SPK ACQUISITION CORP. Item 1.01 Entry into a Material Definitive Agreement
Merger Agreement
On
The Merger is expected to be consummated after obtaining the required approval by the stockholders of SPK and Varian and the satisfaction of certain other customary closing conditions.
Merger Consideration; Treatment of
The total consideration to be paid at Closing (the "Merger Consideration") by
SPK to Varian stockholders will be an amount equal to
At the signing of the Merger Agreement, Varian has only one class of stock,
common stock,
Representations and Warranties
The Merger Agreement contains customary representations and warranties of the
parties thereto with respect to, among other things: (a) corporate existence and
power; (b) authorization to enter into the Merger Agreement and related
transactions; (c) governmental authorization; (d) non-contravention;
(e) capitalization; (f) finders' fees; (g) related party transactions;
(h) litigation; (i) compliance with laws; (j) absence of certain changes;
(k) tax matters; and (l) certain representations related to securities law and
activity. Varian has additional representations and warranties, including
(a) corporate records; (b) subsidiaries; (c) consents; (d) financial statements;
(e) books and records; (f) internal accounting controls; (g) properties; title
to assets; (h) contracts; (i) licenses and permits; (j) compliance with health
care laws and certain contracts; (k) intellectual property; (l) accounts
payable; affiliate loans; (m) employee matters and benefits; (n) real property;
(o) environmental laws; (p) powers of attorney, suretyships and bank accounts;
(q) directors and officers; (r) anti-money laundering laws; and (s) insurance.
SPK has additional representations and warranties, including (a) issuance of
shares; (b) trust fund; (c) listing; (d) board approval; (e)
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 Form S-4 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 each party's respective stockholders. SPK 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.
Exclusivity
Each of SPK and Varian 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. Each of SPK and Varian has also agreed to be responsible for any acts or omissions of any of its respective representatives that, if they were the acts or omissions of SPK and Varian, as applicable, would be deemed a breach of such party's obligations with respect to these non-solicitation restrictions.
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) receipt of any consent, approval or authorization required by
any Authority (as defined in the Merger Agreement); (iii) SPK having at least
Solely with respect to SPK and Merger Sub, the consummation of the Merger is
conditioned upon, among other things: (i) Varian having duly performed or
complied with all of its obligations under the Merger Agreement in all material
respects; (ii) the representations and warranties of Varian, other than certain
fundamental representations as set forth in the Merger Agreement, being true and
correct in all respects unless failure to be true and correct would not have or
reasonably be expected to have a Material Adverse Effect (as defined in the
Merger Agreement) on Varian's ability to consummate the Merger and related
transactions; (iii) certain fundamental representations, as set forth in the
Merger Agreement, being true and correct in all respects, other than de minimis
inaccuracies; (iv) no event having occurred that would result in a Material
Adverse Effect on Varian or any of its subsidiaries; (v) Varian providing SPK a
certificate from the chief executive officer of Varian as to the accuracy of the
foregoing conditions; (vi) Varian providing SPK a certificate from the secretary
which has attached true and complete copies of (a) Varian's certified articles
of incorporation, (b) Varian's bylaws, (c) Varian's board resolutions approving
the Merger Agreement, the Additional Agreements and the transactions
contemplated thereby, and (d) Varian's certified certificate of good standing;
(vii) Varian's stockholders shall have executed and delivered to SPK each
Additional Agreement to which they are each a party; (viii) Varian providing a
certificate to SPK conforming to certain tax-related regulations and delivering
a notice to the
Solely with respect to Varian, the consummation of the Merger is conditioned upon, among other things: (i) SPK and Merger Sub having duly performed or complied with all of their respective obligations under the Merger Agreement in all material respects; (ii) the representations and warranties of SPK, other than certain fundamental representations as set forth in the Merger Agreement, being true and correct in all respects unless failure would not have or reasonably be expected to have a Material Adverse Effect on SPK or Merger Sub; (iii) certain fundamental representations, as set forth in the Merger Agreement, . . .
Item 7.01 Regulation FD Disclosure
On
The press release mentioned in this Item 7.01 (Exhibits 99.1) is being furnished and shall not be deemed to be filed for purposes of Section 18 of the Exchange Act, or otherwise be subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act.
Important Information and Where To Find It
In connection with the Merger Agreement and transactions contemplated thereby,
SPK intends to file relevant materials with the
Participants in the Solicitation
SPK and its directors and executive officers may be deemed participants in the
solicitation of proxies from SPK'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 SPK 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 SPK's directors
and executive officers and their ownership of SPK Common Stock is set forth in
SPK's prospectus, dated
Varian and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of SPK 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.
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 SPK's and Varian'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 SPK or Varian 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 SPK trust account at the closing of the transaction;
(4) the uncertainty relative to the cash made available to Varian at the closing
should any material redemption requests be made by the SPK stockholders (since
the sources of cash projected in this press release assume that no redemptions
will be requested by SPK 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) Varian'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 fund 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 Varian 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 Varian's customers; (13) the
potential impact that COVID-19 may have on Varian's customers, suppliers,
vendors, regulatory agencies, employees and the global economy as a whole; (14)
the expected duration over which Varian'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 SPK for
its initial public offering dated
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 ofFebruary 11, 2022 by and amongSPK Acquisition Corp. ,SPK Merger Sub, Inc. andVarian Biopharmaceuticals, Inc. 10.1 Parent Stockholder Support Agreement dated as ofFebruary 11, 2022 by and amongSPK Acquisition Corp. ,Varian Biopharmaceuticals, Inc. and certain stockholders of SPK 10.2 Company Stockholder Support Agreement dated as ofFebruary 11, 2022 by and amongSPK Acquisition Corp. ,Varian Biopharmaceuticals, Inc. and certain stockholders ofVarian Biopharmaceuticals, Inc. 10.3 Company Lock-Up Agreement dated as ofFebruary 11, 2022 by and amongSPK Acquisition Corp. and certain stockholders ofVarian Biopharmaceuticals, Inc. 99.1 Press Release datedFebruary 14, 2022
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