UNITED
STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
8-K
CURRENT
REPORT
Pursuant
to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date
of report (Date of earliest event reported): October 3, 2020
Live
Oak Acquisition Corp.
(Exact Name of Registrant as Specified in Charter)
Delaware
|
|
001-39280
|
|
82-1924518
|
(State
or other jurisdiction
|
|
(Commission
File Number)
|
|
(I.R.S.
Employer
|
of
incorporation)
|
|
|
|
Identification
Number)
|
774A
Walker Rd
|
|
|
Great
Falls, Virginia
|
|
10543
|
(Address
of principal executive offices)
|
|
(Zip
code)
|
(901)
685-2865
(Registrant’s telephone number, including area code)
Not
Applicable
(Former name or former address, if changed since last report)
Check
the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the Registrant
under any of the following provisions:
☒
|
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
|
|
|
☐
|
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
|
|
|
☐
|
Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
|
|
|
☐
|
Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
|
Securities
registered pursuant to Section 12(b) of the Act:
Title
of each class
|
|
Trading
Symbol(s)
|
|
Name
of each exchange on which registered
|
Units,
each consisting of one share of Class A Common Stock and one-half of one Redeemable Warrant
|
|
LOAK.U
|
|
The
New York Stock Exchange
|
Class
A Common Stock, par value $0.0001 per share
|
|
LOAK
|
|
The
New York Stock Exchange
|
Warrants,
each exercisable for one share of Class A Common Stock for $11.50 per share
|
|
LOAK
WS
|
|
The
New York Stock Exchange
|
Indicate
by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§
230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2).
Emerging
growth company ☒
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for
complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐
Item
1.01. Entry into a Material Definitive Agreement
General
On October 3, 2020,
Live Oak Acquisition Corp., a Delaware corporation (“Live Oak”), Green Merger Corp., a Georgia corporation (“Merger
Sub”), Meredian Holdings Group, Inc., a Georgia corporation (the “Company”), Live Oak Sponsor Partners,
LLC, as representative for Live Oak, for certain purposes described in the Merger Agreement (the “Live Oak Representative”)
and John A. Dowdy, Jr., as representative of the shareholders of the Company for certain purposes described in the Merger Agreement
(the “Shareholder Representative”), entered into an agreement and plan of merger (the “Merger Agreement”),
pursuant to which Live Oak and the Company will enter into a business combination. The terms of the Merger Agreement, which contains
customary representations and warranties, covenants, closing conditions other terms relating to the Merger (defined below) and
the other transactions contemplated thereby, are summarized below. Capitalized terms used in this Current Report on Form 8-K but
not otherwise defined herein have the meanings given to them in the Merger Agreement.
The
Merger Agreement
Structure
of the Transaction
The
transaction is structured as a reverse triangular merger, which includes the following:
|
(a)
|
Pursuant
to the Merger Agreement, at the Effective Time, Merger Sub, a newly formed, wholly-owned direct subsidiary of Live Oak, will
be merged with and into the Company (the “Merger,” together with the other transactions related thereto,
the “Proposed Transactions”), with the Company surviving the Merger as a wholly-owned direct subsidiary
of Live Oak (the “Surviving Corporation”);
|
|
|
|
|
(b)
|
Contemporaneously
with the execution of the Merger Agreement, certain investors have entered into certain subscription agreements, pursuant
to which such investors will purchase shares of Class A Common Stock, par value $0.0001 per share (“Live Oak Common
Stock”) of Live Oak at a purchase price of $10.00 per share in a private placement to be consummated immediately
prior to the consummation of the Proposed Transactions;
|
|
|
|
|
(c)
|
Contemporaneously
with the execution of the Merger Agreement, Live Oak and certain Shareholders of the Company representing a majority of the
outstanding shares of the Company’s common stock, $0.001 par value, (the “Company Common Stock”)
entered into Support Agreements, pursuant to which such Shareholders agreed, among other things, to vote their shares of Company
Common Stock in favor of the Merger Agreement, the Merger and the other Proposed Transactions as further described below under
“Stockholder Support Agreements”;
|
|
|
|
|
(d)
|
Contemporaneously
with the execution of the Merger Agreement, Live Oak and certain Specified Shareholders of the Company entered into
Non-Competition Agreements (the “Non-Competition Agreements”), pursuant to which such Specified
Shareholders agreed, among other things, to refrain from (i) owning, operating or having any interest in a Competing Business
(as defined below); (ii) soliciting, among others, any customer, supplier or vender in relation to researching,
developing, manufacturing, marketing, distributing and selling biodegradable bio-plastic replacements for traditional
petroleum-based plastics (the “Business”) or (iii) soliciting any officer, employee, representative or
agent of Live Oak or its subsidiaries who has been hired or engaged by Live Oak or any of its subsidiaries (including the
Company and its subsidiaries) to leave the employ of Live Oak and its subsidiaries or hire any such individual, in each case
as further described below under “Non-Competition Agreements”; and
|
|
|
|
|
(e)
|
In
connection with the Closing, Live Oak, certain stockholders of the Company and certain stockholders of Live Oak will also
enter into a lock-up agreement (the “Lock-Up Agreement”) described below under “Lock-Up Agreements”.
