WESTERN ACQUISITION VENTURES CORP. Item 1.01. Entry into a Material Definitive Agreement
Agreement and Plan of Merger
On
The Merger Agreement and the transactions contemplated thereby were approved by the board of directors of Registrant, Merger Sub and Cycurion. The transactions set forth in the Merger Agreement, including the Merger, will constitute a "Business Combination." Unless expressly stated otherwise herein, capitalized terms used but not defined herein have the meanings ascribed to them in the Merger Agreement.
Treatment of
At the Effective Time, by virtue of the Merger and without any action on the part of Registrant, Merger Sub, the Cycurion or the holders of any of Cycurion's securities:
(i) each share Common Stock of Cycurion (the "Cycurion Common Stock"), and
each share Cycurion's convertible preferred stock (the "Cycurion
Convertible Preferred Stock" and together with the Cycurion Common
Stock, the "Cycurion Capital Stock"), issued and outstanding
immediately prior to the Effective Time will be canceled and converted
into the right to receive the number of shares of Registrant's common
stock, par value $0.0001 per share (the "Registrant Common Stock")
allocable from the Aggregate Consideration as set forth in the Merger
Agreement (collectively, the "Per Share Consideration"). "Aggregate
Consideration" means 9,500,000 shares of Registrant Common Stock;
(ii) all shares of Cycurion Capital Stock held in treasury by Registrant,
the Cycurion or any wholly owned subsidiary of Registrant or the
Cycurion will be canceled without any conversion thereof and no payment
or distribution will be made with respect thereto;
(iii) each share of Merger Sub issued and outstanding immediately prior to
the Effective Time will be converted into one share of the Surviving
Corporation ;
(iv) certain warrants and options to acquire Cycurion Capital Stock (each, a
"Cycurion Warrant") that are identified in the Merger Agreement, will
be assumed by Registrant (each, an "Assumed Securities "). All other
warrants and options Cycurion shall be cancelled or terminated prior to
the Effective Time. Each Assumed Security will be exercisable for such
number of whole shares of Registrant Common Stock (rounded up to the
nearest whole share) at the per share exercise price (rounded up to the
nearest whole cent) as set forth in the Merger Agreement. The number of
shares of Registrant Common Stock into which an Assumed Security is
exercisable shall be based on the Per Share Consideration for the
relevant Cycurion Capital Stock into which such Assumed Security is
exercisable, and the per share exercise price shall be ratably
adjusted;
(v) no fractional shares of Registrant Common Stock will be issued by
virtue of the Merger and any fractional shares otherwise issuable to a
holder of Cycurion's securities (after aggregating all fractional
shares of Registrant Common Stock that otherwise would be received by
such holder) will be rounded down to the nearest whole share of
Registrant Common Stock.
Representations and Warranties
The parties to the Merger Agreement have agreed to customary representations and warranties for transactions of this type. The representations and warranties of Cycurion, Registrant and Merger Sub will not survive the Closing.
Covenants
The Merger Agreement includes covenants of Registrant relating to, among other things, (i) operating its business in the ordinary course, (ii) disbursement of Trust Account funds, (iii) providing access and information to Cycurion, as applicable, and its Representatives, (iv) restrictions on soliciting, initiating or discussing alternative transaction proposals with third parties and ceasing discussions regarding alternative transaction proposals, (v) indemnification and insurance; (vi) using reasonable best efforts to cause Registrant Common Stock being issued pursuant to the Merger Agreement to be approved for listing on Nasdaq; and (vii) obtaining an opinion from a financial advisor that the total consideration to Registrant's stockholders is fair such stockholders from a financial point of view.
The Merger Agreement includes covenants of Cycurion relating to, among other things, (i) conducting its business in the ordinary course; (ii) providing access and information to Registrant and its Representatives; (iii) not making claims against the Trust Account; (iv) restrictions on soliciting, initiating or discussing alternative transaction proposals with third parties; (v) delivering audited and unaudited financial statements, as applicable; and (vi) soliciting written consents from the Cycurion's stockholders in favor of the adoption and approval of the Merger Agreement and the transactions contemplated thereby.
The Merger Agreement also contains additional, customary joint covenants of the parties to, among other things, prepare a Registration Statement on Form S-4 with respect to the Registrant Common Stock issuable under the Merger Agreement, which Form S-4 will contain a proxy statement of Registrant (the "Registration Statement / Proxy Statement") that includes provisions for approval and/or adoption of (i) the Business Combination, including the Merger and Merger Agreement, (ii) amendments and restatements of Registrant's charter and bylaws, (iii) issuance of the Aggregate Consideration pursuant to the Merger Agreement, (iv) Registrant's equity incentive plan, and (v) certain other proposals at a special meeting of the holders of Registrant Common Stock (collectively, the "Proposals").
Conditions to Closing Mutual
The respective obligations of each of Cycurion, the Cycurion, Registrant and Merger Sub to consummate the Merger are subject to the satisfaction or waiver, at or prior to the Closing of each of the following conditions:
(i) approval by Registrant's stockholders of the Proposals set forth in the
Registration Statement / Proxy Statement; and receipt of the requisite
written consent Cycurion's stockholders adopting the Merger Agreement
and approving the Merger and other transactions contemplated by the
Merger Agreement;
(iii) no Governmental Authority of competent jurisdiction having enacted,
issued, promulgated, enforced or entered any Law or Order that is in
effect and restrains, enjoins, makes illegal or otherwise prohibits the
consummation of the Merger Agreement and other transactions contemplated
thereby;
(iv) specified consents, registrations, approvals, clearances, Permits and
authorizations from Governmental Entities shall have been obtained; and
(v) the Registration Statement / Proxy Statement having been declared
effective by the Securities and Exchange Commission ("SEC") and no stop
order suspending the effectiveness of the Registration Statement / Proxy
Statement being in effect, and no Proceedings for purposes of suspending
the effectiveness of the Registration Statement / Proxy Statement having
been initiated or threatened by the SEC .
