Item 1.01 Entry into a Material Definitive Agreement
Merger Agreement
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HWH is owned and controlled by certain member officers and directors of ACAX and its sponsor. The Merger is expected to be consummated in the fourth quarter of 2022, following the receipt of the required approval by the stockholders of ACAX and the shareholder of HWH and the satisfaction of certain other customary closing conditions.
Merger Consideration
The total consideration to be paid at Closing (the "Merger Consideration") by
ACAX to the HWH shareholders will be
At the signing of the Merger Agreement, the authorized capital stock of HWH
consists of 500,000,000 shares of common stock, par value
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Representations and Warranties
The Merger Agreement contains customary representations and warranties of HWH with respect to, among other things: (i) corporate existence and power; (ii) organizational documents; (iii) capitalization; (iv) authorization to enter into the Merger Agreement and related transactions; (v) no conflicts and non-contravention; (vi) permits and compliance; (vii) financial statements; (viii) no undisclosed liabilities; (ix) absence of certain changes; (x) absence of litigation; (xi) employee benefit plans; (xii) labor matters; (xiii) real property and title to assets; (xiv) intellectual property; (xv) taxes; (xvi) environmental matters; (xvii) material contracts; (xviii) customers and suppliers; (xix) insurance; (xx) internal controls; (xxi) accuracy of statements; (xxii) COVID-19 matters; (xxiii) delivery of support agreement; (xxiv) board approval; (xv) brokers and finders' fees; (xvi) takeover laws; (xxvii) international trade matters and anti-bribery compliance; (xxix) that HWH is not an investment company; (xxx) withholding; (xxxi) exclusivity of representations and warranties; and (xxxii) full disclosure.
The Merger Agreement contains customary representations and warranties of the ACAX Parties with respect to, among other things: (i) corporate existence and power; (ii) organizational documents; (iii) capitalization; (iv) authorization to enter into the Merger Agreement and related transactions; (v) no conflicts and non-contravention; (vi) compliance; (viii) ACAX publicly filed documents and financial statements; (viii) absence of certain changes; (ix) absence of litigation; (x) board approval; (xi) no prior operations of Merger Sub; (xii) amount in the trust account; (xii) employees; (xiv) taxes; (xv) listing of ACAX securities; (xvi) that ACAX is not an investment company; (xvii) statements in public filings; (xviii) contracts; (xix) brokers and finders' fees; (xx) delivery of support agreement; and (xxi) investigation and reliance.
All representations and warranties by all parties shall terminate upon the Effective Time, and no representations, warranties, covenants, obligations or other agreements contained in the Merger Agreement shall survive the Effective Time.
Covenants
The Merger Agreement includes customary covenants of the parties with respect to operation of their respective businesses prior to consummation of the Merger and efforts to satisfy conditions to consummation of the Merger. The Merger Agreement also contains additional covenants of the parties, including, among others, access to information, cooperation in the preparation of the Registration Statement on Form S-4 (the "Registration Statement") and Proxy Statement (as each such term is defined in the Merger Agreement) required to be filed in connection with the Merger and to obtain all requisite approvals of ACAX's stockholders. ACAX has also agreed to include in the Proxy Statement the recommendation of its board that its stockholders approve all of the proposals to be presented at the special meeting of ACAX's stockholders that will be called in order to approve the Merger and related transactions (the "ACAX Special Meeting").
Conduct between Signing and Closing
Each of ACAX, Merger Sub and HWH has agreed that from the date of the Merger Agreement until the Closing Date or, if earlier, the valid termination of the Merger Agreement in accordance with its terms, it will not initiate, encourage or engage in any negotiations with any party relating to an Alternative Transaction (as defined in the Merger Agreement), take any action intended to facilitate an Alternative Transaction or approve, recommend or enter into any agreement relating to an Alternative Transaction. ACAX and HWH also have agreed to operate their respective companies in the ordinary course through the Closing Date.
3 Conditions to Closing
The consummation of the Merger is conditioned upon, among other things, (i) the
absence of any applicable law or order that makes the transactions contemplated
by the Merger Agreement illegal or otherwise prohibits consummation of such
transactions; (ii) the Registration Statement shall have become effective under
the Securities Act of 1933, as amended (the "Securities Act"); (iii) approval by
ACAX's stockholders of the Merger and related transactions; (iv) approval by
HWH's shareholders of the Merger and related transactions; (v) the aggregate
cash available to ACAX at the Closing (after giving effect to any redemptions by
ACAX's stockholders and the payment of all authorized transaction expenses)
being at least
Solely with respect to the ACAX Parties, the consummation of the Merger is
conditioned upon, among other things: (i) HWH having duly performed or complied
with all of its obligations under the Merger Agreement in all material respects;
(ii) the representations and warranties of HWH being true and correct in all
material respects; (iii) no event having occurred that would result in a Company
Material Adverse Effect (as defined in the Merger Agreement); (iv) HWH providing
ACAX a certificate from an authorized officer of HWH as to the accuracy of the
foregoing conditions; (v) after giving effect to the Merger, ACAX shall have at
least
Solely with respect to HWH, the consummation of the Merger is conditioned upon, among other things: (i) the ACAX Parties having duly performed or complied with all of their obligations under the Merger Agreement in all material respects; (ii) the representations and warranties of the ACAX Parties being true and correct in all material respects; (iii) no event having occurred that would result in an ACAX Material Adverse Effect (as defined in the Merger Agreement; and (iv) each of the ACAX Parties providing HWH a certificate from an authorized officer as to the accuracy of the foregoing conditions.