|
Conversion
of Securities
At
the Effective Time, by virtue of the Merger and without any action on the part of Live Oak, Merger Sub, the Company or the holders
of any of the Company’s securities:
|
(a)
|
Each
share of Company Common Stock issued and outstanding immediately prior to the Effective Time will be cancelled and extinguished,
will cease to exist and will be converted into the right to receive the number of shares of Live Oak Common Stock equal to
the quotient obtained by dividing (a)(i) Closing Payment, divided by (ii) the sum of (x) the total number of shares of Company
Common Stock (other than Cancelled Shares) issued and outstanding immediately prior to the Effective Time, plus (y) the total
number of Cash Free Exercise Option and Warrant Shares issuable in respect of all Company Options and Company Warrants that
remain outstanding as of immediately prior to the Closing, by (b) $10.00 (the “Closing Per Share Merger Consideration”)
together with any amounts that may become payable in respect of such Shares from the Adjustment Holdback Amount, the Shareholder
Representative Amount, and the Earn-Out Shares, when and as provided in the Merger Agreement;
|
|
|
|
|
(b)
|
All
shares of Company Common Stock held in the treasury of the Company will be cancelled and retired and will cease to exist, and
no payment, distribution or other consideration will be delivered or deliverable in exchange for such shares;
|
|
|
|
|
(c)
|
Each
share of common stock, $0.0001 par value, of Merger Sub issued and outstanding immediately prior to the Effective Time will
be converted into and exchanged for one validly issued, fully paid and non-assessable share of common stock, par value $0.001
per share, of the Surviving Corporation; and
|
|
|
|
|
(d)
|
Each
Company Option that is outstanding immediately prior to the Effective Time, whether vested or unvested, will be assumed by
Live Oak and will be converted automatically at the Effective Time into an option (an “Assumed Company Option”)
to acquire shares of Live Oak Common Stock, on the same terms and conditions as were applicable under such Company Option
(including applicable vesting and exercise conditions) except that (a) the number of shares of Live Oak Common Stock that
will be subject to each such Assumed Company Option will be determined by multiplying the number of shares of Company Common
Stock subject to the corresponding Company Option by a fraction (the “Award Exchange Ratio”), the numerator
of which is the Closing Per Share Merger Consideration (rounded down to the nearest whole share) multiplied by $10.00 and
the denominator of which is the fair market value of a share of Live Oak Common Stock on the Closing Date and (b) the exercise
price per share of each such Assumed Company Option will equal (i) the per share exercise price of the corresponding Company
Option divided by (ii) the Award Exchange Ratio (rounded up to the nearest whole cent).
|
At
least three (3) Business Days prior to the Closing Date, the Company will deliver to Live Oak a statement (the “Estimated
Closing Statement”) setting forth the Company’s good faith estimate of the Closing Payment (such estimated amount,
the “Estimated Merger Consideration”), including each of its components. Prior to the Closing, Live Oak will
be entitled to review, comment on, and propose changes to the Estimated Closing Statement, including the calculation of the Estimated
Merger Consideration set forth therein. The Company will promptly consider in good faith any changes Live Oak proposes to the
Estimated Closing Statement and revise the Estimated Closing Statement if, based on its good faith assessment, such changes are
warranted.
The Adjustment Holdback
Shares will be withheld from Shareholders at Closing for the purpose of securing the variances between the Estimated Merger Consideration
and the Final Merger Consideration as agreed upon by Live Oak Representative and Shareholder Representative, or as determined by
their mutually selected accounting firm within the period and through the process set forth in Section 3.3 of the Merger Agreement
(the “Final Merger Consideration”).
If
the Final Merger Consideration is greater than the Estimated Merger Consideration, then, within five Business Days after the date
on which the Final Merger Consideration becomes final and binding, Live Oak will deposit with the Exchange Agent the amount of
Live Oak Common Stock required to account for such difference (the “Positive Adjustment Shares”). Thereafter,
the Exchange Agent will disburse the Positive Adjustment Shares and the Adjustment Holdback Shares to the Shareholders (other
than Cancelled Shares and any Dissenting Shares) in accordance with the Merger Agreement.
If
the Final Merger Consideration is less than the Estimated Merger Consideration, then, within five Business Days after the date
on which the Final Merger Consideration becomes final and binding, the Live Oak Representative and the Shareholder Representative
will jointly instruct Live Oak to deduct out of the Adjustment Holdback Shares, the number of shares of Live Oak Common Stock
(the “Negative Adjustment Shares”) equal to such difference. If the Negative Adjustment Shares is less than
the Adjustment Holdback Shares, then the Exchange Agent will disburse such remaining portion of the Adjustment Holdback Amount
to the Shareholders in accordance with the Merger Agreement. If the Negative Adjustment Shares is greater than the Adjustment
Holdback Shares, and on the one year anniversary of the Closing Date there remains any funds in the Shareholder Representative
Amount after taking into account and accruing for all expenses and other amounts for which the Shareholder Representative Amount
is permitted to be used under the Merger Agreement, the Shareholder Representative will pay any such excess amount in the Shareholder
Representative Amount to Live Oak within thirty days following the one year anniversary of the Closing Date. The maximum exposure
to the Shareholders based on any adjustments with respect to the Final Merger Consideration and the Estimated Merger Consideration
is be limited to the Adjustment Holdback Shares and the remaining funds in the Shareholder Representative Amount.
“Adjustment
Holdback Amount” means $4,500,000.
“Adjustment
Holdback Shares” means 450,000 shares of Live Oak Common Stock.
“Closing Payment”
means an amount equal to (i) the Estimated Merger Consideration, minus (ii) the Adjustment Holdback Amount, minus (iii) the
Shareholder Representative Amount.
“Estimated
Merger Consideration” means an amount equal to (i) $450,000,000, minus (ii) the Closing Date Net Debt, minus (iii) the
Transaction Expenses Adjustment Amount, plus (iv) any Earn-Out Shares, as determined by the Company in good faith at least three
Business Days prior to the Closing Date.
“Shareholder
Representative Amount” means $250,000.
