Item 1.01. Entry into a Material Definitive Agreement.
Stock Purchase and Sale Agreement
On
Under the terms of the Purchase Agreement, the Purchaser's obligation to accept for payment and pay for any Shares tendered in the Offer and not validly withdrawn is subject to certain conditions set forth in the Purchase Agreement, including (i) there being validly tendered and not withdrawn prior to the expiration date that number of Shares which represents at least 35.0% of the Shares issued and outstanding on a fully diluted basis (the "Minimum Condition"), (ii) the absence of a Purchaser Material Adverse Effect (as defined the Purchase Agreement), (iii) the purchase of the Shares pursuant to the Offer would not result, and not be reasonably likely to result, in a reduction or impairment of the net operating losses of the Company under the provisions of Section 382 of the Internal Revenue Code of 1986, as amended, and the rules and regulations promulgated thereunder, and (iv) other conditions set forth in the Purchase Agreement.
The Purchase Agreement contains customary representations and warranties from both the Purchaser and the Company, and the Company agreed to customary covenants, including, among others, covenants relating to the conduct of its business during the interim period between the execution of the Purchase Agreement and the closing of the Offer. The Company is subject to certain restrictions on its ability to solicit third-party proposals relating to alternative transactions or provide information or enter into discussions in connection with alternative transactions, subject to certain exceptions to permit the Board to comply with its fiduciary duties. Prior to the closing of the Offer, under specified circumstances, the Board may change its recommendation to the Company's stockholders regarding its recommendation to the stockholders that they tender their Shares or its declaration of the advisability of the Offer in connection with an unsolicited, bona fide written alternative acquisition proposal that the Board determines in good faith (after receiving the advice of its outside counsel) constitutes a Superior Proposal (as defined in the Purchase Agreement).
The parties have also agreed to cooperate with each other and to prepare and file, as promptly as possible, all applications, notices, petitions and filings to obtain all consents and approvals that are necessary or advisable to consummate the transactions contemplated by the Purchase Agreement.
If the Offer is consummated, the Purchase Agreement provides that the Purchaser
will be entitled to designate two individuals to serve on the four-member Board,
alongside two previously serving directors of the Company. Additionally, the
Purchase Agreement provides that, immediately after the consummation of the
Offer, the Company will set the record date for, authorize and approve a cash
distribution to be paid to all stockholders of the Company, which will then
include the Purchaser, in the aggregate amount of
The Purchase Agreement contains certain termination rights for the Purchaser and the Company. Upon termination of the Purchase Agreement under specified circumstances, the Company may be required to pay to the Purchaser a termination fee of either:
(A)
(B)
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If the Purchase Agreement is terminated by the Company due to the Purchaser's
breach of the Purchase Agreement, then the Purchaser may be required to pay the
Company an expense reimbursement amount of up to
The Purchase Agreement may also be terminated by, among other things, (i) mutual
consent of the parties, (ii) either party if the Offer is not consummated prior
to
The representations, warranties and covenants of each party set forth in the Purchase Agreement have been made only for purposes of, and were and are solely for the benefit of the parties to, the Purchase 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 Purchase 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. Accordingly, the representations and warranties may not describe the actual state of affairs at the date they were made or at any other time, and investors should not rely on them as statements of fact. In addition, such representations and warranties (1) will not survive consummation of the Purchase Agreement and (2) were made only as of the date of the Purchase Agreement or such other date as is specified in the Purchase Agreement. Moreover, information concerning the subject matter of the representations, warranties and covenants may change after the date of the Purchase Agreement, which subsequent information may not be fully reflected in the parties' public disclosures. Accordingly, the Purchase Agreement is included with this filing only to provide investors with information regarding the terms of the Purchase Agreement, and not to provide investors with any other factual information regarding the Purchaser or the Company, their respective affiliates or their respective businesses.
Tender and Voting Agreements
Concurrently with the execution of the Purchase Agreement, the Purchaser entered
into a Tender and Voting Agreement (each, a "Tender and Voting Agreement"), with
each of
In addition, during the term of the Tender and Voting Agreements, each Principal Stockholder irrevocably agreed to vote the TO Shares at any meeting of the holders of the Company's common stock, or in connection with any written consent of the holders of the Company's common stock: (i) in favor of approving the . . .
Item 7.01 Regulation FD Disclosure.
