, (2) a more recent public announcement by the Company or (3) any other notice by the Company or Continental Stock Transfer
& Trust Company, as transfer agent (“
Transfer Agent
”), setting forth the number of shares of Common Stock
outstanding. For any reason at any time, upon the written request of the holder of the Warrant, the Company shall, within two (2)
Business Days, confirm orally and in writing to such holder the number of shares of Common Stock then outstanding. In any case,
the number of outstanding shares of Common Stock shall be determined after giving effect to the conversion or exercise of equity
securities of the Company by the holder and its affiliates since the date as of which such number of outstanding shares of Common
Stock was reported. By written notice to the Company, the holder of a Warrant may from time to time increase or decrease the Maximum
Percentage applicable to such holder to any other percentage specified in such notice; provided, however, that any such increase
shall not be effective until the sixty-first (61st) day after such notice is delivered to the Company.
4.
Adjustments
.
4.1.
Stock
Dividends; Split Ups
. If after the date hereof, the number of outstanding shares of Common Stock is increased by a stock dividend
payable in shares of Common Stock, or by a split up of shares of Common Stock, or other similar event, then, on the effective date
of such stock dividend, split up or similar event, the number of shares of Common Stock issuable on exercise of each Warrant shall
be increased in proportion to such increase in outstanding shares of Common Stock.
4.2.
Aggregation
of Shares
. If after the date hereof, the number of outstanding shares of Common Stock is decreased by a consolidation, combination,
reverse stock split or reclassification of shares of Common Stock or other similar event, then, on the effective date of such consolidation,
combination, reverse stock split, reclassification or similar event, the number of shares of Common Stock issuable on exercise
of each Warrant shall be decreased in proportion to such decrease in outstanding shares of Common Stock.
4.3
Extraordinary
Dividends
. If the Company, at any time while the Warrants are outstanding and unexpired, shall pay a dividend or make a distribution
in cash, securities or other assets to the holders of the shares of Common Stock or other shares of the Company’s capital
stock into which the Warrants are convertible (an “
Extraordinary Dividend
”), then the Warrant Price shall be
decreased, effective immediately after the effective date of such Extraordinary Dividend, by the amount of cash and the fair market
value (as determined by the Company’s Board of Directors, in good faith) of any securities or other assets paid on each share
of Common Stock in respect of such Extraordinary Dividend; provided, however, that none of the following shall be deemed an Extraordinary
Dividend for purposes of this provision: (a) any adjustment described in subsection 4.1 above, (b) any cash dividends or cash distributions
which, when combined on a per share basis with all other cash dividends and cash distributions paid on the Common Stock during
the 365-day period ending on the date of declaration of such dividend or distribution does not exceed $0.50 (as adjusted to appropriately
reflect any of the events referred to in other subsections of this Section 4 and excluding cash dividends or cash distributions
that resulted in an adjustment to the Warrant Price or to the number of shares of Common Stock issuable on exercise of each Warrant)
but only with respect to the amount of the aggregate cash dividends or cash distributions equal to or less than $0.50, (c) any
payment to satisfy the redemption rights of the holders of the shares of Common Stock in connection with a proposed initial Business
Combination or (d) any payment in connection with the Company’s liquidation and the distribution of its assets upon its failure
to consummate a Business Combination. Solely for purposes of illustration, if the Company, at a time while the Warrants are outstanding
and unexpired, pays a cash dividend of $0.35 and previously paid an aggregate of $0.40 of cash dividends and cash distributions
on the Common Stock during the 365-day period ending on the date of declaration of such $0.35 dividend, then the Warrant Price
will be decreased, effectively immediately after the effective date of such $0.35 dividend, by $0.25 (the absolute value of the
difference between $0.75 (the aggregate amount of all cash dividends and cash distributions paid or made in such 365-day period,
including such $0.35 dividend) and $0.50 (the greater of (x) $0.50 and (y) the aggregate amount of all cash dividends and cash
distributions paid or made in such 365-day period prior to such $0.35 dividend)).
4.4
Adjustments
in Exercise Price
. Whenever the number of shares of Common Stock purchasable upon the exercise of the Warrants is adjusted,
as provided in Sections 4.1 and 4.2 above, the Warrant Price shall be adjusted (to the nearest cent) by multiplying such Warrant
Price immediately prior to such adjustment by a fraction (x) the numerator of which shall be the number of shares of Common Stock
purchasable upon the exercise of the Warrants immediately prior to such adjustment, and (y) the denominator of which shall be the
number of shares of Common Stock so purchasable immediately thereafter.
4.5.
Replacement
of Securities upon Reorganization, etc
. In case of any reclassification or reorganization of the outstanding shares of Common
Stock (other than a change covered by Section 4.1, 4.2 or 4.3 hereof or that solely affects the par value of the Common Stock),
or in the case of any merger or consolidation of the Company with or into another corporation (other than a consolidation or merger
in which the Company is the continuing corporation and that does not result in any reclassification or reorganization of the outstanding
Common Stock), or in the case of any sale or conveyance to another corporation or entity of the assets or other property of the
Company as an entirety or substantially as an entirety in connection with which the Company is dissolved, the Warrant holders shall
thereafter have the right to purchase and receive, upon the basis and upon the terms and conditions specified in the Warrants and
in lieu of the shares of Common Stock of the Company immediately theretofore purchasable and receivable upon the exercise of the
rights represented thereby, the kind and amount of shares of stock or other securities or property (including cash) receivable
upon such reclassification, reorganization, merger or consolidation, or upon a dissolution following any such sale or transfer,
that the Warrant holder would have received if such Warrant holder had exercised his, her or its Warrant(s) immediately prior to
such event; and if any reclassification also results in a change in the Common Stock covered by Section 4.1, 4.2 or 4.3, then such
adjustment shall be made pursuant to Sections 4.1, 4.2, 4.3, 4.4 and this Section 4.5. The provisions of this Section 4.5 shall
similarly apply to successive reclassifications, reorganizations, mergers or consolidations, sales or other transfers.
4.6.
Notices
of Changes in Warrant
. Upon every adjustment of the Warrant Price or the number of shares issuable upon exercise of a Warrant,
the Company shall give written notice thereof to the Warrant Agent, which notice shall state the Warrant Price resulting from such
adjustment and the increase or decrease, if any, in the number of shares purchasable at such price upon the exercise of a Warrant,
setting forth in reasonable detail the method of calculation and the facts upon which such calculation is based. Upon the occurrence
of any event specified in Sections 4.1, 4.2, 4.3, 4.4 or 4.5, then, in any such event, the Company shall give written notice to
each Warrant holder, at the last address set forth for such holder in the Warrant Register, of the record date or the effective
date of the event. Failure to give such notice, or any defect therein, shall not affect the legality or validity of such event.
4.7.
No
Fractional Warrants or Shares
. No fractional Warrants will be issued hereunder. Additionally, notwithstanding any provision
contained in this Agreement to the contrary, the Company shall not issue fractional shares upon exercise of Warrants. If, by reason
of any adjustment made pursuant to this Section 4, the holder of any Warrant would be entitled, upon the exercise of such Warrant,
to receive a fractional interest in a share, the Company shall, upon such exercise, round up to the nearest whole number of shares
of Common Stock to be issued to the Warrant holder.
4.8.
Form
of Warrant
. The form of Warrant need not be changed because of any adjustment pursuant to this Section 4, and Warrants issued
after such adjustment may state the same Warrant Price and the same number of shares as is stated in the Warrants initially issued
pursuant to this Agreement. However, the Company may at any time in its sole discretion make any change in the form of Warrant
that the Company may deem appropriate and that does not affect the substance thereof, and any Warrant thereafter issued or countersigned,
whether in exchange or substitution for an outstanding Warrant or otherwise, may be in the form as so changed.
4.9
Other
Events
. In case any event shall occur affecting the Company as to which none of the provisions of preceding subsections of
this Section 4 are strictly applicable, but which would require an adjustment to the terms of the Warrants in order to (i) avoid
an adverse impact on the Warrants and (ii) effectuate the intent and purpose of this Section 4, then, in each such case, the Company
shall appoint a firm of independent public accountants, investment banking or other appraisal firm of recognized national standing,
which shall give its opinion as to whether or not any adjustment to the rights represented by the Warrants is necessary to effectuate
the intent and purpose of this Section 4 and, if they determine that an adjustment is necessary, the terms of such adjustment.
The Company shall adjust the terms of the Warrants in a manner that is consistent with any adjustment recommended in such opinion.
5.
Transfer
and Exchange of Warrants
.
5.1.
Registration
of Transfer
. The Warrant Agent shall register the transfer, from time to time, of any outstanding Warrant upon the Warrant
Register, upon surrender of such Warrant for transfer, properly endorsed with signatures properly guaranteed and accompanied by
appropriate instructions for transfer. Upon any such transfer, a new Warrant representing an equal aggregate number of Warrants
shall be issued and the old Warrant shall be cancelled by the Warrant Agent. The Warrants so cancelled shall be delivered by the
Warrant Agent to the Company from time to time upon request.
5.2.
Procedure
for Surrender of Warrants
. Warrants may be surrendered to the Warrant Agent, together with a written request for exchange or
transfer, and thereupon the Warrant Agent shall issue in exchange therefor one or more new Warrants as requested by the registered
holder of the Warrants so surrendered, representing an equal aggregate number of Warrants; provided, however, that in the event
that a Warrant surrendered for transfer bears a restrictive legend, the Warrant Agent shall not cancel such Warrant and issue new
Warrants in exchange therefor until the Warrant Agent has received an opinion of counsel for the Company stating that such transfer
may be made and indicating whether the new Warrants must also bear a restrictive legend.
5.3.
Fractional
Warrants
. The Warrant Agent shall not be required to effect any registration of transfer or exchange which will result in the
issuance of a warrant certificate for a fraction of a warrant.
5.4.
Service
Charges
. No service charge shall be made for any exchange or registration of transfer of Warrants.
5.5.
Warrant
Execution and Countersignature
. The Warrant Agent is hereby authorized to countersign and to deliver, in accordance with the
terms of this Agreement, the Warrants required to be issued pursuant to the provisions of this Section 5, and the Company, whenever
required by the Warrant Agent, will supply the Warrant Agent with Warrants duly executed on behalf of the Company for such purpose.
5.6.
Private
Warrants
. The Warrant Agent shall not register any transfer of Private Warrants or Working Capital Warrants until after the
consummation by the Company of an initial Business Combination, except for transfers (i) to the Company’s officers, directors,
employees, consultants or their affiliates, (ii) to a holder’s officers, directors, employees or members, in each case if
the holder is an entity, (iii) to relatives and trusts for estate planning purposes, (iv) by virtue of the laws of descent and
distribution upon death, (v) pursuant to a qualified domestic relations order, (vi) to the Company for no value for cancellation
in connection with the consummation of a Business Combination or (vii) by private sales made at or prior to the consummation of
a Business Combination at prices no greater than the price at which the Private Warrants were originally purchased, in each case
(except for clause (vi) or with the Company’s prior written consent) on the condition that prior to such registration for
transfer, the Warrant Agent shall be presented with written documentation pursuant to which each transferee or the trustee or legal
guardian for such transferee agrees to be bound by the terms of the Warrant Purchase Agreement and any other applicable agreement
the transferor is bound by (each, a “
Permitted Transferee
”).
5.7.
Transfers
prior to Detachment
. Prior to the Detachment Date, the Public Warrants may be transferred or exchanged only together with the
Unit in which such Warrant is included, and only for the purpose of effecting, or in conjunction with, a transfer or exchange of
such Unit. Furthermore, each transfer of a Unit on the register relating to such Units shall operate also to transfer the Warrants
included in such Unit. Notwithstanding the foregoing, the provisions of this Section 5.7 shall have no effect on any transfer of
Warrants on or after the Detachment Date.
6.
Redemption
.
6.1.
Redemption
.
Subject to Section 6.4 hereof, not less than all of the outstanding Warrants may be redeemed, at the option of the Company, at
any time during the Exercise Period (so long as there is a current registration statement in effect with respect to the shares
of Common Stock underlying the Warrants), at the office of the Warrant Agent, upon the notice referred to in Section 6.2, at the
price of $0.01 per Warrant (“
Redemption Price
”), provided that the last sales price of the Common Stock equals
or exceeds $18.00 per share (subject to adjustment in accordance with Section 4 hereof), on each of twenty (20) trading days within
any thirty (30) trading day period ending on the third Business Day prior to the date on which notice of redemption is given.
6.2.
Date
Fixed for, and Notice of, Redemption
. In the event the Company shall elect to redeem all of the Warrants that are subject to
redemption, the Company shall fix a date for the redemption (the “
Redemption Date
”). Notice of redemption shall
be mailed by first class mail, postage prepaid, by the Company not less than thirty (30) days prior to the Redemption Date to the
registered holders of the Warrants to be redeemed at their last addresses as they shall appear on the registration books. Any notice
mailed in the manner herein provided shall be conclusively presumed to have been duly given whether or not the registered holder
received such notice.
6.3.
Exercise
After Notice of Redemption
. The Public Warrants may be exercised, for cash (or on a “cashless basis” in accordance
with Section 3 of this Agreement) at any time after notice of redemption shall have been given by the Company pursuant to Section
6.2 hereof and prior to the Redemption Date. In the event the Company determines to require all holders of Public Warrants to exercise
their Warrants on a “cashless basis” pursuant to Section 3.3.1(b), the notice of redemption will contain the information
necessary to calculate the number of shares of Common Stock to be received upon exercise of the Warrants, including the “Fair
Market Value” in such case. On and after the Redemption Date, the record holder of the Warrants shall have no further rights
except to receive, upon surrender of the Warrants, the Redemption Price.
6.4
Exclusion
of Certain Warrants
. The Company understands that the redemption rights provided for by this Section 6 apply only to outstanding
Warrants. To the extent a person holds rights to purchase Warrants, such purchase rights shall not be extinguished by redemption.
However, once such purchase rights are exercised, the Company may redeem the Warrants issued upon such exercise provided that the
criteria for redemption is met. Additionally, the Company agrees that the redemption rights provided in this Section 6 shall not
apply to (i) the Private Warrants and Working Capital Warrants if at the time of the redemption such Private Warrants or Working
Capital Warrants continue to be held by the initial purchasers or their Permitted Transferees or (ii) Post IPO Warrants if such
warrants provide that they are non-redeemable by the Company. However, with respect to the Private Warrants or Working Capital
Warrants, once such Private Warrants or Working Capital Warrants are transferred (other than to Permitted Transferees), the Company
may redeem the Private Warrants and Working Capital Warrants in the same manner as the Public Warrants.
7.
Other
Provisions Relating to Rights of Holders of Warrants
.
7.1.
No
Rights as Stockholder
. A Warrant does not entitle the registered holder thereof to any of the rights of a stockholder of the
Company, including, without limitation, the right to receive dividends, or other distributions, exercise any preemptive rights
to vote or to consent or to receive notice as stockholders in respect of the meetings of stockholders or the election of directors
of the Company or any other matter.
7.2.
Lost,
Stolen, Mutilated, or Destroyed Warrants
. If any Warrant is lost, stolen, mutilated, or destroyed, the Company and the Warrant
Agent may on such terms as to indemnity or otherwise as they may in their discretion impose (which shall, in the case of a mutilated
Warrant, include the surrender thereof), issue a new Warrant of like denomination, tenor, and date as the Warrant so lost, stolen,
mutilated, or destroyed. Any such new Warrant shall constitute a substitute contractual obligation of the Company, whether or not
the allegedly lost, stolen, mutilated, or destroyed Warrant shall be at any time enforceable by anyone.
7.3.
Reservation
of Shares of Common Stock
. The Company shall at all times reserve and keep available a number of its authorized but unissued
shares of Common Stock that will be sufficient to permit the exercise in full of all outstanding Warrants issued pursuant to this
Agreement.
7.4.
Registration
of Shares of Common Stock
. The Company agrees that as soon as practicable after the closing of its initial Business Combination,
it shall use its best efforts to file with the SEC a registration statement for the registration, under the Act, of the shares
of Common Stock issuable upon exercise of the Warrants, and it shall use its best efforts to take such action as is necessary to
register or qualify for sale, in those states in which the Warrants were initially offered by the Company and in those states where
holders of Warrants then reside, the shares of Common Stock issuable upon exercise of the Warrants, to the extent an exemption
is not available. The Company will use its best efforts to cause the same to become effective and to maintain the effectiveness
of such registration statement until the expiration of the Warrants in accordance with the provisions of this Agreement. If any
such registration statement has not been declared effective by the 90th day following the closing of the Business Combination,
holders of the Warrants shall have the right, during the period beginning on the 91st day after the closing of the Business Combination
and ending upon such registration statement being declared effective by the Securities and Exchange Commission, and during any
other period when the Company shall fail to have maintained an effective registration statement covering the shares of Common Stock
issuable upon exercise of the Warrants, to exercise such Warrants on a “cashless basis” as determined in accordance
with Section 3.3.1(d). The Company shall provide the Warrant Agent with an opinion of counsel for the Company (which shall be an
outside law firm with securities law experience) stating that (i) the exercise of the Warrants on a cashless basis in accordance
with this Section 7.4 is not required to be registered under the Act and (ii) the shares of Common Stock issued upon such exercise
will be freely tradable under U.S. federal securities laws by anyone who is not an affiliate (as such term is defined in Rule 144
under the Act) of the Company and, accordingly, will not be required to bear a restrictive legend. For the avoidance of any doubt,
unless and until all of the Warrants have been exercised on a cashless basis, the Company shall continue to be obligated to comply
with its registration obligations under the first three sentences of this Section 7.4.
8.
Concerning
the Warrant Agent and Other Matters
.
8.1.
Payment
of Taxes
. The Company will from time to time promptly pay all taxes and charges that may be imposed upon the Company or the
Warrant Agent in respect of the issuance or delivery of shares of Common Stock upon the exercise of Warrants, but the Company shall
not be obligated to pay any transfer taxes in respect of the Warrants or such shares.
8.2.
Resignation,
Consolidation, or Merger of Warrant Agent
.
8.2.1.
Appointment
of Successor Warrant Agent
. The Warrant Agent, or any successor to it hereafter appointed, may resign its duties and be discharged
from all further duties and liabilities hereunder after giving sixty (60) days’ notice in writing to the Company. If the
office of the Warrant Agent becomes vacant by resignation or incapacity to act or otherwise, the Company shall appoint in writing
a successor Warrant Agent in place of the Warrant Agent. If the Company shall fail to make such appointment within a period of
thirty (30) days after it has been notified in writing of such resignation or incapacity by the Warrant Agent or by the holder
of the Warrant (who shall, with such notice, submit his Warrant for inspection by the Company), then the holder of any Warrant
may apply to the Supreme Court of the State of New York for the County of New York for the appointment of a successor Warrant Agent
at the Company’s cost. Any successor Warrant Agent, whether appointed by the Company or by such court, shall be a corporation
organized and existing under the laws of the State of New York, in good standing and having its principal office in the Borough
of Manhattan, City and State of New York, and authorized under such laws to exercise corporate trust powers and subject to supervision
or examination by federal or state authority. After appointment, any successor Warrant Agent shall be vested with all the authority,
powers, rights, immunities, duties, and obligations of its predecessor Warrant Agent with like effect as if originally named as
Warrant Agent hereunder, without any further act or deed; but if for any reason it becomes necessary or appropriate, the predecessor
Warrant Agent shall execute and deliver, at the expense of the Company, an instrument transferring to such successor Warrant Agent
all the authority, powers, and rights of such predecessor Warrant Agent hereunder; and upon request of any successor Warrant Agent
the Company shall make, execute, acknowledge, and deliver any and all instruments in writing for more fully and effectually vesting
in and confirming to such successor Warrant Agent all such authority, powers, rights, immunities, duties, and obligations.
8.2.2.
Notice
of Successor Warrant Agent
. In the event a successor Warrant Agent shall be appointed, the Company shall give notice thereof
to the predecessor Warrant Agent and the Transfer Agent for the shares of Common Stock not later than the effective date of any
such appointment.
8.2.3.
Merger
or Consolidation of Warrant Agent
. Any corporation into which the Warrant Agent may be merged or with which it may be consolidated
or any corporation resulting from any merger or consolidation to which the Warrant Agent shall be a party shall be the successor
Warrant Agent under this Agreement without any further act.
8.3.
Fees
and Expenses of Warrant Agent
.
8.3.1.
Remuneration
.
The Company agrees to pay the Warrant Agent reasonable remuneration for its services as such Warrant Agent hereunder and will reimburse
the Warrant Agent upon demand for all expenditures that the Warrant Agent may reasonably incur in the execution of its duties hereunder.
8.3.2.
Further
Assurances
. The Company agrees to perform, execute, acknowledge, and deliver or cause to be performed, executed, acknowledged,
and delivered all such further and other acts, instruments, and assurances as may reasonably be required by the Warrant Agent for
the carrying out or performing of the provisions of this Agreement.
8.4.
Liability
of Warrant Agent
.
8.4.1.
Reliance
on Company Statement
. Whenever in the performance of its duties under this Agreement, the Warrant Agent shall deem it necessary
or desirable that any fact or matter be proved or established by the Company prior to taking or suffering any action hereunder,
such fact or matter (unless other evidence in respect thereof be herein specifically prescribed) may be deemed to be conclusively
proved and established by a statement signed by the Chief Executive Officer or Chairman of the Board of Directors of the Company
and delivered to the Warrant Agent. The Warrant Agent may rely upon such statement for any action taken or suffered in good faith
by it pursuant to the provisions of this Agreement.
8.4.2.
Indemnity
.
The Warrant Agent shall be liable hereunder only for its own gross negligence, willful misconduct or bad faith. The Company agrees
to indemnify the Warrant Agent and save it harmless against any and all liabilities, including judgments, costs and reasonable
counsel fees, for anything done or omitted by the Warrant Agent in the execution of this Agreement except as a result of the Warrant
Agent’s gross negligence, willful misconduct, or bad faith.
8.4.3.
Exclusions
.
