EDIFY ACQUISITION CORP. Item 1.01 Entry into a Material Definitive Agreement.
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The Merger Agreement provides, among other things, that on the terms and subject to the conditions of the Merger Agreement, and in accordance with the Nevada Revised Statutes (the "NRS") and other applicable laws, Merger Sub will merge with and into the Company (the "Merger"), with the Company being the surviving corporation of the Merger (the Company, in its capacity as the surviving corporation of the Merger, the "Surviving Corporation") and a wholly-owned subsidiary of Buyer.
The proposed Merger is expected to be consummated after receipt of the required approvals from the stockholders of Buyer and the Company and the satisfaction of certain other conditions summarized below. Capitalized terms used but not defined herein shall have the meanings ascribed to such terms in the Merger Agreement.
Merger Agreement
Closing Merger Consideration
At the effective time of the Merger, each share of common stock, par value
At the effective time of the Merger:
? each share of Company Series A Convertible Preferred Stock (other than excluded
shares and dissenting shares) will be cancelled and automatically deemed for
all purposes to represent the right to receive a number of shares of Buyer
Class A Common Stock equal to the product of (i) the number of shares of
Company Common Stock into which such share of Company Series A Convertible
Preferred Stock is convertible, taking into account the effects of the
Transactions in accordance with the certificate of designation applicable to
such Company Convertible Preferred Stock, and (ii) the Common Exchange Ratio;
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? each share of Company Series B Convertible Preferred Stock (other than Excluded
Shares and Dissenting Shares) will be cancelled and automatically deemed for
all purposes to represent the right to receive a number of shares of Buyer
Class A Common Stock equal to the product of (i) the number of shares of
Company Common Stock into which such share of Company Series B Convertible
Preferred Stock is convertible, taking into account the effects of the
Transactions in accordance with the certificate of designation applicable to
such Company Convertible Preferred Stock, and (ii) the Common Exchange Ratio;
? each share of Company Series C Convertible Preferred Stock (other than excluded
shares and dissenting shares) will be cancelled and automatically deemed for
all purposes to represent the right to receive a number of shares of Buyer
Class A Common Stock equal to the product of (i) the number of shares of
Company Common Stock into which such share of Company Series C Convertible
Preferred Stock is convertible, taking into account the effects of the
Transactions in accordance with the certificate of designation applicable to
such Company Convertible Preferred Stock, and (ii) the Common Exchange Ratio;
and
? each share of Company Series D Convertible Preferred Stock (other than excluded
shares and dissenting shares) will be cancelled and automatically deemed for
all purposes to represent the right to receive a number of shares of Buyer
Class A Common Stock equal to the product of (i) the number of shares of
Company Common Stock into which such share of Company Series D Convertible
Preferred Stock is convertible, taking into account the effects of the
Transactions in accordance with the certificate of designation applicable to
such Company Convertible Preferred Stock, and (ii) the Common Exchange Ratio.
Company stockholders will also have the opportunity to earn up to 1,250,000
additional shares of Buyer Class A Common Stock if (i) the trading price of
Buyer Class A Common Stock exceeds
Representations and Warranties
The Merger Agreement contains representations and warranties of the parties
thereto with respect to, among other things, (i) entity organization, formation,
corporate power and authority, (ii) subsidiaries, (iii) authorization to enter
into the Merger Agreement, (iv) capital structure, (v) filings with the
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Covenants
The Merger Agreement contains customary covenants of the parties, including, among others, covenants providing for (i) the operation of the parties' respective businesses prior to consummation of the Transactions, (ii) Buyer and the Company's efforts to satisfy conditions to consummation of the Transactions, (iii) Buyer and the Company to cease discussions for alternative transactions, (iv) Buyer's efforts to extend the time period for Buyer to consummate an initial business combination, (v) Buyer to prepare and file a registration statement on Form S-4 (the "Registration Statement") in connection with share consideration issuable in the Merger, which shall contain (A) a consent solicitation statement (the "Consent Solicitation Statement") in connection with the solicitation by the Company of written consents (collectively, the "Written Consent") from the holders of shares of Company Common Stock and Company Convertible Preferred Stock to obtain the requisite Company stockholder approval (the "Company Stockholder Approval") and (B) a proxy statement for the purpose of soliciting proxies from Buyer's stockholders to vote in favor of certain matters (the "Buyer Stockholder Matters"), including the adoption of the Merger Agreement, approval of the Transactions, amendment and restatement of Buyer's existing certificate of incorporation and certain other matters at a special meeting called therefor (the "Special Meeting"), (vi) the protection of, and access to, confidential information of the parties, (vii) the treatment of certain Company affiliate agreements, (viii) the payoff of certain Company debt, (ix) the de-quotation and deregistration of the Company Common Stock from the OTC Markets Group, and (x) the parties' efforts to obtain necessary approvals from governmental agencies. Covenants of the parties contained in the Merger Agreement requiring performance prior to Closing will terminate and be of no further force and effect as of the Closing.
