Item 1.01. Entry into a Material Definitive Agreement.
The Business Combination Agreement
On
Proposed Transaction Consideration
Under the Business Combination Agreement, the shareholders of Borealis
("Borealis Shareholders") will receive from New Oxus, in the aggregate, a number
of shares of New Oxus equal to (a) the Borealis Value (as defined below) divided
by (b)
Pursuant to the Business Combination Agreement, on the Closing date (unless otherwise noted), the following will occur in the order set forth below:
? on the day prior to the Closing date, Oxus will de-register as an exempted
company in the
corporation existing under the laws of the Province of
? all outstanding Company Convertible Instruments (excluding (A) any convertible
financing instrument of the Company that will be repaid prior to the Closing in
accordance with its terms, and (B) the Remaining Company Convertible
Instruments) will convert into shares of Borealis pursuant to their terms and
the terms of the applicable conversion agreements;
? all Borealis options that are outstanding immediately prior to the Closing will
be fully vested and exercised for Borealis Shares;
? the Borealis Amalgamation will be completed with Amalco as a surviving entity;
? the New Oxus Amalgamation will be completed with New Oxus as a surviving
entity; and
? the New Investor Convertible Notes will be converted into shares of New Oxus
pursuant to the terms of the New Investor Note Purchase Agreement.
Representations, Warranties and Covenants
The parties to the Business Combination Agreement have made customary representations and warranties for transactions of this type. In addition, the parties to the Business Combination Agreement agreed to be bound by certain customary covenants for transactions of this type, including, among others, covenants with respect to the conduct of the business and operations of Oxus and Borealis and their respective subsidiaries prior to the Closing as well as additional customary covenants regarding employee benefits, indemnification of directors and officers of the parties, notification of certain matters, public announcements relating to the Business Combination Agreement, tax matters, and clearances and approvals by the governmental authorities. The parties agreed to use their respective commercially reasonable efforts to consummate the Proposed Transaction.
1 Conditions to the Closing
The obligations of the parties (or, in some cases, some of the parties) to consummate the Proposed Transaction are subject to the satisfaction or waiver of certain customary conditions to the Closing, including, among other things:
? receipt of approval by the shareholders of each of Oxus and Borealis;
? receipt of all pre-Closing approvals or clearances reasonably required under
any applicable antitrust laws and foreign direct investment laws, including
approval under the Investment Canada Act;
? receipt by Borealis of all required third-party consents;
? no law or order will have been passed preventing the consummation of the
Proposed Transaction;
? after giving effect to the redemptions, Oxus will have at least
net tangible assets as required by its charter;
? the amount of Closing Available Cash (as defined in the Business Combination
Agreement) is no less than
? the amount of Borealis indebtedness does not exceed
and
? the Registration Statement (as defined below) has been declared effective by
the
Proxy Statement/Prospectus and Oxus Shareholder Meeting
As promptly as practicable after the availability of certain required financial
statements of Borealis, if applicable, Oxus and Borealis will prepare and file
with the
New Investor Convertible Note Financing
During the period from the signing of the Business Combination Agreement and
until the earlier of (A) the termination of the Business Combination Agreement
in accordance with its terms or (B) the Closing, Borealis may execute note
purchase, subscription or other similar agreements (the "New Investor Note
Purchase Agreement") with a potential investor or potential investors, in each
case, introduced to Borealis by Oxus or Oxus Capital PTE. Ltd. ("Sponsor") (the
"
Permitted Borealis Financing
During the period from the signing of the Business Combination Agreement and
until the earlier of (A) the termination of the Business Combination Agreement
in accordance with its terms or (B) the Closing, Borealis may execute
subscription, note purchase or other similar agreements providing for the
issuance (a "Permitted Borealis Financing") by Borealis of equity or
equity-linked securities of Borealis or any Borealis subsidiary on terms that
are reasonably satisfactory to Oxus if: (A) the aggregate gross cash proceeds
from any such Permitted Borealis Financing, when added to the aggregate gross
cash proceeds from any issuances of New Investor Convertible Notes and Sponsor
Convertible Notes does not exceed
2
Sponsor Convertible Note Financing
The Company executed a note purchase agreement with Sponsor on
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Amended and Restated Promissory Note
On
The foregoing description of the Amended Note is qualified in its entirety by reference to the full text of the Amended Note, a copy of which is filed as Exhibit 10.5 to this Current Report on Form 8-K and incorporated herein by reference.
