MUDRICK CAPITAL ACQUISITION CORPORATION II Item 1.01 Entry into a Material Definitive Agreement.
On
Pursuant to the Merger Agreement, the parties thereto will enter into a business
combination transaction (the "Business Combination"), pursuant to which
(i) First Merger Sub will merge with and into the Company, with the Company
being the surviving corporation (the "Surviving Corporation") in the merger (the
"First Merger") and (ii) immediately following the First Merger and as part of
the same overall transaction as the First Merger, the
The proposed Business Combination is expected to be consummated after receipt of the required approval from the stockholders of MUDS 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.
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Merger Agreement
Merger Consideration
The aggregate consideration to be paid to stockholders of the Company in the
First Merger (other than holders of the Company's Series B preferred stock (the
"Company Series B Preferred Stock") will consist of a number of shares of MUDS
common stock equal to the quotient of (a)
At the effective time of the First Merger:
• each issued and outstanding share of Company common stock (other than
treasury shares) will be cancelled and automatically deemed to represent
the right to receive a number of shares of MUDS common stock equal to the
"Exchange Ratio" (defined as the quotient, rounded to the nearest
thousandth, of (i) the quotient of (a) the Adjusted Transaction Value,
divided by (b) the sum of (I) the number of issued and outstanding shares
of Company common stock, plus (II) the aggregate number of shares of
Company common stock underlying the "in-the-money" vested Company
options, plus (III) the aggregate number of shares of Company common
stock into which all shares of Company series A preferred stock (the
"Company Series A Preferred Stock") are convertible, in each case, as of
immediately prior to the First Merger), divided by (ii) $10.15 (as
adjusted, if applicable);
• each issued and outstanding share of Company Series A Preferred Stock
(other than treasury shares) will be cancelled and automatically deemed
to represent the right to receive a number of shares of MUDS common stock
equal to the product of (i) the Exchange Ratio, multiplied by (ii) the
number of shares of Company common stock into which such share is
convertible under the Company's organizational documents;
• each issued and outstanding share of Company Series B Preferred Stock
(other than treasury shares) will be cancelled and automatically deemed
to represent the right to receive a number of shares of MUDS common stock
equal to the quotient of (i) the Pre-Closing Series B Share Consideration
(as defined below), divided by (ii) the number of shares of Company
Series B Preferred Stock outstanding immediately prior to the First
Merger. The "Pre-Closing Series B Share Consideration" equals the
quotient of (a) the purchase price of the Company Series B Preferred
Stock (together with all accrued and unpaid dividends on such amount from
the date of issuance thereof until as of immediately prior to the First
Merger), divided by (b) $10.15 (as adjusted, if applicable);
• each issued and outstanding share of convertible preferred stock of the
Company will be cancelled and automatically deemed to represent the right
to receive one share of convertible preferred stock of MUDS; and
• each issued and outstanding Company option (whether vested or unvested)
will convert into an option to purchase a number of shares of MUDS common
stock, with such number equal to the product of (i) the numbers of shares
of Company common stock subject to such Company option, multiplied by
(ii) the Exchange Ratio, at an exercise price per share equal to (x) the
exercise price per share of Company common stock previously applicable to
such Company option, divided by (y) the Exchange Ratio.
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) consents and approvals, (vi) financial statements, (vii) liabilities, (viii) real estate, (ix) litigation, (x) material contracts, (xi) taxes, (xii) absence of certain changes, (xiii) environmental matters, (xiv) employee matters, (xvii) licenses and permits, (xviii) compliance with laws, (xix) regulatory matters, (xx) intellectual property, (xxi) insurance, (xxii) affiliate transactions and (xxiii) anti-corruption. The representations and warranties of the parties contained in the Merger Agreement will terminate and be of no further force and effect as of the Closing.
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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) MUDS and
the Company's efforts to satisfy conditions to consummation of the Transactions,
(iii) MUDS and the Company to cease discussions for alternative transactions
except that the Company may continue its discussions with a specified potential
third-party acquirer who has previously expressed an interest in acquiring the
Company (the "
Conditions to Closing
The consummation of the Transactions is subject to customary closing conditions
for special purpose acquisition companies, including, among others: (i) approval
by MUDS' stockholders, (ii) the expiration or termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended,
(iii) no order, statute, rule or regulation enjoining or prohibiting the
consummation of the Transactions being in force, (iv) MUDS having at least
Termination
The Merger Agreement may be terminated at any time, but not later than the closing of the Transactions, as follows:
(i) by mutual written consent of MUDS and the Company;
(ii) by either MUDS or the Company if a governmental entity shall have
issued an order, decree or ruling or taken any other action, in
any case having the effect of permanently enjoining or prohibiting
the merger, which order, decree, judgment, ruling or other action
is final and nonappealable;
(iii) by either MUDS or the Company if the other party has breached any
of its covenants, agreements, representations or warranties which
would result in the failure of certain conditions to be satisfied
at the closing and has not cured its breach within twenty
business days of the notice of an intent to terminate, provided
that the terminating party's failure to fulfill any of its
. . .
