UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO
SECTION 13 OR 15(d)
OF THE SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): November 28, 2021
Seven Oaks Acquisition Corp.
(Exact name of registrant as specified in its charter)
| Delaware | 001-39817 | 85-3316188 |
|
(state or other jurisdiction of
incorporation) |
(Commission File Number) |
(I.R.S Employer
Identification No.) |
445 Park Avenue, 17th Floor
New York, NY 10022
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (917) 214-6371
Not Applicable
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| x | Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
| ¨ | Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| ¨ | Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| ¨ | Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Units, each consisting of one share of Class A common stock and one-half of one redeemable warrant | SVOKU | The Nasdaq Stock Market LLC | ||
| Class A common stock, par value $0.0001 per share | SVOK | The Nasdaq Stock Market LLC | ||
| Redeemable Warrants, each whole warrant exercisable for one share of Class A common stock, each at an exercise price of $11.50 per share | SVOKW | The Nasdaq Stock Market LLC |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ¨
| Item 1.01. | Entry into a Material Definitive Agreement. |
As previously announced, on June 13, 2021, Seven Oaks Acquisition Corp., a Delaware corporation (“SVOK”), Blossom Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of SVOK (“Blossom Merger Sub”), Blossom Merger Sub II, LLC, a Delaware limited liability company and wholly owned subsidiary of SVOK, and Giddy Inc., a Delaware corporation (“Boxed”), entered into a business combination agreement and plan of reorganization (the “Business Combination Agreement”), pursuant to which, among other things, (a) Blossom Merger Sub will merge with and into Boxed (the “First Merger”), with Boxed being the surviving entity in the First Merger and continuing (immediately following the First Merger) as a wholly-owned subsidiary of SVOK (the “Surviving Corporation”), and (b) immediately following the First Merger and as part of the same overall transaction as the First Merger, the Surviving Corporation will merge with and into Blossom Merger Sub II (the “Second Merger” and, together with the First Merger, the “Mergers”), with Blossom Merger Sub II being the surviving entity in the Second Merger and continuing (immediately following the Second Merger) as a wholly-owned subsidiary of SVOK (the “Business Combination”). In addition, in connection with the consummation of the Business Combination, SVOK will be renamed “Boxed, Inc.” and is referred to herein as “New Boxed” as of the time following such change of name.
For further details on the contemplated merger, please see the Form 8-K filed with the Securities and Exchange Commission on June 14, 2021, and the Company’s Registration Statement on Form S-4, which was initially filed on July 20, 2021 and was declared effective on November 9, 2021 (the “Registration Statement”).
Forward Purchase Agreement
On November 28, 2021, SVOK and ACM ARRT VII D LLC, a Delaware limited liability company (“Seller”), entered into an agreement (the “Forward Purchase Agreement”) for a cash-settled OTC Equity Prepaid Forward Transaction (the “Forward Purchase Transaction”). Pursuant to the terms of the Forward Purchase Agreement, (a) Seller intends, but is not obligated, to purchase shares (the “Subject Shares”) of Class A common stock, par value $0.0001 per share, of SVOK (the “Shares”) after the date of the Forward Purchase Agreement from holders of Shares (other than SVOK or affiliates of SVOK) who have redeemed Shares or indicated an interest in redeeming Shares pursuant to the redemption rights set forth in SVOK’s Certificate of Incorporation in connection with the Business Combination (such holders, “Redeeming Holders”) and (b) Seller has agreed to waive any redemption rights with respect to any Subject Shares in connection with the Business Combination. The number of Subject Shares shall be no more than the lesser of (i) 10,000,000 and (ii) the maximum number of Shares such that Seller does not beneficially own greater than 9.9% of the Shares on a post-combination pro forma basis.
The Forward Purchase Agreement provides that (a) one local business day following the closing of the Business Combination, SVOK will pay to Seller, out of funds held in SVOK’s trust account, an amount (the “Prepayment Amount”) equal to the Redemption Price (as defined in Section 9.2 of the Amended and Restated Certificate of Incorporation of SVOK) per Share (the “Initial Price”) multiplied by the number of Subject Shares on the date of such prepayment, (b) on the first day of each calendar quarter after the closing of the Business Combination, SVOK will pay to Seller an amount equal to the Financing Amount (as defined below) that has accrued during the preceding quarter on the Subject Shares (less any Terminated Shares (as defined below)) and (c) on the fourth business day following the last day of the Valuation Period (as defined below), Seller will make a cash payment to SVOK equal to the sum of the products, for each trading day in a defined valuation period (the “Valuation Period”), of (i) a daily settlement price and (ii) a daily number of Shares based on a defined percentage of daily trading volume of the Shares on the NYSE. The daily settlement price on any day in the Valuation Period will be equal to the lesser of (a) the volume weighted average price of the Shares on the NYSE on such day minus $0.20 and (b) a forward price per share equal to the Initial Price plus a financing amount (the “Financing Amount”), with respect to the first 5,000,000 Subject Shares only, calculated as the greater of daily SOFR plus a spread of 300 basis points and zero. Subject to certain optional early termination provisions described below, the Valuation Period will commence on the earlier of (i) the 2-year anniversary of the closing of the Business Combination and (ii) the date specified by Seller in a written notice (not earlier than the day such notice is effective) that, during any 30 consecutive scheduled trading day-period following the closing of the Business Combination, the volume weighted average trading price per Share for 20 scheduled trading days during such period shall have been less than $5.00 per Share.
