Item 1.01. Entry into a Material Definitive Agreement
Business Combination Agreement Waiver and Consent
As previously disclosed, (i) Roth CH Acquisition III Co., a Delaware corporation
("ROCR" or "Buyer"), (ii) Roth CH III Blocker Merger Sub, LLC, a Delaware
limited liability company and wholly-owned subsidiary of the ROCR ("Blocker
Merger Sub"), (iii) BCP QualTek Investors, LLC, a Delaware limited liability
company (the "Blocker"), (iv) Roth CH III Merger Sub, LLC, a Delaware limited
liability company and wholly-owned subsidiary of the ROCR ("Company Merger Sub",
and together with the ROCR and the Blocker Merger Sub, the "Buyer Parties"), (v)
BCP QualTek HoldCo, LLC, a Delaware limited liability company ( "QualTek"), and
(vi) BCP QualTek, LLC, a Delaware limited liability company, solely in its
capacity as representative of the Blocker's equityholders and QualTek's
equityholders (the "Equityholder Representative"), entered into a Business
Combination Agreement (the "Business Combination Agreement"). Pursuant to the
terms of the Business Combination Agreement, (i) Blocker Merger Sub will be
merged with and into the Blocker, with the Blocker surviving as a wholly owned
subsidiary of ROCR, (ii) immediately thereafter, the Blocker will be merged with
and into ROCR, with ROCR as the surviving company, and (iii) immediately
thereafter, Company Merger Sub will be merged with and into QualTek, with
QualTek as the surviving company (such mergers and the other transactions
contemplated by the Business Combination Agreement, the "Business Combination").
On January 14, 2022, the parties entered into a Waiver and Consent Agreement
(the "Agreement"), pursuant to which the parties agreed to waive certain
provisions and conditions and to provide consent to certain actions under the
Business Combination Agreement and certain of the Ancillary Agreements (as
defined in the Business Combination Agreement). Specifically, pursuant to the
Agreement, ROCR (a) consented to and approved of QualTek entering into and
performing its obligations and exercising its rights under the Pre-PIPE
Amendment (as defined below), and consented to and approved any Permitted
Backstop Issuance (as defined below), and (b) expressly waived any and all
rights to notice or other rights or remedies ROCR may have as a result of
QualTek entering into and performing its obligations or exercising its rights
under the Pre-PIPE Amendment or any Permitted Backstop Issuance, and waived any
breach or right to notice, event of default or right of termination or
modification that would be caused by QualTek entering into or performing its
obligations or exercising its rights under the Pre-PIPE Amendment or any
Permitted Backstop Issuance. Additionally, pursuant to the Agreement, QualTek
(a) consented to and approved of ROCR entering into and performing its
obligations and exercising its rights under the PIPE Amendment (as defined
below) and (b) expressly waived any and all rights to notice or other rights or
remedies QualTek or the Blocker's equityholders and QualTek's equityholders may
have as a result of ROCR entering into the PIPE Amendment and waived any breach
or right to notice, event of default or right of termination or modification
that would be caused by ROCR entering into or performing its obligations and
exercising its rights under the PIPE Amendment.
A copy of the Agreement is filed with this Current Report on Form 8-K as Exhibit
2.1 and is incorporated herein by reference. The foregoing description of the
Agreement is qualified in its entirety by reference to the full text of the
Agreement filed with this Current Report on Form 8-K.
Amendment to Pre-PIPE Notes Purchase Agreement and Note
As previously disclosed, in connection with the proposed Business Combination,
certain accredited investors (each a "Pre-PIPE Investor") have purchased
convertible notes of QualTek, as issuer (the "Notes Issuer"), in an aggregate
principal amount of $44.4 million (the "Pre-PIPE Notes") in a private placement,
issuable pursuant to Note Purchase Agreements (the "Note Purchase Agreements"),
among the Notes Issuer, ROCR and the Pre-PIPE Investors (the "Pre-PIPE
Investment").
On January 14, 2022, the Notes Issuer entered into an Acknowledgement, Waiver
and Consent Agreement (the "Pre-PIPE Amendment") with certain of the Pre-PIPE
Investors, pursuant to which the parties agreed that the price per share at
which the Pre-PIPE Notes will convert into shares of Class A Common Stock will
be reduced from $8.00 per share to $6.40 per share in accordance with Section
3(a) of the Pre-PIPE Note.
Amendment to PIPE Subscription Agreements
Summary of Terms of the PIPE Amendment
As previously disclosed, in connection with the proposed Business Combination,
ROCR has obtained commitments from certain accredited investors (each a
"Subscriber") to purchase shares of ROCR's Class A Common Stock which will be
issued in connection with the closing of the Business Combination (the "PIPE
Shares"), for an aggregate cash amount of $66.1 million at a purchase price of
$10.00 per share, in a private placement (the "PIPE Investment"). Such
commitments were made by way of subscription agreements, by and between each
Subscriber and ROCR (collectively, the "Subscription Agreements").