Additional Information and Where to Find It
This Current Report on Form 8-K relates to the Proposed Transaction, but does
not contain all the information that should be considered concerning the
Proposed Transaction and is not intended to form the basis of any investment
decision or any other decision in respect of the Proposed Transaction. Oxus
intends to file with the
Investors and securities holders will be able to obtain free copies of the proxy
statement/prospectus and all other relevant documents filed or that will be
filed with the
Participants in Solicitation
Oxus and Borealis and their respective directors and officers may be deemed to
be participants in the solicitation of proxies from Oxus's shareholders in
connection with the Proposed Transaction. Information about Oxus's directors and
executive officers and their ownership of Oxus's securities is set forth in
Oxus's filings with the
5 Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements
within the meaning of the federal securities laws with respect to the Proposed
Transaction between Borealis and Oxus, including statements regarding the
benefits of the Proposed Transaction, the anticipated timing of the completion
of the Proposed Transaction, the products offered by Borealis and the markets in
which it operates, the expected total addressable market for the products
offered by Borealis, the sufficiency of the net proceeds of the proposed
transaction to fund Borealis' operations and business plan and Borealis'
projected future results. These forward-looking statements generally are
identified by the words "believe," "project," "expect," "anticipate,"
"estimate," "intend," "strategy," "future," "opportunity," "plan," "may,"
"should," "will," "would," "will be," "will continue," "will likely result," and
similar expressions. Forward-looking statements are predictions, projections and
other statements about future events that are based on current expectations and
assumptions and, as a result, are subject to material risks and uncertainties
and other factors, many of which are outside the control of Borealis. Many
factors could cause actual future events to differ materially from the
forward-looking statements in this document, including, but not limited to:
(i) the risk that the Proposed Transaction may not be completed in a timely
manner or at all; (ii) the risk that the Proposed Transaction may not be
completed by Oxus's business combination deadline and the potential failure to
obtain an extension of the business combination deadline sought by Oxus;
(iii) the failure to satisfy the conditions to the consummation of the Proposed
Transaction, including the adoption of the business combination agreement by the
shareholders of Oxus and Borealis, the satisfaction of the minimum trust account
amount following redemptions by Oxus's public shareholders and the receipt of
certain governmental and regulatory approvals, among other closing conditions;
(iv) the occurrence of any event, change or other circumstance that could give
rise to the termination of the business combination agreement; (vi) the effect
of the announcement or pendency of the Proposed Transaction on Borealis'
business relationships, performance, and business generally; (vii) risks that
the Proposed Transaction disrupts current plans and operations of Borealis;
(viii) the outcome of any legal proceedings that may be instituted against
Borealis, Oxus or others related to the business combination agreement or the
Proposed Transaction; (ix) the ability to meet Nasdaq listing standards at or
following the consummation of the Proposed Transaction; (x) the ability to
recognize the anticipated benefits of the Proposed Transaction, which may be
affected by a variety of factors, including changes in the competitive and
highly regulated industries in which Borealis operates, variations in
performance across competitors and partners, changes in laws and regulations
affecting Borealis' business, the ability of Borealis and the post-combination
company to retain its management and key employees and general economic and
financial market trends, disruptions and risks; (xi) the ability to implement
business plans, forecasts, and other expectations after the completion of the
Proposed Transaction; (xii) the risk that Borealis will need to raise additional
capital to execute its business plan, which may not be available on acceptable
terms or at all; (xiii) the risk that the post-combination company experiences
difficulties in managing its growth and expanding operations; (xiv) the risk of
product liability or regulatory lawsuits or proceedings relating to Borealis'
business; (xv) the risk that Borealis is unable to secure or protect its
intellectual property; (xvi) the effects of COVID-19 or other public health
crises on Borealis' business and results of operations and the global economy
and geopolitical climate generally; and (xvii) costs related to the Proposed
Transaction. The foregoing list of factors is not exhaustive. You should
carefully consider the foregoing factors and the other risks and uncertainties
described in the "Risk Factors" section of Oxus's Annual Report on
Form 10-K, Quarterly Reports on Form 10-Q, the registration statement on
Form S-4 and proxy statement/prospectus discussed above and other documents
filed by Oxus from time to time with the
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 2.1* Business Combination Agreement, dated as ofFebruary 23, 2022 , by and among Oxus, Newco and Borealis. 10.1 Form of Shareholder Support Agreement, dated as ofFebruary 23, 2023 , by and among Oxus and certain shareholders of Borealis. 10.2 Sponsor Support Agreement, dated as ofFebruary 23, 2023 , by and among Oxus, Sponsor and Borealis. 10.3 Form of Registration Rights Agreement 10.4 Form of Lock-Up Agreement 10.5 Amended and Restated Promissory Note, datedFebruary 28, 2023 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* Certain of the exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish
supplementally a copy of all omitted exhibits and schedules to the Securities
and
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