Item 1.01 Entry Into A Material Definitive Agreement.
Merger Agreement
Thissection describes the material provisions of the Merger Agreement (as
defined below), but does not purport to describe all of the terms thereof. The
following summary is qualified in its entirety by reference to the complete
textof the Merger Agreement, a copy of which is attached hereto as Exhibit 2.1.
Shareholders of
General Terms and Effects; Merger Consideration
On
Pursuant to the Merger Agreement, subject to the terms and conditions set forth
therein, (i) prior to the effective time of the Purchaser Merger (as defined
below), IWAC will transfer by way of continuation out of the
Pursuant to the terms of the Merger Agreement, the consideration to be delivered
to the holders of Refreshing Units (the "Sellers") in connection with the
Business Combination (the "Merger Consideration") will be a number of
newly-issued shares of Pubco Common Stock with an aggregate value equal to
At or prior to the Closing,
In addition to the shares of Pubco Common Stock deliverable at the closing of
the Business Combination (the "Closing"), the Sellers will have the contingent
right to receive up to an additional shares 4,000,000 shares of Pubco Common
Stock as earnout consideration after the Closing (the "Earnout Consideration"
and such shares the "Earnout Shares"). The Earnout Consideration shall be
issuable by
Representations and Warranties
The Merger Agreement contains a number of representations and warranties by each
of IWAC,
No Survival
The representations and warranties of the parties contained in the Merger Agreement terminate as of, and do not survive, the Closing, and there are no indemnification rights for another party's breach, provided, that (i) fraud claims relating to Refreshing and the representations and warranties of Refreshing relating to organization and standing, authorization, binding agreement, capitalization, subsidiaries and finders and brokers shall each survive indefinitely and (ii) the representations and warranties of Refreshing relating to taxes and returns, intellectual property, benefit plans and environmental matters, shall each survive until sixty (60) days after the expiration of the applicable statute of limitations. except that fraud claims survive indefinitely and the covenants and agreements relevant to the Closing and any agreements or covenants which by their terms contemplate performance after the Closing. The covenants and agreements of the parties contained in the Merger Agreement do not survive the Closing, except those covenants and agreements to be performed after the Closing, which covenants and agreements will survive until fully performed.
Covenants of the Parties
Each party agreed in the Merger Agreement to use its commercially reasonable efforts to affect the Closing. The Merger Agreement also contains certain customary covenants by each of the parties during the period between the signing of the Merger Agreement and the earlier of the Closing or the termination of the Merger Agreement in accordance with its terms, as well as certain customary covenants, such as confidentiality and publicity that will continue after the termination of the Agreement.
The Merger Agreement and the consummation of the transactions contemplated
thereby requires the approval of both IWAC's shareholder and Refreshing's
members. In connection with the Mergers, IWAC and
Each of the Parties also agreed not to solicit or enter into any alternative competing transactions during the period from the date of the Merger Agreement and continuing until the earlier of the termination of the Merger Agreement or the Closing.
The Parties also agreed to take all necessary action so that the board of
directors of
Conditions to Closing
The Merger Agreement contains conditions to Closing, including the following
mutual conditions of the parties (unless waived): (i) approval of the
shareholders of IWAC and the Sellers; (ii) consent, approval, waiver,
authorization or permit of, or notice to or declaration or filing with any
governmental authorities or any third party; (iii) expiration of the applicable
waiting period under any antitrust laws; (iv) no law or order preventing or
prohibiting the Mergers or the other transactions contemplated by the Merger
Agreement; (v) no pending litigation to enjoin or restrict the consummation of
the Closing; (vi) completion of the Domestication; (vii) the election or
appointment of members to
In addition, unless waived by Refreshing, the obligations of Refreshing to
consummate the Business Combination are subject to the satisfaction of the
following additional Closing conditions, in addition to the delivery by IWAC of
customary certificates and other Closing deliverables: (i) the representations
and warranties of the IWAC Parties being true and correct as of the date of the
Merger Agreement and the Closing, except to the extent made as of a particular
date (subject to certain materiality qualifiers); (ii) the IWAC Parties having
performed in all material respects all of their respective obligations and
complied in all material respects with their respective covenants and agreements
under the Merger Agreement required to be performed or complied with by them on
or prior to the date of the Closing; (iii) the absence of any Material Adverse
Effect with respect to IWAC since the date of the Merger Agreement which is
continuing and uncured; and (iv)
Unless waived by IWAC, the obligations of the IWAC Parties to consummate the Transaction are subject to the satisfaction of the following additional Closing conditions, in addition to the delivery by Refreshing of customary certificates and other Closing deliverables: (i) the representations and warranties of Refreshing being true and correct as of the date of the Merger Agreement and the Closing, except to the extent made as of a particular date (subject to certain materiality qualifiers); (ii) Refreshing having performed in all material respects its obligations and complied in all material respects with its covenants and agreements under the Merger Agreement required to be performed or complied with or by it on or prior to the date of the Closing; (iii) the absence of any Material Adverse Effect with respect to the Target Companies, taken as a whole, since the date of the Merger Agreement which is continuing and uncured; (iv) each Non-Competition Agreement and each Lock-Up Agreement being in full force and effect in accordance with the terms thereof as of the Closing.
Termination
The Merger Agreement may be terminated at any time prior to the Closing by
either IWAC or Refreshing if the Closing does not occur by
The Merger Agreement may also be terminated under certain other customary and limited circumstances at any time prior the Closing, including, among other reasons: (i) by mutual written consent of IWAC and Refreshing; (ii) by written . . .
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits Exhibit No. Description 2.1* Agreement and Plan of Merger, dated as ofFebruary 10, 2023 , by and amongIntegrated Wellness Acquisition Corp ,Refreshing USA, LLC ,IWAC Holdings Inc. ,IWAC Purchaser Merger Sub Inc. ,IWAC Company Merger Sub Inc. ,IWH Sponsor LP , in the capacity as the Purchaser Representative thereunder, andRyan Wear , in the capacity as the Seller Representative thereunder 10.1 Form of Voting Agreement, dated as ofFebruary 10, 2023 , by and amongIntegrated Wellness Acquisition Corp ,Refreshing USA, LLC , and the Sellers thereto. 10.2 Form of Lock-Up Agreement, dated as ofFebruary 10, 2023 , by and betweenIntegrated Wellness Acquisition Corp ,IWH Sponsor LP , in the capacity as the Purchaser Representative and the shareholder of Refreshing party thereto. 10.3 Form of Non-Competition and Non-Solicitation Agreement, dated as ofFebruary 10, 2023 , by and amongIntegrated Wellness Acquisition Corp ,Refreshing USA, LLC ,IWH Sponsor LP and certain Refreshing executives 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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