Item 3.02 Unregistered Sales of
The disclosure set forth above in Item 1.01 of this Current Report is incorporated by reference herein. The MUDS common stock to be issued in connection with the Transactions (including the Subscription and Backstop Agreement and the Holdings Subscription Agreement) will not be registered under the Securities Act of 1933, as amended (the "Securities Act"), in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder.
Important Information and Where to Find It
In connection with the proposed transaction, MUDS intends to file with the
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Participants in the Solicitation
MUDS and its directors and executive officers may be deemed participants in the
solicitation of proxies from MUDS's shareholders with respect to the proposed
transaction. A list of the names of those directors and executive officers and a
description of their interests in MUDS is contained in MUDS's Annual Report on
Form 10-K, which was filed with the
The Company and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of MUDS in connection with the proposed transaction. A list of the names of such directors and executive officers and information regarding their interests in the proposed transaction will be included in the proxy statement for the proposed transaction when available.
No Solicitation or Offer
This communication shall not constitute a solicitation of a proxy, consent, or authorization with respect to any securities or in respect of the proposed transaction. This communication shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended.
Forward-Looking Statements
This communication may contain forward-looking statements. Forward-looking statements include, without limitation, statements regarding the estimated future financial performance and financial position of the Company. Future results are not possible to predict. Opinions and estimates offered in this communication constitute the Company's judgment and are subject to change without notice, as are statements about market trends, which are based on current market conditions. This communication contains forward-looking statements, including without limitation, forward-looking statements that represent opinions, expectations, beliefs, intentions, estimates or strategies regarding the future of the Company and its affiliates, which may not be realized. Forward-looking statements can be identified by the words, including, without limitation, "believe," "anticipate," "continue," "estimate," "may," "project," "expect," "plan," "potential," "target," "intend," "seek," "will," "would," "could," "should," "forecast," or the negative or plural of these words, or other similar expressions that are predictions or indicate future events, trends or prospects but the absence of these words does not necessarily mean that a statement is not forward-looking. Any statements that refer to expectations, projections, indications of, and guidance or outlook on, future earnings, dividends or financial position or performance or other characterizations of future events or circumstances are also forward-looking statements.
All forward-looking statements are based on estimates and assumptions that are inherently uncertain and that could cause actual results to differ materially from expected results. Many of these factors are beyond the Company's ability to control or predict. Factors that may cause actual results to differ materially from current expectations include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of any definitive agreements with respect to the proposed transaction; (2) the outcome of any legal proceedings that may be instituted against MUDS, the combined company or others following the announcement of the proposed transaction and any definitive agreements with respect thereto; (3) the inability to complete the proposed transaction due to the failure to obtain approval of the shareholders of MUDS or to satisfy other conditions to closing; (4) changes to the proposed structure of the proposed transaction that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the proposed transaction; (5) the ability to meet stock exchange listing standards following the consummation of the proposed transaction; (6) the risk that the proposed transaction disrupts current plans and operations of the Company as a result of the announcement and consummation of the proposed transaction; (7) the ability to recognize the anticipated benefits of the proposed transaction, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; (8) costs related to the proposed transaction; (9) changes in applicable laws or regulations; (10) the possibility that the Company or the combined company may be adversely affected by other economic, business, and/or
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competitive factors; (11) the Company's estimates of expenses and profitability;
and (12) other risks and uncertainties set forth in the sections entitled "Risk
Factors" and "Cautionary Note Regarding Forward-Looking Statements" in MUDS's
Annual Report on Form 10-K filed on
You are cautioned not to place undue reliance upon any forward-looking statements. Any forward-looking statement speaks only as of the date on which it was made, based on information available as of the date of this communication, and such information may be inaccurate or incomplete. The Company undertakes no obligation to publicly update or revise any forward-looking statement, whether as a result of new information, future events or otherwise, except as required by law. Information regarding performance by, or businesses associated with, our management team or businesses associated with them is presented for informational purposes only. Past performance by the Company's management team and its affiliates is not a guarantee of future performance. Therefore, you should not rely on the historical record of the performance of the Company's management team or businesses associated with them as indicative of the Company's future performance of an investment or the returns the Company will, or is likely to, generate going forward.
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