On January 14, 2022, ROCR entered into Waiver and Amendment No. 1 (the "PIPE
Amendment"), pursuant to which the purchase price in the PIPE Investment was
reduced from $10.00 per share to $8.00 per share, and each Subscriber could
elect to participate in the Permitted Backstop Issuance in lieu of all or any
portion of such Subscriber's subscription under their Subscription Agreement,
pursuant to a term sheet for the Permitted Backstop Issuance summarized below.
Each Susbcriber party to the PIPE Amendment also agreed to waive any rights with
respect to the matters contemplated by, and approve and provide consent to, the
PIPE Amendment, including with respect to the application of the per share price
reduction and the Permitted Backstop Issuance.
Waiver and Consent Agreement to PIPE Amendment
On January 14, 2022, ROCR entered into a Waiver and Consent Agreement (the "PIPE
Waiver") with certain Subscribers that are related parties of QualTek and ROCR,
including BCP QualTek LLC, Craig-Hallum Capital Group LLC ("Craig-Hallum"), an
underwriter in ROCR's initial public offering, certain officers and directors of
ROCR and affiliates of ROCR's management, pursuant to which these related party
Susbcribers agreed to waive any and all rights to, and consent to, (a)
participation in the per share price reduction to such Subscriber's PIPE
Investment, (b) participation in the Permitted Backstop Issuance in lieu of all
or any portion of such Subscriber's subscription under their Subscription
Agreement and (c) the Permitted Backstop Issuance. Accordingly these Subscribers
will continue to pay $10.00 per share pursuant to the terms of the Susbcription
Agreements, which amount in the aggregate represents $20,015,000 or 2,001,500
shares.
Permitted Backstop Issuance
ROCR has signed a letter of intent and intends to enter into the Convertible
Note Subscription Agreements ("Convertible Note Subscription Agreements")
. . .
Item 1.02 Termination of a Material Definitive Agreement.
Founder Shares Forfeiture and Lock-Up Agreement
As previously disclosed, contemporaneously with the execution of the Business
Combination Agreement, ROCR entered into a Founder Shares Forfeiture and Lock-Up
Agreement with QualTek and each of the holders of shares of ROCR's common stock
issued prior to ROCR's initial public offering, including ROCR's sponsor,
Craig-Hallum, certain of ROCR's executive officers and directors and certain
affiliates of ROCR's management(the "Founder Shares Agreement"), pursuant to
which such holders agreed to (i) forfeit up to an aggregate amount of 575,000
shares of their ROCR common stock for no consideration, on a pro rata basis,
based on the level of the amount of funds remaining in ROCR's trust account
following all redemptions by public stockholders prior to the closing of the
Business Combination, and (ii) lock up an aggregate amount of up to 575,000
shares of ROCR common stock for no consideration, on a pro rata basis, similarly
based on the level of the amount of funds remaining in the trust account
following all redemptions by public stockholders prior to the closing of the
Business Combination. On January 14, 2022, in connection with the Pre-PIPE
Amendment, PIPE Amendment, PIPE Waiver, and the Permitted Backstop Issuance,
ROCR, QualTek, and the holders mutually agreed to terminate the Founder Shares
Agreement (the "Termination Agreement"), such that there will be no forfeiture
or lock up of any shares of ROCR common stock pursuant to the terms of the
Founder Shares Agreement, and all rights, benefits and obligations thereunder
terminated effective as of the that date.
Item 3.02. Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K
under the headings "Amendment to Pre-PIPE Notes Purchase Agreement and Note,"
and "Amendment to PIPE Subscription Agreements," is incorporated by reference
herein.
The ROCR Class A Common Stock issuable upon conversion of the Pre-PIPE Notes,
the ROCR Class A Common Stock that may be issued in connection with the
Subscription Agreements, and the ROCR Class A Common Stock issuable upon
conversion of any Convertible Notes have not been registered under 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.
Additional Information
In connection with the proposed Business Combination, ROCR has filed a
preliminary proxy statement with the SEC (as amended or supplemented from time
to time, the "proxy statement") to be distributed to holders of ROCR's common
stock in connection with ROCR's solicitation of proxies for the vote by ROCR's
stockholders with respect to the proposed Business Combination and other matters
as described in the proxy statement. ROCR urges investors, stockholders and
other interested persons to read the preliminary proxy statement as well as
other documents filed with the SEC because these documents will contain
important information about ROCR, QualTek and the proposed Business Combination.
A definitive proxy statement will be mailed to stockholders of ROCR as of a
record date to be established for voting on the proposed Business Combination.
Stockholders will also be able to obtain a copy of the definitive proxy
statement, without charge by directing a request to: Roth CH Acquisition III
Co., 888 San Clemente Drive, Suite 400, Newport Beach, CA 92660. The preliminary
proxy statement, and the definitive proxy statement once available, can also be
obtained, without charge, at the SEC's website (www.sec.gov).
