Item 1.01 Entry into a Material Definitive Agreement.
Purchase Agreement
On September 15, 2021 (the “Effective Date”),
the Company entered into a purchase agreement (the “Purchase Agreement”) with RJB Partners LLC (“RJB”), an affiliate
of Joseph N. Sanberg, an existing holder of the Company’s Class A common stock and founding investor in the Company, and Matthew
B. Salzberg, the Company’s co-founder, under which the Company will engage in an equity capital raise for an aggregate of $78.0
million, without giving effect to the receipt of any exercise price of any warrants issued in the transactions. The Purchase Agreement
provides that, among other things:
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The Company will conduct a rights offering (the “Rights Offering”), pursuant to which the Company will distribute, at
no charge, to the holders of record of its outstanding shares of Class A common stock and certain outstanding warrants to purchase shares
of Class A common stock (the “Eligible Securityholders”) one non-transferable subscription right (each, a “Subscription
Right” and collectively, the “Subscription Rights”) for each share of Class A common stock held or, in the case of the
holders of the applicable outstanding warrants, each share of Class A common stock issuable upon exercise of such warrants. Each Subscription
Right provides the Eligible Securityholder the right to purchase one unit consisting of a fraction
(the “Applicable Fraction”) of (i) one share of Class A common stock, (ii) one
warrant to purchase 0.8 of one share of Class A common stock at an exercise price of $15.00 per share, (iii) one warrant to purchase
0.4 of one share of Class A common stock at an exercise price of $18.00 per share, and (iv) one warrant to purchase 0.2 of one share
of Class A common stock at an exercise price of $20.00 per share. The Applicable Fraction will be based upon the shares held (or
issuable upon exercise of the applicable outstanding warrants) by the Eligible Securityholders as of the record date. The purchase price
for each unit will equal $10.00 multiplied by the Applicable Fraction. The Company will not commence the Rights Offering until it has
filed a registration statement covering the offer of the Subscription Rights and the securities issuable upon exercise of the Subscription
Rights with the Securities and Exchange Commission and such registration statement has been declared effective.
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RJB will purchase in a private placement (the “Backstop Private Placement”) that
number of shares of Class A common stock and warrants that remain unsubscribed at the expiration of the Rights Offering subscription period
(collectively, the “Backstop Securities”) for an aggregate purchase price equal to $45.0 million less the aggregate purchase
price received from purchasers of units in the Rights Offering.
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In a separate private placement (the “Concurrent Private Placement”), RJB will purchase,
on the same terms and concurrently with the consummation of the Backstop Private Placement and for an aggregate purchase price of $30.0
million, (i) 3,000,000 shares of Class A common stock, (ii) warrants to purchase 2,400,000 shares of Class A common stock at an
exercise price of $15.00 per share, (iii) warrants to purchase 1,200,000 shares of Class A common stock at an exercise price of $18.00
per share, and (iv) warrants to purchase 600,000 shares of Class A common stock at an exercise price of $20.00 per share (collectively,
the “Concurrent Private Placement Securities”).
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In a separate private placement, which closed concurrently with the execution of the Purchase Agreement on the Effective Date (the
“Salzberg Private Placement”), Matthew B. Salzberg purchased, on the same terms as the Backstop Private Placement and the
Concurrent Private Placement and for an aggregate purchase price of $3.0 million, (i) 300,000
shares of Class A common stock, (ii) warrants to purchase 240,000 shares of Class A common stock at an exercise price of $15.00 per share,
(iii) warrants to purchase 120,000 shares of Class A common stock at an exercise price of $18.00 per share, and (iv) warrants to purchase
60,000 shares of Class A common stock at an exercise price of $20.00 per share (collectively, the “Salzberg Private Placement Securities”).
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The Purchase Agreement contains customary representations
from the Company, on the one hand, and RJB and Matthew B. Salzberg, severally and not jointly, on the other hand. It also contains customary
covenants, including covenants providing for the Company to (i) conduct the Rights Offering, (ii) use commercially reasonable efforts
to cause each of the Company and its subsidiaries to conduct its business in the ordinary course prior to the closing of the Backstop
Private Placement and Rights Offering, and (iii) not to engage in specified types of transactions during such period.
