Item 1.01 Entry into a Material Definitive Agreement.
Amendment to the Merger Agreement
On October 12, 2021, Dune Acquisition Corporation, a Delaware corporation
("Dune"), entered into an Agreement and Plan of Merger (the "Merger Agreement"),
by and among Dune, Dune Merger Sub, Inc., a Delaware corporation and a direct
wholly-owned subsidiary of Dune ("Merger Sub"), Dune Merger Sub II, LLC, a
Delaware limited liability company and direct, wholly-owned subsidiary of Dune
("Merger Sub II"), and TradeZero Holding Corp., a Delaware corporation
("TradeZero").
On January 26, 2022, Dune, Merger Sub, Merger Sub II and TradeZero entered into
the First Amendment to the Merger Agreement (the "First Amendment"). The terms
of the First Amendment (i) clarify that, upon the occurrence of a Company Sale
(as such term is defined in the Merger Agreement) during the three-years
following the closing of the transactions contemplated by the Merger Agreement
(the "Closing"), the dilutive effect of any Earn Out Shares (as such term is
defined in the Merger Agreement) to be issued in connection with such Company
Sale must be taken into account when calculating the Share Price (as such term
is defined in the Merger Agreement) to determine if any triggering events for
Earn Out Shares have been achieved, (ii) provide that if any Earn Out Shares are
forfeited pursuant to the terms of any applicable SPAC RSU Earnout Awards (as
such term is defined in the Merger Agreement), such Earn Out Shares shall not be
redistributed to the holders of TradeZero's common stock prior to the Closing
and (iii) clarify that the proposals to approve and adopt an amendment to the
certificate of incorporation of Dune to (x) increase the number of authorized
shares of the common stock of Dune from 380,000,000 shares to 550,000,000 shares
and the total number of authorized shares of Dune from 401,000,000 shares to
551,000,000 shares and (y) provide that the number of authorized shares of any
class of common stock or preferred stock of Dune may be increased or decreased
(but not below the number of shares thereof then outstanding) by the affirmative
vote of the holders of a majority of the stock of Dune entitled to vote,
irrespective of the provisions of Section 242(b)(2) of the Delaware General
Corporation Law, are not Required Transaction Proposals (as such term is defined
in the Merger Agreement).
Other than as expressly modified pursuant to the First Amendment, the Merger
Agreement, which was previously filed as Exhibit 2.1 to the Current Report on
Form 8-K filed with the Securities and Exchange Commission ("SEC") by the
Company on October 12, 2021, remains in full force and effect. The foregoing
description of the First Amendment is not complete and is qualified in its
entirety by reference to the full text of the First Amendment, a copy of which
is filed as Exhibit 2.1 hereto and is incorporated herein by reference.
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Additional Information and Where to Find It
The Business Combination will be submitted to Dune's stockholders for their
consideration. Dune intends to file a proxy statement (the "Proxy Statement")
that will be sent to all holders of Dune's common stock in connection with the
Business Combination. This document does not contain all the information that
should be considered concerning the proposed Business Combination and is not
intended to form the basis of any investment decision or any other decision in
respect of the Business Combination. Dune's stockholders, TradeZero's
stockholders and other interested persons are advised to read, when available,
the preliminary Proxy Statement and the amendments thereto and the definitive
Proxy Statement and other documents filed in connection with the proposed
Business Combination, as these materials will contain important information
about TradeZero, Dune and the Business Combination. When available, the
definitive Proxy Statement and other relevant materials for the proposed
Business Combination will be mailed to stockholders of Dune as of a record date
to be established for voting on the proposed Business Combination. Dune
stockholders and TradeZero stockholders will also be able to obtain copies of
the preliminary Proxy Statement, the definitive Proxy Statement and other
documents filed with the SEC, without charge, once available, at the SEC's
website at www.sec.gov, or by directing a request to Dune's secretary at 700 S.
Rosemary Avenue, Suite 204, West Palm Beach, FL 33401, (917) 742-1904.