At any time, and from time to time, after the closing of the Business Combination, Seller may sell Subject Shares (or any other shares of Common Stock or other securities of SVOK) at its sole discretion in one or more transactions, publicly or privately, and, in connection with such sales, terminate the Forward Purchase Transaction in whole or in part in an amount corresponding to the number of Subject Shares sold (the “Terminated Shares”) with notice required to SVOK one day following any such sale. On the settlement date of any such early termination, Seller will pay to SVOK a pro rata portion of the Prepayment Amount (plus quarterly Financing Amounts previously paid) representing the Forward Price for the Terminated Shares.
Seller’s obligations to SVOK under the Forward Purchase Agreement are secured by perfected liens on (i) the proceeds of any sale or other disposition of the Subject Shares and (ii) the deposit account (the “Deposit Account”) into which such proceeds are required to be deposited. The Deposit Account will be subject to a customary deposit account control agreement in favor of SVOK.
On November 29, 2021, the Company issued a press release announcing its entry into the Forward Purchase Agreement, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K.
Disclosure On Redemptions Relating to the Agreement.
Seller has agreed to waive any redemption rights under SVOK’s Certificate of Incorporation that would require redemption by SVOK of the Subject Shares. Such waiver may reduce the number of shares of common stock redeemed in connection with the Business Combination, which reduction could alter the perception of the potential strength of the Business Combination.
| Item 3.02. | Unregistered Sales of Equity Securities. |
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K is incorporated by reference herein. The securities of SVOK that may be issued in connection with the Subscription Agreements will not be registered under the Securities Act of 1933, as amended (the “Securities Act”), in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act.
| Item 8.01 | Other Events. |
On November 29, 2021, SVOK announced that, in addition to the previously disclosed expected appointments of Chieh Huang, Jared Yaman, Gary Matthews, Yuki Habu, David Liu, Emerson S. Moore II and Andrew Pearson, Eileen Serra and Harshul Sanghi will be appointed to the Company’s board of directors by holders of Seven Oaks Class B common stock upon consummation of the Business Combination, and will serve on the Company’s board of directors following the Business Combination. Following the Business Combination, the Company expects that each of the directors other than Mr. Huang, Mr. Yaman and Ms. Habu will qualify as independent under applicable standards of the New York Stock Exchange.
Ms. Serra’s biographical information is included on page 179 of the Proxy Statement/Prospectus.
Mr. Sanghi is currently the Global Head of American Express Ventures, a department which he founded in 2011. During his time at Amex Ventures, Mr. Sanghi has led investments in a broad range of start-up companies, including Better.com, Boom Supersonic, Boxed.com, Instacart, FalconX, Finix, Next Insurance, Plaid, Stripe, and Turo. Additionally, Mr. Sanghi has participated in over 20 exits during his tenure, including BigCommerce (NASDAQ: BIGC), Bill.com (NYSE: BILL), iZettle, LearnVest, Warby Parker (NYSE: WRBY), and Toast (NYSE: TOST). Also, he currently sits on the boards of multiple portfolio private companies. Prior to Amex Ventures, Mr. Sanghi acted as a Managing Director at Motorola Ventures, Motorola’s (NYSE: MSI) venture capital division. Before Motorola Ventures, Mr. Sanghi led the US Set Top Box division at Philips (NYSE: PHG), which launched the first DirecTV-TiVo DVR. Throughout his 30-year career, Mr. Sanghi has been involved in numerous start-ups in a wide array of industries, including manufacturing, mobility, direct to home media, to financial services. Mr. Sanghi has a bachelor’s degree in Computer Science from the University of Oregon and an MBA from the International Institute for Management Development in Switzerland. The Company believes that Mr. Sanghi is qualified to serve as a member of the Company’s board of directors because of his extensive experience leading Amex Ventures and advising various emerging companies, as well as his commitment to ESG principles.
Ms. Serra and Mr. Sanghi are expected to be compensated under the compensation program for its non-employee directors the Company expects to adopt in connection with the consummation of the Business Combination, and to enter the same form of indemnification agreement that the Company’s other directors and executive officers will enter in connection with the consummation of the Business Combination.
Neither Ms. Serra nor Mr. Sanghi is party to any arrangements or understandings with any person pursuant to which she or he will serve as a director of the Company, nor are there any transactions with the Company in which Ms. Serra or Mr. Sanghi has an interest that would be reportable under Item 404(a) of Regulation S-K.
Supplement to Proxy Statement/Prospectus
This supplemental information should be read in conjunction with the Proxy Statement/Prospectus which should be read in its entirety. Page references in the below disclosures are to pages in the Proxy Statement/Prospectus, and defined terms used but not defined herein have the meanings set forth in the Proxy Statement/Prospectus. To the extent the following information differs from or conflicts with the information contained in the Proxy Statement/Prospectus, the information set forth below shall be deemed to supersede the respective information in the Proxy Statement/Prospectus. Without admitting in any way that the disclosures below are material or otherwise required by law, SVOK makes the following amended and supplemental disclosures.
The following disclosure on page 71 is amended and restated as follows (new text in underline):
Prior to the Business Combination, our management has concluded that uncertainties around our ability to raise additional capital raise substantial doubt about our ability to continue as a going concern. Even if the Business Combination and Private Placements are consummated as contemplated, we may need to raise additional capital in the future to execute our business plan, which may not be available on terms acceptable to us, or at all.
