DPCM CAP Item 1.01 Entry into a Material Definitive Agreement.
Transaction Agreement
On
Structure of the Transaction
The transaction is structured as follows:
(a) On the Closing Date, Merger Sub will merge with and into SPAC (the
"Merger"), with SPAC continuing as the surviving company after the Merger
(the "Surviving Company"), as a result of which SPAC will become a
direct, wholly owned subsidiary of NewCo, with the stockholders of SPAC
receiving Newco Common Shares in the Merger;
(b) Immediately following the Merger, by means of a statutory plan of
arrangement under the Business Corporations Act (British Columbia ) (the
"Plan of Arrangement"), (i) CallCo will acquire a portion of the issued
and outstanding Company Shares from certain holders in exchange for NewCo
Common Shares (the "NewCo Share Exchange"), (ii) CallCo will contribute
such Company Shares to ExchangeCo in exchange for ExchangeCo Common
Shares, (iii) following the NewCo Share Exchange, ExchangeCo will acquire
the remaining issued and outstanding Company Shares from the remaining
holders of Company Shares in exchange for Exchangeable Shares and (iv) as
a result of the foregoing, the Company will become a wholly-owned
subsidiary of ExchangeCo. The holders of the Exchangeable Shares will
have certain rights as specified in the Exchangeable Share Term Sheet,
including the right to exchange Exchangeable Shares for NewCo Common
Shares;
(c) Concurrently with the execution of the Transaction Agreement, CDPM
Sponsor Group, LLC , a Delaware limited liability company (the "Sponsor"),
SPAC, NewCo and the Company entered into a Sponsor Support Agreement,
pursuant to which, among other things, the Sponsor agreed to (i) vote in
favor of the Transaction Agreement and the Transactions, (ii) a certain
number of NewCo Common shares becoming subject to certain vesting
conditions immediately prior to, and contingent upon, the Closing,
(iii) reimburse or otherwise compensate SPAC for any SPAC Expenses in
excess of Permitted SPAC Expenses and (iv) the forfeiture of certain SPAC
Class B Shares , as summarized in the 'Ancillary Documents' section
hereof;
(d) Concurrently with the execution of the Transaction Agreement, each of the
Supporting Company Shareholders entered into a Transaction Support
Agreement with SPAC and the Company, pursuant to which each such
Supporting Company Shareholder agreed to, among other things, support and
vote in favor of the Company Arrangement Resolution, as summarized in the
'Ancillary Documents' section hereof;
(e) Concurrently with the execution of the Transaction Agreement, certain
investors (collectively, the "PIPE Investors ") entered into a
subscription agreement (the "PIPE Subscription Agreement"), pursuant to
which, among other things, each PIPE Investor subscribed to and agreed to
purchase on the Closing Date, and NewCo agreed to issue and sell to each
such PIPE Investor on the Closing Date, the number of NewCo Common Shares
equal to the purchase price set forth therein, divided by $10.00 and
multiplied the Exchange Ratio, in each case, on the terms and subject to
the conditions set forth therein (the "Initial PIPE Financing"), as
summarized in the 'Ancillary Documents' section hereof; and
(f) At the Closing, NewCo, Sponsor, the other holders of SPAC Class B Shares
and each Company Shareholder party thereto will, pursuant to the Plan of
Arrangement, become parties to a registration rights and lock-up
agreement (the "Registration Rights and Lock-Up Agreement"), pursuant to
which, among other things, each of Sponsor, the other holders of SPAC
Class B Shares and the Company Shareholders (a) will agree not to effect
any sale or distribution of certain Equity Securities of NewCo held by
any of them during the lock-up period described therein and (b) will be
granted certain registration rights with respect to their respective
NewCo Common Shares, in each case, on the terms and subject to the
conditions set forth therein, as summarized in the 'Ancillary Documents'
section hereof.
Closing of the Transactions
The closing of the Transactions (the "Closing") will take place electronically by exchange of the closing deliverables as promptly as reasonably practicable, but in no event later than the third (3rd) Business Day, following the satisfaction (or, to the extent permitted by applicable Law, waiver) of the conditions set forth in Article VIII of the Transaction Agreement (other than those conditions that by their nature are to be satisfied at the Closing, but subject to satisfaction or waiver of such conditions) (the "Closing Date") or at such other place, date and/or time as SPAC and the Company may agree in writing.
