NEWBURY STREET ACQUISITION CORPORATION Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
On
Pursuant to the terms of the Merger Agreement, (i) Purchaser Merger Sub will
merge with and into the Purchaser, with the Purchaser continuing as the
surviving entity (the "Purchaser Merger"), (ii) Company Merger Sub will merge
with and into the Company, with the Company continuing as the surviving entity
(the "Company Merger," and together with the Purchaser Merger, the "Mergers"),
and (iii) following the Mergers, the Purchaser and the Company will become
direct wholly-owned subsidiaries of
The following summary of the Merger Agreement and the other agreements entered into or to be entered into by the parties are qualified in their entirety by reference to the text of the Merger Agreement and the agreements entered into or to be entered into in connection therewith. The Merger Agreement is attached as Exhibit 2.1 hereto and incorporated herein by reference. Capitalized terms used and not defined herein have the meanings ascribed to them in the Merger Agreement.
The Mergers
As a result of the Mergers, at the time the Mergers are consummated and effective (the "Effective Time") (i) all the property, rights, agreements, privileges, powers and franchises of Purchaser Merger Sub and Company Merger Sub shall vest in the Purchaser and the Company, respectively, and all debts, liabilities, obligations and duties of Purchaser Merger Sub and Company Merger Sub shall become the debts, liabilities, obligations and duties of the Purchaser and the Company, respectively, including in each case the rights and obligations of each such party under the Merger Agreement and the Ancillary Documents (as defined below) from and after the Effective Time; (ii) (x) each of the certificate of incorporation and bylaws of Purchaser Merger Sub shall become the certificate of incorporation and bylaws of the Purchaser, respectively, until thereafter changed or amended as provided therein or by applicable Law and (y) each of the certificate of incorporation and bylaws of Company Merger Sub shall become the certificate of incorporation and the bylaws of the Company, respectively, until thereafter changed or amended as provided therein or by applicable law; and (iii) the board of directors and executive officers of Company Merger Sub and Purchaser Merger Sub shall be the initial board of directors and executive officers of the Company and the Purchaser, respectively, each to hold office in accordance with the respective certificates of incorporation and bylaws of the Company and the Purchaser, as applicable, until their respective successors are duly elected or appointed and qualified or their earlier death, resignation, or removal.
Effect of the Mergers on
In consideration for the Merger, at the Effective Time, by virtue of the
Purchaser Merger and without any action on the part of any party or the holders
of securities of any
(i) each unit issued in the Purchaser's initial public offering (the "IPO"),
including overallotment units acquired by the Purchaser's underwriter, (each
unit consisting of one (1) share of common stock, par value $0.0001 per
share, of the Purchaser (the "Purchaser Common Stock") and one half of one
(1/2) Purchaser Public Warrant (as defined below), each, a "Purchaser Public
Unit") issued and outstanding immediately prior to the Effective Time shall
be automatically detached and the holder thereof shall be deemed to hold one
(1) share of Purchaser Common Stock and one-half of one (1/2) Purchaser
Public Warrant, which underlying Purchaser Securities shall be converted in
accordance with the applicable terms below;
(ii) each unit purchased by
"Sponsor") and EarlyBirdCapital, Inc. ("EarlyBirdCapital") in private
placement transactions (each unit consisting of one (1) private share of
Purchaser Common Stock and one half of one (1/2) Purchaser Private Warrant
(as defined below), each, a "Purchaser Private Unit") issued and outstanding
immediately prior to the Effective Time shall be automatically detached and
the holder thereof shall be deemed to hold one (1) share of Purchaser Common
Stock and one-half of one (1/2) Purchaser Private Warrant, which underlying
Purchaser Securities shall be converted in accordance with the applicable
terms below;
(iii) each share of Purchaser Common Stock (other than the Excluded Shares (as
defined below) and the Founder Shares (as defined below)) issued and
outstanding immediately prior to the Effective Time shall be converted
automatically into and thereafter represent the right to receive a unit
(each, a "Pubco Unit"), consisting of (x) one (1) share of common stock,
par value $0.0001 per share, of Pubco ("Pubco Common Stock") and (y) one
(1) CVR (as defined below) following which all shares of Purchaser Common
Stock shall automatically be canceled and shall cease to exist by virtue of
the Mergers, and the holders of Purchaser Common Stock outstanding
immediately prior to the Effective Time shall cease to have any rights with
respect to such shares of Purchaser Common Stock, except as provided herein
or under applicable law;
(iv) each whole warrant that was included as part of each Purchaser Public Unit
(whether purchased in the IPO or thereafter in the open market), entitling
the holder thereof to purchase one (1) share of Purchaser Common Stock at a
purchase price of $11.50 per share (each, a "Purchaser Public Warrant") and
held by either the Sponsor or EarlyBirdCapital issued and outstanding
immediately prior to the Effective Time shall be assumed by Pubco and
converted into one (1) whole warrant entitling the holder thereof to
purchase one (1) share of Pubco Common Stock at a price of $11.50 per share