Registrant and Merger Sub
The obligations of Registrant and Merger Sub to consummate the Merger are subject to the satisfaction or waiver, at or prior to the Closing of additional conditions, including, but not limited to, the following:
(i) Cycurion's representations and warranties being true and correct to the
extent set forth in the Merger Agreement;
(ii) Cycurion having complied with or performed in all material respects with
all covenants and obligations required by the Merger Agreement to be
complied with or performed by it on or prior to the Closing; and
(iii) no Material Adverse Effect having occurred on the Cycurion between the
date of the Merger Agreement and the Closing.
Cycurion
The obligation Cycurion to consummate the Merger is subject to the satisfaction or waiver, at or prior to the Closing of additional conditions, including, but not limited to, the following:
(i) the representations and warranties of Registrant and Merger Sub being
true and correct to the extent set forth in the Merger Agreement;
(ii) each of Registrant and Merger Sub having complied with or performed in
all material respects with all covenants and obligations required by the
Merger Agreement to be complied with or performed by it on or prior to
the Closing;
(iii) no Material Adverse Effect having occurred on Registrant between the
date of the Merger Agreement and the Closing;
(iv) Registrant having made all necessary arrangements with the Trustee to
have the funds in the Trust Account disbursed or available to Registrant
in accordance with the Trust Agreement and the Merger Agreement,
contemporaneously with the Closing;
(v) Registrant having at least $5,000,001 of net tangible assets (as
determined in accordance with Rule 3a51-1(g)(1) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act");
(vi) The Registrant Common Stock to be issued pursuant to the Merger
Agreement being listed or approved for listing on Nasdaq; and
(vii) receipt by the Cycurion of the effective resignations of certain
directors and executive officers of Registrant as set forth in the
Merger Agreement.
Closing
The closing of the Merger will occur as promptly as practicable, but in no event later than three Business Days following the satisfaction or waiver of all of the conditions to Closing.
Termination
The Merger Agreement may be terminated at any time prior to the consummation of
the Merger by mutual written consent of Cycurion, as applicable, and Registrant
and in certain other limited circumstances, including if the Merger has not been
consummated by
Either Registrant or the Cycurion may also terminate the Merger Agreement if (i) certain Proposals fail to receive the requisite vote for approval at a special meeting of the holders of Registrant Common Stock; (ii) a Governmental Authority issues an Order or takes any other action which restrains, enjoins or otherwise prohibits the Merger or (iii) if (A) any representation or warranty of Registrant, Merger Sub or Cycurion contained in the Merger Agreement shall be inaccurate or (B) the covenants or obligations of Registrant, Merger Sub or Cycurion, as applicable, contained in the Merger Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy or breach is curable by the breaching party during the 30 calendar day period after the non-breaching party notifies the breaching party in writing of the existence of such inaccuracy or breach (the "Cure Period"), then the non-breaching party may not terminate the Merger Agreement as a result of such inaccuracy or breach prior to the expiration of the Cure Period unless the breaching party is no longer continuing to exercise reasonable best efforts to cure such inaccuracy or breach. Registrant may also terminate the Merger Agreement if a Material Adverse Effect shall have occurred with respect to Cycurion.
Effect of Termination
If the Merger Agreement is terminated, the Merger Agreement will become void, and there will be no liability under the Merger Agreement on the part of any party thereto, except as set forth in the Merger Agreement.
A copy of the Merger Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement and the Proposed Transactions is incomplete and is subject to, and qualified in its entirety by, reference to the actual Merger Agreement. The Merger Agreement and other agreements described below have been included as exhibits to this Current Report on Form 8-K to provide security holders with information regarding their terms. They are not intended to provide any other factual information about Registrant, Merger Sub, Cycurion, as applicable. In particular, the assertions embodied in representations and warranties by Registrant, Merger Sub and Cycurion, as applicable, contained in the Merger Agreement were made as of a specified date, are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement, including being qualified by confidential information in the disclosure letters provided by the parties in connection with the execution of the Merger Agreement, and are subject to standards of materiality applicable to the contractive parties that may differ from those applicable to security holders. The confidential disclosures contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were used for the purpose of allocating risk between the parties, rather than establishing matters as facts. Accordingly, security holders should not rely on the representations and warranties in the Merger Agreement as characterizations of the actual state of . . .
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Exhibit
2.1 † Agreement and Plan of Merger, dated as ofNovember 21, 2022 , by and among Registrant, Merger Sub, Cycurion and the Stockholders' Representative 10.1 Form of Stockholder Support Agreement 10.2 Form of Sponsor Support Agreement 10.3 Form of Parent Support Agreement 10.4 Form of Lock Up Agreement 104 Cover Page Interactive Data File (embedded within the XBRL document)
† Certain of the schedules (and/or exhibits) have been omitted pursuant to Item
601(b)(2) of Regulation S-K. A copy of any omitted schedule (and/or exhibit)
will be furnished to the
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