Conversion
of Convertible Notes and Exercise of Warrants
Prior
to the Closing, the Company’s board of directors will have adopted resolutions, and the Company has agreed to take all other
actions reasonably necessary, to permit each Company Warrant that remains outstanding as of immediately prior to the Closing to
be exercisable in exchange for shares of Live Oak Common Stock immediately after the Effective Time. After the conversion or repayment
of the Convertibles Notes, and the exercise of the Company Warrants, and the resolutions passed by the Company Board pursuant
to the Merger Agreement, the Convertible Notes and the Company Warrants will no longer represent the right to purchase shares
of Company Common Stock or any other Equity Interests of the Company, Merger Sub, the Surviving Corporation or any other Person
or the right to receive any other consideration other than as provided in the Merger Agreement.
Earn-Out
Shares
In
addition to the Closing Per Share Merger Consideration, Live Oak will, upon receipt of written instructions from the Live Oak
Representative, issue or cause to be issued (which, for the avoidance of doubt, will not be issued and outstanding unless or until
the following conditions are met) to each Shareholder its “pro rata portion” of the following contingent merger consideration
amounts (collectively, the “Earn-Out Shares”) subject to the terms and conditions set forth below:
(a) 2,500,000
shares of Live Oak Common Stock if the volume weighted average price of Live Oak Common Stock on the NYSE or such other exchange
as such shares may then be listed as reported on Bloomberg L.P. under the function “VWAP” (or, if not reported therein,
in another authoritative source mutually selected by the parties) (“VWAP”) equals or exceeds fifteen dollars
($15.00) per share for any twenty (20) trading days within a 30-day trading period beginning on the six (6) month anniversary
of the Closing Date and ending on the third anniversary of the Closing Date;
(ii) 2,500,000
shares of Live Oak Common Stock if the VWAP of Live Oak Common Stock on the NYSE or such other exchange as such shares may then
be listed equals or exceeds twenty dollars ($20.00) per share for any twenty (20) trading days within a 30-day trading period
beginning on the six (6) month anniversary of the Closing Date and ending on the fifth anniversary of the Closing Date; and
(iii) 1,000,000
shares of Live Oak Common Stock if the VWAP of Live Oak Common Stock on the NYSE or such other exchange as such shares may then
be listed equals or exceeds twenty-five dollars ($25.00) per share for any twenty (20) trading days within a 30-day trading period
beginning on the six (6) month anniversary of the Closing Date and ending on the fifth anniversary of the Closing Date.
The
right of a Shareholder to receive any portion of the Earn-Out Shares will be non-transferable, and no Shareholder may transfer,
assign, pledge or convey any interest in the Earn-Out Shares, except by operation of law.
Proxy
Statement and Registration Statement
As
promptly as practicable, after the date of the Merger Agreement and receipt of the Company’s audited financial
statements, (a) Live Oak and the Company will prepare and file with the Securities and Exchange Commission (the
“SEC”) a proxy statement (as amended or supplemented from time to time, the “Proxy
Statement”) to be sent to the Live Oak Stockholders relating to the meeting of the Live Oak Stockholders (the
“Live Oak Stockholders’ Meeting”) to be held to consider approval and adoption of (1) the Merger
Agreement and the Merger, (2) the issuance of Live Oak Common Stock as contemplated by the Merger Agreement (including the
Earn-Out Shares) and the PIPE, (3) an employee stock purchase plan for Live Oak, (4) the New Equity Incentive Plan, (5) the
following amendments to Live Oak’s Certificate of Incorporation: (A) increasing the authorized shares of Live Oak Class
A Common Stock to 200,000,000 shares, (B) deleting the classified Live Oak Board structure, and (C) deleting the provisions
of Section 5.4, Article VII, Article IX and Article X of the Live Oak Certificate of Incorporation and (6) any other
proposals the parties deem necessary to effectuate the Merger and the transactions contemplated by the Merger Agreement
(collectively, the “Live Oak Proposals”) and (b) Live Oak will prepare and file with the SEC a
registration statement on Form S-4, in which the Proxy Statement will be included as a prospectus, in connection with the
registration under the Securities Act of 1933, as amended (the “Securities Act”), of shares of Live Oak
Common Stock (A) to be issued to the Company Stockholders pursuant to the Merger Agreement (including the Earn-Out Shares)
and (B) held by the Live Oak Stockholders immediately prior to the Effective Time.
Stock
Exchange Listing
Live
Oak will cause the Closing Per Share Merger Consideration, the Earn-Out Shares and any other shares of Live Oak Common Stock issued
or issuable to the holders of Company Common Stock (the “Shareholders”) in accordance with the terms of the
Merger Agreement in connection with the Merger and the transactions contemplated thereby to be approved for listing on the New
York Stock Exchange (“NYSE”) at Closing, or on such other exchange as such shares of Live Oak Common Stock
may then be listed when so issued.