The Warrant Agent shall have no responsibility with respect to the validity of this Agreement or with respect to the validity or
execution of any Warrant (except its countersignature thereof); nor shall it be responsible for any breach by the Company of any
covenant or condition contained in this Agreement or in any Warrant; nor shall it be responsible to make any adjustments required
under the provisions of Section 4 hereof or responsible for the manner, method, or amount of any such adjustment or the ascertaining
of the existence of facts that would require any such adjustment; nor shall it by any act hereunder be deemed to make any representation
or warranty as to the authorization or reservation of any shares of Common Stock to be issued pursuant to this Agreement or any
Warrant or as to whether any shares of Common Stock will, when issued, be valid and fully paid and nonassessable.
8.5.
Acceptance
of Agency
. The Warrant Agent hereby accepts the agency established by this Agreement and agrees to perform the same upon the
terms and conditions herein set forth and among other things, shall account promptly to the Company with respect to Warrants exercised
and concurrently account for, and pay to the Company, all monies received by the Warrant Agent for the purchase of shares of Common
Stock through the exercise of Warrants.
9.
Miscellaneous
Provisions
.
9.1.
Successors
.
All the covenants and provisions of this Agreement by or for the benefit of the Company or the Warrant Agent shall bind and inure
to the benefit of their respective successors and assigns.
9.2.
Notices
.
Any notice, statement or demand authorized by this Agreement to be given or made by the Warrant Agent or by the holder of any Warrant
to or on the Company shall be sufficiently given when so delivered if by hand or overnight delivery or if sent by certified mail
or private courier service within five (5) days after deposit of such notice, postage prepaid, addressed (until another address
is filed in writing by the Company with the Warrant Agent), as follows:
Schultze Special Purpose Acquisition Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
Attn: Scarlett Du
Facsimile: (914) 701-5269
Email: sdu@samco.net
Any notice, statement or demand authorized by this Agreement
to be given or made by the holder of any Warrant or by the Company to or on the Warrant Agent shall be sufficiently given when
so delivered if by hand or overnight delivery or if sent by certified mail or private courier service within five days after deposit
of such notice, postage prepaid, addressed (until another address is filed in writing by the Warrant Agent with the Company), as
follows:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Compliance Department
with a copy in each case to:
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
and
Greenberg Traurig, LLP
Met Life Building
200 Park Avenue
New York, New York 10166
Attn: Alan I. Annex, Esq.
and
EarlyBirdCapital, Inc.
366 Madison Avenue, 8th Floor
New York, New York 10017
Attn: David M. Nussbaum, Chairman
9.3.
Applicable
Law
. The validity, interpretation, and performance of this Agreement and of the Warrants shall be governed in all respects
by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application
of the substantive laws of another jurisdiction. The Company hereby agrees that any action, proceeding or claim against it arising
out of or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United
States District Court for the Southern District of New York, and irrevocably submits to such jurisdiction, which jurisdiction shall
be exclusive. The Company hereby waives any objection to such exclusive jurisdiction and that such courts represent an inconvenient
forum. Any such process or summons to be served upon the Company may be served by transmitting a copy thereof by registered or
certified mail, return receipt requested, postage prepaid, addressed to it at the address set forth in Section 9.2 hereof. Such
mailing shall be deemed personal service and shall be legal and binding upon the Company in any action, proceeding or claim.
9.4.
Persons
Having Rights under this Agreement
. Nothing in this Agreement expressed and nothing that may be implied from any of the provisions
hereof is intended, or shall be construed, to confer upon, or give to, any person or corporation other than the parties hereto
and the registered holders of the Warrants any right, remedy, or claim under or by reason of this Warrant Agreement or of any covenant,
condition, stipulation, promise, or agreement hereof. All covenants, conditions, stipulations, promises, and agreements contained
in this Warrant Agreement shall be for the sole and exclusive benefit of the parties hereto and their successors and assigns and
of the registered holders of the Warrants.
9.5.
Examination
of the Warrant Agreement
. A copy of this Agreement shall be available at all reasonable times at the office of the Warrant
Agent in the Borough of Manhattan, City and State of New York, for inspection by the registered holder of any Warrant. The Warrant
Agent may require any such holder to submit his Warrant for inspection by it.
9.6.
Counterparts
.
This Agreement may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all
purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.
9.7.
Effect
of Headings
. The section headings herein are for convenience only and are not part of this Agreement and shall not affect the
interpretation thereof.
9.8
Amendments
.
This Agreement may be amended by the parties hereto without the consent of any registered holder for the purpose of curing any
ambiguity, or of curing, correcting or supplementing any defective provision contained herein or adding or changing any other provisions
with respect to matters or questions arising under this Agreement as the parties may deem necessary or desirable and that the parties
deem shall not adversely affect the interest of the registered holders. All other modifications or amendments, including any amendment
to increase the Warrant Price or shorten the Exercise Period, shall require the written consent or vote of the registered holders
of a majority of the then outstanding Warrants. Notwithstanding the foregoing, the Company may lower the Warrant Price or extend
the duration of the Exercise Period pursuant to Sections 3.1 and 3.2, respectively, without the consent of the registered holders.
9.9
Trust
Account Waiver
. The Warrant Agent acknowledges and agrees that it shall not make any claims or proceed against the trust account
established by the Company in connection with the Public Offering (as more fully described in the Registration Statement) (“
Trust
Account
”), including by way of set-off, and shall not be entitled to any funds in the Trust Account under any circumstance.
In the event that the Warrant Agent has a claim against the Company under this Agreement, the Warrant Agent will pursue such claim
solely against the Company and not against the property held in the Trust Account.
9.10
Severability
.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
[signature page follows]
IN WITNESS WHEREOF, this Agreement has been
duly executed by the parties hereto as of the day and year first above written.
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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CONTINENTAL STOCK TRANSFER
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& TRUST COMPANY
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By:
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Name:
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Title:
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[Signature Page to Warrant Agreement]
EXHIBIT A
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NUMBER
________-
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(SEE REVERSE SIDE FOR LEGEND)
THIS WARRANT WILL BE VOID IF NOT EXERCISED
PRIOR TO THE EXPIRATION DATE (DEFINED BELOW)
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WARRANTS
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Schultze
Special Purpose Acquisition Corp.
CUSIP 80821R 117
WARRANT
THIS CERTIFIES THAT, for value received
is the registered holder of a warrant
or warrants (the “
Warrant(s)
”) of Schultze Special Purpose Acquisition Corp., a Delaware corporation (the “
Company
”),
expiring at 5:00 p.m., New York City time, on the five year anniversary of the Company’s completion of an initial merger,
stock exchange, asset acquisition, stock purchase, recapitalization, reorganization or other similar business combination with
one or more businesses or entities (a “
Business Combination
”), to purchase one fully paid and non-assessable
share of common stock, par value $0.0001 per share (“
Shares
”), of the Company for each Warrant evidenced by
this Warrant Certificate. The Warrant entitles the holder thereof to purchase from the Company, commencing on the later of (a)
___________, 2019 and (b) 30 days after the Company’s completion of an initial Business Combination, such number of Shares
of the Company at the Warrant Price (as defined below), upon surrender of this Warrant Certificate and payment of the Warrant
Price at the office or agency of Continental Stock Transfer & Trust Company (the “
Warrant Agent
”), but
only subject to the conditions set forth herein and in the Warrant Agreement between the Company and Continental Stock Transfer
& Trust Company. In no event will the Company be required to net cash settle any warrant exercise. The Warrant Agreement provides
that upon the occurrence of certain events the Warrant Price and the number of Shares purchasable hereunder, set forth on the
face hereof, may, subject to certain conditions, be adjusted. The term “
Warrant Price
” as used in this Warrant
Certificate refers to the price per Share at which Shares may be purchased at the time the Warrant is exercised. The initial Warrant
Price per Share is equal to $11.50 per share.
No fraction of a
Share will be issued upon any exercise of a Warrant. If the holder of a Warrant would be entitled to receive a fraction of a Share
upon any exercise of a Warrant, the Company shall, upon such exercise, round up to the nearest whole number the number of Shares
to be issued to such holder.
Upon any exercise
of the Warrant for less than the total number of full Shares provided for herein, there shall be issued to the registered holder
hereof or the registered holder’s assignee a new Warrant Certificate covering the number of Shares for which the Warrant
has not been exercised.
Warrant Certificates,
when surrendered at the office or agency of the Warrant Agent by the registered holder in person or by attorney duly authorized
in writing, may be exchanged in the manner and subject to the limitations provided in the Warrant Agreement, but without payment
of any service charge, for another Warrant Certificate or Warrant Certificates of like tenor and evidencing in the aggregate a
like number of Warrants.
Upon due presentment
for registration of transfer of the Warrant Certificate at the office or agency of the Warrant Agent, a new Warrant Certificate
or Warrant Certificates of like tenor and evidencing in the aggregate a like number of Warrants shall be issued to the transferee
in exchange for this Warrant Certificate, subject to the limitations provided in the Warrant Agreement, without charge except
for any applicable tax or other governmental charge.
The Company and the
Warrant Agent may deem and treat the registered holder as the absolute owner of this Warrant Certificate (notwithstanding any
notation of ownership or other writing hereon made by anyone), for the purpose of any exercise hereof, of any distribution to
the registered holder, and for all other purposes, and neither the Company nor the Warrant Agent shall be affected by any notice
to the contrary.
This Warrant does
not entitle the registered holder to any of the rights of a stockholder of the Company.
The Company reserves
the right to call the Warrant at any time prior to its exercise with a notice of call in writing to the holders of record of the
Warrant, giving at least 30 days’ notice of such call, at any time while the Warrant is exercisable, if the last sale price
of the Shares has been at least $18.00 per share on each of 20 trading days within any 30 trading day period (the “
30-day
trading period
”) ending on the third business day prior to the date on which notice of such call is given and if, and
only if, there is a current registration statement in effect with respect to the Shares underlying the Warrants commencing five
business days prior to the 30-day trading period and continuing each day thereafter until the date of redemption. The call price
of the Warrants is to be $0.01 per Warrant. Any Warrant either not exercised or tendered back to the Company by the end of the
date specified in the notice of call shall be canceled on the books of the Company and have no further value except for the $0.01
call price.
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By
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Chief Executive Officer
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Chief Financial Officer
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SUBSCRIPTION FORM
To Be Executed by the Registered Holder
in Order to Exercise Warrants
The undersigned Registered Holder irrevocably
elects to exercise ______________ Warrants represented by this Warrant Certificate, and to purchase the Common Stock issuable
upon the exercise of such Warrants, and requests that Certificates for such shares shall be issued in the name of
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(PLEASE TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
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and be delivered to
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(PLEASE PRINT OR TYPE NAME AND ADDRESS)
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and, if such number of Warrants shall not
be all the Warrants evidenced by this Warrant Certificate, that a new Warrant Certificate for the balance of such Warrants be registered
in the name of, and delivered to, the Registered Holder at the address stated below:
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Dated: _____________________
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(SIGNATURE)
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(ADDRESS)
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(TAX IDENTIFICATION NUMBER)
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ASSIGNMENT
To Be Executed by the Registered Holder
in Order to Assign Warrants
For Value Received, _______________________ hereby sell, assign,
and transfer unto
(PLEASE TYPE OR PRINT NAME AND ADDRESS)
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(SOCIAL SECURITY OR TAX IDENTIFICATION NUMBER)
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and be delivered to
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(PLEASE PRINT OR TYPE NAME AND ADDRESS)
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______________________ of the Warrants represented by this Warrant
Certificate, and hereby irrevocably constitute and appoint _________________________________ Attorney to transfer this Warrant
Certificate on the books of the Company, with full power of substitution in the premises.
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Dated: _________________________
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(SIGNATURE)
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The
signature to the assignment of the Subscription Form must correspond to the name written upon the face of this Warrant Certificate
in every particular, without alteration or enlargement or any change whatsoever, and must be guaranteed by a commercial bank or
trust company or a member firm of the NYSE American, Nasdaq, New York Stock Exchange, Pacific Stock Exchange, or Chicago Stock
Exchange.
EXHIBIT B
PRIVATE WARRANTS
LEGEND
“THE
SECURITIES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE
SECURITIES LAWS, AND MAY NOT BE OFFERED, SOLD, TRANSFERRED OR OTHERWISE DISPOSED OF UNLESS REGISTERED UNDER THE SECURITIES
ACT OF 1933, AS AMENDED, AND ANY APPLICABLE STATE SECURITIES LAWS OR AN EXEMPTION FROM REGISTRATION IS AVAILABLE. IN ADDITION,
SUBJECT TO ANY ADDITIONAL LIMITATIONS ON TRANSFER DESCRIBED IN THE WARRANT PURCHASE AGREEMENT BY AND AMONG Schultze Special Purpose
Acquisition Corp. (THE “COMPANY”), Schultze Special Purpose Acquisition Sponsor, LLC AND THE OTHER PARTIES THERETO,
THE SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD OR TRANSFERRED UNTIL AFTER THE DATE UPON WHICH THE COMPANY
COMPLETES ITS INITIAL BUSINESS COMBINATION EXCEPT TO A PERMITTED TRANSFEREE (AS DEFINED IN SECTION 5.6 OF THE WARRANT AGREEMENT)
WHO AGREES IN WRITING WITH THE COMPANY TO BE SUBJECT TO SUCH TRANSFER PROVISIONS.
SECURITIES
EVIDENCED BY THIS CERTIFICATE AND SHARES OF COMMON STOCK OF THE COMPANY ISSUED UPON EXERCISE OF SUCH SECURITIES SHALL BE ENTITLED
TO REGISTRATION RIGHTS UNDER A REGISTRATION RIGHTS AGREEMENT TO BE EXECUTED BY THE COMPANY.”
No. [●] Warrants
Exhibit 5.1
November 28, 2018
Schultze Special Purpose Acquisition Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
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Re:
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Schultze Special Purpose Acquisition Corp.
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Registration Statement on Form S-1
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(File Number 333-228494)
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Ladies and Gentlemen:
Schultze Special Purpose Acquisition Corp.,
a Delaware corporation (the “
Company
”), has filed with the Securities and Exchange Commission a Registration
Statement on Form S-1, as amended (Registration No. 333-228494) (the “
Registration Statement
”), under the
Securities Act of 1933, as amended (the “
Act
”). The Registration Statement relates to the underwritten public
offering by the Company of up to 17,250,000 units of the Company (the “
Units
”) (including up to 2,250,000 Units
subject to the Underwriters’ (as defined below) option to purchase additional Units), each Unit consisting of:
(i) one
share of the Company’s common stock, par value $0.0001 per share (“
Common Stock
,” and the shares of Common
Stock underlying the Units, the “
Shares
”), for an aggregate of up to 17,250,000 Shares (including up to 2,250,000
Shares included in the Units subject to the Underwriters’ option to purchase additional Units); and
(ii) one
warrant (each, a “
Warrant
”) with each Warrant entitling the holder to purchase one share of Common Stock, for
an aggregate of up to 17,250,000 Warrants (including up to 2,250,000 Warrants included in the Units subject to the Underwriters’
option to purchase additional Units) to be issued under a Warrant Agreement (the “
Warrant Agreement
”) to be
entered into by the Company and Continental Stock Transfer & Trust Company, as Warrant Agent, pursuant to the terms of an underwriting
agreement (the “
Underwriting Agreement
”) to be executed by the Company and EarlyBirdCapital, Inc., as representative
of the underwriters named therein (the “
Underwriters
”). We have acted as counsel to the Company in connection
with the preparation and filing of the Registration Statement and this opinion is being furnished in accordance with the requirements
of Item 601(b)(5) of Regulation S-K under the Act.
We have examined copies of such corporate
records, agreements, documents and other instruments of the Company and other certificates and documents of officials of the Company,
public officials, and others, as we have deemed appropriate for purposes of this letter. We have assumed the genuineness of all
signatures, the legal capacity of all natural persons, the authenticity of all documents submitted to us as originals, and the
conformity to authentic original documents of all copies submitted to us as conformed, certified, or reproduced copies. We have
also assumed that (i) upon sale and delivery of the Units, the Shares, and the Warrants, the certificates representing such
Units, Shares, and Warrants will conform to the specimens thereof filed as exhibits to the Registration Statement and will have
been duly countersigned by the transfer agent and duly registered by the registrar or, if uncertificated, valid book-entry notations
for the issuance of the Units, the Shares, and the Warrants in uncertificated form will have been duly made in the register of
the Company and (ii) at the time of execution, countersigning, issuance, and delivery of the Warrants, the Warrant Agreement
will be a valid and binding obligation of the Warrant Agent, enforceable against the Warrant Agent in accordance with its terms.
In addition, in providing the opinions herein, we have relied, with respect to matters related to the Company’s existence,
upon the certificates referenced above.
Based upon the foregoing, and subject to
the assumptions, exceptions, qualifications, and limitations stated herein, we are of the opinion that:
1. When the Underwriting Agreement
and the Warrant Agreement have been duly executed and delivered by the respective parties thereto and the Units, the Shares, and
the Warrants have been issued and delivered in accordance with the Underwriting Agreement against payment in full of the consideration
payable therefor as determined by the Board of Directors of the Company or a duly authorized committee thereof and as contemplated
by the Underwriting Agreement, the Units and the Shares and Warrants included in the Units will be duly authorized, validly issued,
fully paid and non-assessable.
2. When
the Underwriting Agreement and the Warrant Agreement have been duly executed and delivered by the respective parties thereto and
the Warrants have been duly executed by the Company and duly countersigned by the Warrant Agent in accordance with the terms of
the Warrant Agreement and delivered to and paid for by the Underwriters pursuant to the terms of the Underwriting Agreement, the
Warrants will be valid and binding obligations of the Company, enforceable against the Company in accordance with their terms.
The
opinions and other matters in this letter are qualified in their entirety and subject to the following:
A. We express no opinion as to the laws
of any jurisdiction other than (i) the laws of the State of New York and (ii) the General Corporation Law of the State of Delaware.
As used herein, the term “General Corporation Law of the State of Delaware” includes the statutory provisions contained
therein and all applicable provisions of the Delaware Constitution and reported judicial decisions interpreting these laws.
B. The matters expressed in this letter
are subject to and qualified and limited by (i) applicable bankruptcy, insolvency, fraudulent transfer and conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally; and (ii) general principles of equity, including
without limitation, concepts of materiality, reasonableness, good faith and fair dealing and the possible unavailability of specific
performance or injunctive relief (regardless of whether considered in a proceeding in equity or at law).
C. This opinion letter is limited to the
matters expressly stated herein and no opinion is to be inferred or implied beyond the opinions expressly set forth herein. We
undertake no, and hereby disclaim any, obligation to make any inquiry after the date hereof or to advise you of any changes in
any matter set forth herein, whether based on a change in the law, a change in any fact relating to the Company or any other person
or any other circumstance.
We hereby consent to the filing of this
opinion as an exhibit to the Registration Statement and to the reference to us under the caption “Legal Matters” in
the prospectus comprising a part of the Registration Statement. In giving this consent, we do not thereby admit that we are included
within the category of persons whose consent is required by Section 7 of the Act and the rules and regulations promulgated
thereunder.
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Very truly yours,
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/s/ Greenberg Traurig, LLP
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Greenberg Traurig
, LLP
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Exhibit 10.1
______________, 2018
Schultze Special Purpose Acquisition Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
EarlyBirdCapital, Inc.
366 Madison Avenue, 8
th
Floor
New York, New York 10017
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Re:
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Initial Public Offering
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Ladies and Gentlemen:
This letter is being
delivered to you in accordance with the Underwriting Agreement (the “
Underwriting Agreement
”) entered
into by and between Schultze Special Purpose Acquisition Corp., a Delaware corporation (the “
Company
”),
and EarlyBirdCapital, Inc. as representative (“
Representative
”) of the several underwriters named in
Schedule A thereto (the “
Underwriters
”), relating to an underwritten initial public offering (the “
IPO
”)
of the Company’s units (the “
Units
”), each Unit comprised of one share of the Company’s common
stock, par value $0.0001 per share (the “
Common Stock
”) and one warrant, each warrant entitling the holder
to purchase one share of Common Stock at a price of $11.50 (each, a “
Warrant
”). Certain capitalized terms
used herein are defined in paragraph 14 hereof.
In order to induce
the Company and the Underwriters to enter into the Underwriting Agreement and to proceed with the IPO, and in recognition of the
benefit that such IPO will confer upon the undersigned, and for other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the undersigned hereby agrees with the Company as follows:
1. If
the Company solicits approval of its stockholders of a Business Combination, the undersigned will vote all shares of Common Stock
beneficially owned by him, her or it, whether acquired before, in, or after the IPO, in favor of such Business Combination.
2. In
the event that the Company fails to consummate a Business Combination within the time period set forth in the Company’s Amended
and Restated Certificate of Incorporation, as the same may be amended from time to time (the “
Certificate of Incorporation
”),
the undersigned will, as promptly as possible, cause the Company to (i) cease all operations except for the purpose of winding
up, (ii) as promptly as reasonably possible, but not more than ten (10) business days thereafter, redeem 100% of the IPO Shares,
at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account (net of taxes payable,
and less up to $150,000 of interest to pay liquidation expenses), including interest earned on the Trust Account not previously
released to the Company, divided by the number of then outstanding IPO Shares, which redemption will completely extinguish public
stockholders’ rights as stockholders (including the right to receive further liquidation distributions, if any), and (iii)
as promptly as reasonably possible following such redemption, subject to the approval of the Company’s remaining stockholders
and the Company’s board of directors, dissolve and liquidate, subject in the cases of clauses (ii) and (iii) to the Company’s
obligations under Delaware law to provide for claims of creditors and other requirements of applicable law. The undersigned hereby
waives any and all right, title, interest, or claim of any kind in or to any distribution of the Trust Account (“
Claim
”)
as a result of such liquidation with respect to the undersigned’s Founders’ Shares and hereby waives any Claim the
undersigned may have in the future as a result of, or arising out of, any contracts or agreements with the Company and will not
seek recourse against the Trust Account for any reason whatsoever. The undersigned acknowledges and agrees that there will be no
distribution from the Trust Account with respect to any Warrants, all rights of which will terminate on the Company’s liquidation.
In the event of the liquidation of the Trust Account, the Sponsor agrees to indemnify and hold harmless the Company for any debts
and obligations to target businesses or vendors or other entities that are owed money by the Company for services rendered or contracted
for or products sold to the Company, but only to the extent necessary to ensure that such debt or obligation does not reduce the
amount of funds in the Trust Account below $10.00 per share; provided that such indemnity shall not apply (i) if such vendor or
prospective target business executed an agreement waiving any Claim in or to any monies held in the Trust Account, or (ii) as to
any Claims under the Company’s obligation to indemnify the Underwriters against certain liabilities, including liabilities
under the Securities Act of 1933, as amended (the “
Securities Act
”).