Participants in Solicitation
Dune and its directors and executive officers may be deemed participants in the
solicitation of proxies from Dune'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 Dune is contained in Dune's
Annual Report on Form 10-K/A for the fiscal year ended December 31, 2020, which
was filed with the SEC and is available free of charge at the SEC's web site at
www.sec.gov. To the extent such holdings of Dune's securities may have changed
since that time, such changes have been or will be reflected on Statements of
Change in Ownership on Form 4 filed with the SEC. Additional information
regarding the interests of such participants will be contained in the Proxy
Statement for the proposed Business Combination when available.
TradeZero and its directors and executive officers may also be deemed to be
participants in the solicitation of proxies from Dune's stockholders with
respect to 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 for
the proposed Business Combination when available.
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Forward-Looking Statements Legend
All statements contained in this Current Report on Form 8-K other than
statements of historical facts, contains certain forward-looking statements that
are forward-looking statements. Forward-looking statements may be identified by
the use of words such as "estimate," "plan," "project," "forecast," "intend,"
"will," "expect," "anticipate," "believe," "seek," "target," "continue," "may"
or other similar expressions that predict or indicate future events or trends or
that are not statements of historical matters, but the absence of these words
does not mean a statement is not forward looking. Indications of, and guidance
or outlook on, future earnings, dividends or financial position or performance
are also forward looking statements.
These forward-looking statements involve significant risks and uncertainties
that could cause the actual results to differ materially, and potentially
adversely, from those expressed or implied in the forward-looking statements.
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 risks and uncertainties. Most of these factors are
outside Dune's and TradeZero's control and are difficult to predict. Factors
that may cause such differences include, but are not limited to: (i) the
occurrence of any event, change, or other circumstances that could give rise to
the termination of the Merger Agreement; (ii) the outcome of any legal
proceedings that may be instituted against Dune and TradeZero following the
announcement of the Merger Agreement and the transactions contemplated therein;
(iii) the inability to complete the proposed Business Combination, including due
to failure to obtain approval of the stockholders of Dune, certain regulatory
approvals, or the satisfaction of other conditions to closing in the Merger
Agreement; (iv) the occurrence of any event, change, or other circumstance that
could give rise to the termination of the Merger Agreement or could otherwise
cause the transaction to fail to close; (v) the impact of the COVID-19 pandemic
on TradeZero's business and/or the ability of the parties to complete the
proposed Business Combination; (vi) the inability to maintain the listing of
Dune's shares on the Nasdaq Stock Market following the proposed Business
Combination; (vii) the risk that the proposed Business Combination disrupts
current plans and operations as a result of the announcement and consummation of
the proposed Business Combination; (viii) the ability to recognize the
anticipated benefits of the proposed Business Combination, which may be affected
by, among other things, competition, the ability of TradeZero to grow and manage
growth profitably, and retain its key employees; (ix) costs related to the
proposed Business Combination; (x) changes in applicable laws or regulations;
and (xi) the possibility that TradeZero or Dune may be adversely affected by
other economic, business, and/or competitive factors. The foregoing list of
factors is not exclusive. Additional information concerning certain of these and
other risk factors is contained in Dune's most recent filings with the SEC,
including Dune's Annual Report on Form 10-K/A for the fiscal year ended December
31, 2020. These filings identify and address other important risks and
uncertainties that could cause actual events and results to differ materially
from those contained herein. All subsequent written and oral forward-looking
statements concerning Dune or TradeZero, the transactions described herein or
other matters attributable to Dune, TradeZero or any person acting on their
behalf are expressly qualified in their entirety by the cautionary statements
above. Readers are cautioned not to place undue reliance upon any
forward-looking statements, which speak only as of the date made. Each of Dune
or TradeZero expressly disclaims any obligations or undertaking to release
publicly any updates or revisions to any forward-looking statements contained
herein to reflect any change in their expectations with respect thereto or any
change in events, conditions, or circumstances on which any statement is based,
except as required by law.
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Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
2.1 First Amendment to Agreement and Plan of Merger, dated as of January
26, 2022, by and among the Dune Acquisition Corporation, Dune Merger
Sub, Inc., Dune Merger Sub II, LLC and TradeZero Holding Corp.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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