As of June 30, 2021, we had no additional capital available for borrowing and no firm commitment from current or prospective investors to provide us additional capital to fund operations in the foreseeable future. These uncertainties raised substantial doubt about our ability to continue as a going concern. Even if the Business Combination and Private Placements are consummated as contemplated, from time to time we may seek additional equity or debt financing to fund our growth, develop new solutions and services or make acquisitions or other investments. On November 28, 2021, Seven Oaks entered into the Forward Purchase Transaction. To the extent the counterparty to the Forward Purchase Transaction purchases shares of Seven Oaks’ Class A common stock pursuant to the Forward Purchase Transaction, one business day following the closing of the Business Combination, Seven Oaks will pay to the counterparty, out of funds held in Seven Oaks’ trust account, the Prepayment Amount. We will not have access to the Prepayment Amount immediately following the Closing, and depending on the manner in which the Forward Purchase Transaction is settled may never have access to the Prepayment Amount, which may adversely affect our liquidity and our capital needs following the Business Combination.
Our business plans may change, general economic, financial or political conditions in our markets may change, or other circumstances may arise, that have a material adverse effect on our cash flow and the anticipated cash needs of our business. Any of these events or circumstances could result in significant additional funding needs, requiring us to raise additional capital. We cannot predict the timing or amount of any such capital requirements at this time, and there can be no assurance that we will be able to obtain additional debt or equity financing on terms acceptable to us, if at all, or that we will generate sufficient future revenues. Our management and the New Boxed Board will have broad discretion in determining when, whether and how we raise additional capital following the Business Combination and, unless required by the rules of NYSE, such capital raises will not require stockholder approval. If we raise additional funds through further issuances of equity or convertible debt securities, our existing stockholders could suffer significant dilution, and any new equity securities we issue could have rights, preferences, and privileges superior to those of holders of our common stock. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to pursue our business objectives and to respond to business opportunities, challenges, or unforeseen circumstances could be significantly limited, and our business, financial condition and results of operations could be materially adversely affected. We also could be required to seek funds through arrangements with partners or others that may require us to relinquish rights or jointly own some aspects of our technologies, products or services that we would otherwise pursue on our own.
The following disclosure beginning on page 214 is amended as follows (new text in underline):
Liquidity and Capital Resources
Overview and Funding Requirements
As an emerging growth enterprise, our strategy has been to fund growth primarily through the investment of capital at the expense of short-term profitability. Prior to the Business Combination, we have been primarily funded by the net proceeds from sales of convertible preferred stock and borrowings under term loans and revolving credit facilities. As of June 30, 2021, we had cash and cash equivalents of $13.2 million and an accumulated deficit which is attributed to the recurring losses that we have incurred since inception as a result of its intended growth strategy.
Despite the substantial amount of capital that we have raised from outside investors and lenders, as of June 30, 2021, we had no additional capital available for borrowing and no firm commitment from current or prospective investors to provide us additional capital to fund operations in the foreseeable future. While management believes the that we will be able to obtain additional capital, no assurance can be provided that such capital will be obtained or on terms that are acceptable to us. These uncertainties raise substantial doubt about our ability to continue as a going concern, which may require us to seek other strategic alternatives such as a further reduction in our current cost structure, or a recapitalization of our balance sheet and related debt and equity if management’s plans to alleviate these uncertainties are not successful. Notwithstanding the foregoing, we believe the cash we expect to receive from the Business Combination and the Private Placements, together with the cash we expect to generate from our future operations, will be sufficient to meet our working capital and capital expenditure requirements for a period of at least twelve months from the date of this proxy statement/prospectus. However, to the extent the counterparty to the Forward Purchase Transaction purchases shares of Seven Oaks’ Class A common stock pursuant to the Forward Purchase Transaction, one business day following the closing of the Business Combination, Seven Oaks will pay to the counterparty, out of funds held in Seven Oaks’ trust account, the Prepayment Amount. We will not have access to the Prepayment Amount immediately following the Closing, and depending on the manner in which the Forward Purchase Transaction is settled may never have access to the Prepayment Amount, which may adversely affect our liquidity and our capital needs following the Business Combination.
We expect to continue to make significant investments in advertising in order to increase our brand awareness and acquire new customers. Following the Business Combination, we may still require additional capital to respond to technological advancements, competitive dynamics or technologies, customer demands, business opportunities, challenges, acquisitions or unforeseen circumstances and may determine to engage in equity or debt financings or enter into credit facilities for other reasons. If we are unable to obtain adequate financing or financing on terms satisfactory to us, when we require it, our ability to continue to grow or support our business and to respond to business challenges could be significantly limited.
A new final paragraph on page 102 under the heading “Background of the Business Combination” is inserted as follows (new text in underline):
On October 6, 2021, representatives of Seven Oaks, Wells and Jones spoke with representatives of Atalaya Capital Management LP regarding the terms of a potential Forward Purchase Transaction. Representatives of Atalaya sent a term sheet to Seven Oaks management detailing the terms of a potential Forward Purchase Transaction. On November 12, 2021, management of Seven Oaks discussed the Forward Purchase Transaction with the Seven Oaks board and the Seven Oaks board authorized management of Seven Oaks to negotiate and execute definitive agreements with respect to the Forward Purchase Transaction. On November 17, 2021, Winston & Strawn sent a draft Forward Purchase Agreement to Pillsbury Winthrop, counsel to Atalaya. On November 28, 2021, Seven Oaks and Atalaya executed the Forward Purchase Agreement.
