Form of Plan of Merger

Contract Categories: Mergers & Acquisitions - Merger Agreements
EX-10.5 7 d458294dex105.htm EX-10.5 EX-10.5

Exhibit 10.5

***Certain information in this document has been excluded pursuant to Regulation S-K, Item 601(b)(10). Such excluded information is not material and is the type the registrant treats as private or confidential. Such omitted information is indicated by brackets (“[*]”) in this exhibit.***

ANNEX F

FORM OF PLAN OF MERGER

THIS PLAN OF MERGER is made on [•], 2023.

BETWEEN

(a) Nuevo Tech Limited, an exempted company incorporated under the laws of the Cayman Islands on May 5, 2023, with its registered office situated at the office of Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands (“Merger Sub”);

(b) Black Spade Acquisition Co, an exempted company incorporated under the laws of the Cayman Islands on March 3, 2021, with its registered office situated at the office of Appleby Global Services (Cayman) Limited, 71 Fort Street, PO Box 500, Grand Cayman, Cayman Islands, KY1-1106 (“BSAQ” or the “Merger Surviving Company” and together with Merger Sub, the “Constituent Companies”); and

(c) VinFast Auto Pte. Ltd., a private company limited by shares incorporated under the laws of Singapore, with its registered office situated at 61 Robinson Road, #06-01, Singapore 068893 and with Company Registration No. 201501874G (the “Company”).

WHEREAS

(a) Merger Sub and BSAQ have agreed to merge (the “Merger”) on the terms and conditions contained or referred to in a Business Combination Agreement, dated as of May [•], 2023 (such agreement as it may be amended and modified from time to time, the “Agreement”), between BSAQ, the Company and Merger Sub, a copy of which is attached as Appendix I to this Plan of Merger and under the provisions of Part XVI of the Companies Act (As Revised) (the “Companies Act”), pursuant to which Merger Sub will merge with and into BSAQ and cease to exist, and the Merger Surviving Company will continue as the surviving company in the Merger at the Merger Effective Time.

(b) The sole shareholder of Merger Sub and the shareholders of the Merger Surviving Company have authorised this Plan of Merger on the terms and subject to the conditions set forth herein and otherwise in accordance with the Companies Act.

(c) Terms used in this Plan of Merger and not otherwise defined in this Plan of Merger shall have the meanings given to them in the Agreement.

INTERPRETATION

1. The following rules apply in this Plan of Merger unless the context requires otherwise:

(a) Headings are for convenience only and do not affect interpretation.

(b) The singular includes the plural and the converse.

 

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(c) A gender includes all genders.

(d) Where a word or phrase is defined, its other grammatical forms have a corresponding meaning.

(e) A reference to any agreement, deed or other document (or any provision of it), includes it as amended, varied, supplemented, extended, replaced, restated or transferred from time to time.

(f) A reference to any legislation (or any provision of it) includes a modification or re-enactment of it, a legislative provision substituted for it and any regulation or statutory instrument issued under it.

APPENDIX

Appendix I forms part of this Plan of Merger and shall have effect as if set out in full in the body of this Plan of Merger. Any reference to this Plan of Merger includes Appendix I.

CONSTITUENT COMPANIES

2. The constituent companies (as defined in the Companies Act) to the Merger are Merger Sub and BSAQ.

NAME OF THE SURVIVING COMPANY

3. The surviving company (as defined in the Companies Act) is the Merger Surviving Company which shall continue to be named “Black Spade Acquisition Co”.

REGISTERED OFFICE

4. The registered office of BSAQ at the time of this Plan of Merger is at the office of Appleby Global Services (Cayman) Limited, 71 Fort Street, PO Box 500, Grand Cayman, Cayman Islands, KY1-1106. The registered office of Merger Sub is at the office of Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands. Following the effectiveness of the Merger, the Merger Surviving Company shall have its registered office at the office of Walkers Corporate Limited, 190 Elgin Avenue, George Town, Grand Cayman KY1-9008, Cayman Islands.

AUTHORIZED AND ISSUED SHARE CAPITAL

5. Immediately prior to the Merger Effective Time (as defined below), the authorized share capital of Merger Sub is US$50,000 divided into 5,000,000 ordinary shares of US$0.01 par value per share (“Merger Sub Shares”), of which one Merger Sub Share has been issued and is fully paid and outstanding.

6. Immediately prior to the Merger Effective Time, the authorized share capital of BSAQ is US$22,200 divided into (a) 200,000,000 Class A ordinary shares of a par value of US$0.0001 each (“BSAQ Class A Ordinary Shares”), (b) 20,000,000 Class B ordinary shares of a par value of US$0.0001 each (“BSAQ Class B Ordinary Shares”), and (c) 2,000,000 preference shares of a par value of US$0.0001 each (“BSAQ Preference Shares”), of which [•] BSAQ Class A Ordinary Shares have been issued and are fully paid and outstanding, [•] BSAQ Class B Ordinary Shares have been issued and are fully paid and outstanding, and no BSAQ Preference Shares are issued and outstanding.

