USHG ACQUISITION CORP. Item 1.01 Entry into a Material Definitive Agreement.
Investment Agreement
On
Upon the terms and subject to the conditions set forth in the Investment
Agreement, at the effective time of the Merger (the "Effective Time"), each
issued and outstanding share of HUGS' Class A common stock, par value
The consummation of the proposed Transactions (as defined in the Investment Agreement) is subject to the receipt of the requisite approval of the stockholders of HUGS (such approval, the "HUGS stockholder approval") and the fulfillment of certain other conditions, including the consummation of Panera's initial public offering of Panera Common Stock (the "Panera IPO").
Representations and Warranties
The Investment Agreement contains customary representations and warranties of the parties thereto with respect to, among other things, (a) entity organization and qualification, (b) capitalization, (c) authorization to enter into the Investment Agreement, (d) financial statements and absence of undisclosed liabilities, (e) consents and requisite governmental approvals, (f) permits, (g) material contracts, (h) absence of changes, (i) litigation, (j) compliance with laws, (k) environmental matters, (l) employee matters, (j) intellectual property, (k) taxes and (l) real property. The representations and warranties of HUGS, Panera and Merger Sub will not survive the closing of the Merger (the "Closing").
Covenants
The Investment Agreement requires the parties to conduct their businesses in the ordinary course in all material respects, includes other customary covenants of HUGS with respect to the operation of its business prior to consummation of the Transactions and requires both parties to use efforts to satisfy the conditions to consummate the Transactions. The Investment Agreement also contains additional covenants of the parties, including, among others, (a) covenants requiring HUGS and Panera to use reasonable best efforts to obtain all necessary regulatory approvals, (b) covenants providing for HUGS, Panera and Merger Sub to cooperate in the preparation of the Registration Statement and Proxy Statement (as each such term is defined in the Investment Agreement) required to be filed in connection with the Transactions and (c) covenants providing that certain Panera directors, officers and stockholders enter into lock-up agreements with the managing underwriters of the Panera IPO.
Panera Non-Solicitation Restrictions
From the date of the Investment Agreement to the Closing, or the earlier termination of the Investment Agreement in accordance with its terms, Panera has agreed not to, among other things, (i) solicit, initiate, knowingly encourage, knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer with respect to a Company Acquisition Proposal (as defined in the Investment Agreement); (ii) furnish or disclose any non-public information to any person in connection with, or that could reasonably be expected to lead to, a Company Acquisition Proposal; (iii) enter into any contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) waive or otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a Company Acquisition Proposal, including without limitation any "standstill" or similar provisions thereunder; or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any person to do or seek to do any of the foregoing.
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Notwithstanding anything to the contrary therein, if Panera receives a written proposal for any transaction under which any person would acquire or otherwise purchase control of Panera or any of its controlled affiliates or all or a material portion of assets or businesses of Panera or any of its controlled affiliates as set forth in the Investment Agreement (such transaction, a "Sale Transaction" and such proposal for a Sale Transaction, a "Competing Proposal") on or after the date the Investment Agreement is executed and such Competing Proposal did not result from or arise in connection with a breach by Panera of the Investment Agreement, Panera may (i) contact such person to clarify the terms and conditions of the Competing Proposal and to inform such persons of the provisions of the Investment Agreement, (ii) furnish information (including non-public information) with respect to Panera and its subsidiaries and (iii) engage in or otherwise participate in discussions or negotiations with the person or group of persons making such Competing Proposal. Panera may terminate the Investment Agreement and enter into a definitive transaction agreement with respect to a Competing Proposal if, and only if, Panera receives a Competing Proposal that did not result or arise in connection with a material breach by Panera of its non-solicitation restrictions in the Investment Agreement and pays the Termination Fee (as defined below) to HUGS.
HUGS Exclusivity Restrictions
From the date of the Investment Agreement to the date of Closing (or the date of the termination of the Investment Agreement in accordance with its terms), HUGS has agreed not to, among other things, (i) solicit, initiate, encourage, facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a SPAC Acquisition Proposal (as defined in the Investment Agreement); (ii) furnish or disclose any non-public information to any person in connection with, or that could reasonably be expected to lead to, a SPAC Acquisition Proposal; (iii) enter into any contract or other arrangement or understanding regarding a SPAC Acquisition Proposal; (iv) prepare or take any steps in connection with an offering of any securities of SPAC; (v) waive of otherwise forbear in the enforcement of any rights or other benefits under confidential information agreements relating to a SPAC Acquisition Proposal , including without limitation any "standstill" or similar provision thereunder, or (vi) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage any effort or attempt by any person to do or seek to do any of the foregoing.
Conditions to
The obligation of HUGS and Panera to consummate the Merger is subject to certain
closing conditions, including, but not limited to, (i) the approval of HUGS
stockholders, (ii) the Registration Statement becoming effective, (iii) after
giving effect to the Transactions, HUGS having at least
In addition, the obligation of Panera to consummate the Merger is subject to the fulfillment of other closing conditions, including, but not limited to, (i) the representations and warranties of HUGS being true and correct to the standards applicable to such representations and warranties and each of the covenants of HUGS having been performed or complied with in all material respects and (ii) the effective resignations of certain directors and executive officers of HUGS.