The Salzberg Private Placement closed
concurrently with the execution of the Purchase Agreement on the Effective Date. Pursuant to the terms of the Purchase Agreement,
the Backstop Private Placement and Concurrent Private Placement are expected to close concurrently, shortly after the expiration of
the Rights Offering subscription period. Completion of the Backstop Private Placement and Concurrent Private Placement is subject to
customary closing conditions, including completion of the Rights Offering. The Purchase Agreement contains customary termination
rights for each of the Company and RJB, including that it may be terminated, subject to the terms and conditions of the Purchase
Agreement, (i) by mutual written consent of such parties; (ii) by either such party upon the other party’s uncured material
breach of any representation, warranty, covenant or agreement under the Purchase Agreement after the earlier of an applicable notice
period or the expiration of the Rights Offering subscription period; or (iii) if the proposed Rights Offering, Backstop Private
Placement and Concurrent Private Placement have not been consummated by March 24, 2022. If the Purchase Agreement is terminated by
either the Company or RJB in accordance with its terms, the Company has agreed to repurchase the Salzberg Private Placement
Securities from Matthew B. Salzberg at the original purchase price.
In accordance with terms of the Purchase Agreement,
RJB has also agreed to a customary standstill for a period of three years, as well as provisions requiring RJB to vote all Company securities
it beneficially owns, and to cause Company securities beneficially owned by Joseph N. Sanberg and certain of its or his respective affiliates
to be voted, in each case in excess of 19.9% of the total voting power of the outstanding capital stock of the Company in the aggregate,
in proportion to and in accordance with the vote of all stockholders of the Company.
Under the Purchase Agreement, the Company has agreed
to provide RJB and Matthew B. Salzberg with customary registration rights and to enter into a registration rights agreement with respect
to the securities purchased in the private placements. Further, the Purchase Agreement also requires the board of directors of the Company
(the “Board”) to approve specified environmental, social, and corporate governance measures, including the following: (i) using
reasonable best efforts to conduct and complete a greenhouse gas emissions inventory survey by December 31, 2021 and to become “carbon
neutral” in specified respects from and after March 31, 2022; (ii) establishing a minimum wage of at least $15.00 per hour
to all hourly employees and adopting a policy to pay hourly employees wages at least equal to those offered by comparable companies; and
(iii) using reasonable best efforts to cause Company nominees for election to the Board at the 2022 annual stockholders meeting (the
“2022 Annual Meeting”) to be composed of individuals at least half of whom are women and at least half of whom are persons
of color and, if at least half the directors are not women or if at least half of the directors are not persons of color immediately after
the 2022 Annual Meeting, to increase the size of the Board and appoint new directors, or obtain resignations from then-current directors,
such that at least half of the directors are women and at least half of the directors are persons of color. The Company has further agreed,
at the 2022 Annual Meeting, to propose amendments to its restated certificate of incorporation, as amended (the “Charter”),
to: (i) permit stockholders representing at least twenty-five percent (25%) of the voting power of the Company’s outstanding
capital stock to call a special meeting of stockholders and (ii) eliminate the requirements that the affirmative vote of stockholders
representing at least sixty-six and two-thirds percent (66-2/3%) of the voting power of the Company’s outstanding capital stock
be required to (x) remove a director and (y) amend the Company’s Charter or its bylaws, subject to certain exceptions.
Each warrant issued in the Salzberg Private
Placement has, and each warrant to be issued in the Rights Offering, Backstop Private Placement and Concurrent Private Placement will
have, a term of seven years from the date of issuance. Each such warrant may only be exercised for cash, except in connection with
certain fundamental transactions, and no fractional shares will be issued upon exercise of the warrants. The warrants will be
non-transferable, except in limited circumstances, and will not be listed or otherwise trade on any stock exchange. The number of
shares issuable upon exercise of the warrants and the applicable exercise prices will be subject to adjustment in certain events,
including (i) dividends or distributions of shares of the Company’s Class A common stock, (ii) subdivisions, combinations and
certain reclassifications of shares of the Company’s Class A common stock, (iii) certain additional issuances of Class A
common stock or securities exercisable for or convertible into shares of Class A common stock at a price per share less than the
market price for the Company’s Class A common stock, (iv) distributions of assets other than Class A common stock, or (v)
certain repurchases by the Company.
The foregoing descriptions of the Purchase Agreement
and the form of warrants issuable to RJB in connection with the Backstop Private Placement and Concurrent Private Placement and to Matthew
B. Salzberg in the Salzberg Private Placement are qualified in their entirety by reference to the full text of the documents, copies of
which are filed as Exhibits 10.1 and 4.1, respectively, to this Current Report on Form 8-K and are incorporated by reference herein.