Exclusivity
From
the date of the Merger Agreement until the Effective Time, the Company and its Subsidiaries will not, directly or indirectly,
and will cause their respective Representatives not to (i) solicit, initiate, induce, facilitate or encourage the making, submission
of any inquiries, proposal or offer from any other Person relating to a potential business combination with or acquisition of
the Company or the Business (whether by way of merger, purchase of Equity Interests, purchase of assets, or otherwise) or any
portion of the Equity Interests or assets of the Company or any of its Subsidiaries (a “Competing Transaction”),
(ii) participate in or continue any activities, discussions, or negotiations regarding a Competing Transaction, (iii) provide
information regarding the Company, its Subsidiaries or the Business to, or enter into or agree to enter into any Contract with,
any Person, other than Live Oak and its Representatives, in connection with a possible Competing Transaction with such Person
or (iv) fail to provide a copy of the Company Board Recommendation for inclusion by Live Oak in the Proxy Statement. The Company
and its Subsidiaries will, and will cause its Representatives to, immediately cease any existing activities, discussions, and
negotiations with any other Person with respect to any of the foregoing. The Company will immediately advise Live Oak orally and
in writing of the receipt by the Company or any of its Representatives of any oral or written communication, proposal, offer,
or inquiry from any other Person regarding a Competing Transaction, including the identity of the Person making the same and the
material terms and conditions of any proposal or offer. The Company and its Subsidiaries will not, directly or indirectly, and
will cause its Representatives not to (i) withdraw or modify in any manner adverse to Live Oak or Merger Sub, the consummation
of the Proposed Transactions, propose to withdraw or modify in any manner adverse to Live Oak or Merger Sub, the Company Board
Recommendation or (ii) recommend, declare advisable, or propose publicly to recommend or declare advisable any Competing Transaction.
From
the date of the Merger Agreement until the Effective Time, Live Oak will not, directly or indirectly, and will cause its Representatives
not to (i) solicit, initiate, induce, facilitate or encourage the making, submission of any inquiries, proposal or offer from
any other Person relating to a potential business combination with Live Oak or acquisition by Live Oak of another company or business
(whether by way of merger, purchase of Equity Interests, purchase of assets, or otherwise) or any portion of the Equity Interests
or assets of another company or business (a “Competing Live Oak Transaction”), (ii) participate in or continue
any activities, discussions, or negotiations regarding a Competing Live Oak Transaction or (iii) provide information regarding
Live Oak or its business, or enter into or agree to enter into any Contract with, any Person, other than the Company and its Representatives,
in connection with a possible Competing Live Oak Transaction with such Person. Live Oak will, and will cause its Representatives
to, immediately cease any existing activities, discussions, and negotiations with any other Person with respect to any of the
foregoing. Live Oak will immediately advise the Company orally and in writing of the receipt by Live Oak or any of its Representatives
of any oral or written communication, proposal, offer, or inquiry from any other Person regarding a Competing Live Oak Transaction,
including the identity of the Person making the same and the material terms and conditions of any proposal or offer. Live Oak
will not, directly or indirectly, and will cause its Representatives not to (i) withdraw or modify in any manner adverse to the
Company, the consummation of the Proposed Transactions, propose to withdraw or modify in any manner adverse to the Company, the
approval of the Merger Agreement by the Live Oak Board and the Proposed Transactions or the recommendation of the Live Oak Board
to the Live Oak Stockholders to approve the Merger Agreement and the Proposed Transactions or (ii) recommend, declare advisable,
or propose publicly to recommend or declare advisable any Competing Live Oak Transaction.
Closing
The
Closing will occur on the date that is two Business Days after each of the closing conditions set forth in the Merger Agreement
has been satisfied or, if permitted, waived.
Representations,
Warranties and Covenants
The
Merger Agreement contains customary representations, warranties and covenants of (a) the Company and (b) Live Oak and Merger Sub
relating to, among other things, their ability to enter into the Merger Agreement and their outstanding capitalization.
Conditions
to Closing
Mutual
The
obligations of the Company, Live Oak and Merger Sub to consummate the Proposed Transactions, including the Merger, are subject
to the satisfaction or waiver (where permissible) at or prior to the Closing of the following conditions:
|
(a)
|
The
applicable waiting period under the HSR Act shall have expired or been terminated;
|
|
(b)
|
No
Governmental Authority shall have entered or issued any Order preventing, enjoining, or making illegal the consummation of
any of the transactions contemplated by the Merger Agreement or the Related Agreements and no Law shall have been enacted
or shall be deemed applicable to any of the transactions contemplated by the Merger Agreement or the Related Agreements which
makes the consummation of any of such transactions illegal;
|
|
|
|
|
(c)
|
The
Company’s shareholders shall have consented to the Merger Agreement and the Merger;
|
|
|
|
|
(d)
|
The
Live Oak Proposals shall have been approved and adopted by the requisite affirmative vote of Live Oak’s Stockholders
in accordance with the Proxy Statement and applicable Law;
|
|
|
|
|
(e)
|
The
Registration Statement shall have been declared effective under the Securities Act. No stop order suspending the effectiveness
of the Registration Statement shall be in effect, and no Proceedings for purposes of suspending the effectiveness of the Registration
Statement shall have been initiated or be threatened by the SEC;
|
|
|
|
|
(f)
|
The
shares of Live Oak Common Stock to be issued to the Shareholders as contemplated by the Merger Agreement (including the Earn-Out
Shares) shall be listed on the NYSE as of the Closing Date;
|
|
|
|
|
(g)
|
All
Company Options shall have been converted into comparable substitute equity awards of Live Oak; and
|
|
|
|
|
(h)
|
All of the outstanding warrants and all other convertible securities
of the Company (other than the Company Options) shall have been converted into equity of the Company, repaid or cancelled (in the
case of out-of-the-money securities) or otherwise converted at or prior to the Closing, and any rights to acquire equity of the
Company (other than as described in (g) above) will be extinguished as of the Closing.