A new final section on page 134 under the heading “ANCILLARY AGREEMENTS RELATED TO THE BUSINESS COMBINATION” is inserted as follows (new text in underline):
Forward Purchase Agreement
On November 28, 2021, Seven Oaks and ACM ARRT VII D LLC, a Delaware limited liability company (“Seller”), entered into an agreement (the “Forward Purchase Agreement”) for a cash-settled OTC Equity Prepaid Forward Transaction (the “Forward Purchase Transaction”). Pursuant to the terms of the Forward Purchase Agreement, (a) Seller intends, but is not obligated, to purchase shares (the “Subject Shares”) of Class A common stock after the date of the Forward Purchase Agreement from holders of Class A common stock (other than Seven Oaks or affiliates of Seven Oaks) who have redeemed shares of Class A common stock or indicated an interest in redeeming shares Class A common stock pursuant to the redemption rights set forth in the Current Charter in connection with the Business Combination (such holders, “Redeeming Holders”) and (b) Seller has agreed to waive any redemption rights with respect to any Subject Shares in connection with the Business Combination. The number of Subject Shares shall be no more than the lesser of (i) 10,000,000 and (ii) the maximum number of shares of Class A common stock such that Seller does not beneficially own greater than 9.9% of the New Boxed Shares on a post-combination pro forma basis.
The Forward Purchase Agreement provides that (a) one local business day following the closing of the Business Combination, Seven Oaks will pay to Seller, out of funds held in the Trust Account, an amount (the “Prepayment Amount”) equal to the redemption price (the “Initial Price”) multiplied by the number of Subject Shares on the date of such prepayment, (b) on the first day of each calendar quarter after the closing of the Business Combination, Seven Oaks will pay to Seller an amount equal to the Financing Amount (as defined below) that has accrued during the preceding quarter on the Subject Shares (less any Terminated Shares (as defined below)) and (c) on the fourth business day following the last day of the Valuation Period (as defined below), Seller will make a cash payment to Seven Oaks equal to the sum of the products, for each trading day in a defined valuation period (the “Valuation Period”), of (i) a daily settlement price and (ii) a daily number of Shares based on a defined percentage of daily trading volume of the Shares on the NYSE. The daily settlement price on any day in the Valuation Period will be equal to the lesser of (a) the volume weighted average price of the Shares on the NYSE on such day minus $0.20 and (b) a forward price per share equal to the Initial Price plus a financing amount (the “Financing Amount”), with respect to the first 5,000,000 Subject Shares only, calculated as the greater of daily SOFR plus a spread of 300 basis points and zero. Subject to certain optional early termination provisions described below, the Valuation Period will commence on the earlier of (i) the 2-year anniversary of the closing of the Business Combination and (ii) the date specified by Seller in a written notice (not earlier than the day such notice is effective) that, during any 30 consecutive scheduled trading day-period following the closing of the Business Combination, the volume weighted average trading price per Share for 20 scheduled trading days during such period shall have been less than $5.00 per Share.
At any time, and from time to time, after the closing of the Business Combination, Seller may sell Subject Shares (or any other shares of New Boxed common stock or other securities of New Boxed) at its sole discretion in one or more transactions, publicly or privately, and, in connection with such sales, terminate the Forward Purchase Transaction in whole or in part in an amount corresponding to the number of Subject Shares sold (the “Terminated Shares”) with notice required to New Boxed one day following any such sale. On the settlement date of any such early termination, Seller will pay to Seven Oaks a pro rata portion of the Prepayment Amount (plus quarterly Financing Amounts previously paid) representing the Forward Price for the Terminated Shares.
Seller’s obligations to SVOK under the Forward Purchase Agreement are secured by perfected liens on (i) the proceeds of any sale or other disposition of the Subject Shares and (ii) the deposit account (the “Deposit Account”) into which such proceeds are required to be deposited. The Deposit Account will be subject to a customary deposit account control agreement in favor of Seven Oaks.
Important Information for Stockholders
This communication does not constitute an offer to sell or the solicitation of an offer to buy any securities or constitute a solicitation of any vote or approval.
In connection with the Business Combination, SVOK has filed a registration statement with the SEC, which includes a proxy statement/prospectus of SVOK. SVOK also plans to file other documents with the SEC regarding the Business Combination. The Registration Statement has been declared effective by the SEC and a definitive proxy statement/prospectus has been mailed to the stockholders of SVOK. STOCKHOLDERS OF SVOK AND BOXED ARE URGED TO READ THE PROXY STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE BUSINESS COMBINATION FILED WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE BUSINESS COMBINATION. Stockholders are able to obtain free copies of the proxy statement/prospectus and other documents containing important information about SVOK and Boxed, through the website maintained by the SEC at http://www.sec.gov.
Participants in the Solicitation
SVOK and its directors and executive officers may be deemed participants in the solicitation of proxies from SVOK’s stockholders with respect to the Business Combination. A list of the names of those directors and executive officers and a description of their interests in the Company is contained in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, which was filed with the SEC on March 31, 2021 and amended on June 3, 2021, and is available free of charge at the SEC’s web site at www.sec.gov, or by directing a request to Seven Oaks Acquisition Corp., 445 Park Avenue, 17th Floor, New York, NY 10022, Attention: Drew Pearson, Chief Financial Officer, (917) 214-6371. Additional information regarding the interests of such participants can be found in the Registration Statement.