Termination
The Merger Agreement may be terminated as follows:
(i) By the mutual consent of ACAX and HWH; (ii) by ACAX, if any of the representations or warranties of HWH set forth in the Merger Agreement shall not be true and correct, or if HWH has failed to perform any covenant or agreement set forth in the Merger Agreement (including an obligation to consummate the Merger), in each case such that the conditions to closing would not be satisfied and the breach or . . .
Item 7.01 Regulation FD Disclosure
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The information in this Item 7.01 and Exhibit 99.1 attached hereto shall not be deemed "filed" for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.
Important Information and Where to Find It
In connection with the Merger Agreement and transactions contemplated thereby,
ACAX intends to file relevant materials with the
Participants in the Solicitation
ACAX and its directors and executive officers may be deemed participants in the
solicitation of proxies from ACAX's stockholders with respect to the proposed
business combination. A list of the names of those directors and executive
officers and a description of their interests in ACAX will be included in the
proxy statement/prospectus for the proposed business combination and be
available at www.sec.gov. Additional information regarding the interests of such
participants will be contained in the proxy statement/prospectus for the
proposed business combination when available. Information about ACAX's directors
and executive officers and their ownership of ACAX Common Stock is set forth in
ACAX's prospectus, dated
HWH and its directors and executive officers also may be deemed to be participants in the solicitation of proxies from the stockholders of ACAX in connection with the proposed business combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed business combination will be included in the proxy statement/prospectus for the proposed business combination.
6 Forward-Looking Statements
This Current Report on Form 8-K and the documents incorporated by reference
herein (this "Current Report") contain certain "forward-looking statements"
within the meaning of "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995, as amended. Forward-looking statements can be
identified by words such as: "target," "believe," "expect," "will," "shall,"
"may," "anticipate," "estimate," "would," "positioned," "future," "forecast,"
"intend," "plan," "project" and other similar expressions that predict or
indicate future events or trends or that are not statements of historical
matters. Examples of forward-looking statements include, among others,
statements made in this Current Report regarding the proposed transactions
contemplated by the Merger Agreement, including the benefits of the Merger,
integration plans, expected synergies and revenue opportunities, anticipated
future financial and operating performance and results, including estimates for
growth, the expected management and governance of the combined company, and the
expected timing of the Merger. Forward-looking statements are neither historical
facts nor assurances of future performance. Instead, they are based only on
ACAX's and HWH's managements' current beliefs, expectations and assumptions.
Because forward-looking statements relate to the future, they are subject to
inherent uncertainties, risks and changes in circumstances that are difficult to
predict and many of which are outside of our control. Actual results and
outcomes may differ materially from those indicated in the forward-looking
statements. Therefore, you should not rely on any of these forward-looking
statements. Important factors that could cause actual results and outcomes to
differ materially from those indicated in the forward-looking statements
include, among others, the following: (1) the occurrence of any event, change or
other circumstances that could give rise to an amendment or termination of the
Merger Agreement and the proposed transaction contemplated thereby; (2) the
inability to complete the transactions contemplated by the Merger Agreement due
to the failure to obtain approval of the stockholders of ACAX or the
shareholders of HWH or other conditions to closing in the Merger Agreement; (3)
the inability to project with any certainty the amount of cash proceeds
remaining in the ACAX trust account at the closing of the transaction; (4) the
uncertainty relative to the cash made available to HWH at the closing should any
material redemption requests be made by the ACAX stockholders (since the sources
of cash projected in this press release assume that no redemptions will be
requested by ACAX stockholders); (5) the inability of the company post-closing
to obtain or maintain the listing of its securities on Nasdaq following the
business combination; (6) the amount of costs related to the business
combination; (7) HWH's ability to yield sufficient cash proceeds from the
transaction to support its short-term operations and research and development
efforts since the Merger Agreement requires no minimum level of funding in the
trust account to close the transaction; (8) the outcome of any legal proceedings
that may be instituted against the parties following the announcement of the
business combination; changes in applicable laws or regulations; (9) the ability
of HWH to meet its post-closing financial and strategic goals, due to, among
other things, competition; (10) the ability of the company post-closing to grow
and manage growth profitability and retain its key employees; (11) the
possibility that the company post-closing may be adversely affected by other
economic, business, and/or competitive factors;(12) risks relating to the
successful retention of HWH's customers; (13) the potential impact that COVID-19
may have on HWH's customers, suppliers, vendors, regulatory agencies, employees
and the global economy as a whole; (14) the expected duration over which HWH's
balances will fund its operations; (15) and other risks and uncertainties
described herein, as well as those risks and uncertainties indicated from time
to time in the final prospectus of ACAX for its initial public offering dated
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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 states or jurisdictions 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, or an exemption therefrom.
Item 9.01. Financial Statements and Exhibits.
Exhibit No. Description 2.1 Merger Agreement dated as ofSeptember 9, 2022 by and amongAlset Capital Acquisition Corp. ,HWH Merger Sub, Inc. andHWH International Inc. 10.1 Sponsor Support Agreement dated as ofSeptember 9, 2022 , by and amongAlset Capital Acquisition Corp. and each of the Persons set forth on Schedule I attached thereto. 10.2 Shareholder Support Agreement dated as ofSeptember 9, 2022 , by and amongAlset Capital Acquisition Corp. ,HWH International Inc. and each of the Persons set forth on Schedule I attached thereto. 99.1 Press release datedSeptember 12, 2022 104 Cover Page Interactive Data File (embedded within the Inline XBRL document) 8
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