Conditions to Closing
The consummation of the Transactions is subject to customary closing conditions for special purpose acquisition companies, including, among others: (i) receipt of required approvals by Buyer's and the Company's stockholders, (ii) the expiration or termination of the waiting period under the Hart-Scott-Rodino . . .
Item 7.01 Regulation FD Disclosure.
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The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of Buyer under the Securities Act or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report will not be deemed an admission as to the materiality of any information of the information in this Item 7.01, including Exhibit 99.1.
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Additional Information about the Proposed Merger and Where to Find It
This communication relates to a proposed transaction between Buyer and the
Company. In connection with the transaction described herein, Buyer will file
with the
Participants in the Solicitation
Buyer, the Company, and their directors and executive officers may be deemed to be participants in the solicitation of proxies from Buyer shareholders and written consents from the Company's stockholders with respect to the Merger.
Information about Buyer's directors and executive officers and a description of
their interests in Buyer and with respect to the Merger and any other matters to
be acted upon at the Special Meeting will be included in the proxy
statement/consent solicitation statement/prospectus for the proposed Merger and
be available at the
Information about the Company's directors and executive officers is set forth in
the Company's Annual Report on Form 10-K for the year ended
No Offer or Solicitation
This communication is not a proxy statement or consent solicitation statement or solicitation of a proxy, consent, or authorization with respect to any securities or in respect of the proposed transaction and does not constitute an offer to sell or the solicitation of an offer to buy any securities of Buyer, the Company, or any successor entity thereof nor shall there be any offer, solicitation, exchange, or sale of any such securities in any state or jurisdiction in which such offer, solicitation, exchange, or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.
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Forward-Looking Statements
This communication contains includes a number of forward-looking statements that
reflect management's current views with respect to future events.
Forward-looking statements include all statements that are not historical facts,
including statements regarding the impact of the proposed merger on, and
anticipated future growth (including through the completion of pending
acquisitions) and other goals of, Buyer or the Company; in some cases you can
also identify forward-looking statements by terminology such as "may," "should,"
"expects," "plans," "anticipates," "believes," "estimates," "predicts,"
"potential," or "continue" or the negative of these terms or other comparable
terminology. All forward-looking statements are based on Buyer's or the
Company's current expectations and beliefs concerning future developments and
their potential effects on Buyer, the Company, or any successor entity thereof.
Any such forward-looking statements are based on various assumptions, whether or
not identified in this communication, are not guarantees of future performance,
and involve a number of risks, uncertainties, or other factors that may cause
actual results or performance to be materially different from those expressed or
implied by the forward-looking statements included in this communication. These
risks and uncertainties include, but are not limited to, those discussed and
identified in public filings made by Buyer and the Company with the
All subsequent written and oral forward-looking statements concerning the proposed Merger or other matters addressed in this communication and attributable to the Company or any person acting on its behalf are expressly qualified in their entirety by the cautionary statements contained or referred to in this communication. Forward-looking statements speak only as of the date they are made. Except to the extent required by applicable law or regulation, the Company undertakes no obligation to update these forward-looking statements to reflect new information or events or circumstances occurring after the date of this communication.
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