3. The
undersigned acknowledges and agrees that prior to entering into a Business Combination with a target business that is affiliated
with any Insiders of the Company, such transaction must be approved by a majority of the Company’s disinterested independent
directors and the Company must obtain an opinion from an independent investment banking firm, or another independent entity that
commonly renders valuation opinions, that such Business Combination is fair to the Company’s unaffiliated stockholders from
a financial point of view.
4. Neither
the undersigned nor any affiliate of the undersigned will be entitled to receive and will not accept any compensation or other
cash payment prior to, or for services rendered in order to effectuate, the consummation of the Business Combination; provided
that the Company shall be allowed to make the payments set forth in the Prospectus under the caption “Prospectus Summary
– The Offering – Limited payments to insiders.”
5. Neither
the undersigned nor any affiliate of the undersigned will be entitled to receive or accept a finder’s fee or any other compensation
in the event the undersigned or any affiliate of the undersigned originates a Business Combination.
6. The
undersigned will place into escrow all Founders’ Shares, if any, held by the undersigned pursuant to the terms of a Stock
Escrow Agreement which the Company will enter into in connection with the IPO.
7. The
undersigned agrees that until after the Company consummates a Business Combination, all Private Placement Warrants, if any, held
by the undersigned pursuant to the terms of a Warrant Purchase Agreement with the Company will be subject to the transfer restrictions
described therein.
8. In
order to minimize potential conflicts of interest that may arise from multiple corporate affiliations, the undersigned hereby agrees
that until the earliest of the Company’s initial Business Combination or liquidation, the undersigned shall present to the
Company for its consideration, prior to presentation to any other entity, any target business which has a fair market value of
at least 80% of the assets held in the Trust Account (excluding taxes payable on the income accrued in the Trust Account), subject
to any pre-existing fiduciary or contractual obligations the undersigned might have.
9. The
undersigned agrees to be an officer and/or director of the Company until the earlier of the consummation by the Company of a Business
Combination or the liquidation of the Company. The undersigned’s biographical information previously furnished to the Company
and the Representative is true and accurate in all respects and does not omit any material information with respect to the undersigned’s
background. The undersigned’s FINRA Questionnaire previously furnished to the Company and the Representative is true and
accurate in all respects. The undersigned represents and warrants that:
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(a)
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he/she/it has never had a petition under the federal bankruptcy laws or any state insolvency law
been filed by or against (i) him/her/it or any partnership in which he/she/it was a general partner at or within two years before
the time of filing; or (ii) any corporation or business association of which he/she/it was an executive officer at or within two
years before the time of such filing;
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(b)
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he/she/it has never had a receiver, fiscal agent or similar officer been appointed by a court for
his/her/its business or property, or any such partnership;
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(c)
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he/she/it has never been convicted of fraud in a civil or criminal proceeding;
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(d)
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he/she/it/ has never been convicted in a criminal proceeding or named the subject of a pending
criminal proceeding (excluding traffic violations and minor offenses);
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(e)
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he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any court of competent jurisdiction, permanently or temporarily enjoining or otherwise limiting him/her/it
from (i) acting as a futures commission merchant, introducing broker, commodity trading advisor, commodity pool operator, floor
broker, leverage transaction merchant, any other person regulated by the Commodity Futures Trading Commission (“
CFTC
”)
or an associated person of any of the foregoing, or as an investment adviser, underwriter, broker or dealer in securities, or as
an affiliated person, director or employee of any investment company, bank, savings and loan association or insurance company,
or from engaging in or continuing any conduct or practice in connection with any such activity; or (ii) engaging in any type
of business practice; or (iii) engaging in any activity in connection with the purchase or sale of any security or commodity or
in connection with any violation of federal or state securities or federal commodities laws;
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(f)
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he/she/it has never been the subject of any order, judgment or decree, not subsequently reversed,
suspended or vacated, of any federal or state authority barring, suspending or otherwise limiting for more than 60 days your right
to engage in any activity described in 9(e)(i) above, or to be associated with persons engaged in any such activity;
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(g)
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he/she/it has never been found by a court of competent jurisdiction in a civil action or by the
SEC to have violated any federal or state securities law, where the judgment in such civil action or finding by the SEC has not
been subsequently reversed, suspended or vacated;
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(h)
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he/she/it has never been found by a court of competent jurisdiction in a civil action or by the
CFTC to have violated any federal commodities law, where the judgment in such civil action or finding by the CFTC has not been
subsequently reversed, suspended or vacated;
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(i)
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he/she/it has never been the subject of, or a party to, any Federal or State judicial or administrative
order, judgment, decree or finding, not subsequently reversed, suspended or vacated, relating to an alleged violation of (i) any
Federal or State securities or commodities law or regulation, (ii) any law or regulation respecting financial institutions
or insurance companies including, but not limited to, a temporary or permanent injunction, order of disgorgement or restitution,
civil money penalty or temporary or permanent cease-and desist order, or removal or prohibition order or (iii) any law or
regulation prohibiting mail or wire fraud or fraud in connection with any business entity;
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(j)
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he/she/it has never been the subject of, or party to, any sanction or order, not subsequently reversed,
suspended or vacated, or any self-regulatory organization, any registered entity, or any equivalent exchange, association, entity
or organization that has disciplinary authority over its members or persons associated with a member;
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(k)
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he/she/it has never been convicted of any felony or misdemeanor: (i) in connection with the
purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising out of the
conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment advisor or paid solicitor of
purchasers of securities;
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(l)
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he/she/it was never subject to a final order of a state securities commission (or an agency of
officer of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit
unions; a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking
agency; the Commodity Futures Trading Commission; or the National Credit Union Administration that is based on a violation of any
law or regulation that prohibits fraudulent, manipulative, or deceptive conduct;
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(m)
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he/she/it has never been subject to any order, judgment or decree of any court of competent jurisdiction,
that, at the time of such sale, restrained or enjoined him/her/it from engaging or continuing to engage in any conduct or practice:
(i) in connection with the purchase or sale of any security; (ii) involving the making of any false filing with the SEC; or (iii) arising
out of the conduct of the business of an underwriter, broker, dealer, municipal securities dealer, investment adviser or paid solicitor
of purchasers of securities;
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(n)
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he/she/it has never been subject to any order of the SEC that orders him/her/it to cease and desist
from committing or causing a future violation of: (i) any scienter-based anti-fraud provision of the federal securities laws, including,
but not limited to, Section 17(a)(1) of the Securities Act, Section 10(b) of the Exchange Act and Rule 10b-5 thereunder, and Section
206(1) of the Advisers Act or any other rule or regulation thereunder; or (ii) Section 5 of the Securities Act;
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(o)
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he/she/it has never been named as an underwriter in any registration statement or Regulation A
offering statement filed with the SEC that was the subject of a refusal order, stop order, or order suspending the Regulation A
exemption, or is, currently, the subject of an investigation or proceeding to determine whether a stop order or suspension order
should be issued;
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(p)
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he/she/it has never been subject to a United States Postal Service false representation order,
or is currently subject to a temporary restraining order or preliminary injunction with respect to conduct alleged by the United
States Postal Service to constitute a scheme or device for obtaining money or property through the mail by means of false representations;
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(q)
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he/she/it is not subject to a final order of a state securities commission (or an agency of officer
of a state performing like functions); a state authority that supervises or examines banks, savings associations, or credit unions;
a state insurance commission (or an agency or officer of a state performing like functions); an appropriate federal banking agency;
the Commodity Futures Trading Commission; or the National Credit Union Administration that bars the undersigned from: (i) association
with an entity regulated by such commission, authority, agency or officer; (ii) engaging in the business of securities, insurance
or banking; or (iii) engaging in savings association or credit union activities;
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(r)
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he/she/it is not subject to an order of the SEC entered pursuant to section 15(b) or 15B(c) of
the Securities Exchange Act of 1934 (the “
Exchange Act
”) or section 203(e) or 203(f) of the Investment
Advisers Act of 1940 (the “
Advisers Act
”) that: (i) suspends or revokes the undersigned’s registration
as a broker, dealer, municipal securities dealer or investment adviser; (ii) places limitations on the activities, functions
or operations of, or imposes civil money penalties on, such person; or (iii) bars the undersigned from being associated with any
entity or from participating in the offering of any penny stock; and
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(s)
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he/she/it has never been suspended or expelled from membership in, or suspended or barred from
association with a member of, a securities self-regulatory organization (e.g., a registered national securities exchange or a registered
national or affiliated securities association) for any act or omission to act constituting conduct inconsistent with just and equitable
principles of trade.
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10. The
undersigned has full right and power, without violating any agreement by which he is bound, to enter into this letter agreement
and to serve as an officer and/or director of the Company.
11. The
undersigned hereby waives his right to exercise conversion/redemption rights with respect to any shares of Common Stock owned or
to be owned by the undersigned, directly or indirectly (or to sell such shares to the Company in a tender offer), and agrees to
not seek conversion/redemption with respect to such shares in connection with any vote to approve a Business Combination (or sell
such shares to the Company in a tender offer in connection with such a Business Combination).
12. The
undersigned hereby agrees not to propose any amendment to the Company’s Certificate of Incorporation that would modify the
substance or timing of the ability of holders of IPO Shares from converting or selling their IPO Shares to the Company in connection
with a Business Combination or of the Company’s obligation to redeem 100% of the IPO Shares if the Company does not complete
a Business Combination within the time period set forth in the Certificate of Incorporation, unless the Company provides holders
of IPO Shares with the opportunity to convert their IPO Shares upon approval of any such amendment at a per-share price, payable
in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest (net of taxes payable), divided
by the number of then outstanding IPO Shares.
13. This
letter agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without
giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
The Company and the undersigned hereby: (i) agrees that any action, proceeding, or claim against him arising out of or relating
in any way to this letter agreement (a “
Proceeding
”) shall be brought and enforced in the courts of the
State of New York or the courts of the United States of America for the Southern District of New York, as applicable, and irrevocably
submits to such jurisdiction, which jurisdiction shall be exclusive, (ii) waives any objection to such exclusive jurisdiction and
that such courts represent an inconvenient forum, and (iii) irrevocably agrees to appoint Graubard Miller as agent for the service
of process in the State of New York to receive, for the undersigned and on his behalf, service of process in any Proceeding. If
for any reason such agent is unable to act as such, the undersigned will promptly notify the Company and the Representative and
appoint a substitute agent acceptable to each of the Company and the Representative within thirty (30) days and nothing in this
letter will affect the right of either party to serve process in any other manner permitted by law.
14. As
used herein, (i) a “
Business Combination
” means a merger, stock exchange, asset acquisition, stock purchase,
recapitalization, reorganization, or other similar business combination with one or more businesses or entities; (ii) ”
Insiders
”
means all officers, directors, stockholders and sponsors of the Company immediately prior to the IPO; (iii) ”
Founders’
Shares
” means all of the shares of Common Stock of the Company acquired by an Insider prior to the IPO; (iv) “
IPO
Shares
” means the shares of Common Stock issued in the Company’s IPO; (v) ”
Private Placement
Warrants
” means the warrants of the Company being purchased simultaneously with the IPO by the Sponsor in a private
placement; (vi) “
Prospectus
” means the prospectus which forms a part of the Company’s registration
statement on Form S-1 (SEC File No. 333-228494) filed with the Securities and Exchange Commission; (vii) “
Sponsor
”
means Schultze Special Purpose Acquisition Sponsor, LLC; and (vii) “
Trust Account
” means the trust account
into which a portion of the net proceeds of the Company’s IPO will be deposited.
15. This
Letter Agreement constitutes the entire agreement and understanding of the parties hereto in respect of the subject matter hereof
and supersedes all prior understandings, agreements, or representations by or among the parties hereto, written or oral, to the
extent they relate in any way to the subject matter hereof or the transactions contemplated hereby. This Letter Agreement may not
be changed, amended, modified, or waived (other than to correct a typographical error) as to any particular provision, except by
a written instrument executed by all parties hereto.
16. (a)
The undersigned acknowledges and understands that the Underwriters and the Company will rely upon the agreements, representations,
and warranties set forth herein in proceeding with the IPO. Nothing contained herein shall be deemed to render any of the Underwriters
a representative of, or a fiduciary with respect to, the Company, its stockholders or any creditor or vendor of the Company with
respect to the subject matter hereof.
(b) The
undersigned hereby agrees and acknowledges that: (i) each of the Underwriters and the Company may be irreparably injured in the
event of a breach of any of the obligations contained in this letter, (ii) monetary damages may not be an adequate remedy
for such breach, and (iii) the non-breaching party shall be entitled to injunctive relief, in addition to any other remedy
that such party may have in law or in equity, in the event of such breach.
17. This
letter agreement shall be binding on the undersigned and such person’s respective successors, heirs, personal representatives
and assigns. This letter agreement shall terminate on the earlier of (i) the consummation of a Business Combination and (ii) the
liquidation of the Company;
provided
, that such termination shall not relieve the undersigned from liability for any breach
of this agreement prior to its termination.
[Signature Page Follows]
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George J. Schultze
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Gary M. Julien
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Jeffrey M. Glick
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Scarlett Du
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William LaPerch
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William T. Allen
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John J. Walker
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Schultze Special Purpose Acquisition Sponsor, LLC
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By:
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Name:
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George J. Schultze
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Title:
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Manager
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Acknowledged and Agreed:
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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EARLYBIRDCAPITAL, INC.
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By:
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Name:
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Title:
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[Signature Page to Letter Agreement]
Exhibit 10.2
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Agreement is made as of _____________,
2018 by and between Schultze Special Purpose Acquisition Corp. (the “
Company
”) and Continental Stock Transfer
& Trust Company (“
Trustee
”).
WHEREAS, the Company’s registration
statement on Form S-1, No. 333-228494 (“
Registration Statement
”) for its initial public offering of securities
(“
IPO
”) has been declared effective as of the date hereof (“
Effective Date
”) by the Securities
and Exchange Commission (capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Registration
Statement); and
WHEREAS, EarlyBirdCapital, Inc. (“
EarlyBirdCapital
”)
is acting as the representative of the several underwriters in the IPO; and
WHEREAS, as described in the Registration
Statement, and in accordance with the Company’s Amended and Restated Certificate of Incorporation, as the same may be amended
from time to time (the “
Certificate of Incorporation
”), $150,000,000 (or up to $172,500,000 if the underwriters’
over-allotment option is exercised in full) of the proceeds from the IPO and a simultaneous private placement of warrants will
be delivered to the Trustee to be deposited and held in a segregated trust account located at all times in the United States (the
“
Trust Account
”) for the benefit of the Company and the holders of the Company’s common stock, par value
$0.0001 per share (“
Common Stock
”), issued in the IPO as hereinafter provided (the proceeds to be delivered
to the Trustee will be referred to herein as the “
Property
”; the stockholders for whose benefit the Trustee
shall hold the Property will be referred to as the “
Public Stockholders
,” and the Public Stockholders and the
Company will be referred to together as the “
Beneficiaries
”); and
WHEREAS, the Company and the Trustee desire
to enter into this Agreement to set forth the terms and conditions pursuant to which the Trustee shall hold the Property;
IT IS AGREED:
1.
Agreements
and Covenants of Trustee
. The Trustee hereby agrees and covenants to:
(a) Hold
the Property in trust for the Beneficiaries in accordance with the terms of this Agreement in the Trust Account established by
the Trustee at J.P. Morgan Chase Bank, N.A. and at a brokerage institution selected by the Trustee that is reasonably satisfactory
to the Company;
(b) Manage,
supervise, and administer the Trust Account subject to the terms and conditions set forth herein;
(c) In
a timely manner, upon the written instruction of the Company, invest and reinvest the Property in United States “government
securities” within the meaning of Section 2(a)(16) of the Investment Company Act of 1940, as amended (the “
Investment
Company Act
”), having a maturity of 180 days or less, and/or in any open ended investment company registered under the
Investment Company Act that holds itself out as a money market fund selected by the Company meeting the conditions of paragraph
(d) of Rule 2a-7 promulgated under the Investment Company Act, which invest only in direct U.S. government treasury obligations;
it being understood that the Trust Account will earn no interest while account funds are uninvested awaiting the Company’s
instructions hereunder and the Trustee may earn bank credits or other consideration during such periods;
(d) Collect
and receive, when due, all principal and income arising from the Property, which shall become part of the “Property,”
as such term is used herein;
(e) Notify
the Company and EarlyBirdCapital of all communications received by it with respect to any Property requiring action by the Company;
(f) Supply
any necessary information or documents as may be requested by the Company in connection with the Company’s preparation of
its tax returns;
(g) Participate
in any plan or proceeding for protecting or enforcing any right or interest arising from the Property if, as, and when instructed
by the Company to do so;
(h) Render
to the Company monthly written statements of the activities of and amounts in the Trust Account reflecting all receipts and disbursements
of the Trust Account;
(i) Commence
liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter (“
Termination
Letter
”), in a form substantially similar to that attached hereto as either
Exhibit A
or
Exhibit B
, signed
on behalf of the Company by its Chairman, President, Chief Executive Officer, or Executive Vice President and Chief Financial Officer,
Secretary, or Assistant Secretary, affirmed by counsel for the Company and, in the case of a Termination Letter in a form substantially
similar to that attached hereto as
Exhibit A
, acknowledged and agreed to by EarlyBirdCapital, and complete the liquidation
of the Trust Account and distribute the Property in the Trust Account, including interest (which interest shall be net of any taxes
payable and, in the case of a Termination Letter attached as
Exhibit B
, up to $150,000 of interest that may be released
to the Company to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein;
provided, however, that in the event that a Termination Letter has not been received by the Trustee within the period of time provided
in the Certificate of Incorporation, as the same may be amended from time to time (“
Last Date
”), the Trust Account
shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as
Exhibit B
hereto and
the Property in the Trust Account, including interest (which interest shall be net of any taxes payable and up to $150,000 of interest
that may be released to the Company to pay dissolution expenses) and distributed to the Public Stockholders as of the Last Date.
The provisions of this
Section 1(i)
may not be modified, amended or deleted under any circumstances; and
(j) Upon
receipt of a letter (an “
Amendment Notification Letter
”) in the form of
Exhibit C
, signed on behalf of
the Company by its Chairman, President, Chief Executive Officer, or Executive Vice President and Chief Financial Officer, Secretary,
or Assistant Secretary, distribute to Public Stockholders who exercised their redemption rights in connection with an amendment
to the Certificate of Incorporation that modifies the substance or timing of the ability of Public Stockholders from converting
or selling their Common Stock to the Company in connection with a Business Combination (as defined in the Certificate of Incorporation)
or of the Company’s obligation to redeem 100% of the Common Stock if the Company does not complete a Business Combination
within the time period set forth in the Certificate of Incorporation (an “
Amendment
”) an amount equal to the
pro rata share of the Property relating to the Common Stock for which such Public Stockholders have exercised redemption rights
in connection with such Amendment. The provisions of this
Section 1(j)
may not be modified, amended or deleted under any
circumstances.
2.
Limited
Distributions of Income from Trust Account
.
(a) Upon
written request from the Company, which may be given from time to time in a form substantially similar to that attached hereto
as
Exhibit D
, the Trustee shall distribute to the Company the amount of interest income earned on the Trust Account requested
by the Company to cover any income or other tax obligation owed by the Company as a result of such interest income.
(b) Upon
written request from the Company following the Last Date, which may be given in a form substantially similar to that attached hereto
as
Exhibit D
, signed on behalf of the Company by its Chairman, President, Chief Executive Officer, or Executive Vice President
and Chief Financial Officer, Secretary, or Assistant Secretary, the Trustee shall distribute to the Company up to $150,000 of interest
income earned on the Property and requested by the Company to cover expenses directly related to the Company’s liquidation
(i.e., only those expenses incurred after the Last Date attributable to the Company’s liquidation); provided, however, that
the Company will not be allowed to withdraw interest income earned on the trust account pursuant to this
Section 2(b)
unless
there are sufficient funds available to pay the Company’s tax obligations on such interest income or otherwise then due at
that time.
(c) The
limited distributions referred to in
Sections 2(a)
and
2(b)
above shall be made only from income collected on the
Property. Except as provided in
Sections 2(a)
and
2(b)
above, no other distributions from the Trust Account shall
be permitted except in accordance with
Sections 1(i)
or
1(j)
hereof.
(d) The
Company shall provide EarlyBirdCapital with a copy of any Termination Letter, Amendment Notification Letter, and/or any other correspondence
that it issues to the Trustee with respect to any proposed withdrawal from the Trust Account promptly after such issuance.
3.
Agreements
and Covenants of the Company
. The Company agrees and covenants to:
(a) Give
all instructions to the Trustee hereunder in writing, signed by the Company’s Chairman, President, Chief Executive Officer,
or Executive Vice President and Chief Financial Officer, Secretary, or Assistant Secretary. In addition, except with respect to
its duties under
Sections 1(i)
,
1(j)
,
2(a)
and
2(b)
above, the Trustee shall be entitled to rely on,
and shall be protected in relying on, any verbal or telephonic advice or instruction which it in good faith believes to be given
by any one of the persons authorized above to give written instructions, provided that the Company shall promptly confirm such
instructions in writing;
(b) Subject
to the provisions of
Section 5
of this Agreement, hold the Trustee harmless and indemnify the Trustee from and against any
and all expenses, including reasonable counsel fees and disbursements, or losses suffered by the Trustee in connection with any
claim, potential claim, action, suit, or other proceeding brought against the Trustee involving any claim or in connection with
any claim or demand which in any way arises out of or relates to this Agreement, the services of the Trustee hereunder, or the
Property or any income earned from investment of the Property, except for expenses and losses resulting from the Trustee’s
gross negligence or willful misconduct. Promptly after the receipt by the Trustee of notice of demand or claim or the commencement
of any action, suit, or proceeding, pursuant to which the Trustee intends to seek indemnification under this paragraph, it shall
notify the Company in writing of such claim (hereinafter referred to as the “
Indemnified Claim
”). The Trustee
shall have the right to conduct and manage the defense against such Indemnified Claim, provided, that the Trustee shall obtain
the consent of the Company with respect to the selection of counsel, which consent shall not be unreasonably withheld. The Trustee
may not agree to settle any Indemnified Claim without the prior written consent of the Company, which consent shall not be unreasonably
withheld. The Company may participate in such action with its own counsel;
(c) Pay
the Trustee an initial acceptance fee, an annual fee, and a transaction processing fee for each disbursement made pursuant to
Section
2(a)
as set forth on
Schedule A
hereto, which fees shall be subject to modification by the parties from time to time.
