Item 1.01 Entry into a Material Definitive Agreement.
Agreement and Plan of Merger
On January 17, 2023, Volta Inc., a Delaware corporation ("Volta"), entered into
an Agreement and Plan of Merger (the "Merger Agreement") with Shell USA, Inc., a
Delaware corporation ("Shell"), and, following its formation and becoming a
party to the Merger Agreement, SEV Subsidiary, Inc., a Delaware corporation to
be formed as a direct, wholly-owned subsidiary of Parent ("Merger Sub"). The
Merger Agreement provides that, upon the terms and subject to the conditions set
forth in the Merger Agreement, Merger Sub will merge with and into Volta (the
"Merger" and, collectively with the other transactions contemplated by the
Merger Agreement, the "Transactions"), with Volta continuing as the surviving
corporation and as a wholly-owned subsidiary of Shell.
Consideration to Volta Stockholders. At the effective time of the Merger
("Effective Time"), each share of Class A common stock, par value $0.0001 per
share, of Volta (the "Common Stock"), issued and outstanding immediately prior
to the Effective Time (other than (i) (a) shares of Common Stock owned by
Parent, Merger Sub or any of their respective subsidiaries or (b) shares of
Common Stock or Class B common stock owned by Volta or any of its subsidiaries,
including shares held as treasury stock, each of which shall be cancelled and
ceased to exist, or (iii) for which appraisal rights have been demanded properly
in accordance with Section 262 of the General Corporation Law of the State of
Delaware), shall be converted into the right to receive $0.86 per share in cash,
without interest and net of withholding taxes (the "Merger Consideration").
Treatment of Volta Equity Awards and Company Stock Plans.
Immediately prior to the Effective Time, each then outstanding stock option
award (whether or not vested or exercisable) that has an exercise price per
share of Common Stock that is less than the Merger Consideration (an "Option")
and time-based restricted stock unit ("RSU") award (whether or not vested)
granted under any of the Company Stock Plans (as defined below) (collectively,
the "Volta Equity Awards") will vest in full and be canceled and converted into
the right to receive, with respect to each share of Common Stock subject to such
Volta Equity Award (as determined in accordance with the applicable award
agreement), the Merger Consideration (less the exercise price in the case of the
Options), less all applicable withholding and other authorized deductions. With
respect to the performance-based RSU awards, all outstanding and unvested
performance-based RSUs will be canceled in connection with the Merger, excluding
the performance-based RSU grants held by each of Christopher Wendel (Volta's
former President) and Scott Mercer (Volta's former Chief Executive Officer)
(both grants collectively, the "Founder Awards"). Pursuant to Mr. Wendel's and
Mr. Mercer's separation agreements with Volta Charging Industries, LLC, in each
case, dated as of March 26, 2022, the Founder Awards will fully vest in
connection with the Merger and be canceled and converted into the right to
receive, with respect to each share of Common Stock subject to their respective
equity awards, the Merger Consideration, less all applicable withholding and
other authorized deductions. Each Option that has an exercise price that is
equal to or greater than the Merger Consideration will be canceled for no
consideration as of the Effective Time.
Pursuant to the Merger Agreement, Volta will take all actions necessary with
respect to its 2021 Equity Incentive Plan and Founder Incentive Plan
(collectively, the "Company Stock Plans") to provide that, subject to the
consummation of the Merger, the Company Stock Plans will terminate as of
immediately prior to the Effective Time.
Board Approval. The Board of Directors of Volta (the "Board") has unanimously
(i) determined that the Merger Agreement and the transactions contemplated
thereby, including the merger of Merger Sub with and into Merger, are advisable,
fair to and in the best interests of Volta and its stockholders; (ii) approved
and declared advisable the Merger Agreement and the transactions contemplated
thereby, including the Merger; (iii) approved the execution, delivery and
performance of the Merger Agreement by Volta and the consummation of the
transactions contemplated thereby, including the Merger and the Voting
Agreements, upon the terms and subject to the conditions set forth in the Merger
Agreement; (iv) directed that the adoption of the Merger Agreement be submitted
to a vote of the stockholders of Volta at a meeting of the stockholders of
Volta; and (v) recommended that the stockholders of Volta vote in favor of the
adoption of the Merger Agreement in accordance with the General Corporation Law
of the State of Delaware, as amended.