|
Live
Oak and Merger Sub
The
obligations of Live Oak and Merger Sub to consummate the Proposed Transactions are subject to the satisfaction or waiver (where
permissible) at or prior to the Closing of the following additional conditions:
|
(a)
|
Each of the representations and warranties of the Company set
forth in the Merger Agreement under the sections titled (i) Organization and Authorization of the Company and its Subsidiaries;
(ii) Capitalization of the Company; Subsidiaries; (iii) No Conflicts; (iv) Required Shareholder Approval; and (v) Brokers
(collectively, the “Company Fundamental Representations”); shall have been true and correct as of the date of
Merger Agreement and shall be true as of the Closing Date as though made on the Closing Date (except to the extent any such Company
Fundamental Representation speak as of the date of the Merger Agreement or any other specific date, in which case such Company
Fundamental Representation shall have been true and correct as of such date). Each of the other representations and warranties
of the Company set forth in the Merger Agreement shall have been true and correct in all respects, in the case of any representation
or warranty qualified by materiality or Material Adverse Effect, or in all material respects, in the case of any representation
or warranty not qualified by materiality or Material Adverse Effect, in each case as of the date of the Merger Agreement and as
of the Closing Date as though made on the Closing Date (except to the extent any such representation or warranty speaks as of the
date of the Merger Agreement or any other specific date, in which case such representation or warranty shall be true and correct
in all respects or all material respects, as the case may be, as of such date);
|
|
|
|
|
(b)
|
The
Company shall have performed or complied with in all material respects all covenants and agreements required to be performed
or complied with by the Company under the Merger Agreement on or prior to the Closing Date;
|
|
(c)
|
No
Proceeding shall be pending by or before any Governmental Authority seeking to, or wherein an unfavorable Order would, (i)
prevent the consummation of any of the transactions contemplated by the Merger Agreement or the Related Agreements, (ii) make
illegal any of the transactions contemplated by the Merger Agreement or the Related Agreements, (iii) cause any of the transactions
contemplated by the Merger Agreement or the Related Agreements to be rescinded following the Closing, or (iv) impose any conditions,
restrictions, undertakings, or limitations that, individually or in the aggregate, would impair, or could reasonably be expected
to impair, the ability of Live Oak to consummate any of the transactions contemplated by the Merger Agreement or the Related
Agreements;
|
|
|
|
|
(d)
|
Since
the date of the Merger Agreement, there shall have been no Material Adverse Effect;
|
|
|
|
|
(e)
|
Live
Oak shall have received the written Consents set forth in the Merger Agreement in form and substance reasonably satisfactory
to Live Oak;
|
|
|
|
|
(f)
|
Live
Oak shall have received from the Company each delivery required pursuant to the Merger Agreement;
|
|
|
|
|
(g)
|
Each
of the Key Employment Agreements shall be effective and in full force and effect; and, each of the Key Executives shall remain
employed by the Company and none of the Key Executives shall have expressed an intention to terminate his or her employment
with the Company or withdraw or rescind his or her Key Employment Agreement (except in each case due to disability or death);
|
|
|
|
|
(h)
|
No
Specified Shareholder shall have sought, or threatened, to withdraw or rescind his or her Non-Competition Agreement; and
|
|
|
|
|
(i)
|
All
parties to the Lock-Up Agreement (other than Live Oak) shall have delivered, or cause to be delivered, to Live Oak, copies
of the Lock-Up Agreement, duly executed by such parties.
|
The
Company
The
obligations of the Company to consummate the Proposed Transactions are subject to the satisfaction or waiver (where permissible)
at or prior to Closing of the following additional conditions:
|
(a)
|
Each
of the representations and warranties of Live Oak in the Merger Agreement set forth in the sections titled (i) Organization
and Authorization and (ii) Brokers (the “Live Oak Fundamental Representations”) of Live Oak and Merger
Sub shall be true and correct in all respects as of the date of the Merger Agreement and as of the Closing Date as though
made on the Closing Date (except to the extent any such Live Oak Fundamental Representation speaks as of the date of the Merger
Agreement or any other specific date, in which case such Live Oak Fundamental Representation shall be true and correct as
of such date). Each of the other representations and warranties of Live Oak and Merger Sub set forth in the Merger Agreement
shall have been true and correct in all respects, in the case of any representation or warranty qualified by materiality,
or in all material respects, in the case of any representation or warranty not qualified by materiality, in each case as of
the date of the Merger Agreement and as of the Closing Date as though made on the Closing Date (except to the extent any such
representation or warranty speaks as of the date of the Merger Agreement or any other specific date, in which case such representation
or warranty shall be true and correct in all respects or all material respects, as the case may be, as of such date);
|
|
|
|
|
(b)
|
Live
Oak and Merger Sub shall have performed or complied with in all material respects all covenants and agreements required to
be performed or complied with by Live Oak and Merger Sub under the Merger Agreement on or prior to the Closing Date;
|
|
|
|
|
(c)
|
The
Company shall have received from Live Oak and Merger Sub each delivery required pursuant to the Merger Agreement; and
|
|
(d)
|
Live
Oak shall have raised at least $200,000,000 in cash in an equity financing to be consummated in connection with the Closing
(the “PIPE”). Live Oak’s cash and cash equivalents from all sources at the Closing, after giving
effect to redemptions made by certain Live Oak Stockholders, when added together with the amount of all net proceeds from
the PIPE, along with any additional private financing or backstop arrangements concurrent with the Closing that may be pursued
by Live Oak at its sole discretion, shall be at least $300,000,000.
|
Termination
The
Merger Agreement may be terminated and the Proposed Transactions may be abandoned at any time prior to the Closing, as follows:
|
(a)
|
By
mutual written consent of the Company and Live Oak.
|
|
|
|
|
(b)
|
By
either the Company or Live Oak, if the Closing does not occur on or prior to March 31, 2021 (the “Outside Date”);
provided, however, that the right to terminate Merger Agreement under this subsection (b) will not be available to a Party
whose breach of or failure to perform any of its representations, warranties, covenants, or agreements contained in the Merger
Agreement has been the cause of or has resulted in the failure of the Closing to occur on or prior to the Outside Date.