It is expressly understood that the Property shall not be used to pay such fees and further agreed that any fees owed to the Trustee
shall be deducted by the Trustee from the disbursements made to the Company pursuant to
Section 1(i)
solely in connection
with the consummation of a Business Combination. The Company shall pay the Trustee the initial acceptance fee and first year’s
fee at the consummation of the IPO and thereafter on the anniversary of the Effective Date;
(d) In
connection with any vote of the Company’s stockholders regarding a Business Combination, provide to the Trustee an affidavit
or certificate of a firm regularly engaged in the business of soliciting proxies and/or tabulating stockholder votes verifying
the vote of the Company’s stockholders regarding such Business Combination;
(e) In
the event that the Company directs the Trustee to commence liquidation of the Trust Account pursuant to
Section 1(i
), the
Company agrees that it will not direct the Trustee to make any payments that are not specifically authorized by this Agreement;
and
(f) If
the Company has an Amendment approved by its stockholders, provide the Trustee with an Amendment Notification Letter in the form
of
Exhibit C
providing instructions for the distribution of funds to Public Stockholders who exercise their conversion option
in connection with such Amendment.
4.
Limitations
of Liability
. The Trustee shall have no responsibility or liability to:
(a) Take
any action with respect to the Property, other than as directed in
Sections 1
and
2
hereof, and the Trustee shall
have no liability to any party except for liability arising out of its own gross negligence or willful misconduct;
(b) Institute
any proceeding for the collection of any principal and income arising from, or institute, appear in, or defend any proceeding of
any kind with respect to, any of the Property unless and until it shall have received instructions from the Company given as provided
herein to do so and the Company shall have advanced or guaranteed to it funds sufficient to pay any expenses incident thereto;
(c) Change
the investment of any Property, other than in compliance with
Section 1(c)
;
(d) Refund
any depreciation in principal of any Property;
(e) Assume
that the authority of any person designated by the Company to give instructions hereunder shall not be continuing unless provided
otherwise in such designation, or unless the Company shall have delivered a written revocation of such authority to the Trustee;
(f) The
other parties hereto or to anyone else for any action taken or omitted by it, or any action suffered by it to be taken or omitted,
in good faith and in the exercise of its own best judgment, except for its gross negligence or willful misconduct. The Trustee
may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate, opinion, or advice of counsel
(including counsel chosen by the Trustee), statement, instrument, report, or other paper or document (not only as to its due execution
and the validity and effectiveness of its provisions, but also as to the truth and acceptability of any information therein contained)
which is believed by the Trustee, in good faith, to be genuine and to be signed or presented by the proper person or persons. The
Trustee shall not be bound by any notice or demand, or any waiver, modification, termination, or rescission of this Agreement or
any of the terms hereof, unless evidenced by a written instrument delivered to the Trustee signed by the proper party or parties
and, if the duties or rights of the Trustee are affected, unless it shall give its prior written consent thereto;
(g) Verify
the correctness of the information set forth in the Registration Statement or to confirm or assure that any acquisition made by
the Company or any other action taken by it is as contemplated by the Registration Statement;
(h) File
local, state, and/or federal tax returns or information returns with any taxing authority on behalf of the Trust Account and payee
statements with the Company documenting the taxes, if any, payable by the Company or the Trust Account, relating to the income
earned on the Property;
(i) Pay
any taxes on behalf of the Trust Account (it being expressly understood that the Property shall not be used to pay any such taxes
and that such taxes, if any, shall be paid by the Company from funds not held in the Trust Account or released to it under
Section
2(a)
hereof);
(j) Imply
obligations, perform duties, inquire, or otherwise be subject to the provisions of any agreement or document other than this agreement
and that which is expressly set forth herein; or
(k) Verify
calculations, qualify, or otherwise approve Company requests for distributions pursuant to
Sections 1(i)
,
2(a)
or
2(b)
above.
5.
Trust
Account Waiver
. The Trustee has no right of set-off or any right, title, interest or claim of any kind (“
Claim
”)
to, or to any monies in, the Trust Account, and hereby irrevocably waives any Claim to, or to any monies in, the Trust Account
that it may have now or in the future. In the event the Trustee has any Claim against the Company under this Agreement, including,
without limitation, under
Section 3(b)
or
Section 3(c)
hereof, the Trustee shall pursue such Claim solely against
the Company and its assets outside the Trust Account and not against the Property or any monies in the Trust Account.
6.
Termination
.
This Agreement shall terminate as follows:
(a) If
the Trustee gives written notice to the Company that it desires to resign under this Agreement, the Company shall use its reasonable
efforts to locate a successor trustee during which time the Trustee shall act in accordance with this Agreement. At such time that
the Company notifies the Trustee that a successor trustee has been appointed by the Company and has agreed to become subject to
the terms of this Agreement, the Trustee shall transfer the management of the Trust Account to the successor trustee, including
but not limited to the transfer of copies of the reports and statements relating to the Trust Account, whereupon this Agreement
shall terminate; provided, however, that, in the event that the Company does not locate a successor trustee within ninety (90)
days of receipt of the resignation notice from the Trustee, the Trustee may submit an application to have the Property deposited
with any court in the State of New York or with the United States District Court for the Southern District of New York and upon
such deposit, the Trustee shall be immune from any liability whatsoever; or
(b) At
such time that the Trustee has completed the liquidation of the Trust Account in accordance with the provisions of
Section 1(i)
hereof, and distributed the Property in accordance with the provisions of the Termination Letter, this Agreement shall terminate
except with respect to
Section 3(b)
and
Section 5
.
7.
Miscellaneous
.
(a) The
Company and the Trustee each acknowledge that the Trustee will follow the security procedures set forth below with respect to funds
transferred from the Trust Account. The Company and the Trustee will each restrict access to confidential information relating
to such security procedures to authorized persons. Each party must notify the other party immediately if it has reason to believe
unauthorized persons may have obtained access to such information, or of any change in its authorized personnel. In executing funds
transfers, the Trustee will rely upon all information supplied to it by the Company, including account names, account numbers,
and all other identifying information relating to a beneficiary, beneficiary’s bank, or intermediary bank. The Trustee shall
not be liable for any loss, liability, or expense resulting from any error in the information or transmission of the wire.
(b) This
Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving
effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The
parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, Borough of
Manhattan, for purposes of resolving any disputes hereunder. As to any claim, cross-claim, or counterclaim in any way relating
to this Agreement, each party waives the right to trial by jury.
(c) This
Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together
shall constitute but one instrument.
(d) This
Agreement contains the entire agreement and understanding of the parties hereto with respect to the subject matter hereof. Except
for
Sections 1(i)
and
1(j)
(which may not be amended under any circumstances), this Agreement or any provision hereof
may only be changed, amended, or modified by a writing signed by each of the parties hereto; provided, however, that no such change,
amendment or modification may be made without the prior written consent of EarlyBirdCapital. The Trustee may require from Company
counsel an opinion as to the propriety of any proposed amendment.
(e) Any
notice, consent or request to be given in connection with any of the terms or provisions of this Agreement shall be in writing
and shall be sent by express mail or similar private courier service, by certified mail (return receipt requested), by hand delivery,
by facsimile or email transmission:
if to the Trustee, to:
Continental Stock Transfer & Trust Company
1 State Street, 30th floor
New York, New York 10004
Attn: Francis E. Wolf, Jr. and Celeste Gonzalez
Facsimile:
Email: fwolf@continentalstock.com
Email: cgonzalez@continentalstock.com
if to the Company, to:
Schultze Special Purpose Acquisition Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
Attn: Scarlett Du
Facsimile: (914) 701-5269
Email: sdu@samco.net
in either case with a copy (which copy shall not constitute
notice) to:
EarlyBirdCapital, Inc.
366 Madison Avenue
New York, New York 10017
Attn: General Counsel and Investment Banking Department
Facsimile: (212) 661-4936
Email: slevine@ebcap.com
and
BTIG, LLC
[●]
Attn:
Facsimile:
Email:
and
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
Facsimile: (212) 818-8881
Email: dmiller@graubard.com
and
Greenberg Traurig, LLP
MetLife Building
200 Park Avenue
New York, New York 10166
Attn: Alan I. Annex, Esq.
Facsimile: (212) 801-9200
Email: annexa@gtlaw.com
(f) This
Agreement may not be assigned by the Trustee without the prior consent of the Company.
(g) Each
of the Trustee and the Company hereby represents that it has the full right and power and has been duly authorized to enter into
this Agreement and to perform its respective obligations as contemplated hereunder.
(h) Each
of the Company and the Trustee hereby acknowledge that EarlyBirdCapital is a third party beneficiary of this Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have duly executed this Investment
Management Trust Agreement as of the date first written above.
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee
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By:
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Name:
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Title:
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SCHULTZE SPECIAL PURPOSE ACQUISITION CORP.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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[Signature Page to Investment Management
Trust Agreement]
SCHEDULE A
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Fee Item
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Time and method of
payment
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Amount
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Initial acceptance fee
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Initial closing of IPO by wire transfer
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$
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3,500.00
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Annual fee
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First year, initial closing of IPO by wire transfer; thereafter on the anniversary of the effective date of the IPO by wire transfer or check
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$
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10,000.00
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Transaction processing fee for disbursements to Company under Section 2
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Deduction by Trustee from accumulated income following disbursement made to Company under Section 2
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$
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250.00
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Paying Agent services as required pursuant to Sections 1(i) and 1(j)
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Billed to Company upon delivery of service pursuant to Sections 1(i) and 1(j)
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Prevailing
rates
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EXHIBIT A
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[Letterhead of Company]
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[Insert date]
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Continental Stock Transfer
& Trust Company
1 State Street, 30th floor
New York, New York 10004
Attn: Francis E. Wolf, Jr. and Celeste
Gonzalez
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Re:
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Trust Account No. [________] - Termination Letter
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Mr. Wolf and Ms. Gonzalez:
Pursuant to Section
1(i) of the Investment Management Trust Agreement between Schultze Special Purpose Acquisition Corp. (“
Company
”)
and Continental Stock Transfer & Trust Company, dated as of ______ ___, 2018 (“
Trust Agreement
”), this is
to advise you that the Company has entered into an agreement with [__________________] to consummate a business combination (“
Business
Combination
”) on or about
[insert date]
. The Company shall notify you at least 48 hours in advance of the actual
date of the consummation of the Business Combination (“
Consummation Date
”). Capitalized terms used herein and
not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with
the terms of the Trust Agreement, we hereby authorize you to liquidate the Trust Account investments on [__________] and to transfer
the proceeds to the above-referenced account at [_______] to the effect that, on the Consummation Date, all of funds held in the
Trust Account will be immediately available for transfer to the account or accounts that the Company shall direct on the Consummation
Date. It is acknowledged and agreed that while the funds are on deposit in the trust account awaiting distribution, the Company
will not earn any interest or dividends.
On the Consummation
Date (i) counsel for the Company shall deliver to you written notification that the Business Combination has been consummated and
(ii) the Company shall deliver to you (a) [an affidavit] [a certificate] of [__________________], which verifies the vote of the
Company’s stockholders in connection with the Business Combination if a vote is held and (b) joint written instructions from
the Company and EarlyBirdCapital, Inc. with respect to the transfer of the funds held in the Trust Account (“
Instruction
Letter
”). You are hereby directed and authorized to transfer the funds held in the Trust Account immediately upon your
receipt of the counsel's letter and the Instruction Letter, in accordance with the terms of the Instruction Letter. In the event
that certain deposits held in the Trust Account may not be liquidated by the Consummation Date without penalty, you will notify
the Company of the same and the Company shall direct you as to whether such funds should remain in the Trust Account and distributed
after the Consummation Date to the Company. Upon the distribution of all the funds in the Trust Account pursuant to the terms hereof,
the Trust Agreement shall be terminated.
In the event that the
Business Combination is not consummated on the Consummation Date described in the notice thereof and we have not notified you on
or before the original Consummation Date of a new Consummation Date, then upon receipt by the you of written instructions from
the Company, the funds held in the Trust Account shall be reinvested as provided in the Trust Agreement on the business day immediately
following the Consummation Date as set forth in the notice.
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Very truly yours,
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Schultze Special Purpose Acquisition Corp.
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By:
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By:
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Title:
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AGREED TO AND
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ACKNOWLEDGED BY
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EARLYBIRDCAPITAL, INC.
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By:
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EXHIBIT B
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[Letterhead of Company]
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[Insert date]
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Continental Stock Transfer
& Trust Company
1 State Street, 30th floor
New York, New York 10004
Attn: Francis E. Wolf, Jr. and Celeste
Gonzalez
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Re:
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Trust Account No. [__________] - Termination Letter
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Mr. Wolf and Ms. Gonzalez:
Pursuant to Section
1(i) of the Investment Management Trust Agreement between Schultze Special Purpose Acquisition Corp. (“
Company
”)
and Continental Stock Transfer & Trust Company, dated as of ________ ___, 2018 (“
Trust Agreement
”), this
is to advise you that the Company has been unable to effect a Business Combination with a Target Company within the time frame
specified in the Certificate of Incorporation, as described in the Company’s prospectus relating to its IPO. Capitalized
terms used herein and not otherwise defined shall have the meanings set forth in the Trust Agreement.
In accordance with
the terms of the Trust Agreement, we hereby authorize you to liquidate all the Trust Account investments on [______________] and
to transfer the total proceeds to the Trust Checking Account at [
]
to await distribution to the Public Stockholders. The
Company has selected [____________, 20__] as the record date for the purpose of determining the Public Stockholders entitled to
receive their share of the liquidation proceeds. It is acknowledged that no interest will be earned by the Company on the liquidation
proceeds while on deposit in the Trust Checking Account. You agree to be the Paying Agent of record and in your separate capacity
as Paying Agent, to distribute said funds directly to the Public Stockholders in accordance with the terms of the Trust Agreement
and the Certificate of Incorporation. Upon the distribution of all the funds in the Trust Account, your obligations under the Trust
Agreement shall be terminated.
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Very truly yours,
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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Title:
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By:
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cc: EarlyBirdCapital, Inc.
EXHIBIT C
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[Letterhead of Company]
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[Insert date]
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Continental Stock Transfer
& Trust Company
1 State Street, 30th floor
New York, New York 10004
Attn: Francis E. Wolf, Jr. and Celeste
Gonzalez
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Re:
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Trust Account No. [________] – Amendment Notification Letter
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Mr. Wolf and Ms. Gonzalez:
Reference is made to
the Investment Management Trust Agreement between Schultze Special Purpose Acquisition Corp. (“
Company
”) and
Continental Stock Transfer & Trust Company, dated as of ________ ___, 2018 (“
Trust Agreement
”). Capitalized
words used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
Pursuant to Section
1(j) of the Trust Agreement, this is to advise you that the Company has sought an Amendment. Accordingly, in accordance with the
terms of the Trust Agreement, we hereby authorize you to liquidate a sufficient portion of the Trust Account on [ ] and to transfer
$_____ of the proceeds of the Trust to the operating account at JPMorgan Chase Bank, N.A. for distribution to the stockholders
that have requested conversion of their shares in connection with such Amendment. The remaining funds shall be reinvested by you
as previously instructed.
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Very truly yours,
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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Title:
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By:
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Title:
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cc: EarlyBirdCapital, Inc.
EXHIBIT D
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[Letterhead of Company]
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[Insert date]
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Continental Stock Transfer
& Trust Company
1 State Street, 30th floor
New York, New York 10004
Attn: Francis E. Wolf, Jr. and Celeste
Gonzalez
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Re:
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Trust Account No. [_____________]
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Mr. Wolf and Ms. Gonzalez:
Pursuant to [Section
2(a) and/or Section 2(b)] of the Investment Management Trust Agreement between Schultze Special Purpose Acquisition Corp. (“
Company
”)
and Continental Stock Transfer & Trust Company, dated as of _______ ___, 2018 (“
Trust Agreement
”), the Company
hereby requests that you deliver to the Company [$_______] of the interest income earned on the Property as of the date hereof,
[which does not exceed, in the aggregate with all such prior disbursements pursuant to Section 2(b), if any, the maximum amount
set forth in Section 2(b)]. [The Company needs such funds to pay for its tax obligations as a result of such interest income] and/or
[The Company needs such funds to pay its expenses relating to its liquidation]. In accordance with the terms of the Trust Agreement,
you are hereby directed and authorized to transfer (via wire transfer) such funds promptly upon your receipt of this letter to
the Company’s operating account at:
[WIRE INSTRUCTION INFORMATION]
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Schultze Special Purpose Acquisition Corp.
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By:
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cc: EarlyBirdCapital, Inc.
Exhibit 10.3
STOCK ESCROW AGREEMENT
STOCK ESCROW AGREEMENT, dated as of ____________,
2018 (“
Agreement
”), by and among
Schultze Special Purpose Acquisition
Corp.
, a Delaware corporation (“
Company
”),
Schultze Special Purpose
Acquisition Sponsor, LLC,
a Delaware limited liability company (“
Sponsor
”), the other parties named on
Exhibit A
hereto (together with the Sponsor, the “
Initial Stockholders
”) and CONTINENTAL STOCK TRANSFER
& TRUST COMPANY, a New York corporation (“
Escrow Agent
”).
WHEREAS, the Company has entered into an
Underwriting Agreement, dated ____________, 2018 (“
Underwriting Agreement
”), with EarlyBirdCapital, Inc. (the
“
Representative
”) acting as representative of the several underwriters (collectively, the “
Underwriters
”),
pursuant to which, among other matters, the Underwriters have agreed to purchase 15,000,000 units (“
Units
”)
of the Company, plus an additional 2,250,000 Units if the Representative exercises the over-allotment option in full. Each Unit
consists of: (i) one share of the Company’s common stock, par value $0.0001 per share (“
Common Stock
”),
and (ii) one warrant (“
Warrant
”), each Warrant to purchase one share of Common Stock at a price of $11.50, all
as more fully described in the Company’s final Prospectus, dated ____________, 2018 (“
Prospectus
”) comprising
part of the Company’s Registration Statement on Form S-1 (File No. 333- 228494) (“
Registration Statement
”)
pursuant to the Securities Act of 1933, as amended, declared effective on ____________, 2018 (“
Effective Date
”).
WHEREAS, the Initial Stockholders have agreed
as a condition of the sale of the Units to deposit their 4,312,500 shares of Common Stock of the Company in escrow as hereinafter
provided.
WHEREAS, the Company and the Initial Stockholders
desire that the Escrow Agent accept the shares, in escrow, to be held and disbursed as hereinafter provided.
IT IS AGREED:
1.
Appointment
of Escrow Agent
. The Company and the Initial Stockholders hereby appoint the Escrow Agent to act in accordance with and subject
to the terms of this Agreement and the Escrow Agent hereby accepts such appointment and agrees to act in accordance with and subject
to such terms.
2.
Deposit
of Shares
. On or before the Effective Date, the Initial Stockholders have delivered to the Escrow Agent certificates (and applicable
stock powers, if requested by the Escrow Agent) representing such Initial Stockholders’ shares, to be held and disbursed
subject to the terms and conditions of this Agreement. The Initial Stockholders acknowledge that the certificates representing
such Initial Stockholders’ shares are legended to reflect the deposit of such shares under this Agreement.
3.
Disbursement
of the Escrow Shares
.
3.1 If
the Underwriters do not exercise in full their over-allotment option to purchase up to an additional 2,250,000 Units of the Company
within 45 days of the date of the Prospectus (as described in the Underwriting Agreement), the Sponsor agrees that the Escrow Agent
shall return to the Company for cancellation, at no cost, a number of Escrow Shares held by the Sponsor equal to the product of
(i) 562,500, multiplied by (ii) a fraction, (x) the numerator of which is 2,250,000 minus the number of shares of Common Stock
purchased by the Underwriters upon the exercise of their over-allotment option, and (y) the denominator of which is 2,250,000.
The Company shall promptly provide notice to the Escrow Agent of the expiration or termination of the Underwriters’ over-allotment
option and the number of Units, if any, purchased by the Underwriters in connection with their exercise thereof.
3.2 Except
as otherwise set forth herein, the Escrow Agent shall hold the shares remaining after any cancellation required pursuant to
Section
3.1
above (such remaining shares to be referred to herein as the “
Escrow Shares
”) until the earlier of (x)
one year after the date of the consummation of the Company’s initial merger, stock exchange, asset acquisition, stock purchase,
recapitalization, reorganization, or other similar business combination with one or more businesses or entities (“
Business
Combination
”)
and (y) the date on which the closing price of the Company’s Common Stock equals or exceeds
$12.50 per share (as adjusted for stock splits, stock dividends, reorganizations, and recapitalizations) for any 20 trading days
within any 30-trading day period commencing after the Company’s initial Business Combination (collectively, the “
Escrow
Period
”). The Company shall promptly provide notice of the consummation of a Business Combination to the Escrow Agent.
Upon completion of the Escrow Period, the Escrow Agent shall disburse such amount of each Initial Stockholder’s Escrow Shares
(and any applicable stock power) to such Initial Stockholder;
provided
, however, that if the Escrow Agent is notified by
the Company pursuant to
Section 6.7
hereof that the Company is being liquidated because it failed to consummate a Business
Combination within the time period specified in the Company’s amended and restated certificate of incorporation, as the same
may be further amended from time to time, then the Escrow Agent shall promptly deliver the Escrow Shares to the Initial Stockholder
(or the holder of such shares at that time);
provided further
, that if, within one year after the Company consummates a
Business Combination, the Company (or the surviving entity) consummates a liquidation, merger, stock exchange, or other similar
transaction which results in all of the stockholders of such entity having the right to exchange their shares of Common Stock for
cash, securities, or other property, then upon receipt of a notice executed by the Chairman of the Board, Chief Executive Officer,
or other authorized officer of the Company, in form reasonably acceptable to the Escrow Agent, certifying that such transaction
is then being consummated, the Escrow Agent will release the Escrow Shares to the Initial Stockholders. The Escrow Agent shall
have no further duties hereunder after the disbursement of the Escrow Shares in accordance with this
Section 3
.
