QFTAW Quantum FinTech Acquisition Corporation (PK)

Item 1.01  Entry Into a Material Definitive Agreement.

Business Combination Agreement

On November 16, 2022, Quantum FinTech Acquisition Corporation (the “Company”), a Delaware corporation, entered into a Business Combination Agreement (the “Business Combination Agreement”) by and among the Company, Calculator New Pubco, Inc., a Delaware corporation and a wholly-owned subsidiary of the Company (“New Pubco”), Calculator Merger Sub 1, Inc., a Delaware corporation and a wholly-owned subsidiary of New Pubco (“Merger Sub 1”), Calculator Merger Sub 2, Inc., a Delaware corporation and a wholly-owned subsidiary of New Pubco (“Merger Sub 2”), AtlasClear, Inc., a Wyoming corporation (“AtlasClear”), Atlas FinTech Holdings Corp., a Delaware corporation (“Atlas FinTech”) and Robert McBey.

The Business Combination Agreement was unanimously approved by the Company’s board of directors based upon the unanimous recommendation of a special committee of independent directors. If the Business Combination Agreement is approved by the Company’s stockholders, and the transactions contemplated by the Business Combination Agreement are consummated, (i) Merger Sub 1 will merge with and into the Company, with the Company continuing as the surviving corporation and a wholly-owned subsidiary of New Pubco and (ii) Merger Sub 2 will merge with and into AtlasClear, with AtlasClear continuing as the surviving corporation and a wholly-owned subsidiary of New Pubco (collectively, the “Business Combination”).

Prior to the closing of the Business Combination (the “Closing”), AtlasClear will receive certain assets from Atlas FinTech and Atlas Financial Technologies Corp., will complete the acquisition of broker-dealer Wilson-Davis & Co., Inc. (“WDCO”) and will consummate the transaction with Pacsquare Technologies, LLC (“Pacsquare”). In addition, at Closing, the definitive agreement pursuant to which AtlasClear has agreed to acquire Commercial Bancorp, a Wyoming corporation (“CB”) shall continue to be in full force and effect (the “CB Merger Agreement”). The Company expects the Closing to occur before the closing of the transactions contemplated by the CB Merger Agreement (the “CB Closing”)

At the Closing, AtlasClear stockholders will receive merger consideration in shares of New Pubco common stock equal to the quotient of (i) $75.4 million, less the purchase prices for WDCO and CB, divided by (ii) $10.

In addition, the AtlasClear stockholders will receive up to 5,944,444 shares of New Pubco common stock (the “Earn Out Shares”). The Earn Out Shares will be issued to AtlasClear stockholders upon certain milestones (based on the achievement of certain price targets of New Pubco common stock following the Closing). In the event such milestones are not met within the first 18 months following the Closing, the Earn Out Shares will be cancelled. Atlas FinTech will also receive up to $20 million of New Pubco common stock (“Software Products Earn Out Shares”), which will be issued to Atlas FinTech upon certain milestones based on the achievement of certain revenue targets of software products contributed to AtlasClear by Atlas FinTech and Atlas Financial Technologies Corp. following the Closing. The revenue targets will be measured yearly for the five years following Closing, with no catch-up between the years.

In connection with the Closing, each share of the Company’s common stock (“Company Common Stock”) (other than shares held by Atlas FinTech) that is outstanding and has not been redeemed will be converted into one share of New Pubco common stock.

Each outstanding warrant to purchase Company Common Stock (“Company Warrant”) (other than Private Warrants, described below) will become a warrant to purchase one-half of a share of New Pubco common stock. Each outstanding warrant to purchase Company Common Stock initially issued in a private placement in connection with the Company’s initial public offering (“Private Warrant”) will become a warrant to purchase one share of New Pubco common stock.

Atlas FinTech, which directly or indirectly holds shares of Company Common Stock and Private Warrants, has agreed to transfer, or cause to transfer, up to 1,279,426.82 of Company Common Stock and up to 1,657,578.65 of the Private Warrants held indirectly by it to potential sources of debt, equity or financing if the Company pursues financing between signing and the Closing. Any of such Company Common Stock or Private Warrants remaining following any transfers for potential financing will be forfeited for no consideration.