Boxed and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of SVOK in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business Combination can be found in the Registration Statement.
Forward Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. The Company’s and Boxed’s actual results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, the Company’s and Boxed’s expectations with respect to future performance and anticipated financial impacts of the Business Combination and the timing of the completion of the Business Combination. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside the Company’s and Boxed’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 Business Combination Agreement or could otherwise cause the transactions contemplated therein to fail to close; (ii) the outcome of any legal proceedings that may be instituted against the Company, Boxed, New Boxed or others following the announcement of the Business Combination and any definitive agreements with respect thereto; (iii) the inability to complete the Business Combination due to the failure to obtain approval of the stockholders of the Company or Boxed; (iv) the inability of Boxed to satisfy other conditions to closing; (v) changes to the proposed structure of the Business Combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the Business Combination; (vi) the ability to meet stock exchange listing standards in connection with and following the consummation of the proposed business combination; (vii) the risk that the proposed Business Combination disrupts current plans and operations of Boxed as a result of the announcement and consummation of the proposed Business Combination; (viii) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of New Boxed to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; (ix) costs related to the Business Combination; (x) changes in applicable laws or regulations; (xi) the possibility that Boxed or New Boxed may be adversely affected by other economic, business, regulatory, and/or competitive factors; (xii) Boxed's estimates of expenses and profitability; (xiii) the evolution of the markets in which Boxed competes; (xiv) the ability of Boxed to implement its strategic initiatives and continue to innovate its existing products; (xv) the ability of Boxed to defend its intellectual property; (xvi) the ability of Boxed to satisfy regulatory requirements; (xvii) the impact of the COVID-19 pandemic on the business of Boxed and New Boxed; and (xviii) other risks and uncertainties set forth in the section entitled "Risk Factors" and "Cautionary Note Regarding Forward-Looking Statements" in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, which was filed with the SEC on March 31, 2021 and amended on June 3, 2021, and other risks and uncertainties indicated from time to time in the Registration Statement, including those set forth under “Risk Factors” therein, and other documents to be filed with the SEC by the Company. The Company cautions that the foregoing list of factors is not exclusive. The Company cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. The Company does not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which any such statement is based.
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
|
Exhibit
No. |
Exhibit | |
| 10.1 | Forward Purchase Agreement, dated November 28, 2021, by and between ACM ARRT VII D LLC and Seven Oaks Acquisition Corp. | |
| 99.1 | Press release dated November 29, 2021. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934 the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| SEVEN OAKS ACQUISITION CORP. | ||
| Date: November 29, 2021 | By: | /s/ Andrew C. Pearson |
| Name: | Andrew C. Pearson | |
| Title: | Chief Financial Officer | |
Exhibit 10.1
Execution Version
| Date: | November 28, 2021 |
| To: | Seven Oaks Acquisition Corp. (“Counterparty”) |
| Address: | 445 Park Avenue, 17th Floor |
| New York, NY 10022 | |
| From: | ACM ARRT VII D LLC, a Delaware limited liability company (“Seller”) |
| Re: | OTC Equity Prepaid Forward Transaction |
The purpose of this agreement (this “Confirmation”) is to confirm the terms and conditions of the transaction (the “Transaction”) entered into between Seller and Counterparty on the Trade Date specified below. Certain terms of the Transaction shall be as set forth in this Confirmation, with additional terms as set forth in a Pricing Date Notice (the “Pricing Date Notice”) in the form of Schedule A hereto. This Confirmation, together with the Pricing Date Notice, constitutes a “Confirmation” and the Transaction constitutes a separate “Transaction” as referred to in the ISDA Form (as defined below).
This Confirmation, together with the Pricing Date Notice, evidences a complete binding agreement between Seller and Counterparty as to the subject matter and terms of the Transaction to which this Confirmation relates and shall supersede all prior or contemporaneous written or oral communications with respect thereto.
The 2006 ISDA Definitions (the “Swap Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “Equity Definitions”, and with the Swap Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. If there is any inconsistency between the Definitions and this Confirmation, this Confirmation governs. If, in relation to the Transaction to which this Confirmation relates, there is any inconsistency between the ISDA Form, this Confirmation (including the Pricing Date Notice), the Swap Definitions and the Equity Definitions, the following will prevail for purposes of such Transaction in the order of precedence indicated: (i) this Confirmation (including the Pricing Date Notice); (ii) the Equity Definitions; (iii) the Swap Definitions, and (iv) the ISDA Form.
This Confirmation, together with the Pricing Date Notice, shall supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA Master Agreement (the “ISDA Form”) as if Seller and Counterparty had executed an agreement in such form (but without any Schedule except as set forth herein under “Schedule Provisions”) on the Trade Date of the Transaction.