 

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7. At the Merger Effective Time, the authorized share capital of the Merger Surviving Company shall be US$22,200 divided into (a) 200,000,000 Class A ordinary shares of a par value of US$0.0001 each (“Merger Surviving Company Class A Ordinary Shares”), (b) 20,000,000 Class B ordinary shares of a par value of US$0.0001 each (“Merger Surviving Company Class B Ordinary Shares”), and (c) 2,000,000 preference shares of a par value of US$0.0001 each (“Merger Surviving Company Preference Shares” and together with the Merger Surviving Company Class A Ordinary Shares and the Merger Surviving Company Class B Ordinary Shares, collectively the “Merger Surviving Company Shares”).

TERMS AND CONDITIONS OF THE MERGER

8. The terms and conditions of the Merger, including the manner and basis of converting shares in each Constituent Company into shares in the Merger Surviving Company or other property as provided in Section 233(5) of the Companies Act, including into Company Ordinary Shares, are set out in the Agreement.

9. The Company undertakes and agrees (it being acknowledged that the Company will be the sole shareholder of the Merger Surviving Company following the effectiveness of the Merger) in consideration of the Merger to issue the Company Exchange Shares in accordance with the terms of the Agreement.

10. At the Merger Effective Time, the rights and restrictions attaching to Merger Surviving Company Shares are set out in the amended and restated memorandum and articles of Association of BSAQ adopted by special resolution on [•] (the Existing M&A).

EFFECTIVE TIME

11. The Merger shall take effect at 4:01 p.m. (Eastern Time) on the date on which this Plan of Merger is registered by the Registrar of Companies in the Cayman Islands (the “Registrar”) in accordance with Section 233(13) of the Companies Act unless, with the agreement of the Company, the Constituent Companies shall deliver a notice to the Registrar signed by a director of each of the Constituent Companies specifying a later time and date in accordance with Section 234 of the Companies Act, in which case the effective time of the Merger shall be such later time and date specified in such notice to the Registrar (the “Merger Effective Time”).

PROPERTY

12. At the Merger Effective Time, all the rights, property of every description including choses in action, and the business, undertaking, goodwill, benefits, immunities and privileges of each of the Constituent Companies shall vest in the Merger Surviving Company which shall be liable for and subject, in the same manner as the Constituent Companies, to all mortgages, charges, or security interests and all Contracts, obligations, claims, debts and liabilities of each of the Constituent Companies.

MEMORANDUM OF ASSOCIATION AND ARTICLES OF ASSOCIATION

13. At the Merger Effective Time, the memorandum and articles of association of the Merger Surviving Company shall be in the form of the Existing M&A.

 

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DIRECTORS BENEFITS

14. No amounts or benefits are or shall be paid or payable to any director(s) of either of the Constituent Companies consequent upon the Merger becoming effective.1

DIRECTORS OF THE SURVIVING COMPANY

15. The names and addresses of the directors of the Merger Surviving Company are as follows:2

 

NAME    ADDRESS
[•]    [•]

SECURED CREDITORS

16. Neither of the Constituent Companies has any secured creditors and neither Constituent Company has granted any fixed or floating security interests that are outstanding as at the date of this Plan of Merger.

AMENDMENTS AND TERMINATION

17. At any time prior to the Merger Effective Time, this Plan of Merger may be amended by the board of directors of both BSAQ and Merger Sub in accordance with section 235(1) of the Companies Act, including to:

(a) change the Merger Effective Time provided that the new Merger Effective Time shall not be a date later than the ninetieth (90th) day after the date of registration of this Plan of Merger by the Registrar; or

(b) effect any changes to this Plan of Merger which the directors of both BSAQ and Merger Sub deem advisable, provided that such changes do not materially adversely affect any rights of the shareholders of BSAQ or Merger Sub, as determined by the directors of both the BSAQ and Merger Sub, respectively.

18. At any time prior to the Merger Effective Time, this Plan of Merger may be terminated by the board of directors of both the BSAQ and Merger Sub, provided that such termination is in accordance with section [•] of the Agreement.

19. If this Plan of Merger is amended or terminated in accordance with Clauses 17 or 18 after it has been filed with the Registrar but before it has become effective, the Constituent Companies shall file notice of the amendment or termination (as applicable) with the Registrar in accordance with Sections 235(2) and 235(4) of the Companies Act and shall distribute copies of such notice in accordance with section 235(3) of the Companies Act.

 

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Note to Draft: To be confirmed.

2 

Note to Draft: To be provided.

 

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APPROVAL AND AUTHORIZATION

20. This Plan of Merger has been approved by the board of directors of each of Merger Sub and BSAQ pursuant to section 233(3) of the Companies Act.

21. This Plan of Merger has been authorized by the shareholders of each of Merger Sub and BSAQ pursuant to section 233(6) of the Companies Act.

COUNTERPARTS

22. This Plan of Merger may be executed and delivered (including by email of PDF or scanned versions or by facsimile transmission) in one or more counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument.

GOVERNING LAW

23. This Plan of Merger shall be governed by and construed in accordance with the laws of the Cayman Islands.

[Signature pages follow.]

 

 

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Appendix I

Business Combination Agreement

 

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For and on behalf of Nuevo Tech Limited

 

 

Name:
Title: Director

[Signature Page to Plan of Merger]

For and on behalf of Black Spade Acquisition Co

 

 

Name:
Title: Director

[Signature Page to Plan of Merger]

For and on behalf of VinFast Auto Pte. Ltd.

 

 

Name:
Title:

[Signature Page to Plan of Merger]