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Conditions to Closing. The consummation of the Merger (the "Closing") is subject
to certain conditions, including (i) the affirmative vote of the holders of a
majority of the outstanding shares of Common Stock to adopt the Merger Agreement
(the "Stockholder Approval"), (ii) the expiration or termination of any waiting
period under the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder, (iii) the
approval of the change of control of Volta France Sàrl contemplated by the
Merger Agreement with the French Ministry of Economy to be made under article
L151-3 of the French Code Monétaire et Financier (the "French FDI approval"),
and (iv) the absence of any order or law enjoining or otherwise prohibiting the
Merger. Each of Shell's and Volta's obligation to consummate the Merger is also
subject to additional customary conditions, including (x) the accuracy of the
representations and warranties of the other party, subject to specified
materiality qualifications, and (y) performance and compliance in all material
respects by the other party with its obligations, covenants and agreements under
the Merger Agreement. Consummation of the Merger is not subject to a financing
condition.
Representations, Warranties and Covenants. The Merger Agreement contains
customary representations, warranties and covenants made by each of Volta,
Shell and Merger Sub, including, among others, covenants by Volta regarding the
conduct of its business during the pendency of the Transactions, public
disclosures and other matters. Shell has agreed to customary covenants related
to treatment of employees and their compensation and benefits after Closing,
including commitments to honor compensatory arrangements in connection with the
Transactions. Volta is required, among other things, not to solicit alternative
business combination transactions and, subject to certain exceptions, not to
engage in discussions or negotiations regarding an alternative business
combination transaction. Volta is required to convene a meeting of its
stockholders to vote on the adoption of the Merger Agreement.
Volta and Shell are required to (i) use their respective reasonable best efforts
to take all actions to consummate the Transactions, including taking all actions
necessary to obtain antitrust approval and the French FDI approval, subject to
. . .
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an
Off-Balance Sheet Arrangement of a Registrant.
The information provided in Item 1.01 of this Current Report on Form 8-K is
incorporated by reference into this Item 2.03.
Item 8.01 Other Events.
On January 18, 2023, Volta issued a press release announcing the entry into the
Merger Agreement. A copy of the press release is attached hereto as Exhibit 99.1
and incorporated herein by reference.
Additional Information and Where to Find It
This Current Report on Form 8-K does not constitute an offer to sell or the
solicitation of an offer to buy any securities or a solicitation of any vote or
approval. This Current Report on Form 8-K may be deemed to be solicitation
material in respect of the proposed merger between a subsidiary of Shell USA,
Inc. ("Shell") and Volta Inc. ("Volta"). In connection with the proposed
transaction, Volta plans to file a proxy statement on Schedule 14A (the "Proxy
Statement") with the U.S. Securities and Exchange Commission ("SEC").
STOCKHOLDERS OF VOLTA ARE URGED TO READ THE PROXY STATEMENT (INCLUDING ANY
AMENDMENTS OR SUPPLEMENTS THERETO AND ANY DOCUMENTS INCORPORATED BY REFERENCE
THEREIN) AND OTHER RELEVANT DOCUMENTS IN CONNECTION WITH THE PROPOSED
TRANSACTION THAT VOLTA WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE
THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION AND THE
PARTIES TO THE PROPOSED TRANSACTION. Stockholders and investors will be able to
obtain free copies of the Proxy Statement and other relevant materials (when
they become available) and other documents filed by Volta at the SEC's website
at www.sec.gov. Copies of the Proxy Statement (when they become available) and
the filings that will be incorporated by reference therein may also be obtained,
without charge, on Volta's website at investors.voltacharging.com or by
contacting Volta Investor Relations at drew@voltacharging.com.
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Participants in the Solicitation
Volta and its directors, executive officers and certain employees, may be
deemed, under SEC rules, to be participants in the solicitation of proxies in
respect of the proposed merger. Information regarding Volta's directors and
executive officers is available in its proxy statement filed with the SEC on
June 13, 2022 and in its current reports on Form 8-K filed with the SEC on June
13, 2022, July 12, 2022, August 2, 2022 and January 6, 2023. Other information
regarding the participants in the proxy solicitation and a description of their
direct and indirect interests, by security holdings or otherwise, will be
contained in the proxy statement and other relevant materials to be filed with
the SEC (when they become available). Investors should read the proxy statement
and other relevant materials carefully when they become available before making
any voting or investment decisions. These documents can be obtained free of
charge from the sources indicated above.
Cautionary Statement Regarding Forward-Looking Statements
This Current Report on Form 8-K includes "forward-looking statements" within the
meaning of the U.S. federal securities laws. Such statements include statements
concerning anticipated future events and expectations that are not historical
facts. All statements included in this communication other than statements of
historical fact are statements that could be deemed forward-looking statements.