4.
Rights
of Initial Stockholder in Escrow Shares
.
4.1
Voting
Rights as a Stockholder
. Subject to the terms of the Insider Letter described in
Section 4.4
hereof and except as herein
provided, the Initial Stockholders shall retain all of their rights as a stockholder of the Company as long as any shares are held
in escrow pursuant to this Agreement, including, without limitation, the right to vote such shares.
4.2
Dividends
and Other Distributions in Respect of the Escrow Shares
. For as long as any shares are held in escrow pursuant to this Agreement,
all dividends payable in cash with respect to the Escrow Shares shall be paid to the Initial Stockholders, but all dividends payable
in stock or other non-cash property shall be delivered to the Escrow Agent to hold in accordance with the terms hereof. As used
herein, the term “Escrow Shares” shall be deemed to include the dividends payable in stock or other non-cash property
distributed thereon, if any.
4.3
Restrictions
on Transfer
. During the Escrow Period, the only permitted transfers, assignments or sales of the Escrow Shares will be (i)
to the Company’s officers, directors, employees, consultants or their affiliates, (ii) to a holder’s officers, directors,
employees or members, in each case if the Initial Stockholder is an entity, (iii) to relatives and trusts for estate planning purposes,
(iv) by virtue of the laws of descent and distribution upon death, (v) pursuant to a qualified domestic relations order, (vi) to
the Company for no value for cancellation in connection with the consummation of a Business Combination, or (vii) by private sales
made at or prior to the consummation of a Business Combination at prices no greater than the price at which the Escrow Shares were
originally purchased;
provided
,
however
, that in each case (except for clause (vi) or with the Company’s prior
consent) such permissive transfers may be implemented only upon the respective transferee’s written agreement to be bound
by the terms and conditions of this Agreement and of the Insider Letter.
4.4
Insider
Letter
. The Initial Stockholders have executed a letter agreement with the Company and the Representative, dated as indicated
on
Exhibit A
hereto, the form of which is filed as an exhibit to the Registration Statement (“
Insider Letter
”),
respecting the rights and obligations of the Initial Stockholders in certain events, including, but not limited to, the liquidation
of the Company.
5.
Concerning
the Escrow Agent
.
5.1
Good
Faith Reliance
. The Escrow Agent shall not be liable for any action taken or omitted by it in good faith and in the exercise
of its own best judgment, and may rely conclusively and shall be protected in acting upon any order, notice, demand, certificate,
opinion or advice of counsel (including counsel chosen by the Escrow Agent), statement, instrument, report, or other paper or document
(not only as to its due execution and the validity and effectiveness of its provisions, but also as to the truth and acceptability
of any information therein contained) which is believed by the Escrow Agent to be genuine and to be signed or presented by the
proper person or persons. The Escrow Agent shall not be bound by any notice or demand, or any waiver, modification, termination,
or rescission of this Agreement unless evidenced by a writing delivered to the Escrow Agent signed by the proper party or parties
and, if the duties or rights of the Escrow Agent are affected, unless it shall have given its prior written consent thereto.
5.2
Indemnification
.
Subject to
Section 5.8
below, the Escrow Agent shall be indemnified and held harmless by the Company from and against any
expenses, including reasonable counsel fees and disbursements, or losses suffered by the Escrow Agent in connection with any action,
suit, or other proceeding involving any claim which in any way, directly or indirectly, arises out of or relates to this Agreement,
the services of the Escrow Agent hereunder, or the Escrow Shares held by it hereunder, other than expenses or losses arising from
the gross negligence or willful misconduct of the Escrow Agent. Promptly after the receipt by the Escrow Agent of notice of any
demand or claim or the commencement of any action, suit or proceeding, the Escrow Agent shall notify the other parties hereto
in writing. In the event of the receipt of such notice, the Escrow Agent, in its sole discretion, may commence an action in the
nature of interpleader in an appropriate court to determine ownership or disposition of the Escrow Shares or it may deposit the
Escrow Shares with the clerk of any appropriate court or it may retain the Escrow Shares pending receipt of a final, non-appealable
order of a court having jurisdiction over all of the parties hereto directing to whom and under what circumstances the Escrow
Shares are to be disbursed and delivered. The provisions of this
Section 5.2
shall survive in the event the Escrow Agent
resigns or is discharged pursuant to
Sections 5.5
or
5.6
below.
5.3
Compensation
.
Subject to
Section 5.8
below, the Escrow Agent shall be entitled to reasonable compensation from the Company for all services
rendered by it hereunder. Subject to
Section 5.8
below, the Escrow Agent shall also be entitled to reimbursement from the
Company for all reasonable expenses paid or incurred by it in the administration of its duties hereunder including, but not limited
to, all counsel, advisors’, and agents’ fees and disbursements, and all taxes or other governmental charges.
5.4
Further
Assurances
. From time to time on and after the date hereof, the Company and the Initial Stockholders shall deliver or cause
to be delivered to the Escrow Agent such further documents and instruments and shall do or cause to be done such further acts as
the Escrow Agent shall reasonably request to carry out more effectively the provisions and purposes of this Agreement, to evidence
compliance herewith or to assure itself that it is protected in acting hereunder.
5.5
Resignation
.
The Escrow Agent may resign at any time and be discharged from its duties as escrow agent hereunder by its giving the other parties
hereto written notice and such resignation shall become effective as hereinafter provided. Such resignation shall become effective
at such time that the Escrow Agent shall turn over to a successor escrow agent appointed by the Company and approved by the Representative,
which approval will not be unreasonably withheld, conditioned or delayed, the Escrow Shares held hereunder. If no new escrow agent
is so appointed within the sixty (60) day period following the giving of such notice of resignation, the Escrow Agent may deposit
the Escrow Shares with any court it reasonably deems appropriate in the State of New York.
5.6
Discharge
of Escrow Agent
. The Escrow Agent shall resign and be discharged from its duties as escrow agent hereunder if so requested
in writing at any time by the other parties hereto, jointly, provided, however, that such resignation shall become effective only
upon acceptance of appointment by a successor escrow agent as provided in
Section 5.5
.
5.7
Liability
.
Notwithstanding anything herein to the contrary, the Escrow Agent shall not be relieved from liability hereunder for its own gross
negligence, fraud or willful misconduct.
5.8
Waiver
.
The Escrow Agent hereby waives any right of set-off or any other right, title, interest or claim of any kind (“
Claim
”)
in, or to any distribution of, the Trust Account (as defined in that certain Investment Management Trust Agreement, dated as of
the date hereof, by and between the Company and the Escrow Agent as trustee thereunder) and hereby agrees not to seek recourse,
reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
6.
Miscellaneous
.
6.1
Governing
Law
. This Agreement shall for all purposes be deemed to be made under and shall be construed in accordance with the laws of
the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive
laws of another jurisdiction. Each of the parties hereby agrees that any action, proceeding, or claim against it arising out of
or relating in any way to this Agreement shall be brought and enforced in the courts of the State of New York or the United States
District Court for the Southern District of New York, and irrevocably submits to such personal jurisdiction, which jurisdiction
shall be exclusive. Each of the parties hereby waives any objection to such exclusive jurisdiction and that such courts represent
an inconvenient forum.
6.2
Third
Party Beneficiaries
. The Initial Stockholders hereby acknowledge that the Underwriters are third party beneficiaries of this
Agreement.
6.3
Entire
Agreement
. This Agreement and each Insider Letter contain the entire agreement of the parties hereto with respect to the subject
matter hereof and, except as expressly provided herein, may not be changed or modified except by an instrument in writing signed
by the party to be charged.
6.4
Headings
.
The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation
thereof.
6.5
Binding
Effect
. This Agreement shall be binding upon and inure to the benefit of the respective parties hereto and their legal representatives,
successors and assigns.
6.6
Notices
.
Any notice or other communication required or which may be given hereunder shall be in writing and either be delivered personally
or be mailed, certified or registered mail, or by private national courier service, return receipt requested, postage prepaid,
and shall be deemed given when so delivered personally or, if mailed, four business days after the date of mailing, as follows:
If to the Company, to:
Schultze Special Purpose Acquisition Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
Attn: Scarlett Du
Facsimile: (914) 701-5269
Email: sdu@samco.net
If to an Initial Stockholder, to its address
set forth in
Exhibit A
.
and if to the Escrow Agent, to:
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Chairman
A copy of any notice sent hereunder shall
be sent to:
EarlyBirdCapital, Inc.
366 Madison Avenue, 8th Floor
New York, New York 10017
Attn: General Counsel and Investment Banking Department
Facsimile: (212) 661-0200
with a copy to:
Graubard Miller
The Chrysler Building
405 Lexington Avenue
New York, New York 10174
Attn: David Alan Miller, Esq.
and:
Greenberg Traurig, LLP
Met Life Building
200 Park Avenue
New York, New York 10166
Attn: Alan I. Annex, Esq.
The parties may change the persons and addresses
to which the notices or other communications are to be sent by giving written notice to any such change in the manner provided
herein for giving notice.
6.7
Liquidation
of the Company
. The Company shall give the Escrow Agent written notification of the liquidation and dissolution of the Company
in the event that the Company fails to consummate a Business Combination within the time period specified in the Company’s
amended and restated certificate of incorporation.
6.8
Counterparts
.
This Agreement may be executed in several counterparts, each one of which shall constitute an original and may be delivered by
facsimile transmission and together shall constitute one instrument.
[Signature Page Follows]
WITNESS the execution
of this Agreement as of the date first above written.
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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INITIAL STOCKHOLDER:
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Schultze Special Purpose Acquisition Sponsor, LLC
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By:
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Name:
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George J. Schultze
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Title:
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Manager
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Name:
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William G. LaPerch
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Name:
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William T. Allen
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Name:
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John J. Walker
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CONTINENTAL STOCK TRANSFER & TRUST COMPANY
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By:
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Name:
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Title:
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[Signature
Page to Stock Escrow Agreement]
EXHIBIT A
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Name and Address
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Number
of Shares
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Stock
Certificate Number
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Date of
Insider Letter
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Exhibit 10.4
REGISTRATION
RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (this
“
Agreement
”) is entered into as of the ___ day of ______, 2018, by and among Schultze Special Purpose
Acquisition Corp., a Delaware corporation (the “
Company
”) and the undersigned parties listed under Investors
on the signature page hereto (each, an “Investor” and collectively, the “
Investors
”).
WHEREAS, the Investors and the Company desire
to enter into this Agreement to provide the Investors with certain rights relating to the registration of the securities held by
them as of the date hereof;
NOW, THEREFORE, in consideration of the
mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto agree as follows:
1.
DEFINITIONS
.
The following capitalized terms used herein have the following meanings:
“
Agreement
” means
this Agreement, as amended, restated, supplemented, or otherwise modified from time to time.
“
Business Combination
”
means the acquisition of direct or indirect ownership through a merger, stock exchange, asset acquisition, stock purchase, recapitalization,
reorganization or other similar business combination with one or more businesses or entities.
“
Commission
” means
the Securities and Exchange Commission, or any other Federal agency then administering the Securities Act or the Exchange Act.
“
Common Stock
”
means the common stock, par value $0.0001 per share, of the Company.
“
Company
” is defined
in the preamble to this Agreement.
“
Demand Registration
”
is defined in Section 2.1.1.
“
Demanding Holder
”
is defined in Section 2.1.1.
“
Exchange Act
”
means the Securities Exchange Act of 1934, as amended, and the rules and regulations of the Commission promulgated thereunder,
all as the same shall be in effect at the time.
“
Form S-3
” is
defined in Section 2.2.4.
“
Founders’ Shares
”
means all of the outstanding shares of Common Stock of the Company issued prior to the consummation of its initial public offering.
“
Indemnified Party
”
is defined in Section 4.3.
“
Indemnifying Party
”
is defined in Section 4.3.
“
Investor
” is
defined in the preamble to this Agreement.
“
Investor Indemnified Party
”
is defined in Section 4.1.
“
Maximum Number of Shares
”
is defined in Section 2.1.4.
“
Notices
” is defined
in Section 6.3.
“
Piggy-Back Registration
”
is defined in Section 2.2.1.
“
Private Placement Warrants
”
means the warrants certain of the Investors are privately purchasing simultaneously with the consummation of the Company’s
initial public offering.
“
Pro Rata
” is
defined in Section 2.1.4.
“
Register
,” “
Registered
”
and “
Registration
” mean a registration effected by preparing and filing a registration statement or similar
document in compliance with the requirements of the Securities Act, and the applicable rules and regulations promulgated thereunder,
and such registration statement becoming effective.
“
Registrable Securities
”
means (i) the Founders’ Shares, (ii) the Private Placement Warrants (and underlying securities), and (iii) the Working
Capital Warrants (and underlying securities), if any. Registrable Securities include any warrants, shares of capital stock or other
securities of the Company issued as a dividend or other distribution with respect to or in exchange for or in replacement of such
Founders’ Shares, Private Placement Warrants (and underlying securities) and Working Capital Warrants (and underlying securities).
As to any particular Registrable Securities, such securities shall cease to be Registrable Securities when: (a) a Registration
Statement with respect to the sale of such securities shall have become effective under the Securities Act and such securities
shall have been sold, transferred, disposed of or exchanged in accordance with such Registration Statement; (b) such securities
shall have been otherwise transferred, new certificates for them not bearing a legend restricting further transfer shall have been
delivered by the Company and subsequent public distribution of them shall not require registration under the Securities Act; (c) such
securities shall have ceased to be outstanding; or (d) the Registrable Securities are freely saleable under Rule 144 under the
Securities Act without volume limitations.
“
Registration Statement
”
means a registration statement filed by the Company with the Commission in compliance with the Securities Act and the rules and
regulations promulgated thereunder for a public offering and sale of equity securities, or securities or other obligations exercisable
or exchangeable for, or convertible into, equity securities (other than a registration statement on Form S-4 or Form S-8, or their
successors, or any registration statement covering only securities proposed to be issued in exchange for securities or assets of
another entity).
“
Release Date
”
means the date on which the Founders’ Shares are disbursed from escrow pursuant to Section 3 of that certain Stock Escrow
Agreement dated as of ___________, 2018 by and among the Investors and Continental Stock Transfer & Trust Company.
“
Securities Act
”
means the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder, all as the
same shall be in effect at the time.
“
Underwriter
”
means a securities dealer who purchases any Registrable Securities as principal in an underwritten offering and not as part of
such dealer’s market-making activities.
“
Working Capital Warrants
”
means any warrants held by Investors, officers or directors of the Company or their affiliates which may be issued in payment of
working capital loans made to the Company.
2.
REGISTRATION
RIGHTS
.
2.1
Demand
Registration
.
2.1.1
Request
for Registration
. At any time and from time to time on or after (i) the date that the Company consummates a Business
Combination with respect to the Private Placement Warrants (or underlying securities) and Working Capital Warrants (or
underlying securities) or (ii) three months prior to the Release Date with respect to all other Registrable Securities, the
holders of a majority-in-interest of such Private Placement Warrants (or underlying securities), Working Capital Warrants (or
underlying securities) or other Registrable Securities, as the case may be, held by the Investors, officers or directors of
the Company or their affiliates, or the transferees of the Investors may make a written demand for registration under the
Securities Act of all or part of their Private Placement Warrants (or underlying securities), Working Capital Warrants (or
underlying securities) or other Registrable Securities, as the case may be (a “
Demand
Registration
”). Any demand for a Demand Registration shall specify the number of shares of Registrable
Securities proposed to be sold and the intended method(s) of distribution thereof. The Company will notify all holders of
Registrable Securities of the demand, and each holder of Registrable Securities who wishes to include all or a portion of
such holder’s Registrable Securities in the Demand Registration (each such holder including shares of
Registrable Securities in such registration, a “
Demanding Holder
”) shall so notify the Company
within fifteen (15) days after the receipt by the holder of the notice from the Company. Upon any such request, the Demanding
Holders shall be entitled to have their Registrable Securities included in the Demand Registration, subject to
Section 2.1.4 and the provisos set forth in Section 3.1.1. The Company shall not be obligated to effect more than
an aggregate of three (3) Demand Registrations under this Section 2.1.1 in respect of all Registrable Securities.
2.1.2
Effective
Registration
. A registration will not count as a Demand Registration until the Registration Statement filed with the
Commission with respect to such Demand Registration has been declared effective and the Company has complied with all of its obligations
under this Agreement with respect thereto; provided, however, that if, after such Registration Statement has been declared effective,
the offering of Registrable Securities pursuant to a Demand Registration is interfered with by any stop order or injunction of
the Commission or any other governmental agency or court, the Registration Statement with respect to such Demand Registration
will be deemed not to have been declared effective, 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 thereafter elect to continue the offering;
provided, further, that the Company shall not be obligated to file a second Registration Statement until a Registration Statement
that has been filed is counted as a Demand Registration or is terminated.
2.1.3
Underwritten
Offering
. If a majority-in-interest of the Demanding Holders so elect and such holders so advise the Company as part
of their written demand for a Demand Registration, the offering of such Registrable Securities pursuant to such Demand Registration
shall be in the form of an underwritten offering. In such event, the right of any holder to include its Registrable Securities
in such registration shall be conditioned upon such holder’s participation in such underwriting and the inclusion of such
holder’s Registrable Securities in the underwriting to the extent provided herein. All Demanding Holders proposing to distribute
their Registrable Securities through such underwriting shall enter into an underwriting agreement in customary form with the Underwriter
or Underwriters selected for such underwriting by a majority-in-interest of the holders initiating the Demand Registration.
2.1.4
Reduction
of Offering
. If the managing Underwriter or Underwriters for a Demand Registration that is to be an underwritten offering
advises the Company and the Demanding Holders in writing that the dollar amount or number of shares of Registrable Securities
which the Demanding Holders desire to sell, taken together with all other shares of Common Stock or other securities which the
Company desires to sell and the shares of Common Stock, if any, as to which registration has been requested pursuant to written
contractual piggy-back registration rights held by other stockholders of the Company who desire to sell, exceeds the maximum dollar
amount or maximum number of shares that can be sold in such 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 shares, as applicable, the “
Maximum Number of Shares
”), then the Company shall include in such registration:
(i) first, the Registrable Securities as to which Demand Registration has been requested by the Demanding Holders (pro rata
in accordance with the number of shares that each such person has requested be included in such registration, regardless of the
number of shares held by each such person (such proportion is referred to herein as “
Pro Rata
”)) that
can be sold without exceeding the Maximum Number of Shares; (ii) second, to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (i), the shares of Common Stock or other securities that the Company desires
to sell that can be sold without exceeding the Maximum Number of Shares; and (iii) third, to the extent that the Maximum Number
of Shares have not been reached under the foregoing clauses (i) and (ii), the shares of Common Stock or other securities for the
account of other persons that the Company is obligated to register pursuant to written contractual arrangements with such persons
and that can be sold without exceeding the Maximum Number of Shares.
2.1.5
Withdrawal
.
If a majority-in-interest of the Demanding Holders disapprove of the terms of any underwriting or are not entitled to include
all of their Registrable Securities in any offering, such majority-in-interest of the Demanding Holders may elect to withdraw
from such offering by giving written notice to the Company and the Underwriter or Underwriters of their request to withdraw prior
to the effectiveness of the Registration Statement filed with the Commission with respect to such Demand Registration. If the
majority-in-interest of the Demanding Holders withdraws from a proposed offering relating to a Demand Registration, then such
registration shall not count as a Demand Registration provided for in Section 2.1.
2.2
Piggy-Back
Registration
.
2.2.1
Piggy-Back
Rights
. If at any time on or after the date the Company consummates a Business Combination 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, by the Company for its own account or for stockholders
of the Company for their account (or by the Company and by stockholders of the Company including, without limitation, pursuant
to Section 2.1), 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 stockholders, (iii) for an offering
of debt that is convertible into equity securities of the Company or (iv) for a dividend reinvestment plan, then the Company shall
(x) give written notice of such proposed filing to the holders of Registrable Securities as soon as practicable but in no event
less than ten (10) days before the anticipated filing date, which notice shall 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, of the offering, and (y) offer to the holders of Registrable Securities in such notice the opportunity to register the
sale of such number of shares of Registrable Securities as such holders may request in writing within five (5) days following
receipt of such notice (a “
Piggy-Back Registration
”). The Company shall cause such Registrable Securities
to be included in such 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 to be included in a Piggy-Back Registration on the same terms
and conditions as any similar securities of the Company and to permit the sale or other disposition of such Registrable Securities
in accordance with the intended method(s) of distribution thereof. All holders of Registrable Securities proposing to distribute
their securities through a Piggy-Back Registration that involves an Underwriter or Underwriters shall enter into an underwriting
agreement in customary form with the Underwriter or Underwriters selected for such Piggy-Back Registration.
2.2.2
Reduction
of Offering
. If the managing Underwriter or Underwriters for a Piggy-Back Registration that is to be an underwritten
offering advises the Company and the holders of Registrable Securities in writing that the dollar amount or number of shares of
Common Stock which the Company desires to sell, taken together with 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, the Registrable Securities as to which registration has been requested under this Section 2.2, and
the shares of Common Stock, if any, as to which registration has been requested pursuant to the written contractual piggy-back
registration rights of other stockholders of the Company, exceeds the Maximum Number of Shares, then the Company shall include
in any such registration:
a) If
the registration is undertaken for the Company’s account: (A) the shares of Common Stock or other securities that the Company
desires to sell that can be sold without exceeding the Maximum Number of Shares; (B) to the extent that the Maximum Number of Shares
has not been reached under the foregoing clause (A), the shares of Common Stock or other securities, if any, comprised of Registrable
Securities, as to which registration has been requested pursuant to the applicable written contractual piggy-back registration
rights of such security holders, Pro Rata, that can be sold without exceeding the Maximum Number of Shares; and (C) to the
extent that the Maximum Number of Shares has not been reached under the foregoing clauses (A) and (B), the shares of Common Stock
or other securities for the account of other persons that the Company is obligated to register pursuant to written contractual
piggy-back registration rights with such persons and that can be sold without exceeding the Maximum Number of Shares; and
b) If
the registration is a “demand” registration undertaken at the demand of persons other than the holders of Registrable
Securities, (A) first, the shares of Common Stock or other securities for the account of the demanding persons that can be
sold without exceeding the Maximum Number of Shares; (B) second, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clause (A), the shares of Common Stock or other securities that the Company desires to sell that can be sold
without exceeding the Maximum Number of Shares; (C) third, to the extent that the Maximum Number of Shares has not been reached
under the foregoing clauses (A) and (B), collectively the shares of Common Stock or other securities comprised of Registrable Securities,
Pro Rata, as to which registration has been requested pursuant to the terms hereof that can be sold without exceeding the Maximum
Number of Shares; and (D) fourth, to the extent that the Maximum Number of Shares has not been reached under the foregoing clauses
(A), (B) and (C), the shares of Common Stock or other securities for the account of other persons that the Company is obligated
to register pursuant to written contractual arrangements with such persons, that can be sold without exceeding the Maximum Number
of Shares.
