COLR ACQU Item 1.01 Entry Into A Material Definitive Agreement.
Merger Agreement
On
? Merger Sub will merge with and into PSQ, with PSQ being the surviving company
following the Merger and continuing in existence as a wholly owned subsidiary
of Colombier;
? any PSQ convertible securities which remain outstanding and have not been
exercised or do not convert automatically into shares of PSQ Common Stock (as
defined below) prior to the Effective Time will be cancelled without
consideration;
? each share of PSQ common stock, par value
Stock"), other than shares held by
automatically converted into the right to receive a number of shares of Class A
Common Stock, par value
Common Stock") equal to the Conversion Ratio (as defined in the Merger
Agreement); and
? each share of PSQ Common Stock held by the Founder will be automatically
converted into the right to receive a number of shares of Class
par value
and, together with Colombier Class A Common Stock, "Colombier Common Stock")
equal to the Conversion Ratio.
Merger Consideration
Pursuant to the terms of the Merger Agreement, the consideration to be delivered
to the holders of PSQ Common Stock in connection with the Merger (the "Merger
Consideration") will be a number of newly issued shares of Colombier Common
Stock with an aggregate value equal to
In addition to the right to receive Colombier Class A Common Stock or Colombier
Class
? in the event that, and upon the date during the Earn-Out Period on
which, the volume-weighted average trading price of Colombier Class A
Common Stock quoted on the New York Stock Exchange ("NYSE") (or such
other exchange on which the shares of Colombier Class A Common Stock
are then listed) for any twenty (20) trading days within any thirty
consecutive trading day period (the "Earn-Out Trading Price") is
greater than or equal to $12.50 ("Triggering Event I"), the PSQ Earnout
Participants will be entitled to receive an aggregate of 1,000,000
Earn-Out Shares ;
? in the event that, and upon the date during the Earn-Out Period on
which, the Earn-Out Trading Price is greater than or equal to $15.00
("Triggering Event II"), the PSQ Earnout Participants will be entitled
to receive an aggregate of 1,000,000 additional Earn-Out Shares ; and
? if, at any time during the Earn-Out Period and upon the date on which,
the Earn-Out Trading Price is greater than or equal to $17.50
("Triggering Event III" and, together with Triggering Event I and
Triggering Event II, the "Triggering Events"), the PSQ Earnout
Participants will be entitled to receive an aggregate of 1,000,000
additional Earn-Out Shares .
1
If, during the Earn-Out Period, there is a change of control of Colombier
pursuant to which Colombier or its stockholders have the right to receive
consideration implying a value per share of Colombier Class A Common Stock
equaling or exceeding the Earn-Out Trading Price underlying one or more
Triggering Events, then, immediately prior to the consummation of such change of
control, (i) to the extent the relevant Triggering Event has not previously
occurred, such relevant Triggering Event shall be deemed to have occurred and
(ii) each PSQ Earnout Participant shall be entitled to receive its pro rata
share of the applicable number of
Treatment of PSQ Common Stock Held By the Founder
Pursuant to the terms of the Merger Agreement, immediately prior to the
Effective Time, each outstanding share of PSQ Common Stock held by the Founder
will be cancelled and cease to exist and shall be converted into the right to
receive at Closing (as defined in the Merger Agreement) a number of shares of
Colombier Class
The issued and outstanding shares of Colombier Class
Each share of Colombier Class
In the event that, after the Closing, the Founder transfers shares of Colombier
Class
Representations and Warranties
The Merger Agreement contains representations and warranties of each of Colombier, Merger Sub and PSQ that are reasonably customary for similar transactions and that include certain qualifications and customary exceptions, as applicable. Additionally, many of the representations and warranties are qualified by specified exceptions or qualifications contained in the Merger Agreement, by information provided pursuant to certain disclosure schedules to the Merger Agreement, or by reference to materiality, Material Adverse Effect, or similar qualifiers. "Material Adverse Effect" as used in the Merger Agreement means with respect to any specified person or entity, any fact, event, occurrence, change or effect that (a) has had, or would reasonably be expected to have, individually or in the aggregate, a material adverse effect upon the business, assets, liabilities, results of operations or financial condition of such person and its subsidiaries, taken as a whole, or (b) would or would reasonably be expected to prevent or materially delay or impair such person from consummating the transactions contemplated by the Merger Agreement.