Merger
At the Effective Time, by virtue of the Merger and without any further action on the part of the parties or any other Person, the following will occur:
(a) To the extent any SPAC Units remain outstanding and unseparated,
immediately prior to the Effective Time, the SPAC Common Shares and the
SPAC Warrants comprising each such issued and outstanding SPAC Unit
immediately prior to the Effective Time will be automatically separated
and the holder of each SPAC Unit will be deemed to hold one (1) SPAC
Common Share and one-third of one (1/3) SPAC Warrant. The SPAC Common
Shares and SPAC Warrants held following the Unit Separation will be
converted in accordance with the Transaction Agreement;
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(b) At the Effective Time, each issued and outstanding SPAC Class A Common
Share (other than any Excluded Shares and after giving effect to the SPAC
Stockholder Redemption) will be automatically converted into and
exchanged for the right to receive from the depositary, for each SPAC
Class A Common Share, a number of NewCo Common Shares equal to the lower
of: (A) 1.4541326; and (B) (1) (x) the Post-Redemption SPAC Share Number,
plus (y) 5,000,000 divided by (2) the Post-Redemption SPAC Share Number
(the lower of (A) and (B), the "Exchange Ratio"), following which, each
SPAC Class A Common Share will no longer be outstanding and will
automatically be canceled and will cease to exist by virtue of the Merger
and each former holder of SPAC Class A Common Shares will thereafter
cease to have any rights with respect to the SPAC Class A Common Shares;
(c) At the Effective Time, each issued and outstanding SPAC Class B Common
Share (other than any Excluded Shares) will be automatically converted
into and exchanged for the right to receive from the depositary, one
NewCo Common Share, following which, each SPAC Class B Common Share will
no longer be outstanding and will automatically be canceled and will
cease to exist by virtue of the Merger and each former holder of SPAC
Class B Common Shares will thereafter cease to have any rights with
respect to the SPAC Class B Common Shares, except as provided in the
Transaction Agreement or by applicable Law;
(d) Pursuant to the terms of the Warrant Agreement, at the Effective Time, by
virtue of the Merger and without any action on the part of any holder of
a SPAC Warrant, each SPAC Warrant that is issued and outstanding
immediately prior to the Effective Time will be automatically and
irrevocably converted into one (1) NewCo Warrant on the same terms as
were in effect immediately prior to the Effective Time; and
(e) At the Effective Time, each share of common stock, par value $0.01 per
share, of Merger Sub that is issued and outstanding immediately prior to
the Effective Time will convert automatically into one (1) share of
common stock, par value $0.01 per share, of the Surviving Company ;
. . .
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. In connection with the Closing, NewCo will
issue an aggregate number of NewCo Common Shares equivalent to
Additional Information and Where to Find It
A full description of the terms of the Proposed Transaction will be provided in
a registration statement on Form S-4 to be filed with the
No Offer or Solicitation
This Current Report on Form 8-K does not constitute an offer or invitation for the sale or purchase of securities, assets or the business described herein or a commitment to NewCo, SPAC or the Company, nor is it a solicitation of any vote, consent or approval in any jurisdiction pursuant to or in connection with the Proposed Transaction or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law.
Participants in Solicitation
NewCo, SPAC and the Company, and their respective directors and executive
officers, may be deemed participants in the solicitation of proxies of SPAC's
stockholders in respect of the Proposed Transaction. Information about the
directors and executive officers of SPAC is set forth in SPAC's filings with the
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements that are based on beliefs and assumptions, and on information currently available. In some cases, you can identify forward-looking statements by the following words: "may," "will," "could," "would," "should," "expect," "intend," "plan," "anticipate," "believe," "estimate," "predict," "project," "potential," "continue," "ongoing" or the negative of these terms or other comparable terminology, although not all forward-looking statements contain these words. These statements involve risks, uncertainties and other factors that may cause actual results, levels of activity, performance or achievements to be materially different from the information expressed or implied by these forward-looking statements. We caution you that these statements are based on a combination of facts and factors currently known by us and our projections of the future, which are subject to a number of risks. Forward-looking statements in this Current Report on Form 8-K include, but are not limited to, statements regarding completion of the Proposed Transaction.
We cannot assure you that the forward-looking statements in this Current Report
on Form 8-K will prove to be accurate. These forward- looking statements are
subject to a number of risks and uncertainties, including, among others, various
factors beyond management's control, including general economic conditions and
other risks, uncertainties and factors set forth in the sections entitled "Risk
Factors" and "Cautionary Note Regarding Forward-Looking Statements" in SPAC's
Annual Report on Form 10-K, filed with the
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proceedings that may be instituted against NewCo, SPAC or the Company related to the Transaction Agreement or the Proposed Transaction; the failure to realize the anticipated benefits of the Proposed Transaction; the amount of redemption requests made by SPAC's public stockholders; and the risk that NewCo's securities will not be approved for listing on the NYSE or if approved, maintain the listing.
Furthermore, if the forward-looking statements prove to be inaccurate, the inaccuracy may be material. In addition, you are cautioned that past performance may not be indicative of future results. In light of the significant uncertainties in these forward-looking statements, you should not rely on these statements in making an investment decision or regard these statements as a representation or warranty by any person that NewCo, SPAC or the Company will achieve their respective objectives and plans in any specified time frame, or at all. The forward-looking statements in this Current Report on Form 8-K represent our views as of the date of this Current Report on Form 8-K. We anticipate that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this Current Report on Form 8-K.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. 2.1 Transaction Agreement, datedFebruary 7, 2021 , by and among the Registrant,D-Wave Quantum Inc. ,DWSI Holdings Inc. ,DWSI Canada Holdings ULC,D-Wave Quantum Technologies Inc. andD-Wave Systems Inc. 10.1 Plan of Arrangement 10.2 Form of Transaction Support Agreement 10.3 Sponsor Support Agreement, datedFebruary 7, 2021 , by and among the Registrant,CDPM Sponsor Group, LLC , the Registrant,D-Wave Quantum Inc. andD-Wave Systems Inc. 10.4 Form of Registration Rights and Lock-Up Agreement 10.5 Form of PIPE Subscription Agreement 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
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