2.2.3
Withdrawal
.
Any holder of Registrable Securities may elect to withdraw such holder’s request for inclusion of Registrable Securities
in any Piggy-Back Registration by giving written notice to the Company of such request to withdraw prior to the effectiveness
of the Registration Statement. The Company (whether on its own determination or as the result of a withdrawal by persons making
a demand pursuant to written contractual obligations) may withdraw a Registration Statement at any time prior to the effectiveness
of such Registration Statement. Notwithstanding any such withdrawal, the Company shall pay all expenses incurred by the holders
of Registrable Securities in connection with such Piggy-Back Registration as provided in Section 3.3.
2.2.4
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 register the resale of any or all of such Registrable Securities on Form S-3 or any similar short-form registration which
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. Upon receipt of such written request, the Company will promptly give
written notice of the proposed registration to all other holders of Registrable Securities, and, as soon as practicable thereafter,
effect the registration of all or such portion of such holder’s or holders’ Registrable Securities as are specified
in such request, together with all or such portion of the Registrable Securities or other securities of the Company, if any, of
any other holder or holders joining in such request as are specified in a written request given within fifteen (15) days after
receipt of such written notice from the Company; provided, however, that the Company shall not be obligated to effect any such
registration pursuant to this Section 2.2.4: (i) if Form S-3 is not available for such offering; or (ii) if the holders of
the Registrable Securities, together with the holders of any other securities of the Company entitled to inclusion in such registration,
propose to sell Registrable Securities and such other securities (if any) at any aggregate price to the public of less than $500,000.
Registrations effected pursuant to this Section 2.2.4 shall not be counted as Demand Registrations effected pursuant to Section 2.1.
3.
REGISTRATION
PROCEDURES
.
3.1
Filings;
Information
. Whenever the Company is required to effect the registration of any Registrable Securities pursuant to Section 2,
the Company shall use its best efforts to effect the registration and sale of such Registrable Securities in accordance with the
intended method(s) of distribution thereof as expeditiously as practicable, and in connection with any such request:
3.1.1
Filing
Registration Statement
. The Company shall use its best efforts to, as expeditiously as possible after receipt of a request
for a Demand Registration pursuant to Section 2.1, prepare and file with the Commission a Registration Statement on any form
for which the Company then qualifies or which counsel for the Company shall deem appropriate and which form shall be available
for the sale of all Registrable Securities to be registered thereunder in accordance with the intended method(s) of distribution
thereof, and shall use its best efforts to cause such Registration Statement to become effective and use its best efforts to keep
it effective for the period required by Section 3.1.3; provided, however, that the Company shall have the right to defer
any Demand Registration for up to thirty (30) days, and any Piggy-Back Registration for such period as may be applicable to deferment
of any demand registration to which such Piggy-Back Registration relates, in each case if the Company shall furnish to the holders
a certificate signed by the President or Chairman of the Company stating that, in the good faith judgment of the Board of Directors
of the Company, it would be materially detrimental to the Company and its stockholders for such Registration Statement to be effected
at such time; provided further, however, that the Company shall not have the right to exercise the right set forth in the immediately
preceding proviso more than once in any 365-day period in respect of a Demand Registration hereunder.
3.1.2
Copies
.
The Company shall, prior to filing a Registration Statement or prospectus, or any amendment or supplement thereto, furnish without
charge to 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 holders of Registrable Securities included
in such registration or legal counsel for any such holders may request in order to facilitate the disposition of the Registrable
Securities owned by such holders.
3.1.3
Amendments
and Supplements
. The Company shall prepare and file with the Commission such amendments, including post-effective amendments,
and supplements to such Registration Statement and the prospectus used in connection therewith as may be necessary to keep such
Registration Statement effective and in compliance with the provisions of the Securities Act until all Registrable Securities
and other securities covered by such Registration Statement have been disposed of in accordance with the intended method(s) of
distribution set forth in such Registration Statement or such securities have been withdrawn.
3.1.4
Notification
.
After the filing of a Registration Statement, the Company shall promptly, and in no event more than two (2) business days after
such filing, notify the holders of Registrable Securities included in such Registration Statement of such filing, and shall further
notify such holders promptly and confirm such advice in writing in all events within two (2) business days of the occurrence of
any of the following: (i) when such Registration Statement becomes effective; (ii) when any post-effective amendment to such Registration
Statement becomes effective; (iii) the issuance or threatened issuance by the Commission of any stop order (and the Company shall
take all actions required to prevent the entry of such stop order or to remove it if entered); and (iv) any request by the Commission
for any amendment or supplement to such Registration Statement or any prospectus relating thereto or for additional information
or of the occurrence of an event requiring the preparation of a supplement or amendment to such prospectus so that, as thereafter
delivered to the purchasers of the securities covered by such Registration Statement, such prospectus will not contain an untrue
statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements
therein not misleading, and promptly make available to the holders of Registrable Securities included in such Registration Statement
any such supplement or amendment; except that before filing with the Commission a Registration Statement or prospectus or any
amendment or supplement thereto, including documents incorporated by reference, the Company shall furnish to the holders of Registrable
Securities included in such Registration Statement and to the legal counsel for any such holders, copies of all such documents
proposed to be filed sufficiently in advance of filing to provide such holders and legal counsel with a reasonable opportunity
to review such documents and comment thereon, and the Company shall not file any Registration Statement or prospectus or amendment
or supplement thereto, including documents incorporated by reference, to which such holders or their legal counsel shall object.
3.1.5
State
Securities Laws Compliance
. The Company shall 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 but for this paragraph or subject itself to taxation in any such jurisdiction.
3.1.6
Agreements
for Disposition
. The Company shall enter into customary agreements (including, if applicable, an underwriting agreement
in customary form) and take such other actions as are reasonably required in order to expedite or facilitate the disposition of
such Registrable Securities. The representations, warranties and covenants of the Company in any underwriting agreement which
are made to or for the benefit of any Underwriters, to the extent applicable, shall also be made to and for the benefit of the
holders of Registrable Securities included in such registration statement. No holder of Registrable Securities included in such
registration statement shall be required to make any representations or warranties in the underwriting agreement except, if applicable,
with respect to such holder’s organization, good standing, authority, title to Registrable Securities, lack of conflict
of such sale with such holder’s material agreements and organizational documents, and with respect to written information
relating to such holder that such holder has furnished in writing expressly for inclusion in such Registration Statement.
3.1.7
Cooperation
.
The principal executive officer of the Company, the principal financial officer of the Company, the principal accounting officer
of the Company and all other officers and members of the management of the Company shall cooperate fully in any offering of Registrable
Securities hereunder, which cooperation shall include, without limitation, the preparation of the Registration Statement with
respect to such offering and all other offering materials and related documents, and participation in meetings with Underwriters,
attorneys, accountants and potential investors.
3.1.8
Records
.
The Company shall make available for inspection by the holders of Registrable Securities included in such Registration Statement,
any Underwriter participating in any disposition pursuant to such registration statement and any attorney, accountant or other
professional retained by any holder of Registrable Securities included in such Registration Statement or any Underwriter, all
financial and other records, pertinent corporate documents and properties of the Company, as shall be necessary to enable them
to exercise their due diligence responsibility, and cause the Company’s officers, directors and employees to supply all
information requested by any of them in connection with such Registration Statement.
3.1.9
Opinions
and Comfort Letters
. The Company shall furnish to each holder of Registrable Securities included in any Registration
Statement a signed counterpart, addressed to such holder, of (i) any opinion of counsel to the Company delivered to any Underwriter
and (ii) any comfort letter from the Company’s independent public accountants delivered to any Underwriter. In the event
no legal opinion is delivered to any Underwriter, the Company shall furnish to each holder of Registrable Securities included
in such Registration Statement, at any time that such holder elects to use a prospectus, an opinion of counsel to the Company
to the effect that the Registration Statement containing such prospectus has been declared effective and that no stop order is
in effect.
3.1.10
Earnings
Statement
. The Company shall comply with all applicable rules and regulations of the Commission and the Securities Act,
and make available to its stockholders, as soon as practicable, an earnings statement covering a period of twelve (12) months,
which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder.
3.1.11
Listing
.
The Company shall use its best efforts to cause all Registrable Securities included in any registration to be listed on such exchanges
or otherwise designated for trading in the same manner as similar securities issued by the Company are then listed or designated
or, if no such similar securities are then listed or designated, in a manner satisfactory to the holders of a majority of the
Registrable Securities included in such registration.
3.1.12
Road
Show
. If the registration involves the registration of Registrable Securities involving gross proceeds in excess of
$25,000,000, the Company shall 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.
3.2
Obligation
to Suspend Distribution
. Upon receipt of any notice from the Company of the happening of any event of the kind described
in Section 3.1.4(iv), or, in the case of a resale registration on Form S-3 pursuant to Section 2.2.4 hereof, upon any
suspension by the Company, pursuant to a written insider trading compliance program adopted by the Company’s Board of Directors,
of the ability of all “insiders” covered by such program to transact in the Company’s securities because of
the existence of material non-public information, each holder of Registrable Securities included in any registration shall immediately
discontinue disposition of such Registrable Securities pursuant to the Registration Statement covering such Registrable Securities
until such holder receives the supplemented or amended prospectus contemplated by Section 3.1.4(iv) or the restriction on
the ability of “insiders” to transact in the Company’s securities is removed, as applicable, and, if so directed
by the Company, each such holder will deliver to the Company all written copies, other than permanent file copies then in such
holder’s possession, of the most recent prospectus covering such Registrable Securities at the time of receipt of such notice.
3.3
Registration
Expenses
. The Company shall bear all costs and expenses incurred in connection with any Demand Registration pursuant
to Section 2.1, any Piggy-Back Registration pursuant to Section 2.2, and any registration on Form S-3 effected pursuant
to Section 2.2.4, and all expenses incurred in performing or complying with its other obligations under this Agreement, whether
or not the Registration Statement becomes effective, including, without limitation: (i) all registration and filing fees; (ii)
fees and expenses of compliance with securities or “blue sky” laws (including fees and disbursements of counsel in
connection with blue sky qualifications of the Registrable Securities); (iii) printing expenses; (iv) the Company’s internal
expenses (including, without limitation, all salaries and expenses of its officers and employees); (v) the fees and expenses incurred
in connection with the listing of the Registrable Securities as required by Section 3.1.11; (vi) Financial Industry Regulatory
Authority fees; (vii) fees and disbursements of counsel for the Company and fees and expenses for independent certified public
accountants retained by the Company (including the expenses or costs associated with the delivery of any opinions or comfort letters
requested pursuant to Section 3.1.9); (viii) the fees and expenses of any special experts retained by the Company in connection
with such registration and (ix) the fees and expenses of one legal counsel selected by the holders of a majority-in-interest of
the Registrable Securities included in such registration. The Company shall have no obligation to pay any underwriting discounts
or selling commissions attributable to the Registrable Securities being sold by the holders thereof, which underwriting discounts
or selling commissions shall be borne by such holders. Additionally, in an underwritten offering, all selling stockholders and
the Company shall bear the expenses of the Underwriter pro rata in proportion to the respective amount of shares each is selling
in such offering.
3.4
Information
.
The holders of Registrable Securities shall provide such information as may reasonably be requested by the Company, or the managing
Underwriter, if any, in connection with the preparation of any Registration Statement, including amendments and supplements thereto,
in order to effect the registration of any Registrable Securities under the Securities Act pursuant to Section 2 and in connection
with the Company’s obligation to comply with federal and applicable state securities laws.
4.
INDEMNIFICATION
AND CONTRIBUTION
.
4.1
Indemnification
by the Company
. The Company agrees to indemnify and hold harmless each Investor and each other holder of Registrable
Securities, and each of their respective officers, employees, affiliates, directors, partners, members, attorneys and agents,
and each person, if any, who controls an Investor and each other holder of Registrable Securities (within the meaning of Section 15
of the Securities Act or Section 20 of the Exchange Act) (each, an “
Investor Indemnified Party
”),
from and against any expenses, losses, judgments, claims, damages or liabilities, whether joint or several, arising out of or
based upon any untrue statement (or allegedly untrue statement) of a material fact contained in any Registration Statement under
which the sale of such Registrable Securities was registered under the Securities Act, any preliminary prospectus, final prospectus
or summary prospectus contained in the Registration Statement, or any amendment or supplement to such Registration Statement,
or arising out of or based upon any omission (or alleged omission) to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, or any violation by the Company of the Securities Act or any rule or regulation
promulgated thereunder applicable to the Company and relating to action or inaction required of the Company in connection with
any such registration; and the Company shall promptly reimburse the Investor Indemnified Party for any legal and any other expenses
reasonably incurred by such Investor Indemnified Party in connection with investigating and defending any such expense, loss,
judgment, claim, damage, liability or action whether or not any such person is a party to any such claim or action and including
any and all legal and other expenses incurred in giving testimony or furnishing documents in response to a subpoena or otherwise;
provided, however, that the Company will not be liable in any such case to the extent that any such expense, loss, claim, damage
or liability arises out of or is based upon any untrue statement or allegedly untrue statement or omission or alleged omission
made in such Registration Statement, preliminary prospectus, final prospectus, or summary prospectus, or any such amendment or
supplement, in reliance upon and in conformity with information furnished to the Company, in writing, by such selling holder expressly
for use therein. The Company also shall indemnify any Underwriter of the Registrable Securities, their officers, affiliates, directors,
partners, members and agents and each person who controls such Underwriter on substantially the same basis as that of the indemnification
provided above in this Section 4.1.
4.2
Indemnification
by Holders of Registrable Securities
. Subject to the limitations set forth Section 4.4.3 hereof, each selling holder
of Registrable Securities will, in the event that any registration is being effected under the Securities Act pursuant to this
Agreement of any Registrable Securities held by such selling holder, indemnify and hold harmless the Company, each of its directors
and officers and each Underwriter (if any), and each other selling holder and each other person, if any, who controls another
selling holder or such Underwriter within the meaning of the Securities Act, against any losses, claims, judgments, damages or
liabilities, whether joint or several, insofar as such losses, claims, judgments, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or allegedly untrue statement of a material fact contained in any
Registration Statement under which the sale of such Registrable Securities was registered under the Securities Act, any preliminary
prospectus, final prospectus or summary prospectus contained in the Registration Statement, or any amendment or supplement to
the Registration Statement, or arise out of or are based upon any omission or the alleged omission to state a material fact required
to be stated therein or necessary to make the statement therein not misleading, if the statement or omission was made in reliance
upon and in conformity with information furnished in writing to the Company by such selling holder expressly for use therein,
and shall reimburse the Company, its directors and officers, and each other selling holder or controlling person for any legal
or other expenses reasonably incurred by any of them in connection with investigation or defending any such loss, claim, damage,
liability or action. Each selling holder’s indemnification obligations hereunder shall be several and not joint and shall
be limited to the amount of any net proceeds actually received by such selling holder.
4.3
Conduct
of Indemnification Proceedings
. Promptly after receipt by any person of any notice of any loss, claim, damage or liability
or any action in respect of which indemnity may be sought pursuant to Section 4.1 or 4.2, such person (the “
Indemnified
Party
”) shall, if a claim in respect thereof is to be made against any other person for indemnification hereunder,
notify such other person (the “
Indemnifying Party
”) in writing of the loss, claim, judgment, damage,
liability or action; provided, however, that the failure by the Indemnified Party to notify the Indemnifying Party shall not relieve
the Indemnifying Party from any liability which the Indemnifying Party may have to such Indemnified Party hereunder, except and
solely to the extent the Indemnifying Party is actually prejudiced by such failure. If the Indemnified Party is seeking indemnification
with respect to any claim or action brought against the Indemnified Party, then the Indemnifying Party shall be entitled to participate
in such claim or action, and, to the extent that it wishes, jointly with all other Indemnifying Parties, to assume control of
the defense thereof with counsel satisfactory to the Indemnified Party. After notice from the Indemnifying Party to the Indemnified
Party of its election to assume control of the defense of such claim or action, the Indemnifying Party shall not be liable to
the Indemnified Party for any legal or other expenses subsequently incurred by the Indemnified Party in connection with the defense
thereof other than reasonable costs of investigation; provided, however, that in any action in which both the Indemnified Party
and the Indemnifying Party are named as defendants, the Indemnified Party shall have the right to employ separate counsel (but
no more than one such separate counsel) to represent the Indemnified Party and its controlling persons who may be subject to liability
arising out of any claim in respect of which indemnity may be sought by the Indemnified Party against the Indemnifying Party,
with the fees and expenses of such counsel to be paid by such Indemnifying Party if, based upon the written advice of counsel
of such Indemnified Party, representation of both parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, consent
to entry of judgment or effect any settlement of any claim or pending or threatened proceeding in respect of which the Indemnified
Party is or could have been a party and indemnity could have been sought hereunder by such Indemnified Party, unless such judgment
or settlement includes an unconditional release of such Indemnified Party from all liability arising out of such claim or proceeding.
4.4
Contribution
.
4.4.1 If
the indemnification provided for in the foregoing Sections 4.1, 4.2 and 4.3 is unavailable to any Indemnified Party in respect
of any loss, claim, damage, liability or action referred to herein, then each such Indemnifying Party, in lieu of indemnifying
such Indemnified Party, shall contribute to the amount paid or payable by such Indemnified Party as a result of such loss, claim,
damage, liability or action in such proportion as is appropriate to reflect the relative fault of the Indemnified Parties and the
Indemnifying Parties in connection with the actions or omissions which resulted in such loss, claim, damage, liability or action,
as well as any other relevant equitable considerations. The relative fault of any Indemnified Party and any Indemnifying Party
shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information supplied by such Indemnified Party or such Indemnifying
Party and the parties’ relative intent, knowledge, access to information and opportunity to correct or prevent such statement
or omission.
4.4.2 The
parties hereto agree that it would not be just and equitable if contribution pursuant to this Section 4.4 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 the immediately preceding Section 4.4.1.
4.4.3 The
amount paid or payable by an Indemnified Party as a result of any loss, claim, damage, liability or action referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set forth above, any legal or other expenses incurred
by such Indemnified Party in connection with investigating or defending any such action or claim. Notwithstanding the provisions
of this Section 4.4, no holder of Registrable Securities shall be required to contribute any amount in excess of the dollar
amount of the net proceeds (after payment of any underwriting fees, discounts, commissions or taxes) actually received by such
holder from the sale of Registrable Securities which gave rise to such contribution obligation. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act) with respect to any action shall be entitled
to contribution in such action from any person who was not guilty of such fraudulent misrepresentation.
5.
UNDERWRITING
AND DISTRIBUTION
.
5.1
Rule
144
. The Company covenants that it shall file any reports required to be filed by it under the Securities Act and the
Exchange Act and shall take such further action as the holders of Registrable Securities may reasonably request, all to the extent
required from time to time to enable such holders to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 under the Securities Act, as such Rules may be amended from time
to time, or any similar rule or regulation hereafter adopted by the Commission.
6.
MISCELLANEOUS
.
6.1
Other
Registration Rights
. The Company represents and warrants that no person, other than the holders of the Registrable Securities,
has any right to require the Company to register any shares of the Company’s capital stock for sale or to include shares
of the Company’s capital stock in any registration filed by the Company for the sale of shares of capital stock for its
own account or for the account of any other person.
6.2
Assignment;
No Third Party Beneficiaries
. 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. This Agreement and the rights, duties and obligations of the holders
of Registrable Securities hereunder may be freely assigned or delegated by such holder of Registrable Securities in conjunction
with and to the extent of any transfer of Registrable Securities by any such holder. This Agreement and the provisions hereof
shall be binding upon and shall inure to the benefit of each of the parties, to the permitted assigns of the Investors or holder
of Registrable Securities or of any assignee of the Investors or holder of Registrable Securities. This Agreement is not intended
to confer any rights or benefits on any persons that are not party hereto other than as expressly set forth in Article 4 and this
Section 6.2.
6.3
Notices
.
All notices, demands, requests, consents, approvals or other communications (collectively, “
Notices
”)
required or permitted to be given hereunder or which are given with respect to this Agreement shall be in writing and shall be
personally served, delivered by reputable air courier service with charges prepaid, or transmitted by hand delivery, telegram,
telex or facsimile, addressed as set forth below, or to such other address as such party shall have specified most recently by
written notice. Notice shall be deemed given on the date of service or transmission if personally served or transmitted by telegram,
telex or facsimile; provided, that if such service or transmission is not on a business day or is after normal business hours,
then such notice shall be deemed given on the next business day. Notice otherwise sent as provided herein shall be deemed given
on the next business day following timely delivery of such notice to a reputable air courier service with an order for next-day
delivery.
To the Company:
Schultze Special Purpose Acquisition Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
Attn: Scarlett Du
Facsimile: (914) 701-5269
Email: sdu@samco.net
with a copy to:
Greenberg Traurig, LLP
Met Life Building
200 Park Avenue
New York, New York 10166
Attn: Alan I. Annex, Esq.
To an Investor, to the address set forth below such
Investor’s name on Exhibit A hereto.
6.4
Severability
.
This Agreement shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect
the validity or enforceability of this Agreement or of any other term or provision hereof. Furthermore, in lieu of any such invalid
or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Agreement a provision
as similar in terms to such invalid or unenforceable provision as may be possible that is valid and enforceable.
6.5
Counterparts
.