The terms of the particular Transaction to which this Confirmation relates are as follows:
| General Terms | |
| Type of Transaction: | Share Forward Transaction |
| Trade Date: | November 28, 2021 |
| Pricing Date: | As specified in the Pricing Date Notice |
| Effective Date: | One (1) Settlement Cycle following the Pricing Date |
| Valuation Date: | The earlier to occur of (a) the second anniversary of the closing of the transactions between Counterparty and Giddy Inc. (d/b/a Boxed) (the “Target”, which term shall also refer to the post-combination company) pursuant to the Agreement and Plan of Merger, dated June 13, 2021, by and among Counterparty, Blossom Merger Sub, Inc., a wholly owned subsidiary of Counterparty, Blossom Merger Sub II, LLC, a wholly owned subsidiary of Counterparty and the Target, as reported on the Form 8-K filed by Counterparty on June 14, 2021 (the “Business Combination”) and (b) the date specified by Seller in a written notice (not earlier than the day such notice is effective) of the occurrence of a VWAP Trigger Event. |
| VWAP Trigger Event: | An event that occurs if, during any 30 consecutive Scheduled Trading Day-period following the closing of the Business Combination, the VWAP Price for 20 Scheduled Trading Days during such period shall be less than $5.00 per Share. |
| VWAP Price: | For any Scheduled Trading Day, the Rule 10b-18 volume weighted average price per Share for such day as reported on Bloomberg Screen “SVOK <Equity> AQR SEC” (or any successor thereto). |
| Pricing Date Notice: | Seller shall deliver to Counterparty a Pricing Date Notice no later than one (1) Exchange Business Day prior to the closing of the Business Combination. |
| Seller: | Seller |
| Buyer: | Counterparty |
| Shares: | The Class A Common Stock of Seven Oaks Acquisition Corp., a Delaware corporation (Ticker: “SVOK”) (the “Issuer”) |
| Initial Number of Shares: | As specified in the Pricing Date Notice, but in no event more than the Maximum Number of Shares. |
| Number of Shares: | Initially, the Initial Number of Shares and thereafter as may be reduced as described under “Optional Early Termination.” |
| Maximum Number of Shares: | Lesser of (i) 10,000,000 and (ii) the maximum number of Shares such that no Excess Ownership Position exists. |
| Initial Price: | The Redemption Price (the “Redemption Price”) as defined in Section 9.2 of the Amended and Restated Certificate of Incorporation of Seven Oaks Acquisition Corp. dated as of December 17, 2020, as amended from time to time (the “Certificate of Incorporation”). |
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| Forward Price: | Initially, the Initial Price and, as of any day thereafter, the sum of (x) the Initial Price and (y) the greater of (A) the sum of the Floating Amounts that would accrue on each day from (and including) the Trade Date to (but excluding) such day if the Calculation Amount were equal to the product of the Initial Price and the Accrual Factor, the Floating Rate Option on each such day were SOFR, the Spread were 3.00% and the Designated Maturity were one day and (B) zero. |
| Accrual Factor: | If, as of any day, the Number of Shares is less than or equal to 5,000,000, 1.0, and if the Number of Shares, as of any day, is greater than 5,000,000, a fraction (expressed as a percentage) equal to 5,000,000 divided by the Number of Shares. |
| Prepayment: | Applicable |
| Initial Prepayment Amount: | An amount equal to the Initial Price multiplied by the Initial Number of Shares, which shall be paid out of the funds held in the Counterparty’s trust account as part of the flow of funds upon closing of the Business Combination. |
| Prepayment Amount: | As of any time, an amount equal to the Initial Prepayment Amount plus the sum of all Quarterly Prepayment Amounts received by Seller prior to such time. |
| Quarterly Prepayment Amount: | With respect to each Payment Date, the sum for each day in the immediately preceding Calculation Period of an amount equal to the product of (i) the excess, if any, of the Forward Price as of such day over the Forward Price for the immediately preceding calendar day and (ii) the Number of Shares as of such day. |
| Prepayment Date: | One (1) Local Business Day after the closing of the Business Combination |
| Variable Obligation: | Not applicable |
| Exchange(s): | Nasdaq Capital Market prior to the closing of the Business Combination; New York Stock Exchange following the closing of the Business Combination |
| Related Exchange(s): | All Exchanges |
| Legal Structuring Fees: | On the Prepayment Date and each Payment Date, Counterparty shall pay to Seller a structuring fee (the “Structuring Fee”) in the amount of $2,500 per Calculation Period, payable in advance. |
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| Payment Dates: | With respect to Counterparty, the first day of each calendar quarter or, if such date is not a Local Business Day, the next following Local Business Day. |
| Calculation Period: | Notwithstanding anything to the contrary in Section 4.13 of the Swap Definitions, each period from, but excluding, one Period End Date to, and including, the next following applicable Period End Date during the term of the Transaction, except that (a) the initial Calculation Period will commence on, but exclude, the date of the closing of the Business Combination and (b) the final Calculation Period will end on, and include, the Settlement Date. |
| Period End Date: | The last day of each calendar quarter. |
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Reimbursement of Fees and Expenses:
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On the Effective Date, Counterparty shall pay to Seller an amount equal to the lesser of (a) the attorney fees and other reasonable expenses related thereto incurred by Seller or its affiliates in connection with this Transaction and (b) $50,000. In addition, on the Effective Date, Counterparty shall reimburse Seller for its reasonable costs and expenses incurred in connection with the acquisition of Subject Shares in an amount not to exceed $0.15 per Share. |