(each, a "Pubco Public Warrant");
(v) each whole warrant entitling the holder thereof to purchase one (1) share of
Purchaser Common Stock at a purchase price of $11.50 per share, subject to
adjustment in accordance with the Warrant Agreement (each, a "Purchaser
Private Warrant") issued and outstanding immediately prior to the Effective
Time shall be assumed by Pubco and converted into one (1) whole warrant
entitling the holder thereof to purchase one (1) share of Pubco Common Stock
at a price of $11.50 per share (each, a "Pubco Private Warrant");
(vi) each share of Purchaser Common Stock, if any, (a) held in the treasury of
the Purchaser, (b) otherwise held by the Purchaser or any of its
Subsidiaries or (c) for which a Public Stockholder of the Purchaser has
demanded that the Purchaser redeem such Purchaser Common Stock
(collectively, the "Excluded Shares") shall be surrendered and cancelled and
shall cease to exist and no consideration will be delivered or deliverable
in exchange therefor;
(vii) each Purchaser Private Unit acquired at a price per share of Purchaser
Common Stock of less than $10 (each, a "Founder Share") shall convert
solely into the right to receive one share of Pubco Common Stock; and
(viii) each share of common stock of Purchaser Merger Sub outstanding immediately
prior to the Effective Time shall be converted into an equal number of
shares of the Purchaser, with the same rights, powers and privileges as
the shares so converted and shall constitute the only outstanding shares
of capital stock of the Purchaser.
Effect of the Mergers on
Pursuant to the Merger Agreement, the Company will use its commercially
reasonable efforts to cause the holders of outstanding obligations of the
Company and its direct and indirect subsidiaries under the Convertible
Promissory Notes (as defined in the Merger Agreement) (the "Company Convertible
Instruments") to convert all of their Company Convertible Instruments into
shares of common stock, par value
At the Effective Time, by virtue of the Company Merger and without any action on
the part of any party or the holders of securities of any
(i) subject to clause (ii) below, each share of Company Common Stock issued
and outstanding immediately prior to the Effective Time (after giving
effect to the Company Exchanges) will automatically be cancelled and
cease to exist in exchange for the right to receive a number of shares of
Pubco Common Stock equal to the result obtained by applying the
then-current conversion ratio, and each holder of Company Common Stock
shall cease to have any other rights in and to the Company (subject to
certain rights set forth in the Merger Agreement);
(ii) notwithstanding clause (i) above, any shares of Company Common Stock
owned by the Company as treasury shares or owned by any direct or
indirect subsidiary of the Company immediately prior to the Effective
Time shall be canceled and shall cease to exist and no consideration will
be delivered or deliverable in exchange therefor;
(iii) each outstanding option to purchase Company Common Stock that was
granted pursuant to the Company Equity Plan (as defined in the Merger
Agreement) (each, a "Company Option") (whether vested or unvested) shall
be assumed by Pubco and automatically converted into an option to
purchase shares of Pubco Common Stock, subject to the terms and
conditions set forth in the Company Equity Plan;
(iv) each outstanding warrant to purchase Company Common Stock that was
granted pursuant to that certain Note and Warrant Purchase Agreement,
dated as of July 1, 2021 , entered into by and among the Company, the
investors party thereto and Black, Inc. (each, a "Company Warrant") shall
be assumed by Pubco and automatically converted into a warrant for shares
of Pubco Common Stock, subject to the terms and conditions of the Company
Warrant;
(v) any other convertible security of the Company, other than Company
Options, if not exercised or converted prior to the Effective Time, shall
be cancelled, retired and terminated and cease to represent a right to
acquire, be exchanged for or convert into shares of Company Common Stock;
and
(vi) all shares of common stock of Company Merger Sub outstanding immediately
prior to the Effective Time shall be converted into an equal amount of
shares of common stock of the Company, with the same rights, powers and
privileges as the shares so converted and shall constitute the only
shares of capital stock in the Company.
Effect of the Mergers on
At the Effective Time, by virtue of the Mergers and without any action on the
part of any party or the holders of securities of any
Representations and Warranties
Representations and Warranties of the Purchaser
The Merger Agreement contains certain customary representations and warranties
of the Purchaser relating to, among other things, (a) due organization and
standing; (b) authorization and binding effect against the Purchaser of the
Merger Agreement and the Ancillary Documents; (c) governmental approvals; (d)
non-contravention; (e) capitalization; (f)
Representations and Warranties of the Purchaser Parties
The Merger Agreement contains certain customary representations and warranties . . .
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits: Exhibit Description 2.1* Agreement and Plan of Merger, dated as ofDecember 12, 2022 10.1 Form of Voting Agreement 10.2 Form of Sponsor Letter Agreement 10.3 Form of Lock-Up Agreement 10.4 Form of Contingent Value Rights Agreement 104 Cover Page Interactive Data File (embedded within the Inline XBRL document) * Certain 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
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