Conditions to Closing

The Closing is subject to certain customary conditions, including, among other things, (i) approval by the Company’s stockholders of the Business Combination Agreement, (ii) the effectiveness of a registration statement on Form S-4 by New Pubco relating to the Business Combination and containing a proxy statement of the Company, (iii) the approval for listing on The New York Stock Exchange of the shares of New Pubco common stock to be issued in the Business Combination, (iv) the completion of the contribution of certain specified assets from Atlas FinTech and Atlas Financial Technologies Corp. to AtlasClear, (v) the completion by AtlasClear of the acquisition of WDCO, (vi) the CB Merger Agreement remaining in effect and (vii) available cash at closing of at least $40 million. In addition, the Closing is subject to the condition that the Company has at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”)).

Representations, Warranties and Covenants

The parties to the Business Combination Agreement have made representations, warranties and covenants that are customary for transactions of this nature.

Termination

The Business Combination Agreement may be terminated by either AtlasClear or the Company under certain circumstances, including, among others, (i) by mutual written consent of both AtlasClear and the Company, (ii) by either AtlasClear or the Company if the Closing has not occurred on or before February 9, 2023 (provided, that if the Company seeks and obtains an extension to the deadline by which it must complete its business combination, the Company shall have the right by providing notice to AtlasClear to extend such date for up to the shorter of (a) up to two additional periods equal to three additional months each (for a total of not more than six months in the aggregate), (b) the period ending on the last date for the Company to consummate its business combination pursuant to such extension and (c) such period as determined by the Company), (iii) by either AtlasClear or the Company if a government authority has issued an order or taken any other action permanently restraining, enjoining or otherwise prohibiting the Business Combination, (iv) by either AtlasClear or the Company if the other party has materially breached their respective representations or covenants under the Business Combination Agreement and has not timely cured such breach, (v) by the Company if there has been a material adverse effect on the Company that is not timely cured, (vi) by the Company if the agreements for the contribution of Atlas FinTech assets or the acquisitions of WDCO, CB or Pacsquare assets are terminated or if it is reasonably likely that the conditions in the acquisition agreements for WDCO or CB cannot be satisfied, (vii) by either AtlasClear or the Company if the Company has held a stockholder meeting to approve the Business Combination and approval of the Business Combination has not been obtained by the requisite number of stockholders of the Company and (viii) by the Company if all required financial statements for the Form S-4 are not delivered within 30 days from the date of the Business Combination Agreement.

The foregoing description of the Business Combination Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Business Combination Agreement, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference. The Business Combination Agreement contains representations, warranties and covenants that the parties to the Business Combination Agreement made to each other as of the date of the Business Combination Agreement or other specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among the parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating the Business Combination Agreement. The Business Combination Agreement has been attached to provide investors with information regarding its terms and is not intended to provide any other factual information about the Company, AtlasClear or any other party to the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, which were made only for purposes of the Business Combination Agreement and as of specific dates, were solely for the benefit of the parties to the Business Combination Agreement (other than as expressly provided for in the Business Combination Agreement), may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors and reports and documents filed with the U.S. Securities and Exchange Commission (the “SEC”). Investors should not rely on the representations, warranties, covenants or agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Business Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Business Combination Agreement may be subject to subsequent waiver or modification. Moreover, information concerning the subject matter of the representations and warranties and other terms may change after the date of the Business Combination Agreement, which subsequent information may or may not be fully reflected in the Company’s public disclosures. 

Purchaser Support Agreement

In connection with the Company’s entrance into the Business Combination Agreement, it also entered into a Purchaser Support Agreement (the “Purchaser Support Agreement”) with AtlasClear, Quantum Ventures LLC (“Quantum Ventures”) and the Company’s directors and officers (collectively with Quantum Ventures, the “Sponsors”), pursuant to which, among other things, the Sponsors will agree to vote (or cause to vote) any of the shares of Company Common Stock held by them in favor of the Business Combination at any meeting of the Company stockholders and to not redeem any such shares in connection with the transactions contemplated by the Business Combination Agreement. Quantum Ventures also agreed to transfer up to 1,279,426.82 of the Company Common Stock and up to 1,657,578.65 of the Private Warrants held directly or indirectly by Atlas FinTech to potential sources of debt, equity or financing if the Company pursues financing between signing and the Closing and that any of such Company Common Stock or Private Warrants remaining following any transfers for potential financing will be forfeited for no consideration at the Closing.