|
|
|
|
|
(c)
|
By
Live Oak if (i) the Company breaches or fails to perform in any material respect any of its representations, warranties, covenants,
or agreements contained in the Merger Agreement, which breach or failure to perform (A) would result in a failure of a condition
for the benefit of Live Oak and (B) (1) if capable of being cured, has not been cured by the Company by the earlier of the
Outside Date and the date that is ten (10) days after the Company’s receipt of written notice from Live Oak stating
Live Oak’s intention to terminate the Merger Agreement or (2) is incapable of being cured; or (ii) the Company has not
delivered to Live Oak a certified copy of the Written Consent by 5:00 p.m. (Central Time) on the tenth Business Day immediately
following the date that the Registration Statement is declared effective by the SEC.
|
|
|
|
|
(d)
|
By
the Company if (i) Live Oak or Merger Sub breaches or fails to perform in any material respect any of its representations,
warranties, covenants, or agreements contained in the Merger Agreement, which breach or failure to perform (A) would result
in a failure of a condition for the benefit of the Company and (B) (1) if capable of being cured, has not been cured by Live
Oak by the earlier of the Outside Date and the date that is ten (10) days after Live Oak’s receipt of written notice
from the Company stating the Company’s intention to terminate the Merger Agreement or (2) is incapable of being cured;
or (ii) Live Oak fails to receive the requisite vote to approve each of the Live Oak Proposals by the Outside Date.
|
Effect
of Termination
If the Merger Agreement
is terminated, the Merger Agreement will immediately become void and have no further force or effect, with no liability under the
Merger Agreement on the part of any party to any other party except as set forth in the Merger Agreement, and no such termination
will relieve any party from liability for any fraud, intentional misrepresentation, or intentional or willful breach of the Merger
Agreement by such party prior to such termination.
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 is qualified in its entirety by reference to the full text of the Merger Agreement
filed with this Current Report on Form 8-K. The Merger Agreement is included to provide investors and security holders with information
regarding its terms. It is not intended to provide any other factual information about Live Oak, the Company or the other parties
thereto. In particular, the assertions embodied in representations and warranties by Live Oak, the Company and Merger Sub contained
in the Merger Agreement are qualified by information in the disclosure schedules provided by the parties in connection with the
signing of the Merger Agreement. These disclosure schedules 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, investors and security holders should not rely on the representations and warranties in the Merger Agreement as characterizations
of the actual state of facts about Live Oak, the Company or Merger Sub.
Stockholder
Support Agreements
On
October 3, 2020, certain Shareholders, representing a majority of the shares of Company Common Stock outstanding, entered into
the Support Agreements (the “Support Agreements”) pursuant to which such Shareholders agreed to vote all of
their shares of Company Common Stock in favor of the approval and adoption of the Proposed Transactions. Additionally, such Shareholders
have agreed not to (a) transfer any of their shares of Company Common Stock (or enter into any arrangement with respect thereto)
or (b) enter into any voting arrangement that is inconsistent with the Support Agreements.
The
foregoing description of the Support Agreements is qualified in its entirety by reference to the full text of the Form of Support
Agreement, a copy of which is included as Exhibit A to the Merger Agreement, filed as Exhibit 2.1 to this Current Report on Form
8-K, and incorporated herein by reference.
Lock-Up
Agreement
In
connection with the Proposed Transactions, Live Oak and certain Shareholders (“Stockholder Parties”) will enter
into the Lock-Up Agreement at the Closing. Pursuant to the terms of the Lock-Up Agreement. The Lock-Up Agreement provides for
the securities of Live Oak held by the Shareholders to be locked-up for a period of time following the Effective Time of the Merger
(the “Effective Time”), as described below, subject to certain exceptions. The securities held by the Original
Holders will be locked-up until the earlier of (i) one year after the Effective Time or (ii) subsequent to the Effective Time,
(x) if the reported closing price of the Live Oak Common Stock equals or exceeds $12.00 per share (as adjusted for stock splits,
stock dividends, reorganizations, recapitalizations and the like) for any twenty (20) trading days within any 30-trading day period
commencing at least one hundred fifty (150) days after the Effective Time, or (y) the date on which Live Oak completes a liquidation,
merger, capital stock exchange, reorganization or other similar transaction that results in all of Live Oak’s stockholders
having the right to exchange their shares of Live Oak Common Stock for cash, securities or other property (the “Lock
Up Period”).
The
foregoing description of the Lock-Up Agreement is qualified in its entirety by reference to the full text of the form of Lock-Up
Agreement, a copy of which is included as Exhibit B to the Merger Agreement, filed as Exhibit 2.1 to this Current Report on Form
8-K, and incorporated herein by reference.
Subscription
Agreements
In
connection with the execution of the Merger Agreement, on October 3, 2020, Live Oak accepted separate subscription agreements
(the “Subscription Agreements”) with a number of investors (the “PIPE Investors”), pursuant
to which the PIPE Investors have agreed to purchase, and Live Oak has agreed to sell to the PIPE Investors, an aggregate of 21,000,000
shares of Live Oak Common Stock (the “PIPE Shares”), for a purchase price of $10.00 per share and at an aggregate
purchase price of $210,000,000, in a private placement (the “PIPE”).
Each
Subscription Agreement contains customary representations and warranties of Live Oak, on the one hand, and the applicable PIPE
Investor, on the other hand, and customary conditions to closing, including the consummation of the Proposed Transactions. The
purpose of the PIPE is to raise additional capital for use by the combined company following the Closing.
