Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement
On
At the Effective Time, each outstanding option granted by the Company to purchase shares of Company Common Stock under the Company's stock incentive plans (the "Company Stock Options"), whether vested or unvested, will automatically be terminated, in accordance with the terms of the Company's stock incentive plans.
The Merger Agreement provides that Parent will increase the number of directors that comprise the Parent board of directors at the Effective Time to seven and fill vacancies with three directors designated by the Company's board of directors.
The Merger Agreement contains customary representations and warranties from each of Parent and the Company, and each party has agreed to customary covenants, including, among others, covenants relating to the conduct of the Company's and Parent's businesses during the interim period between the execution of the Merger Agreement and the Effective Time and the Company's and Parent's respective obligations to call a meeting of their stockholders to approve the Merger Agreement and the transactions contemplated thereby, their obligations to, subject to certain exceptions, recommend that their stockholders approve the Merger Agreement and the transactions contemplated thereby, and their non-solicitation obligations relating to alternative acquisition proposals.
The completion of the Merger is subject to customary conditions, including,
among others, (1) the approval of the Merger Agreement and the transactions
contemplated thereby, as applicable, by the Company's stockholders and Parent's
stockholders, (2) authorization for listing on the
The Merger Agreement provides certain termination rights for both Parent and the
Company and further provides that a termination fee of
In addition, pursuant to the terms of the Merger Agreement, Parent entered into Stockholder Lockup Agreements with certain stockholders of Parent which restrict the ability of such stockholders to dispose of certain Parent Common Stock held by such stockholders for a period of 180 days after the Merger without the prior written consent of Parent (subject to certain exceptions set forth in the Stockholder Lockup Agreements).
The Merger Agreement was unanimously approved by the board of directors of both . . .
Item 2.02 Results of Operations and Financial Condition.
On
The information disclosed under this Item 2.02, including Exhibit 99.2 hereto, is being furnished and shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, nor shall it be incorporated by reference into any registration statement or other document pursuant to the Securities Act of 1933, as amended, except as expressly set forth in such filing.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On
The Company also announced that
Prior to joining the Company,
There are no transactions between the Company and
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
Effective
The foregoing description of the amendment to the Bylaws does not purport to be complete and is qualified in its entirety by reference to the full text of the Certificate of Amendment of Bylaws, which is attached hereto as Exhibit 3.1 and is incorporated herein by reference.
Item 8.01 Other Events.
On
Item 9.01. Financial Statement and Exhibits.
(d) Exhibits Number Description 2.1* Agreement and Plan of Merger, datedAugust 10, 2020 , by and amongSunworks, Inc. , The Peck Company Holdings andPeck Mercury, Inc. 3.1 Certificate of Amendment of Bylaws 10.1 Voting Agreement, datedAugust 10, 2020 , by and betweenSunworks, Inc. andJeffrey Peck 10.2 Voting Agreement, datedAugust 10, 2020 , by and betweenSunworks, Inc. andMykilore Trust 99.1 Press Release datedAugust 10, 2020 regarding the Merger and interim Chief Executive Officer 99.2 Press Release datedAugust 10, 2020 regarding second quarter financial results
* Schedules and exhibits have been omitted from this filing pursuant to Item
601(b)(2) of Regulation S-K. A copy of any omitted schedule or exhibit will be
furnished to the
Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K and the information incorporated herein by reference contain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, but are not limited to, statements about (i) the benefits of the Merger, including future financial and operating results, cost savings and synergies, effects on cash flow, market accessibility, financing opportunities, enhancements to revenue and accretion to reported earnings that may be realized from the Merger; (ii) the Company's and Parent's plans, objectives, expectations and intentions and other statements contained in this Current Report on Form 8-K that are not historical facts; and (iii) other statements identified by words such as "expects" "anticipates," "intends," "plans," "believes," "seeks," "estimates," "targets," "projects," or words of similar meaning generally intended to identify forward-looking statements. These forward-looking statements are based upon the current beliefs and expectations of the respective management of the Company and Parent and are inherently subject to significant business, economic and competitive uncertainties and contingencies, many of which are beyond the control of the Company and Parent. In addition, these forward-looking statements are subject to assumptions with respect to future business strategies and decisions that are subject to change. Actual results may differ materially from the anticipated results discussed in these forward-looking statements because of possible uncertainties.
Any financial projections in this Current Report on Form 8-K or the information
incorporated herein by reference are forward-looking statements that are based
on assumptions that are inherently subject to significant uncertainties and
contingencies, many of which are beyond Parent's and the Company's control. The
assumptions and estimates underlying the projected results are inherently
uncertain and are subject to a wide variety of significant business, economic
and competitive risks and uncertainties that could cause actual results to
differ materially from those contained in the projections. The inclusion of
projections in this filing should not be regarded as an indication that Parent
and
Annualized, pro forma, projected and estimated numbers are used for illustrative purpose only, are not forecasts and may not reflect actual results.
The following factors, among others, could cause actual results to differ
materially from the anticipated results or other expectations expressed in the
forward-looking statements: (1) the occurrence of any event, change or other
circumstances that could give rise to the termination of the definitive
transaction agreement or the failure to satisfy the closing conditions; (2) the
businesses of the Company and Parent may not be combined successfully, or such
combination may take longer, be more difficult, time-consuming or costly to
accomplish than expected; (3) the expected growth opportunities or cost savings
from the Merger may not be fully realized or may take longer to realize than
expected; (4) risks that the merger and other transactions contemplated by the
definitive transaction agreement disrupt current plans and operations that may
harm the parties' businesses; (5) the amount of any costs, fees, expenses,
impairments and charges related to the merger; (6) uncertainty as to the effects
of the announcement or pendency of the merger on the market price of the
parties' respective common stock and/or on their respective financial
performance; (7) uncertainty as to the long-term value of the Company's and
Parent's common stock; (8) the ability of the Company and Parent to raise
capital from third parties to grow their business; (9) operating costs, loss of
customers and business disruption following the Merger, including adverse
effects on relationships with employees and customers, may be greater than
expected; (10) the stockholders of the Company or Parent may fail to approve the
Merger; (11) economic, competitive, regulatory, environmental and other factors
may adversely affect the businesses in which the Company and Parent are engaged;
and (12) the impact of COVID-19 and the related federal, state and local
restrictions on each of the Company's and Parent's operations and workforce, the
impact of COVID-19 and such restrictions on customers of the Company or Parent,
and the impact of COVID-19 on the supply chain and availability of shipping and
distribution of each of the Company and Parent. Additional factors that could
cause actual results to differ materially from those expressed in the
forward-looking statements are discussed in the Company's and Parent's reports
(such as Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q and Current
Reports on Form 8-K) filed with the
No Offer or Solicitation; Important Additional Information and Where to Find It
This Current Report on Form 8-K does not constitute an offer to sell or the solicitation of an offer to buy any securities or a solicitation of any vote or approval with respect to the Merger. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended, and no offer to sell or solicitation of an offer to buy shall be made in any jurisdiction in which such offer, solicitation or sale would be unlawful.
In connection with the Merger, Parent will file with the
Free copies of the Joint Proxy Statement, as well as other filings containing
information about the Company and Parent, may be obtained at the
Participants in the Solicitation
The Company, Parent, and their respective directors, and certain of their
executive officers and employees may be deemed to be participants in the
solicitation of proxies from the stockholders of the Company in connection with
the Merger. Information about Parent's directors and executive officers is
available in its Annual Report on Form 10-K for the fiscal year ended
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