| Settlement Terms | |
| Settlement Method Election: | Not Applicable |
| Settlement Method: |
Cash Settlement, provided that Section 8.5(d) of the Equity Definitions is replaced in its entirety with the following language:
“(d) under a Share Forward Transaction to which "Prepayment" is applicable and "Variable Obligation" is not applicable, an amount equal to the sum of the products, for each Exchange Business Day in the Valuation Period, of (a) the Daily Settlement Price and (b) the Daily Share Amount.”” |
| Daily Settlement Price: | With respect to any Exchange Business Day in the Valuation Period, the lesser of (a) the volume weighted average price of the Shares on the Exchange for such day minus $0.20 and (b) the Forward Price. |
| Daily Share Amount: | With respect to any Exchange Business Day in the Valuation Period, the lesser of (i) the number of Shares equal to 10% of the daily trading volume of the Shares on the Exchange on such Exchange Business Day and (ii) the number of Shares (the “Remaining Unwind Number”) equal to the excess of the Number of Shares on the Valuation Date over the sum of the average Daily Share Amounts for each prior Exchange Business Day in the Valuation Period. |
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| (b) Insolvency Filing: | Applicable |
| (c) Hedging Disruption: | Not Applicable |
| (d) Increased Cost of Hedging: | Not Applicable |
| (e) Loss of Stock Borrow: | Not Applicable |
| (f) Increased Cost of Stock Borrow: | Not Applicable |
| Determining Party: | For all applicable events, Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Determining Party, in which case a Third Party Dealer (as defined below) in the relevant market selected by Counterparty will be the Determining Party. When making any determination or calculation as “Determining Party,” Seller shall be bound by the same obligations relating to required acts of the Calculation Agent as set forth in Section 1.40 of the Equity Definitions and this Confirmation as if Determining Party were the Calculation Agent. |
| Additional Provisions: | |
| Calculation Agent: |
Seller, unless (i) an Event of Default, Potential Event of Default or Termination Event has occurred and is continuing with respect to Seller, or (ii) if Seller fails to perform its obligations as Calculation Agent, in which case an unaffiliated leading dealer in the relevant market selected by Counterparty will be the Calculation Agent.
In the event that a party (the “Disputing Party”) does not agree with any determination made (or the failure to make any determination) by the Calculation Agent, the Disputing Party shall have the right to require that the Calculation Agent have such determination reviewed by a disinterested third party that is a dealer in derivatives of the type that is the subject of the dispute and that is not an Affiliate of either party (a “Third Party Dealer”). Such Third Party Dealer shall be jointly selected by the parties within one Business Day after the Disputing Party’s exercise of its rights hereunder (once selected, such Third Party Dealer shall be the “Substitute Calculation Agent”). If the parties are unable to agree on a Substitute Calculation Agent within the prescribed time, each of the parties shall elect a Third Party Dealer and such two dealers shall agree on a third Party Dealer by the end of the subsequent Business Day. Such third Party Dealer shall be deemed to be the Substitute Calculation Agent. Any exercise by the Disputing Party of its rights hereunder must be in writing and shall be delivered to the Calculation Agent not later than the third Business Day following the Business Day on which the Calculation Agent notifies the Disputing Party of any determination made (or of the failure to make any determination). Any determination by the Substitute Calculation Agent shall be binding in the absence of manifest error and shall be made as soon as possible but no later than the second Business Day following the Substitute Calculation Agent’s appointment. The costs of such Substitute Calculation Agent shall be borne by (a) the Disputing Party if the Substitute Calculation Agent substantially agrees with the Calculation Agent or (b) the non-Disputing Party if the Substitute Calculation Agent does not substantially agree with the Calculation Agent. If, after following the procedures and within the specified time frames set forth above, a binding determination is not achieved, the original determination of the Calculation Agent shall apply.
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Following any adjustment, determination or calculation by the Calculation Agent hereunder, upon a written request by Counterparty (which may be by email), the Calculation Agent will promptly (but in any event within five Exchange Business Days) provide to Counterparty by email to the email address provided by Counterparty in such written request a report (in a commonly used file format for the storage and manipulation of financial data) displaying in reasonable detail the basis for such adjustment, determination or calculation (including any quotations, market data or information from internal or external sources, and any assumptions used in making such adjustment, determination or calculation), it being understood that in no event will the Calculation Agent be obligated to share with Counterparty any proprietary or confidential data or information or any proprietary or confidential models used by it in making such adjustment, determination or calculation or any information that is subject to an obligation not to disclose such information.
All calculations and determinations by the Calculation Agent shall be made in good faith and in a commercially reasonable manner.