Pursuant
to the Subscription Agreements, Live Oak agreed that, within 30 calendar days after the Closing Date (the “Filing Deadline”),
Live Oak will file with the SEC (at Live Oak’s sole cost and expense) a registration statement registering the resale of
the PIPE Shares (the “PIPE Resale Registration Statement”), and Live Oak will use its commercially reasonable
efforts to have the PIPE Resale Registration Statement declared effective as soon as practicable after the filing thereof, but
no later than the earlier of (i) the 60th calendar day (or 120th calendar day if the SEC notifies Live Oak that it will “review”
the PIPE Resale Registration Statement) following the Filing Deadline and (ii) the 10th business day after the date Live Oak is
notified (orally or in writing, whichever is earlier) by the SEC that the PIPE Resale Registration Statement will not be “reviewed”
or will not be subject to further review.
The
foregoing description of the Subscription Agreements is qualified in its entirety by reference to the full text of the form of
the Subscription Agreement, a copy of which is included as Exhibit 10.2 to this Current Report on Form 8-K, and incorporated herein
by reference.
Non-Competition
Agreements
In
connection with the execution of the Merger Agreement, Live Oak and certain Specified Shareholders of the Company entered into
the Non-Competition Agreements, pursuant to which such Specified Shareholders agreed, among other things, to not (i) own, manage,
operate, control, have any interest in, financial or otherwise, participate in, consult or perform services for, render services
in any form to any person in, or otherwise carry on, whether as principal, agent, independent contractor, consultant, partner,
manager, member, executive, employee, representative or licensor or otherwise, any business that is competitive with the Business
in any geographic area throughout the world in which the Company and any of its subsidiaries has conducted any aspects of the
Business during the 12-month period prior to the date of Non-Competition Agreements (a “Competing Business”);
(ii)(A) solicit, attempt to solicit, assist in soliciting, directly or indirectly, individually (other than on behalf of Live
Oak and its subsidiaries) or on behalf of a Competing Business, any customer, vendor, supplier, licensor, licensee, or other business
relation of Live Oak and its subsidiaries, or induce or encourage, or attempt to induce or encourage, any customer, vendor, supplier,
licensor, licensee, or other business relation of Live Oak and its subsidiaries, in each such case to cease doing business with
Live Oak and its subsidiaries or (B) in any way interfere with the relationship between Live Oak and its subsidiaries and any
current customer, vendor, supplier, licensor, licensee, or other business relation of Live Oak or its subsidiaries; or (iii)(A)
solicit or recruit, or attempt to solicit or recruit, any officer, employee, representative, or agent of Live Oak or any of its
subsidiaries who has been hired or engaged by Live Oak or any of its subsidiaries (including the Company and its subsidiaries)
to leave the employ of Live Oak or any of its subsidiaries or (B) hire any such individual. The agreements summarized above are
subject to customary exceptions and qualifications.
The
foregoing description of the Non-Competition Agreements is qualified in its entirety by reference to the full text of the form
of the Non-Competition Agreement, a copy of which is included as Exhibit C to the Merger Agreement, filed as Exhibit 2.1 to this
Current Report on Form 8-K, and incorporated herein by reference.
Item
3.02. Unregistered Sales of Equity Securities.
The
disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The securities
of Live Oak that may be issued in connection with the Subscription Agreements will not be registered under the Securities Act
in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated
thereunder.
Item
7.01. Regulation FD Disclosure.
On October 5, 2020,
Live Oak and the Company issued a joint press release announcing the execution of the Merger Agreement and announcing that Live
Oak and the Company will hold a conference call on October 5, 2020 at 9:00 a.m. Eastern Time (the “Conference Call”)].
A copy of the press release, which includes information regarding participation in the Conference Call, is attached hereto as Exhibit
99.1 and incorporated herein by reference. The script that Live Oak and the Company intend to use for the Conference Call is attached
hereto as Exhibit 99.2 and incorporated herein by reference. The information contained in this Item 7.01 and such exhibits and
the information set forth therein are being furnished only and shall 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 shall they be deemed to be incorporated by reference
in any filing under the Securities Act or the Exchange Act.
Attached as Exhibit
99.3 to this Current Report on Form 8-K and incorporated herein by reference is the form of presentation to be used by Live Oak
in presentations for certain of Live Oak’s stockholders and other persons. The information contained in this Item 7.01 and
such exhibit and the information set forth therein is being furnished only and shall 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 shall it be deemed to be incorporated
by reference in any filing under the Securities Act or the Exchange Act.
Important
Information and Where to Find It
In connection with
the Proposed Transactions, Live Oak intends to file a registration statement on Form S-4, including a proxy statement/prospectus
(the “Registration Statement”), with the SEC, which will include a preliminary proxy statement to be distributed
to holders of Live Oak’s Common Stock in connection with Live Oak’s solicitation of proxies for the vote by Live Oak’s
stockholders with respect to the Proposed Transactions and other matters as described in the Registration Statement, and a prospectus
relating to the offer of the securities of Live Oak to be issued in connection with the Proposed Transactions. After the Registration
Statement has been filed and declared effective, Live Oak will mail a definitive proxy statement/prospectus, when available, to
its stockholders. Investors and security holders and other interested parties are urged to read the proxy statement/prospectus,
any amendments thereto and any other documents filed with the SEC carefully and in their entirety when they become available because
they will contain important information about Live Oak, the Company and the Proposed Transactions. Investors and security holders
may obtain free copies of the preliminary proxy statement/prospectus and definitive proxy statement/prospectus (when available)
and other documents filed with the SEC by Live Oak through the website maintained by the SEC at http://www.sec.gov, or by directing
a request to: Live Oak Acquisition Corp., 774A Walker Rd, Great Falls, VA 22066 or (901) 985-2865.