The obligation of HUGS to consummate the Merger is also subject to the
fulfillment of other closing conditions, including, but not limited to, (i) the
representations and warranties of Panera and Merger Sub being true and correct
to the standards applicable to such representations and warranties and each of
the covenants of Panera having been performed or complied with in all material
respects and (ii)
Waivers
If permitted under applicable law, either HUGS or Panera may waive in writing any conditions for the benefit of itself or such party contained in the Investment Agreement or in any document delivered pursuant to the Investment Agreement. Notwithstanding the foregoing, pursuant to HUGS' current certificate of incorporation, HUGS cannot
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consummate the proposed transaction if it has less than
Item 7.01 Regulation FD Disclosure.
On
The foregoing (including Exhibit 99.1) is being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of 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.
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Additional Information and Where to Find It
This Current Report on Form 8-K relates to a proposed transaction between HUGS
and Panera. This Current Report on Form 8-K does not constitute an offer to sell
or exchange, or the solicitation of an offer to buy or exchange, any securities,
nor shall there be any sale of securities in any jurisdiction in which such
offer, sale or exchange would be unlawful prior to registration or qualification
under the securities laws of any such jurisdiction. Panera intends to file a
registration statement on Form S-4 that will include a proxy statement of HUGS
and a prospectus of Panera. The proxy statement/prospectus will be sent to all
HUGS stockholders. HUGS and Panera also will file other documents regarding the
proposed transaction with the
Investors and security holders will be able to obtain free copies of the proxy
statement/prospectus and all other relevant documents filed or that will be
filed with the
Participants in Solicitation
HUGS and Panera and their respective directors and officers may be deemed to be
participants in the solicitation of proxies from HUGS's stockholders in
connection with the proposed transaction. Information about HUGS's directors and
executive officers and their ownership of HUGS's securities is set forth in
HUGS's filings with the
No Offer or Solicitation
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Forward-Looking Statements Legend
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed transaction between HUGS and Panera, including statements regarding the benefits of the transaction, the anticipated timing of the transaction, the anticipated timing of the Panera IPO and the offerings of Panera and the markets in which it operates. These forward-looking statements generally are identified by the words "believe," "project," "expect," "anticipate," "estimate," "intend," "strategy," "future," "opportunity," "plan," "may," "should," "will," "would," "will be," "will continue," "will likely result," and similar expressions. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this Current Report on Form 8-K, including but not limited to: (i) the risk that the transaction may not be completed in a timely manner or at all, which may adversely affect the price of HUGS's securities, (ii) the risk that a Panera IPO may not be completed and that the Transactions may not be completed, in each case, by HUGS's business combination deadline or at all, and the potential failure to obtain an extension of the business combination deadline if sought by HUGS, (iii) the failure to satisfy the conditions to the consummation of the Transaction, including the failure to complete the Panera IPO, the adoption of the Transaction agreement and the Transaction by the stockholders of HUGS and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in
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determining whether or not to pursue the proposed Transaction, (v) the
occurrence of any event, change or other circumstance that could give rise to
the termination of the Transaction or Transaction agreement, (vi) the effect of
the announcement or pendency of the transaction on Panera's business
relationships, performance, and business generally and on its ability to
consummate an IPO, (vii) risks that the proposed Transaction disrupts current
plans of Panera and potential difficulties in Panera employee retention as a
result of the proposed transaction, (viii) the outcome of any legal proceedings
that may be instituted against HUGS or Panera related to the Transaction
agreement or the proposed transaction, (ix) the ability to maintain the listing
of HUGS's securities on the NYSE, (x) the price of HUGS's securities may be
volatile due to a variety of factors, including changes in the competitive
industry in which Panera operates, variations in performance across competitors,
changes in laws and regulations affecting Panera's business and changes in the
combined capital structure, and (xi) the ability to implement business plans,
forecasts, and other expectations after the completion of the proposed
transaction, and identify and realize additional opportunities. The foregoing
list of factors is not exhaustive. You should carefully consider the foregoing
factors and the other risks and uncertainties described in the "Risk Factors"
section of HUGS's Registration Statement on Form S-1, the registration statement
on Form S-4 and proxy statement/prospectus described above and other documents
filed by HUGS from time to time with the
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description of Exhibits 2.1 Investment Agreement and Plan of Merger, dated as ofNovember 8, 2021 , by and among HUGS, Panera and Merger Sub. 10.1 Sponsor Letter Agreement, dated as ofNovember 8, 2021 , by and among Sponsor,Share Our Strength , HUGS and Panera. 10.2 DM Subscription Agreement, dated as ofNovember 8, 2021 , by and betweenDaniel H. Meyer and Panera. 10.3 JAB Subscription Agreement, dated as ofNovember 8, 2021 , by and among JAB, HUGS and Panera. 99.1 Joint Press Release, datedNovember 9, 2021 . 104 Cover Page Interactive Data File (embedded within the Inline XBRL document). 8
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