No Survival
No party's representations, warranties or pre-Closing covenants will survive Closing and no party has any post-Closing indemnification obligations.
Covenants of the Parties
The Merger Agreement includes customary covenants of the parties with respect
to, among others things, (i) operation of their respective businesses prior to
consummation of the Merger and efforts to satisfy conditions to consummation of
the Merger, (ii) access to information, (iii) cooperation in the preparation of
the registration statement on Form S-4 (as may be amended or supplemented from
time to time, the "Registration Statement") which Colombier is expected to file
with the
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Conditions to Closing
Each party's obligation to consummate the Merger is conditioned upon, among
other things, (i) approval by Colombier stockholders of the Merger and related
transactions and matters, (ii) approval by PSQ stockholders of the Merger and
related transactions, (iii) the expiration or termination of the waiting period
under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended; (iv)
the absence of any applicable law or order that makes illegal, or prohibits or
prevents, the transactions contemplated by the Merger Agreement; (v) Colombier
having at least
In addition, Colombier's obligation to consummate the Merger is conditioned upon, among other things (i) the representations and warranties of PSQ being true and correct on and as of the Closing Date (as defined in the Merger Agreement) as if made on the Closing Date (subject to certain exceptions and an overall "Material Adverse Effect" standard), (ii) PSQ having performed in all material respects all of its obligations and complied in all material respects with all of its agreements and covenants under the Merger Agreement to be performed or complied with by it on or prior to the Closing Date, (iii) no Material Adverse Effect having occurred with respect to PSQ or its subsidiaries taken as a whole since the date of the Merger Agreement, which Material Adverse Effect is continuing and uncured, (iv) Colombier having received certificates or other confirmation from PSQ regarding certain PSQ-corporate matters and (v) the Founder having executed and delivered an employment agreement and a non-competition agreement, in each case to be effective as the Closing, in form and substance reasonably acceptable to Colombier.
PSQ's obligation to consummate the Merger is further conditioned upon, among
other things (i) the representations and warranties of Colombier being true and
correct on and as of the Closing Date as if made on the Closing Date (subject to
certain exceptions and an overall "Material Adverse Effect" standard), (ii)
Colombier and Merger Sub having performed in all material respects all of its
obligations and complied in all material respects with all of its agreements and
covenants under the Merger Agreement to be performed or complied with by it on
or prior to the Closing Date, (iii) no Material Adverse Effect having occurred
with respect to Colombier since the date of the Merger Agreement, (iv) upon the
Closing, Colombier having cash and cash equivalents, including any PIPE
investment to be consummated contemporaneously with Closing (which shall be
deemed to have been received by Colombier), and after giving effect to the
completion and payment of the redemption payments to its stockholders and the
payment of Colombier's and PSQ's aggregate unpaid expenses, in an amount at
least equal to (A)
Termination
The Merger Agreement may be terminated at any time prior to the Effective Time
by either Colombier or PSQ if the Merger and related transactions are not
consummated on or before
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofFebruary 27, 2023 , by and amongColombier Acquisition Corp. ,PSQ Holdings, Inc. ,Colombier-Liberty Acquisition, Inc. andColombier Sponsor LLC 10.1 Form of Company Stockholder Support Agreement, dated as ofFebruary 27, 2023 , by and amongColombier Acquisition Corp. ,PSQ Holdings, Inc. and the holders party thereto 10.2 Sponsor Support Agreement, dated as ofFebruary 27, 2023 , by and amongColombier Acquisition Corp. ,PSQ Holdings, Inc. andColombier Sponsor LLC 10.3 Form of Lock-Up Agreement, dated as ofFebruary 27, 2023 , by and amongColombier Acquisition Corp. ,Colombier Sponsor LLC and the holders party thereto 104 Cover Page Interactive Data File (embedded within the Inline XBRL document)
* The exhibits and schedules to this Exhibit have been omitted in accordance with
Item 601(b)(2) of Regulation S-K. The Registrant agrees to furnish
supplementally to the
request.
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