Participants
in the Solicitation
Live
Oak and the Company and their respective directors and certain of their respective executive officers and other members of management
and employees may be considered participants in the solicitation of proxies with respect to the Proposed Transactions. Information
regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings
or otherwise, will be included in the Registration Statement and other relevant materials to be filed with the SEC regarding the
Proposed Transactions when they become available. Stockholders, potential investors and other interested persons should read the
Registration Statement carefully when it becomes available before making any voting or investment decisions. When available, these
documents can be obtained free of charge from the sources indicated above.
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
This Current Report
on Form 8-K includes certain statements that are not historical facts but are forward-looking statements for purposes of the safe
harbor provisions under the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements generally
are accompanied by words such as “believe,” “may,” “will,” “estimate,” “continue,”
“anticipate,” “intend,” “expect,” “should,” “would,” “plan,”
“predict,” “potential,” “seem,” “seek,” “future,” “outlook,”
and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. All
statements, other than statements of present or historical fact included in this Current Report on Form 8-K, regarding Live Oak’s
proposed business combination with the Company, Live Oak’s ability to consummate the transaction, the benefits of the transaction
and the combined company’s future financial performance, as well as the combined company’s strategy, future operations,
estimated financial position, estimated revenues and losses, projected costs, prospects, plans and objectives of management are
forward-looking statements. These statements are based on various assumptions, whether or not identified in this Current Report
on Form 8-K, and on the current expectations of the respective management of Live Oak and the Company and are not predictions of
actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve
as, and must not be relied on as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual
events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances
are beyond the control of Live Oak the Company. Potential risks and uncertainties that could cause the actual results to differ
materially from those expressed or implied by forward-looking statements include, but are not limited to, changes in domestic and
foreign business, market, financial, political and legal conditions; the inability of the parties to successfully or timely consummate
the Proposed Transactions, including the risk that any regulatory approvals are not obtained, are delayed or are subject to unanticipated
conditions that could adversely affect the combined company or the expected benefits of the Proposed Transactions or that the approval
of the stockholders of Live Oak or the Company is not obtained; failure to realize the anticipated benefits of Proposed Transactions;
risk relating to the uncertainty of the projected financial information with respect to the Company; the amount of redemption requests
made by Live Oak’s stockholders; the overall level of consumer demand for the Company’s products; general economic
conditions and other factors affecting consumer confidence, preferences, and behavior; disruption and volatility in the global
currency, capital, and credit markets; the financial strength of the Company’s customers; the Company’s ability to
implement its business strategy; changes in governmental regulation, the Company’s exposure to intellectual property, product
liability or product warranty claims and other loss contingencies; disruptions and other impacts to the Company’s business,
as a result of the COVID-19 global pandemic and government actions and restrictive measures implemented in response; stability
of the Company’s manufacturing facilities and suppliers, as well as consumer demand for its products, in light of disease
epidemics and health-related concerns such as the COVID-19 global pandemic; the impact that global climate change trends may have
on the Company and its suppliers and customers; the Company’s ability to protect patents, trademarks and other intellectual
property rights; any breaches of, or interruptions in, the Company’s information systems; fluctuations in the price, availability
and quality of raw materials and contracted products as well as foreign currency fluctuations; the Company’s ability to utilize
potential net operating loss carryforwards; changes in tax laws and liabilities, tariffs, legal, regulatory, political and economic
risks. More information on potential factors that could affect our financial results is included from time to time in Live Oak’s
public reports filed with the Securities and Exchange Commission, including our Annual Report on Form 10-K, Quarterly Reports on
Form 10-Q, and Current Reports on Form 8-K. If any of these risks materialize or Live Oak’s assumptions prove incorrect,
actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks
that neither Live Oak nor the Company presently know, or that Live Oak and the Company currently believe are immaterial, that could
also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements
reflect Live Oak’s and the Company’s expectations, plans or forecasts of future events and views as of the date of
this Current Report on Form 8-K. Live Oak and the Company anticipate that subsequent events and developments will cause their assessments
to change. However, while Live Oak and the Company may elect to update these forward-looking statements at some point in the future,
Live Oak and the Company specifically disclaim any obligation to do so, except as required by law. These forward-looking statements
should not be relied upon as representing Live Oak’s or the Company’s assessments as of any date subsequent to the
date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
Exhibit
No.
|
|
Exhibit
|
2.1
|
|
Agreement and Plan of Merger, dated as of October 3, 2020, by and among Live Oak, Merger Sub, the Company, Live Oak Sponsor Partners, LLC, as representative for Live Oak, for certain purposes described in the Merger Agreement and John A. Dowdy, Jr., as representative of the shareholders of the Company for certain purposes described in the Merger Agreement.
|
10.1
|
|
Form of Subscription Agreement.
|
99.1
|
|
Press Release, dated October 5, 2020 (furnished only).
|
99.2
|
|
Conference
Call Script (furnished only).
|
99.3
|
|
Form
of Investor Presentation (furnished only).
|
SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf
by the undersigned, hereunto duly authorized.
Dated:
October 5, 2020
|
LIVE
OAK ACQUISITION CORP.
|
|
|
|
By:
|
/s/
Andrea K. Tarbox
|
|
|
Name:
|
Andrea
K. Tarbox
|
|
|
Title:
|
Chief
Financial Officer
|
13
Live Oak Acquisition (NYSE:LOAK)
Historical Stock Chart
From Sep 2024 to Oct 2024
Live Oak Acquisition (NYSE:LOAK)
Historical Stock Chart
From Oct 2023 to Oct 2024