This Agreement may be executed in multiple counterparts, each of which shall be deemed an original, and all of which taken together
shall constitute one and the same instrument. Delivery of a signed counterpart of this Agreement by facsimile or email/pdf transmission
shall constitute valid and sufficient delivery thereof.
6.6
Entire
Agreement
. This Agreement (including all agreements entered into pursuant hereto and all certificates and instruments
delivered pursuant hereto and thereto) constitute the entire agreement of the parties with respect to the subject matter hereof
and supersede all prior and contemporaneous agreements, representations, understandings, negotiations and discussions between
the parties, whether oral or written.
6.7
Modifications
and Amendments
. No amendment, modification or termination of this Agreement shall be binding upon any party unless executed
in writing by such party.
6.8
Titles
and Headings
. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction
of any provision of this Agreement.
6.9
Waivers
and Extensions
. Any party to this Agreement may waive any right, breach or default which such party has the right to
waive, provided that such waiver will not be effective against the waiving party unless it is in writing, is signed by such party,
and specifically refers to this Agreement. Waivers may be made in advance or after the right waived has arisen or the breach or
default waived has occurred. Any waiver may be conditional. No waiver of any breach of any agreement or provision herein contained
shall be deemed a waiver of any preceding or succeeding breach thereof nor of any other agreement or provision herein contained.
No waiver or extension of time for performance of any obligations or acts shall be deemed a waiver or extension of the time for
performance of any other obligations or acts.
6.10
Remedies
Cumulative
. In the event that the Company fails to observe or perform any covenant or agreement to be observed or performed
under this Agreement, the Investor or any other holder of Registrable Securities may proceed to protect and enforce its rights
by suit in equity or action at law, whether for specific performance of any term contained in this Agreement or for an injunction
against the breach of any such term or in aid of the exercise of any power granted in this Agreement or to enforce any other legal
or equitable right, or to take any one or more of such actions, without being required to post a bond. None of the rights, powers
or remedies conferred under this Agreement shall be mutually exclusive, and each such right, power or remedy shall be cumulative
and in addition to any other right, power or remedy, whether conferred by this Agreement or now or hereafter available at law,
in equity, by statute or otherwise.
6.11
Governing
Law
. This Agreement shall be governed by, interpreted under, and construed in accordance with the internal laws of the
State of New York applicable to agreements made and to be performed within the State of New York, without giving effect to any
choice-of-law provisions thereof that would compel the application of the substantive laws of any other jurisdiction. The Company
irrevocably submits to the nonexclusive jurisdiction of any New York State or United States Federal court sitting in The City
of New York, Borough of Manhattan, over any suit, action or proceeding arising out of or relating to this Agreement. The Company
irrevocably waives, to the fullest extent permitted by law, any objection that they may now or hereafter have to the laying of
venue of any such suit, action or proceeding brought in such a court and any claim that any such suit, action or proceeding brought
in such a court has been brought in an inconvenient forum.
6.12
Waiver
of Trial by Jury
. EACH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES THE RIGHT TO A TRIAL BY JURY IN ANY ACTION,
SUIT, COUNTERCLAIM OR OTHER PROCEEDING (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE) ARISING OUT OF, CONNECTED WITH OR RELATING
TO THIS AGREEMENT, THE TRANSACTIONS CONTEMPLATED HEREBY, OR THE ACTIONS OF THE INVESTOR IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE
OR ENFORCEMENT HEREOF.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, the parties have caused
this Registration Rights Agreement to be executed and delivered by their duly authorized representatives as of the date first written
above.
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COMPANY:
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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INVESTORS:
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Schultze Special Purpose Acquisition Sponsor, LLC
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By:
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Name:
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George J. Schultze
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Title:
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Manager
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Name:
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William G. LaPerch
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Name:
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William T. Allen
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Name:
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John J. Walker
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[Signature Page to Registration Rights Agreement]
EXHIBIT
A
Name and Address of
Investor
Exhibit 10.5
_____________, 2018
Ladies and Gentlemen:
Schultze Special Purpose
Acquisition Corp. (“Corporation”), a blank check company formed for the purpose of acquiring one or more businesses
or entities (a “Business Combination”), intends to register its securities under the Securities Act of 1933, as amended
(“Securities Act”), in connection with its initial public offering (“IPO”).
The undersigned hereby
commits to purchase an aggregate of 4,550,000 warrants of the Corporation (“Initial Private Placement Warrants”), each
Initial Private Placement Warrant entitling the holder to purchase one share of common stock, par value $0.0001 per share, of the
Corporation, at $1.00 per Initial Private Placement Warrant, for an aggregate purchase price of $4,550,000 (the “Initial
Purchase Price”). Additionally, if the underwriters in the IPO exercise their over-allotment option in full or part, the
undersigned further commits to purchase up to an additional 450,000 warrants of the Corporation (“Additional Private Placement
Warrants” and together with the Initial Private Placement Warrants, the “Private Placement Warrants”) at $1.00
per Additional Private Placement Warrant for an aggregate purchase price of up to $450,000 (the “Over-Allotment Purchase
Price” and together with the Initial Purchase Price, the “Purchase Price”). At least 24 hours prior to the effective
date (“Effective Date”) of the Corporation’s registration statement filed in connection with the IPO (“Registration
Statement”), the undersigned will cause the Purchase Price to be delivered to Continental Stock Transfer & Trust Company
(“CST”), by wire transfer as set forth in the instructions attached as Exhibit A to hold in a non-interest bearing
account until the Corporation consummates the IPO.
The consummation of
the purchase and issuance of the Initial Private Placement Warrants and Additional Private Placement Warrants (if any) shall occur
simultaneously with the consummation of the IPO and over-allotment option, respectively. Simultaneously with the consummation of
the IPO, the Initial Purchase Price shall be deposited, without interest or deduction, into the trust account (“Trust Account”)
established by the Corporation for the benefit of the Corporation’s public stockholders as described in the Registration
Statement. Simultaneously with the consummation of all or any part of the over-allotment option, the pro-rata portion of the Over-Allotment
Purchase Price, based upon the amount of the over-allotment option that has been exercised, shall be deposited into the Trust Account.
Upon expiration of the over-allotment option, any unused portion of the Over-Allotment Purchase Price shall be returned to the
undersigned.
The Private Placement
Warrants will be identical to the warrants included in the units to be sold by the Corporation in the IPO, except that:
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the Private Placement Warrants and underlying securities will not be transferable, assignable or
salable by the undersigned until after the consummation of a Business Combination, except to Permitted Transferees (as defined
in the Warrant Agreement to be entered into by the Corporation and CST in connection with the IPO);
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the Private Placement Warrants and underlying securities will be subject to customary registration
rights, which shall be described in the Registration Statement;
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the Private Placement Warrants will not be redeemable and will be exercisable on a cashless basis
so long as they are held by the undersigned or their Permitted Transferees; and
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the Private Placement Warrants and the underlying securities will include any additional terms
or restrictions as is customary in other similarly structured blank check company offerings or as may be reasonably required by
the underwriters in the IPO in order to consummate the IPO, each of which will be set forth in the Registration Statement.
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The undersigned acknowledges
and agrees that it will execute agreements in form and substance typical for transactions of this nature necessary to effectuate
the foregoing agreements and obligations prior to the consummation of the IPO as are reasonably acceptable to the undersigned,
including but not limited to (i) an insider letter and (ii) a registration rights agreement.
The undersigned hereby
represents and warrants that, as applicable:
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(a)
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it has been advised that the Private Placement Warrants and the underlying securities have not
been registered under the Securities Act;
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(b)
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it is acquiring the Private Placement Warrants and the underlying securities for its account for
investment purposes only;
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(c)
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it has no present intention of selling or otherwise disposing of the Private Placement Warrants
or the underlying securities in violation of the securities laws of the United States;
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(d)
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it is an “accredited investor” as defined by Rule 501 of Regulation D promulgated under
the Securities Act of 1933, as amended;
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(e)
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it has had both the opportunity to ask questions and receive answers from the officers and directors
of the Corporation and all persons acting on its behalf concerning the terms and conditions of the offer made hereunder;
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(f)
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it is familiar with the proposed business, management, financial condition and affairs of the Corporation;
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(g)
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it has full power, authority and legal capacity to execute and deliver this letter and any documents
contemplated herein or needed to consummate the transactions contemplated in this letter; and
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(h)
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this letter constitutes a legal, valid and binding obligation, and is enforceable against it.
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The undersigned understands
and acknowledges an exemption from the registration requirements of the Securities Act requires there be no general solicitation
of purchasers of the Private Placement Warrants. In this regard, if the IPO were deemed to be a general solicitation with respect
to the Private Placement Warrants, the offer and sale of such Private Placement Warrants may not be exempt from registration and,
if not, the undersigned may have a right to rescind its purchase of the Private Placement Warrants. In order to facilitate the
completion of the IPO and in order to protect the Corporation, its stockholders and the amounts in the Trust Account from claims
that may adversely affect the Corporation or the interests of its stockholders, the undersigned hereby agrees to waive, to the
maximum extent permitted by applicable law, any claims, right to sue or rights in law or arbitration, as the case may be, to seek
rescission of its purchase of the Private Placement Warrants. The undersigned acknowledges and agrees this waiver is being made
in order to induce the Corporation to sell the Private Placement Warrants to the undersigned. The undersigned agrees the foregoing
waiver of rescission rights shall apply to any and all known or unknown actions, causes of action, suits, claims or proceedings
(collectively, “Claims”) and related losses, costs, penalties, fees, liabilities and damages, whether compensatory,
consequential or exemplary, and expenses in connection therewith, including reasonable attorneys’ and expert witness fees
and disbursements and all other expenses reasonably incurred in investigating, preparing or defending against any Claims, whether
pending or threatened, in connection with any present or future actual or asserted right to rescind the purchase of the Private
Placement Warrants hereunder or relating to the purchase of the Private Placement Warrants and the transactions contemplated hereby.
The undersigned agrees (a) not to seek recourse against the Trust Account for any reason whatsoever in connection with its purchase
of the Private Placement Warrants or any Claim that may arise now or in the future and (b) that to the extent any waiver of rights
under this paragraph is ineffective as a matter of law, the undersigned has offered such waiver for the benefit of the Corporation
as an equitable right that shall survive any statutory disqualification or bar that applies to a legal right. The undersigned acknowledges
the receipt and sufficiency of consideration received from the Corporation hereunder in this regard. The undersigned further acknowledges
and agrees that the stockholders of the Corporation are and shall be third-party beneficiaries of this paragraph.
[signature page follows]
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Very truly yours,
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Schultze Special Purpose Acquisition Sponsor, LLC
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By:
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Name:
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George J. Schultze
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Title:
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Manager
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Accepted and Agreed:
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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[Signature Page to Warrant Purchase Agreement]
Exhibit 10.6
Schultze Special Purpose Acquisition
Corp.
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
_______________, 2018
Schultze Special Purpose Acquisition Sponsor, LLC
800 Westchester Avenue, Suite 632
Rye Brook, NY 10573
Ladies and Gentlemen:
This letter will confirm our agreement that,
commencing on the date of our final prospectus (the “
Effective Date
”) prepared in connection with the
registration statement (the “
Registration Statement
”) for the initial public offering (the “
IPO
”)
of the securities of Schultze Special Purpose Acquisition Corp. (the “
Company
”) and continuing until
the earlier of (i) the consummation by the Company of an initial business combination or (ii) the Company’s liquidation (in
each case as described in the Registration Statement) (such earlier date hereinafter referred to as the “
Termination
Date
”), Schultze Special Purpose Acquisition Sponsor, LLC (the “
Sponsor
”) shall make available
to the Company certain office space and administrative and support services as may be required by the Company from time to time,
situated at 800 Westchester Avenue, Suite 632, Rye Brook, NY 10573 (or any successor location). In exchange therefor, the Company
shall pay the Sponsor an aggregate of up to $10,000 per month on the Effective Date and continuing monthly thereafter until the
Termination Date. The Sponsor hereby agrees that it does not have any right, title, interest or claim of any kind in or to any
monies that may be set aside in the trust account (the “
Trust Account
”) that may be established upon
the consummation of the IPO as a result of this letter agreement (the “
Claim
”) and hereby waives any
Claim it may have in the future as a result of, or arising out of, this letter agreement and will not seek recourse against the
Trust Account for any reason whatsoever.
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Very truly yours,
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Schultze Special Purpose Acquisition Corp.
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By:
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Name:
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George J. Schultze
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Title:
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Chief Executive Officer
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AGREED TO AND ACCEPTED BY:
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Schultze Special Purpose Acquisition Sponsor, LLC
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By:
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Name:
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George J. Schultze
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Title:
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Manager
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Exhibit 14
Schultze
Special Purpose Acquisition Corp.
CODE OF
ETHICS
The Board of Directors
of Schultze Special Purpose Acquisition Corp. (the “
Company
”) has adopted this code of ethics (the “
Code
”),
which is applicable to all directors, officers, and employees of the Company, with the intent to:
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promote honest and ethical conduct, including the
ethical handling of actual or apparent conflicts of interest between personal and professional relationships;
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promote the full, fair, accurate, timely, and understandable
disclosure in reports and documents that the Company files with, or submits to, the Securities and Exchange Commission (the “
SEC
”),
as well as in other public communications made by or on behalf of the Company;
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promote compliance with applicable governmental laws,
rules, and regulations;
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require prompt internal reporting of breaches of,
and accountability for adherence to, this Code.
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This Code may be amended
only by resolution of the Company’s Board of Directors. In this Code, references to the “Company” include, in
appropriate context, the Company’s subsidiaries.
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2.
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Honest, Ethical and Fair Conduct
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Each person owes a
duty to the Company to act with integrity. Integrity requires, among other things, being honest, fair, and candid. Deceit, dishonesty,
and subordination of the Company’s interests to personal interests are inconsistent with integrity. Service to the Company
should never be subordinated to personal gain and advantage.
Each person must:
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Act with integrity, including being honest and candid
while still maintaining the confidentiality of the Company’s information where required or in the Company’s interests.
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Observe all applicable governmental laws, rules, and
regulations.
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Comply with the requirements of applicable accounting
and auditing standards, as well as Company policies, in order to maintain a high standard of accuracy and completeness in the
Company’s financial records and other business-related information and data.
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Adhere to a high standard of business ethics and not
seek competitive advantage through unlawful or unethical business practices.
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Deal fairly with the Company’s customers, suppliers,
competitors, and employees.
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Refrain from taking advantage of anyone through manipulation,
concealment, abuse of privileged information, misrepresentation of material facts, or any other unfair-dealing practice.
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Protect the assets of the Company and ensure their
proper use.
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Refrain from taking for themselves personally opportunities
that are discovered through the use of corporate assets and refrain from using corporate assets, information, or position for
general personal gain outside the scope of employment with the Company.
|
|
|
·
|
Avoid conflicts of interest, wherever possible, except
under guidelines or resolutions approved by the Board of Directors (or the appropriate committee of the Board). Anything that
would be a conflict for a person subject to this Code also will be a conflict if it is related to a member of his or her family
or a close relative. Examples of conflict of interest situations include, but are not limited to, the following:
|
|
|
·
|
any significant ownership interest in any supplier
or customer;
|
|
|
·
|
any consulting or employment relationship with any
customer, supplier, or competitor;
|
|
|
·
|
any outside business activity that detracts from an
individual’s ability to devote appropriate time and attention to his or her responsibilities with the Company;
|
|
|
·
|
the receipt of any money, non-nominal gifts, or excessive
entertainment from any company with which the Company has current or prospective business dealings;
|
|
|
·
|
being in the position of supervising, reviewing, or
having any influence on the job evaluation, pay, or benefit of any close relative;
|
|
|
·
|
selling anything to the Company or buying anything
from the Company, except on the same terms and conditions as comparable officers or directors are permitted to so purchase or
sell; and
|
|
|
·
|
any other circumstance, event, relationship, or situation
in which the personal interest of a person subject to this Code interferes – or even appears to interfere – with the
interests of the Company as a whole.
|
The Company strives
to ensure that the contents of and the disclosures in public communications and in the reports and documents that the Company files
with the SEC shall be full, fair, accurate, timely, and understandable in accordance with applicable disclosure standards, including
standards of materiality, where appropriate. Each person must:
|
|
·
|
not knowingly misrepresent, or cause others to misrepresent,
facts about the Company to others, whether within or outside the Company, including to the Company’s independent auditors,
governmental regulators, self-regulating organizations, and other governmental officials, as appropriate; and
|
|
|
·
|
in relation to his or her area of responsibility,
properly review and critically analyze proposed disclosure for accuracy and completeness.
|
In addition to the
foregoing, the Chief Executive Officer and Chief Financial Officer of the Company and each subsidiary of the Company (or persons
performing similar functions), and each other person that typically is involved in the financial reporting of the Company must
familiarize himself or herself with the disclosure requirements applicable to the Company as well as the business and financial
operations of the Company.
Each person must promptly
bring to the attention of the Chairman of the Audit Committee of the Company’s Board of Directors any information he or she
may have concerning (a) significant deficiencies in the design or operation of internal and/or disclosure controls which could
adversely affect the Company’s ability to record, process, summarize, and report financial data or (b) any fraud, whether
or not material, that involves management or other employees who have a significant role in the Company’s financial reporting,
disclosures, or internal controls.
It is the Company’s
obligation and policy to comply with all applicable governmental laws, rules, and regulations. It is the personal responsibility
of each person to, and each person must, adhere to the standards and restrictions imposed by those laws, rules, and regulations,
including those relating to accounting and auditing matters.
|
|
5.
|
Reporting and Accountability
|
The Audit Committee
of the Company is responsible for applying this Code to specific situations in which questions are presented to it and has the
authority to interpret this Code in any particular situation. Any person who becomes aware of any existing or potential breach
of this Code is required to notify the Chairman of the Audit Committee promptly. Failure to do so is itself a breach of this Code.
Specifically, each
person must:
|
|
·
|
Notify the Chairman promptly of any existing or potential
violation of this Code.
|
|
|
·
|
Not retaliate against any other person for reports
of potential violations that are made in good faith.
|
The Company will follow
the following procedures in investigating and enforcing this Code and in reporting on the Code:
|
|
·
|
The Audit Committee will take all appropriate action
to investigate any breaches reported to it.
|
|
|
·
|
If the Audit Committee determines by majority decision
that a breach has occurred, it will inform the Board of Directors.
|
|
|
·
|
Upon being notified that a breach has occurred, the
Board by majority decision will take or authorize such disciplinary or preventive action as it deems appropriate, after consultation
with the Audit Committee and/or the Company’s counsel, up to and including dismissal or, in the event of criminal or other
serious violations of law, notification of the SEC or other appropriate law enforcement authorities.
|
No person following
the above procedure shall, as a result of following such procedure, be subject by the Company or any officer or employee thereof
to discharge, demotion, suspension, threat, harassment, or, in any manner, discrimination against such person in terms and conditions
of employment.
|
|
6.
|
Waivers and Amendments
|
Any waiver (defined
below) or an implicit waiver (defined below) from a provision of this Code for the principal executive officer, principal financial
officer, principal accounting officer or controller, and persons performing similar functions or any amendment (as defined below)
to this Code is required to be disclosed in the Company’s Annual Report on Form 10-K or in a Current Report on Form 8-K filed
with the SEC.
A “
waiver
”
means the approval by the Company’s Board of Directors of a material departure from a provision of the Code. An “
implicit
waiver
” means the Company’s failure to take action within a reasonable period of time regarding a material departure
from a provision of the Code that has been made known to an executive officer of the Company. An “
amendment
”
means any amendment to this Code other than minor technical, administrative, or other non-substantive amendments hereto.
All persons should
note that it is
not
the Company’s intention to grant or to permit waivers from the requirements of this Code. The
Company expects full compliance with this Code.
|
|
7.
|
Other Policies and Procedures
|
Any other policy or
procedure set out by the Company in writing or made generally known to employees, officers, or directors of the Company prior to
the date hereof or hereafter are separate requirements and remain in full force and effect.
All inquiries and questions
in relation to this Code or its applicability to particular people or situations should be addressed to the Company’s Secretary.
Exhibit 99.5
AUDIT COMMITTEE
CHARTER
OF
Schultze
Special Purpose Acquisition Corp.
Purpose
The purposes of the
Audit Committee (the “
Audit Committee
”) of the Board of Directors (“
Board
”) of Schultze Special
Purpose Acquisition Corp. (“
Company
”) are to assist the Board in monitoring: (1) the integrity of the annual,
quarterly, and other financial statements of the Company, (2) the independent auditor’s qualifications and independence,
(3) the performance of the Company’s independent auditor, and (4) the compliance by the Company with legal and regulatory
requirements. The Audit Committee also shall review and approve all related-party transactions.
The Audit Committee
shall prepare the report required by the rules of the Securities and Exchange Commission (“
Commission
”) to be
included in the Company’s annual proxy statement.
Committee Membership
The Audit Committee
shall consist of no fewer than three members, absent a temporary vacancy. The Audit Committee shall meet the “Audit Committee
Requirements” of The Nasdaq Stock Market LLC and the independence and experience requirements of Section 10A(m)(3) of the
Securities Exchange Act of 1934 (“
Exchange Act
”) and the rules and regulations of the Commission.
The members of the
Audit Committee shall be appointed by the Board. Audit Committee members may be replaced by the Board. There shall be a Chairman
of the Audit Committee which shall also be appointed by the Board. The Chairman of the Audit Committee shall be a member of the
Audit Committee and, if present, shall preside at each meeting of the Audit Committee. He shall advise and counsel with the executives
of the Company, and shall perform such other duties as may from time to time be assigned to him by the Audit Committee or the Board.
Meetings
The Audit Committee
shall meet as often as it determines, but not less frequently than quarterly. The Audit Committee shall meet periodically with
management and the independent auditor in separate executive sessions. The Audit Committee may request any officer or employee
of the Company or the Company’s outside counsel or independent auditor to attend a meeting of the Audit Committee or to meet
with any members of, or consultants to, the Audit Committee.
Committee Authority and Responsibilities
The Audit Committee
shall have the sole authority to appoint or replace the independent auditor. The Audit Committee shall be directly responsible
for determining the compensation and oversight of the work of the independent auditor (including resolution of disagreements between
management and the independent auditor regarding financial reporting) for the purpose of preparing or issuing an audit report or
related work. The independent auditor shall report directly to the Audit Committee.