The foregoing description of the Purchaser Support Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Purchaser Support Agreement, the form of which is filed as Exhibit 10.1 hereto and is incorporated by reference herein.

Registration Rights Agreement and Lock-Up Agreement

In connection with the Company’s entry into the Business Combination Agreement, the Company, New Pubco, AtlasClear’s stockholders and the Sponsors entered into a Registration Rights and Lock-Up Agreement (the “Registration Rights Agreement”), which will be effective at Closing and pursuant to which New Pubco agreed, among other things, to provide the parties thereto customary demand, shelf and piggy-back rights on secondary offerings, subject to customary cut-back provisions and coordinated offerings. New Pubco has agreed to file a resale shelf registration statement within 45 days of Closing and to effect up to five underwritten offerings each expected to yield gross proceeds of more than $10 million.

The Sponsors will agree to transfer shares of New Pubco common stock received at Closing into an escrow account, which will be released (i) 50% on the earlier of six months from Closing and the date on which the New Pubco common stock equals or exceeds $12.50 for 20 days in any 30-day trading window; and (ii) 50% on the six-month anniversary of Closing. In addition, the Sponsors will agree to a lockup of Private Warrants for 30 days after Closing.

AtlasClear’s stockholders, including Atlas FinTech, will agree to a lockup of shares of New Pubco common stock received at Closing for one year following Closing, provided that such lockup shall be released early if the New Pubco common stock equals or exceeds $12.50 for 20 days in any 30-day trading window.

The foregoing description of the Registration Rights Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Registration Rights Agreement, the form of which is filed as Exhibit 10.2 hereto and is incorporated by reference herein.

Commercial Bancorp Merger Agreement

In connection with the Company’s entry into the Business Combination Agreement, AtlasClear, CB and New Pubco, with respect to Section 6.16 only, entered into the CB Merger Agreement.

If the CB Merger Agreement is approved by CB’s stockholders, and the transactions contemplated by the CB Merger Agreement are consummated, a wholly-owned subsidiary of AtlasClear shall merge with and into CB, with CB continuing as the surviving corporation and a wholly-owned subsidiary of AtlasClear, and immediately thereafter, CB will merge with and into AtlasClear, with AtlasClear continuing as the surviving corporation and a wholly-owned subsidiary of New Pubco (the “CB Acquisition”).

The CB Closing is subject to certain customary conditions, including, among other things, (i) approval by the stockholders of CB, CB’s wholly-owned subsidiary, Farmers State Bank, AtlasClear and New Pubco, (ii) receipt of certain regulatory approvals and (iii) the prior completion of the Business Combination. The Company expects the Closing to occur before the CB Closing.

At the CB Closing, CB stockholders will be entitled to elect to receive merger consideration (i) in cash or (ii) in a mix of cash and shares of New Pubco common stock. CB stockholders electing to receive merger consideration in cash will receive two times the adjusted estimated book value of common stock of CB at the CB Closing, plus a pro rata share of certain valuation and tax benefits. CB stockholders electing to receive merger consideration in a mix of cash and shares of New Pubco common stock will receive three times the adjusted estimated book value of common stock of CB at the CB Closing, plus a pro rata share of certain valuation and tax benefits, paid one-third in cash and two-thirds in New Pubco common stock, valued at $10 per share.

New Pubco is party to the CB Merger Agreement solely with respect to Section 6.16, pursuant to which New Pubco has agreed to use reasonable best efforts to include New Pubco common stock issuable in connection with the CB Acquisition on the Form S-4 to be filed in connection with the Business Combination. To the extent the SEC does not permit the New Pubco common stock issuable in connection with the CB Acquisition to be included on the Form S-4 to be filed in connection with the Business Combination, New Pubco has agreed to offer and issue the New Pubco common stock to CB stockholders in a transaction exempt from the registration requirements of the Securities Act of 1933, as amended (the “Securities Act”). If shares of New Pubco common stock are issued to CB stockholders pursuant to a transaction exempt from the registration requirements of the Securities Act, New Pubco has agreed to a resale shelf registration statement within 30 days of the CB Closing.

New Pubco’s obligations under the CB Merger Agreement automatically terminate if the Business Combination Agreement is terminated.

The foregoing description of the CB Merger Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Merger Agreement, which is filed as Exhibit 10.3 hereto and is incorporated by reference herein.