ACON S2 Item 1.01 Entry Into A Material Definitive Agreement.
Merger Agreement
On
The Merger Agreement and the transactions contemplated thereby were approved by the boards of directors of each of STWO and ESS.
The Business Combination
The Merger Agreement provides for, among other things, the following
transactions at the closing: (i) STWO will become a
The Business Combination is expected to close in the third quarter of 2021, following the receipt of the required approval by STWO's stockholders and the fulfillment of other customary closing conditions.
Business Combination Consideration
In accordance with the terms and subject to the conditions of the Merger
Agreement, each share of common stock of ESS, par value
Governance
STWO has agreed to take all action within its power as may be necessary or appropriate such that, effective immediately after the closing of the Business Combination, the STWO board of directors shall consist of nine directors, which shall be divided into three classes, which directors shall include seven directors designated by ESS and two directors designated by certain current shareholders of ESS. Additionally, the current ESS management team will move to STWO in their current roles and titles.
Representations and Warranties; Covenants
The Merger Agreement contains representations, warranties and covenants of each of the parties thereto that are customary for transactions of this type, including with respect to the operations of STWO and ESS and that each of the parties have undertaken to procure approval under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR Act"). In addition, STWO has agreed to adopt an equity incentive plan and employee stock purchase plan, as described in the Merger Agreement.
Conditions to
The obligation of STWO and ESS to consummate the Business Combination is subject to certain closing conditions, including, but not limited to, (i) the expiration or termination of the applicable waiting period under the HSR Act, (ii) the approval of STWO's shareholders, (iii) the approval of ESS's shareholders and (iv) the Registration Statement (as defined below) becoming effective.
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In addition, the obligation of STWO to consummate the Business Combination is subject to the fulfillment of other closing conditions, including, but not limited to, (i) the representations and warranties of ESS being true and correct to the standards applicable to such representations and warranties and each of the covenants of ESS having been performed or complied with in all material respect and (ii) no Material Adverse Effect (as defined in the Merger Agreement) shall have occurred.
The obligation of ESS to consummate the Business Combination is also subject to
the fulfillment of other closing conditions, including, but not limited to,
(i) the representations and warranties of STWO and Merger Sub being true and
correct to the standards applicable to such representations and warranties and
each of the covenants of STWO having been performed or complied with in all
material respects, (ii) the aggregate cash proceeds from STWO's trust account,
together with the proceeds from the PIPE Financing (as defined below), equaling
no less than
Termination
The Merger Agreement may be terminated under certain customary and limited
circumstances prior to the closing of the Business Combination, including, but
not limited to, (i) by mutual written consent of STWO and ESS, (ii) by STWO if
the representations and warranties of ESS are not true and correct or if ESS
fails to perform any covenant or agreement set forth in the Merger Agreement
such that certain conditions to closing cannot be satisfied and the breach or
breaches of such representations or warranties or the failure to perform such
covenant or agreement, as applicable, are not cured or cannot be cured within
certain specified time periods, (iii) termination by ESS if the representations
and warranties of STWO are not true and correct or if STWO fails to perform any
covenant or agreement set forth in the Merger Agreement such that certain
conditions to closing cannot be satisfied and the breach or breaches of such
representations or warranties or the failure to perform such covenant or
agreement, as applicable, are not cured or cannot be cured within certain
specified time periods, (iv) subject to certain limited exceptions, by either
STWO or ESS if the Business Combination is not consummated by
If the Merger Agreement is validly terminated, none of the parties to the Merger Agreement will have any liability or any further obligation under the Merger . . .
Item 3.02. Unregistered Sales of
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The shares of STWO Common Stock to be offered and sold in connection with the PIPE Financing have not been registered under the Securities Act in reliance upon the exemption provided in Section 4(a)(2) thereof.
Item 7.01. Regulation FD Disclosure.
On
Furnished as Exhibit 99.2 hereto and incorporated into this Item 7.01 by reference is the investor presentation that STWO and ESS have prepared for use in connection with the announcement of the Business Combination.
The foregoing (including Exhibits 99.1 and 99.2) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise be subject to the liabilities of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.
Additional Information
STWO intends to file with the
Participants in the Solicitation
STWO, ESS and their respective directors, executive officers, other members of
management and employees, under
Forward Looking Statements
Certain statements in this Current Report on Form 8-K may be considered forward-looking statements. Forward-looking statements generally relate to future events or STWO's or ESS's future financial or operating performance. For example, statements about the expected timing of the completion of the Business Combination, the benefits of the Business Combination, the competitive environment, and the expected future performance (including future revenue, pro forma enterprise value, and cash balance) and market opportunities of ESS are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as "may", "should", "expect", "intend", "will", "estimate", "anticipate", "believe", "predict", "potential" or "continue", or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties and other factors which could cause actual results to differ materially from those expressed or implied by such forward looking statements.
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These forward-looking statements are based upon estimates and assumptions that,
while considered reasonable by STWO and its management, and ESS and its
management, as the case may be, are inherently uncertain. 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 the Merger Agreement; (2) the outcome
of any legal proceedings that may be instituted against STWO, ESS, the combined
company or others following the announcement of the Business Combination;
(3) the inability to complete the Business Combination due to the failure to
obtain approval of the shareholders of STWO or to satisfy other conditions to
closing; (4) changes to the proposed structure of the Business Combination that
may be required or appropriate as a result of applicable laws or regulations or
as a condition to obtaining regulatory approval of the Business Combination;
(5) the ability to meet stock exchange listing standards at or following the
consummation of the Business Combination; (6) the risk that the Business
Combination disrupts current plans and operations of ESS as a result of the
announcement and consummation of the Business Combination; (7) the ability to
recognize the anticipated benefits of the Business Combination, 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 Business Combination; (9) changes in applicable laws or
regulations; (10) the possibility that ESS or the combined company may be
adversely affected by other economic, business and/or competitive factors; and
(11) other risks and uncertainties set forth in the section entitled "Risk
Factors" and "Cautionary Note Regarding Forward-Looking Statements" in STWO's
Registration Statement on Form S-1 (File No. 333-248515), and which will be set
forth in a Registration Statement to be filed by STWO with the
Nothing in this Current Report on Form 8-K should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Neither STWO nor ESS undertakes any duty to update these forward-looking statements.
Disclaimer
This communication is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy, any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit Number Description 2.1† Agreement and Plan of Merger, dated as ofMay 6, 2021 , by and amongACON S2 Acquisition Corp. ,SCharge Merger Sub, Inc. , andESS Tech, Inc. 10.1 Form of Subscription Agreement . 10.2 Transaction Support Agreement, dated as ofMay 6, 2021 , by and amongACON S2 Acquisition Corp. andESS Tech, Inc. and certain other parties thereto. 10.3 Sponsor Letter Agreement, dated as ofMay 6, 2021 , by and among ACONS2 Sponsor, L.L.C. ,ACON S2 Acquisition Corp. andESS Tech, Inc and certain other parties thereto. 10.4 Form of Registration Rights Agreement. 99.1 Press Release, datedMarch 7, 2021 . 99.2 Investor Presentation, datedMarch 7, 2021 .
† Certain of the exhibits and schedules to this exhibit have been omitted in
accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to
furnish supplementally a copy of all omitted exhibits and schedules to the
SEC upon its request.
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