The Audit Committee
shall pre-approve all auditing services and permitted non-audit services to be performed for the Company by its independent auditor,
including the fees and terms thereof (subject to the de minimus exceptions for non-audit services described in Section 10A(i)(1)(B)
of the Exchange Act which are approved by the Audit Committee prior to the completion of the audit). The Audit Committee may form
and delegate authority to subcommittees of the Audit Committee consisting of one or more members when appropriate, including the
authority to grant pre-approvals of audit and permitted non-audit services, provided that decisions of such subcommittee to grant
pre-approvals shall be presented to the full Audit Committee at its next scheduled meeting.
The Audit Committee
shall have the authority, to the extent it deems necessary or appropriate, to retain independent legal, accounting, or other advisors.
The Company shall provide for appropriate funding, as determined by the Audit Committee, for payment of compensation to (i) the
independent auditor for the purpose of rendering or issuing an audit report and (ii) any advisors employed by the Audit Committee.
The Audit Committee
shall make regular reports to the Board. The Audit Committee shall review and reassess the adequacy of this Charter annually and
recommend any proposed changes to the Board for approval. The Audit Committee annually shall review the Audit Committee’s
own performance.
The Audit Committee
shall:
Financial Statement and Disclosure Matters
|
|
1.
|
Meet with the independent auditor prior to the audit to review the scope, planning, and staffing
of the audit.
|
|
|
2.
|
Review and discuss with management and the independent auditor the annual audited financial statements,
and recommend to the Board whether the audited financial statements should be included in the Company’s Annual Report on
Form 10-K (or the annual report to shareholders if distributed prior to the filing of the Form 10-K).
|
|
|
3.
|
Review and discuss with management and the independent auditor the Company’s quarterly financial
statements prior to the filing of its Form 10-Q, including the results of the independent auditor’s review of the quarterly
financial statements.
|
|
|
4.
|
Discuss with management and the independent auditor, as appropriate, significant financial reporting
issues and judgments made in connection with the preparation of the Company’s financial statements, including:
|
|
|
(a)
|
any significant changes in the Company’s selection or application of accounting principles;
|
|
|
(b)
|
the Company’s critical accounting policies and practices;
|
|
|
(c)
|
all alternative treatments of financial information within GAAP that have been discussed with management
and the ramifications of the use of such alternative accounting principles;
|
|
|
(d)
|
any major issues as to the adequacy of the Company’s internal controls and any special steps
adopted in light of material control deficiencies; and
|
|
|
(e)
|
any material written communications between the independent auditor and management, such as any
management letter or schedule of unadjusted differences.
|
|
|
5.
|
Discuss with management the Company’s earnings press releases generally, including the use
of “pro forma” or “adjusted” non-GAAP information, and any financial information and earnings guidance
provided to analysts and rating agencies. Such discussion may be general and include the types of information to be disclosed and
the types of presentations to be made.
|
|
|
6.
|
Discuss with management and the independent auditor the effect on the Company’s financial
statements of (i) regulatory and accounting initiatives and (ii) off-balance sheet structures.
|
|
|
7.
|
Discuss with management the Company’s major financial risk exposures and the steps management
has taken to monitor and control such exposures, including the Company’s risk assessment and risk management policies.
|
|
|
8.
|
Discuss with the independent auditor the matters required to be discussed by Statement on Auditing
Standards No. 61 relating to the conduct of the audit, including any difficulties encountered in the course of the audit work,
any restrictions on the scope of activities or access to requested information, and any significant disagreements with management.
|
|
|
9.
|
Review disclosures made to the Audit Committee by the Company’s Chief Executive Officer and
Chief Financial Officer (or individuals performing similar functions) during their certification process for the Form 10-K and
Form 10-Qs about any significant deficiencies and material weaknesses in the design or operation of internal control over financial
reporting and any fraud involving management or other employees who have a significant role in the Company’s internal control
over financial reporting.
|
Oversight of the Company’s Relationship
with the Independent Auditor
|
|
10.
|
At least annually, obtain and review a report from the independent auditor, consistent with the
rules of the Public Company Accounting Oversight Board, regarding (a) the independent auditor’s internal quality-control
procedures, (b) any material issues raised by the most recent internal quality-control review, or peer review, of the firm, or
by any inquiry or investigation by governmental or professional authorities within the preceding five years respecting one or more
independent audits carried out by the firm, (c) any steps taken to deal with any such issues and (d) all relationships between
the independent auditor and the Company. Evaluate the qualifications, performance and independence of the independent auditor,
including whether the auditor’s quality controls are adequate and the provision of permitted non-audit services is compatible
with maintaining the auditor’s independence, and taking into account the opinions of management and the internal auditor.
The Audit Committee shall present its conclusions with respect to the independent auditor to the Board.
|
|
|
11.
|
Verify the rotation of the lead (or coordinating) audit partner having primary responsibility for
the audit and the audit partner responsible for reviewing the audit as required by law. Consider whether, in order to assure continuing
auditor independence, it is appropriate to adopt a policy of rotating the independent auditing firm on a regular basis.
|
|
|
12.
|
Oversee the Company’s hiring of employees or former employees of the independent auditor
who participated in any capacity in the audit of the Company.
|
|
|
13.
|
Be available to the independent auditor during the year for consultation purposes.
|
Compliance Oversight Responsibilities
|
|
14.
|
Obtain assurance from the independent auditor that Section 10A(b) of the Exchange Act has not been
implicated.
|
|
|
15.
|
Review and approve all related-party transactions and review reimbursement of expenses incurred
by our management team in identifying potential target businesses.
|
|
|
16.
|
Inquire and discuss with management the Company’s compliance with applicable laws and regulations
and with the Company’s Code of Ethics in effect at such time, if any, and, where applicable, recommend policies and procedures
for future compliance.
|
|
|
17.
|
Establish procedures (which may be incorporated in the Company’s Code of Ethics, in effect
at such time, if any) for the receipt, retention and treatment of complaints received by the Company regarding accounting, internal
accounting controls or reports which raise material issues regarding the Company’s financial statements or accounting policies.
|
|
|
18.
|
Discuss with management and the independent auditor any correspondence with regulators or governmental
agencies and any published reports that raise material issues regarding the Company’s financial statements or accounting
policies.
|
|
|
19.
|
Discuss with the Company’s General Counsel legal matters that may have a material impact
on the financial statements or the Company’s compliance policies.
|
|
|
20.
|
Review and approve all payments made to the Company’s officers and directors or its or their
affiliates. Any payments made to members of the Audit Committee will be reviewed and approved by the Board, with the interested
director or directors abstaining from such review and approval.
|
Limitation of Audit Committee’s
Role
While the Audit Committee
has the responsibilities and powers set forth in this Charter, it is not the duty of the Audit Committee to plan or conduct audits
or to determine that the Company’s financial statements and disclosures are complete and accurate and are in accordance with
generally accepted accounting principles and applicable rules and regulations. These are the responsibilities of management and
the independent auditor.
Exhibit 99.6
CHARTER
OF THE COMPENSATION COMMITTEE OF
THE BOARD
OF DIRECTORS OF
Schultze
Special Purpose Acquisition Corp.
The Compensation Committee
(the “
Committee
”) is appointed by the Board of Directors (the “
Board
”) of Schultze Special
Purpose Acquisition Corp. (the “
Company
”) for the purposes of, among other things, (a) discharging the Board’s
responsibilities relating to the compensation of the Company’s chief executive officer (the “
CEO
”) and
other executive officers of the Company, (b) administering or delegating the power to administer the Company’s incentive
compensation and equity-based compensation plans, and (c) if required by applicable rules and regulations, issuing a “Compensation
Committee Report” to be included in the Company’s annual report on Form 10-K or proxy statement, as applicable.
In addition to such
other duties as the Board may from time to time assign, the Committee shall:
|
|
·
|
Establish, review, and approve the overall executive compensation philosophy and policies of the
Company, including the establishment, if deemed appropriate, of performance-based incentives that support and reinforce the Company’s
long-term strategic goals, organizational objectives, and stockholder interests.
|
|
|
·
|
Review and approve the Company’s goals and objectives relevant to the compensation of the
CEO, annually evaluate the CEO’s performance in light of those goals and objectives and, based on this evaluation, determine
the CEO’s compensation level, including, but not limited to, salary, bonus or bonus target levels, long and short-term incentive
and equity compensation, retirement plans, and deferred compensation plans as the Committee deems appropriate. In determining the
long-term incentive component of the CEO’s compensation, the Committee shall consider, among other factors, the Company’s
performance and relative stockholder return, the value of similar incentive awards to CEOs at comparable companies, and the awards
given to the Company’s CEO in past years. The CEO shall not be present during voting and deliberations relating to CEO compensation.
|
|
|
·
|
Determine the compensation of all other executive officers, including, but not limited to, salary,
bonus or bonus target levels, long and short-term incentive and equity compensation, retirement plans, and deferred compensation
plans, as the Committee deems appropriate. Members of senior management may report on the performance of the other executive officers
of the Company and make compensation recommendations to the Committee, which will review and, as appropriate, approve the compensation
recommendations.
|
|
|
·
|
Receive and evaluate performance target goals for the senior officers and employees (other than
executive officers) and review periodic reports from the CEO as to the performance and compensation of such senior officers and
employees.
|
|
|
·
|
Administer or delegate the power to administer the Company’s incentive and equity-based compensation
plans, including the grant of stock options, restricted stock, and other equity awards under such plans.
|
|
|
·
|
Review and make recommendations to the Board with respect to the adoption of, and amendments to,
incentive compensation and equity-based plans and approve for submission to the stockholders all new equity compensation plans
that must be approved by stockholders pursuant to applicable law.
|
|
|
·
|
Review and approve any annual or long-term cash bonus or incentive plans in which the executive
officers of the Company may participate.
|
|
|
·
|
Review and approve for the CEO and the other executive officers of the Company any employment agreements,
severance arrangements, and change in control agreements or provisions.
|
|
|
·
|
Review and discuss with the Company’s management the Compensation Discussion and Analysis
set forth in Securities and Exchange Commission Regulation S-K, Item 402, if required, and, based on such review and discussion,
determine whether to recommend to the Board of Directors of the Company that the Compensation Discussion and Analysis be included
in the Company’s annual report or proxy statement for the annual meeting of stockholders.
|
|
|
·
|
Provide the Compensation Committee Report for the Company’s annual report or proxy statement
for the annual meeting of stockholders, if required.
|
|
|
·
|
Conduct an annual performance evaluation of the Committee. In conducting such review, the Committee
shall evaluate and address all matters that the Committee considers relevant to its performance, including at least the following:
(a) the adequacy, appropriateness, and quality of the information received from management or others; (b) the manner in which the
Committee’s recommendations were discussed or debated; (c) whether the number and length of meetings of the Committee were
adequate for the Committee to complete its work in a thorough and thoughtful manner; and (d) whether this Charter appropriately
addresses the matters that are or should be within its scope.
|
The Committee shall
be comprised of two or more members (including a chairperson), all of whom shall be “independent directors,” as such
term is defined in the rules and regulations of the Nasdaq Stock Market, except that the Committee may have as one of its members
a “non-independent director” under exceptional and limited circumstances pursuant to the exemption under Rule 5605(d)(2)(B)
of the Nasdaq Stock Market. At least two of the Committee members shall be “non-employee directors” as defined by Rule
16b-3 under the Securities Exchange Act of 1934 (the “
Exchange Act
”). The members of the Committee and the chairperson
shall be selected not less frequently than annually by the Board and serve at the pleasure of the Board. A Committee member (including
the chairperson) may be removed at any time, with or without cause, by the Board.
The Committee shall
have authority to delegate any of its responsibilities to one or more subcommittees as the Committee may from time to time deem
appropriate. If at any time the Committee includes a member who is not a “non employee director” within the meaning
of Rule 16b-3 under the Exchange Act, then a subcommittee comprised entirely of individuals who are “non-employee directors”
may be formed by the Committee for the purpose of ratifying any grants of awards under any incentive or equity-based compensation
plan for the purposes of complying with the exemption requirements of Rule 16b-3 of the Exchange Act; provided that any such grants
shall not be contingent on such ratification.
|
|
IV.
|
MEETINGS AND OPERATIONS
|
The Committee shall
meet as often as necessary, but at least two times each year, to enable it to fulfill its responsibilities. The Committee shall
meet at the call of its chairperson or a majority of its members. The Committee may meet by telephone conference call or by any
other means permitted by law or the Company’s By-laws. A majority of the members of the Committee shall constitute a quorum.
The Committee shall act on the affirmative vote of a majority of members present at a meeting at which a quorum is present. Subject
to the Company’s By-laws, the Committee may act by unanimous written consent of all members in lieu of a meeting. The Committee
shall determine its own rules and procedures, including designation of a chairperson pro tempore in the absence of the chairperson,
and designation of a secretary. The secretary need not be a member of the Committee and shall attend Committee meetings and prepare
minutes. The Secretary of the Company shall be the Secretary of the Committee unless the Committee designates otherwise. The Committee
shall keep written minutes of its meetings, which shall be recorded or filed with the books and records of the Company. Any member
of the Board shall be provided with copies of such Committee minutes if requested.
The Committee may ask
members of management, employees, outside counsel, or others whose advice and counsel are relevant to the issues then being considered
by the Committee to attend any meetings (or a portion thereof) and to provide such pertinent information as the Committee may request.
The chairperson of
the Committee shall be responsible for leadership of the Committee, including preparing the agenda which shall be circulated to
the members prior to the meeting date, presiding over Committee meetings, making Committee assignments, and reporting the Committee’s
actions to the Board. Following each of its meetings, the Committee shall deliver a report on the meeting to the Board, including
a description of all actions taken by the Committee at the meeting.
If at any time during
the exercise of his or her duties on behalf of the Committee, a Committee member has a direct conflict of interest with respect
to an issue subject to determination or recommendation by the Committee, such Committee member shall abstain from participation,
discussion, and resolution of the instant issue, and the remaining members of the Committee shall advise the Board of their recommendation
on such issue. The Committee shall be able to make determinations and recommendations even if only one Committee member is free
from conflicts of interest on a particular issue.
The Committee has the
authority, to the extent it deems appropriate, to conduct or authorize investigations into or studies of matters within the Committee’s
scope of responsibilities and to retain one or more compensation consultants to assist in the evaluation of CEO or executive compensation
or other matters. The Committee shall have the sole authority to retain and terminate any such consulting firm, and to approve
the firm’s fees and other retention terms. The Committee shall evaluate whether any compensation consultant retained or to
be retained by it has any conflict of interest in accordance with Item 407(e)(3)(iv) of Regulation S-K. The Committee shall also
have the authority, to the extent it deems necessary or appropriate, to retain legal counsel or other advisors. In retaining compensation
consultants, outside counsel, and other advisors, the Committee must take into consideration factors specified in the Nasdaq listing
rules. The Company will provide for appropriate funding, as determined by the Committee, for payment of any such investigations
or studies and the compensation to any consulting firm, legal counsel, or other advisors retained by the Committee.
Effective as of ________________,
2018.
Exhibit 99.7
NOMINATING
COMMITTEE CHARTER
OF
Schultze
Special Purpose Acquisition Corp.
The responsibilities
and powers of the Nominating Committee (the “
Nominating Committee
”) of the Board of Directors (“
Board
”)
of Schultze Special Purpose Acquisition Corp. (the “
Company
”), as delegated by the Board, are set forth in this
charter. Whenever the Nominating Committee takes an action, it shall exercise its independent judgment on an informed basis that
the action is in the best interests of the Company and its stockholders.
As set forth herein,
the Nominating Committee shall, among other things, discharge the responsibilities of the Board relating to the appropriate size,
functioning, and needs of the Board including, but not limited to, recruitment and retention of high quality Board members and
committee composition and structure.
The Nominating Committee
shall consist of at least two members of the Board as determined from time to time by the Board. Each member shall be “independent”
in accordance with the listing standards of The Nasdaq Stock Market LLC, as amended from time to time.
The Board shall elect
the members of this Nominating Committee at the first Board meeting practicable following the annual meeting of stockholders and
may make changes from time to time pursuant to the provisions below. Unless a chair is elected by the Board, the members of the
Nominating Committee shall designate a chair by majority vote of the full Nominating Committee membership.
A Nominating Committee
member may resign by delivering his or her written resignation to the chairman of the Board, or may be removed by majority vote
of the Board by delivery to such member of written notice of removal, to take effect at a date specified therein, or upon delivery
of such written notice to such member if no date is specified.
|
|
III.
|
MEETINGS AND COMMITTEE ACTION
|
The Nominating Committee
shall meet at such times as it deems necessary to fulfill its responsibilities. Meetings of the Nominating Committee shall be called
by the chairman of the Nominating Committee upon such notice as is provided for in the By-laws of the company with respect to meetings
of the Board. A majority of the members shall constitute a quorum. Actions of the Nominating Committee may be taken in person at
a meeting or in writing without a meeting. Actions taken at a meeting, to be valid, shall require the approval of a majority of
the members present and voting. Actions taken in writing, to be valid, shall be signed by all members of the Nominating Committee.
The Nominating Committee shall report its minutes from each meeting to the Board.
The chairman of the
Nominating Committee may establish such rules as may from time to time be necessary or appropriate for the conduct of the business
of the Nominating Committee. At each meeting, the chairman shall appoint as secretary a person who may, but need not, be a member
of the Nominating Committee. A certificate of the secretary of the Nominating Committee or minutes of a meeting of the Nominating
Committee executed by the secretary setting forth the names of the members of the Nominating Committee present at the meeting or
actions taken by the Nominating Committee at the meeting shall be sufficient evidence at all times as to the members of the Nominating
Committee who were present, or such actions taken.
|
|
IV.
|
COMMITTEE AUTHORITY AND RESPONSIBLITIES
|
|
|
·
|
Developing the criteria and qualifications for membership on the Board.
|
|
|
·
|
Recruiting, reviewing and nominating candidates for election to the Board or to fill vacancies
on the Board.
|
|
|
·
|
Reviewing candidates proposed by stockholders, and conducting appropriate inquiries into the background
and qualifications of any such candidates.
|
|
|
·
|
Establishing subcommittees for the purpose of evaluating special or unique matters.
|
|
|
·
|
Monitoring and making recommendations regarding committee functions, contributions, and composition.
|
|
|
·
|
Evaluating, on an annual basis, the Nominating Committee’s performance.
|
The Nominating Committee shall prepare a
statement each year concerning its compliance with this charter for inclusion in the Company’s proxy statement.
Schultze
Special Purpose Acquisition Corp.
Board of Director Candidate Guidelines
The Nominating Committee
(the “
Nominating Committee
”) of the Board of Directors (“
Board
”) of Schultze Special Purpose
Acquisition Corp. (the “
Company
”) will identify, evaluate, and recommend candidates to become members of the
Board with the goal of creating a balance of knowledge and experience. Nominations to the Board may also be submitted to the Nominating
Committee by the Company’s stockholders in accordance with the Company’s policy, a copy of which is attached hereto.
Candidates will be reviewed in the context of current composition of the Board (including the diversity in background, experience,
and viewpoints of the Board), the operating requirements of the Company, and the long-term interests of the Company’s stockholders.
In conducting this assessment, the Nominating Committee will consider and evaluate each director-candidate based upon its assessment
of the following criteria:
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Whether the candidate is independent pursuant to the requirements of the Nasdaq Stock Market.
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Whether the candidate is accomplished in his or her field and has a reputation, both personal and
professional, that is consistent with the image and reputation of the Company.
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Whether the candidate has the ability to read and understand basic financial statements. The Nominating
Committee also will determine if a candidate satisfies the criteria for being an “audit committee financial expert,”
as defined by the Securities and Exchange Commission.
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Whether the candidate has relevant experience and expertise and would be able to provide insights
and practical wisdom based upon that experience and expertise.
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Whether the candidate has knowledge of the Company and issues affecting the Company.
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Whether the candidate is committed to enhancing stockholder value.
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Whether the candidate fully understands, or has the capacity to fully understand, the legal responsibilities
of a director and the governance processes of a public company.
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Whether the candidate is of high moral and ethical character and would be willing to apply sound,
objective, and independent business judgment, and to assume broad fiduciary responsibility.
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Whether the candidate has, and would be willing to commit, the required hours necessary to discharge
the duties of Board membership.
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Whether the candidate has any prohibitive interlocking relationships or conflicts of interest.
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Whether the candidate is able to develop a good working relationship with other Board members and
contribute to the Board’s working relationship with the senior management of the Company.
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Whether the candidate is able to suggest business opportunities to the Company.
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Schultze
Special Purpose Acquisition Corp.
Stockholder Recommendations for Directors
Stockholders who wish
to recommend to the Nominating Committee (the “
Nominating Committee
”) of the Board of Directors (“
Board
”)
of Schultze Special Purpose Acquisition Corp. (the “
Company
”), a candidate for election to the Board should
send a written recommendation to Schultze Special Purpose Acquisition Corp., 800 Westchester Avenue, Suite 632, Rye Brook, NY 10573,
Attention: Nominating Committee. The Corporate Secretary will promptly forward all such letters to the members of the Nominating
Committee. Stockholders must follow certain procedures to recommend to the Nominating Committee candidates for election as directors.
In general, in order to provide sufficient time to enable the Nominating Committee to evaluate candidates recommended by stockholders
in connection with selecting candidates for nomination in connection with the Company’s annual meeting of stockholders, the
Corporate Secretary must receive the stockholder’s recommendation no later than thirty (30) days after the end of the Company’s
fiscal year.
The recommendation
must contain the following information about the candidate:
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Business and current residence addresses, as well as residence addresses for the past 20 years;
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Principal occupation or employment and employment history (name and address of employer and job
title) for the past 10 years (or such shorter period as the candidate has been in the workforce);
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Educational background;
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Permission for the Company to conduct a background investigation, including the right to obtain
education, employment, and credit information;
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The number of shares of common stock of the Company beneficially owned by the candidate;
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The information that would be required to be disclosed by the Company about the candidate under
the rules of the SEC in a Proxy Statement soliciting proxies for the election of such candidate as a director (which currently
includes information required by Items 401, 404 and 405 of Regulation S-K); and
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A signed consent of the nominee to serve as a director of the Company, if elected.
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