Participants in the Solicitation
ROCR, QualTek, their affiliates and their respective directors and executive
officers may be considered participants in the solicitation of proxies with
respect to the Proposals under the rules of the SEC. Information about the
directors and executive officers of ROCR and their ownership is set forth in
ROCR's filings with the SEC, including the preliminary proxy, as amended, which
was most recently filed with the SEC on December 30, 2021. Additional
information regarding the persons who may, under the rules of the SEC, be deemed
participants in the solicitation of the stockholders of ROCR in connection with
the proposals are set forth in the proxy statement. These documents can be
obtained free of charge from the sources indicated above.
Non-Solicitation
This Current Report on Form 8-K is not a proxy statement or solicitation of a
proxy, consent or authorization with respect to any securities or in respect of
the Proposed Transactions and shall not constitute an offer to sell or a
solicitation of an offer to buy the securities of ROCR or QualTek, nor shall
there be any sale of any such securities in any state or jurisdiction in which
such offer, solicitation, or sale would be unlawful prior to registration or
qualification under the securities laws of such state or jurisdiction. No offer
of securities shall be made except by means of a definitive prospectus meeting
the requirements of the Securities Act.
Forward-Looking Statements
This Current Report on Form 8-K and the attachments hereto contain
forward-looking statements for purposes of the safe harbor provisions under the
United States Private Securities Litigation Reform Act of 1995, including
statements about the parties' ability to close the Proposed Transactions, the
anticipated benefits of the Proposed Transactions, and the financial condition,
results of operations, earnings outlook and prospects of ROCR and/or QualTek,
and may include statements for the period following the consummation of the
Proposed Transactions. Forward-looking statements are typically identified by
words such as "plan," "believe," "expect," "anticipate," "intend," "outlook,"
"estimate," "forecast," "project," "continue," "could," "may," "might,"
"possible," "potential," "predict," "should," "would" and other similar words
and expressions, but the absence of these words does not mean that a statement
is not forward-looking.
The forward-looking statements are based on the current expectations of the
management of ROCR and QualTek, as applicable, and are inherently subject to
uncertainties and changes in circumstances and their potential effects and speak
only as of the date of such statement. There can be no assurance that future
developments will be those that have been anticipated. These forward-looking
statements involve a number of risks, uncertainties or other assumptions that
may cause actual results or performance to be materially different from those
expressed or implied by these forward-looking statements. These risks and
uncertainties include, but are not limited to, those discussed and identified in
public filings made with the SEC by ROCR and the following:
· expectations regarding QualTek's strategies and future financial
performance, including its future business plans or objectives,
prospective performance and opportunities and competitors, revenues,
products and services, pricing, operating expenses, market trends,
liquidity, cash flows and uses of cash, capital expenditures, and
QualTek's ability to invest in growth initiatives and pursue acquisition
opportunities;
· the occurrence of any event, change or other circumstances that could
give rise to the termination of the Business Combination Agreement;
· the outcome of any legal proceedings that may be instituted against ROCR
or QualTek following announcement of the Business Combination Agreement
and the transactions contemplated therein;
· the inability to complete the proposed Business Combination due to,
among other things, the failure to obtain ROCR stockholder approval or
ROCR's inability to obtain the financing necessary to consummate the
Business Combination;
· the risk that the announcement and consummation of the proposed Business
Combination disrupts QualTek's current operations and future plans;
· the ability to recognize the anticipated benefits of the proposed
Business Combination;
· unexpected costs related to the proposed Business Combination;
· the amount of any redemptions by existing holders of ROCR's common stock
being greater than expected;
· limited liquidity and trading of ROCR's securities;
· geopolitical risk and changes in applicable laws or regulations;
· the possibility that ROCR and/or QualTek may be adversely affected by
other economic, business, and/or competitive factors;
· operational risk;
· risk that the COVID-19 pandemic, and local, state, and federal responses
to addressing the pandemic may have an adverse effect on our business
operations, as well as our financial condition and results of
operations; and
· the risks that the consummation of the proposed Business Combination is
substantially delayed or does not occur.
Should one or more of these risks or uncertainties materialize or should any of
the assumptions made by the management of ROCR and QualTek prove incorrect,
actual results may vary in material respects from those projected in these
forward-looking statements.
All subsequent written and oral forward-looking statements concerning the
proposed Business Combination or other matters addressed in this Current Report
on Form 8-K and attributable to ROCR, QualTek or any person acting on their
behalf are expressly qualified in their entirety by the cautionary statements
contained or referred to in this Current Report on Form 8-K. Except to the
extent required by applicable law or regulation, ROCR and QualTek undertake no
obligation to update these forward-looking statements to reflect events or
circumstances after the date of this Current Report on Form 8-K to reflect the
occurrence of unanticipated events.
Item 9.01. Financial Statements and Exhibits.
Exhibit
No. Description
2.1 Waiver and Consent Agreement, dated as of January 14, 2022, by
and among ROTH CH Acquisition III Co., Roth CH III Blocker
Merger Sub, LLC, BCP QualTek Investors LLC, Roth CH III Merger
Sub, LLC, BCP QualTek HoldCo, LLC and BCP QualTek LLC.
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XBRL document)© Edgar Online, source Glimpses
QUALTEK SERVICES INC. 