On
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Important Information about the Tender Offer
The Offer has not yet commenced. This document is for informational purposes
only and is neither an offer to purchase nor a solicitation of an offer to sell
any securities, nor is it a substitute for the tender offer materials that the
Company will file with the
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Investors and security holders are urged to read both the Tender Offer Statement and the Solicitation/ Recommendation Statement regarding the Offer, as they may be amended from time to time, when they become available because they will contain important information.
Investors and security holders may obtain a free copy of these statements (when
available) and other documents filed with the
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K (the "Report") contains certain statements that
are, or may deemed to be, "forward-looking statements" within the meaning of
Section 27A of the Securities Act of 1933 and Section 21E of the Securities
Exchange Act of 1934 and that reflect management's current expectations with
respect to our operations, performance, financial condition, and other
developments. These forward-looking statements may generally be identified by
the use of the words "may," "will," "intends," "plans," projects," "believes,"
"should," "expects," "predicts," "anticipates," "estimates," and similar
expressions or the negative of these terms or other comparable terminology.
These statements are necessarily estimates reflecting management's best judgment
based upon current information and involve a number of risks, uncertainties and
assumptions. We caution readers not to place undue reliance on any such
forward-looking statements, which speak only as of the date made, and readers
are advised that various factors could affect our financial performance and
could cause our actual results for future periods to differ materially from
those anticipated or projected. While it is impossible to identify all such
factors, such factors include, but are not limited to: uncertainties as to the
timing of the Offer; uncertainties as to how many of the Company's stockholders
will tender their Shares in the Offer; the risk that competing offers or
acquisition proposals will be made; the possibility that various conditions to
the consummation of the Offer contemplated by the Purchase Agreement may not be
satisfied or waived; the effects of disruption from the transactions
contemplated by the Purchase Agreement and the impact of the announcement and
pendency of the transactions on either party's business; the risk that
stockholder litigation in connection with the Offer may result in significant
costs of defense, indemnification and liability, and diversion of management
time and attention from managing the affairs of the Purchaser or the Company,
the impact of the coronavirus on the worldwide economic conditions and on our
businesses, our strategy of expanding our business through acquisitions of other
businesses? the risk that we may fail to realize the expected benefits or
strategic objectives of any acquisition, or that we spend resources exploring
acquisitions that are not consummated? risks associated with litigation;
indemnification claims and other unforeseen claims and liabilities that may
arise from an acquisition? economic and other conditions in the markets in which
we operate? the risk that we may not have sufficient working capital to continue
operations? instability in the financial markets? our dependence on key
employees? impacts from climate change, including the increased focus by
third-parties on sustainability issues and our ability to comply therewith;
competition from parties who sell their businesses to us and from professionals
who cease working for us? terrorist attacks and other acts of violence or war?
security breaches or cybersecurity attacks; our compliance with applicable
privacy, security and data laws? ? and such other factors that may be identified
from time to time in our
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Stock Purchase and Sale Agreement, dated as ofJuly 1, 2022 , between Janel Corporation andRubicon Technology, Inc. 10.1 Amendment No. 2 to Section 382 Rights Agreement, dated as ofJuly 1, 2022 , by and betweenRubicon Technology, Inc. andAmerican Stock Transfer & Trust Company, LLC . 10.2 Form of First Amendment to Executive Employment Agreement, by and betweenRubicon Technology, Inc. andTimothy E. Brog . 99.1 Tender and Voting Agreement by and among Janel Corporation,Rubicon Technology, Inc. andAldebaran Capital, LLC , datedJuly 1, 2022 . 99.2 Tender and Voting Agreement by and among Janel Corporation,Rubicon Technology, Inc. andBandera Master Fund, L.P. , datedJuly 1, 2022 . 99.3 Tender and Voting Agreement by and among Janel Corporation,Rubicon Technology, Inc. andSententia Capital Management LLC , datedJuly 1, 2022 . 99.4 Tender and Voting Agreement by and among Janel Corporation,Rubicon Technology, Inc. andPoplar Point Capital Management, LLC, L.P. , datedJuly 1, 2022 . 99.5 Joint Press Release, datedJuly 5, 2022 . 104 Cover Page Interactive Data File (the cover page XBRL tags are embedded within the inline XBRL document).
* Schedules omitted pursuant to Item 601(b)(2) of Regulation S-K.
agrees to furnish supplementally a copy of any omitted schedule to the
request. 5
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