Forward-looking statements are based on current expectations and assumptions
about future events and currently available information as to the outcome and
timing of future events. Such statements are inherently subject to numerous
business, economic, competitive, regulatory and other risks and uncertainties,
most of which are difficult to predict and many of which are beyond Volta's
control. No assurance can be given that such expectations will be correct or
achieved or that the assumptions are accurate or that any transaction will
ultimately be consummated. Forward-looking statements are typically identified
by words such as "believe," "expect," "anticipate," "intend," "target,"
"estimate," "continue," "positions," "plan," "predict," "project," "forecast,"
"guidance," "goal," "objective," "prospects," "possible" or "potential," by
future conditional verbs such as "assume," "will," "would," "should," "could" or
"may," or by variations of such words or by similar expressions or the negative
thereof. Actual results may vary materially from those expressed or implied by
forward-looking statements based on a number of factors, including, without
limitation: (1) risks related to the consummation of the transaction, including
the risks that (a) the transaction may not be consummated within the anticipated
time period, or at all, (b) the parties may fail to obtain Volta stockholder
approval of the merger agreement, (c) the parties may fail to secure the
termination or expiration of the waiting period applicable under the
Hart-Scott-Rodino Antitrust Improvements Act or other applicable regulatory
approvals, and (d) other conditions to the consummation of the merger under the
merger agreement may not be satisfied; (2) the possibility of the termination of
the merger agreement and the effects that any termination of the merger
agreement may have on Volta or its business, including the risks that Volta's
stock price may decline significantly and that Volta may not be able to continue
as a going concern if the transaction is not completed; (3) the effects that the
announcement or pendency of the merger may have on Volta and its business,
including the risks that as a result (a) Volta's business, operating results or
stock price may suffer, (b) Volta's current plans and operations may be
disrupted, (c) Volta's ability to retain or recruit key employees may be
adversely affected, (d) Volta's business relationships (including, customers and
suppliers) may be adversely affected, or (e) Volta's management's or employees'
attention may be diverted from other important matters; (4) the effect of
limitations that the merger agreement places on Volta's ability to operate its
business, return capital to stockholders or engage in alternative transactions;
(5) the nature, cost and outcome of pending and future litigation and other
legal proceedings, including any such proceedings related to the merger and
instituted against Volta and others; (6) the risk that the transaction and
related transactions may involve unexpected costs, liabilities or delays; (7)
other economic, business, competitive, legal, regulatory, and/or tax factors;
and (8) other factors described under the heading "Risk Factors" in Part I, Item
1A of Volta's Annual Report on Form 10-K for the fiscal year ended December 31,
2021 and Quarterly Reports on Form 10-Q, each as updated or supplemented by
subsequent reports that Volta has filed or files with the SEC. The risks and
uncertainties may be impacted by the COVID-19 pandemic (including supply chain
constraints, labor shortages and inflationary pressure). Readers are cautioned
not to place undue reliance on forward-looking statements, which speak only as
of the date on which such statement is made. Should one or more of the risks or
uncertainties described in this communication occur, or should underlying
assumptions prove incorrect, Volta's actual results and plans could differ
materially from those expressed in any forward-looking statements. All
forward-looking statements are expressly qualified in their entirety by this
cautionary statement. Except as otherwise required by applicable law, Volta
undertakes no obligation to publicly correct or update any forward-looking
statement whether as a result of new information, future events or circumstances
after the date of this communication, or otherwise.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Exhibit No. Description
2.1* Agreement and Plan of Merger, dated as of January 17, 2023, by and
between Volta Inc. and Shell USA, Inc.
10.1 Form of Voting Agreement by and between Shell USA, Inc. and each of
the Supporting Stockholders.
10.2 Term Loan, Guarantee and Security Agreement, dated as of January 17,
2023, by and among Volta Inc. and Equilon Enterprises LLC d/b/a Shell
Oil Products US
10.3 Subordination and Intercreditor Agreement, dated as of January 17,
2023, by and among, Volta Inc., Equilon Enterprises LLC d/b/a Shell Oil
Products US, and EICF Agent LLC.
99.1 Volta Inc. Press Release dated January 18, 2023
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
* Schedules have been omitted pursuant to Item 601(b)(2) of Regulation S-K. Volta
Inc. agrees to furnish supplementally to the Securities and Exchange Commission
a copy of any omitted schedule upon request.
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