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| Non-Reliance: | Applicable |
| Agreements and Acknowledgements Regarding Hedging Activities: | Applicable |
| Additional Acknowledgements: | Applicable |
| Collateral Provisions: | |
| Grant of Security Interest: | Seller hereby grants a security interest in the Collateral to Counterparty to secure the payment or performance of all of Seller’s present and future obligations to Counterparty with respect to this Transaction. |
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| Collateral: |
All of the following personal property of Seller, wherever located, and now owned, held or existing, or hereafter acquired or arising:
(i) all cash proceeds of the sale, transfer or other disposition of Subject Shares standing to the credit of the Securities Account;
(ii) the deposit account of Seller at First Republic Bank in which such cash proceeds will be deposited; and
(iii) to the extent not listed above as original collateral, proceeds and products of the foregoing. |
| Securities Account: | The securities account opened or to be opened in the name of Seller and maintained at the Securities Intermediary, and any renumbering of that account and any permitted account in replacement thereof. Seller will immediately upon establishment of the Securities Account furnish to Counterparty information identifying the Securities Account. Seller will instruct the Securities Intermediary to deposit all cash proceeds of any sale or other disposition of the Subject Shares into a deposit account in the name of Seller at First Republic Bank (the “Deposit Account”). |
| Securities Intermediary: | Cantor Fitzgerald, a nationally recognized “securities intermediary” (as defined in Article 8 of the UCC) that will maintain the Securities Account. |
| Perfection: | Seller authorizes Counterparty to file one or more financing statements, in the standard form for a UCC-1 filing or other appropriate form, describing the Collateral to perfect the security interest created hereby and otherwise make it effective against third parties. Seller hereby authorizes Counterparty at any time and from time to time to amend any financing statements naming Seller as “debtor” to include the Collateral. In addition, Seller, Counterparty and First Republic Bank shall enter into a customary deposit account control agreement in form and substance acceptable to such bank. Counterparty agrees that it will not send to First Republic Bank a notice of exclusive control (or similar communication), and that it will not otherwise exercise any of its rights under such deposit account control agreement unless an Event of Default has occurred and is continuing and Counterparty is exercising its rights as a secured creditor in the Collateral. |
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| Schedule Provisions: | |
| Specified Entity: |
In relation to both Seller and Counterparty for the purpose of:
Section 5(a)(v), Not Applicable Section 5(a)(vi), Not Applicable Section 5(a)(vii), Not Applicable Section 5(b)(v), Not Applicable |
| Cross-Default | The “Cross-Default” provisions of Section 5(a)(vi) of the ISDA Form will not apply to either party. |
| Credit Event Upon Merger | The “Credit Event Upon Merger” provisions of Section 5(b)(v) of the ISDA Form will not apply to either party. |
| Automatic Early Termination: | The “Automatic Early Termination” of Section 6(a) of the ISDA Form will not apply to either party. |
| Termination Currency: | United States Dollars |
| Additional Termination Event: |
Will apply to Seller and will apply to Counterparty. The occurrence of the following event shall constitute an Additional Termination Event in respect of which Seller and Counterparty shall both be Affected Parties:
The Business Combination fails to close on or before January 31, 2022.
If this Transaction terminates due to the occurrence of the foregoing Additional Termination Event, then, subject to the immediately following sentence, no further payments or deliveries shall be due by either Seller to Counterparty or Counterparty to Seller in respect of the Transaction, including without limitation in respect of any settlement amount, breakage costs or any amounts representing the future value of the Transaction, and neither party shall have any further obligation under the Transaction and, for the avoidance of doubt and without limitation, no payments will have accrued or be due under Sections 2, 6 or 11 of the ISDA Form. Notwithstanding the foregoing, Counterparty’s obligations set forth under the captions, “‘Reimbursement of Legal Fees,” and “Other Provisions — (d) Indemnification” shall survive any termination due to the occurrence of the foregoing Additional Termination Event. |
| Governing Law: | New York law (without reference to choice of law doctrine) |
| Credit Support Document: | With respect to Seller, each of (i) the undertakings of Seller set forth under Collateral Provisions above, (ii) the obligations of Seller set forth under “Representations, Warranties and Covenants – (f) Perfected Security Interest; Other Agreements” below; and (iii) the deposit account control agreement referred to under “Perfection” above. With respect to Counterparty, None. |
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Representations, Warranties and Covenants
Each of Counterparty and Seller represents and warrants to, and covenants and agrees with, the other as of the date on which it enters into the Transaction that (in the absence of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction):
| (a) | Non-Reliance. It is acting for its own account, and it has made its own independent decisions to enter into the Transaction and as to whether the Transaction is appropriate or proper for it based upon its own judgment and upon advice from such advisers as it has deemed necessary. It is not relying on any communication (written or oral) of the other party as investment advice or as a recommendation to enter into the Transaction, it being understood that information and explanations related to the terms and conditions of the Transaction will not be considered investment advice or a recommendation to enter into the Transaction. No communication (written or oral) received from the other party will be deemed to be an assurance or guarantee as to the expected results of the Transaction. |
| (b) | Assessment and Understanding. It is capable of assessing the merits of and understanding (on its own behalf or through independent professional advice), and understands and accepts, the terms, conditions and risks of the Transaction. It is also capable of assuming, and assumes, the risks of the Transaction. |
| (c) | Non-Public Information. It is in compliance with Section 10(b) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”). |
| (d) | Eligible Contract Participant. It is an “eligible contract participant” under, and as defined in, the Commodity Exchange Act (7 U.S.C. § 1a(18)) and CFTC regulations (17 CFR § 1.3). |
| (e) | Tax Characterization. Unless otherwise required by a final determination within the meaning of Section 1313(a) of the Internal Revenue Code of 1986, as amended (or any similar state, local or non-U.S. final determination), it shall treat the Transaction as a derivative financial contract for U.S. federal income tax purposes, and it shall not take any action or tax return filing position contrary to this characterization. |
| (f) | Private Placement. It (i) is an “accredited investor” as such term is defined in Regulation D as promulgated under the Securities Act of 1933, as amended (the “Securities Act”), (ii) is entering into the Transaction for its own account without a view to the distribution or resale thereof and (iii) understands that the assignment, transfer or other disposition of the Transaction has not been and will not be registered under the Securities Act. |
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| (g) | Investment Company Act. It is not and, after giving effect to the Transaction, will not be required to register as an “investment company” under, and as such term is defined in, the Investment Company Act of 1940, as amended. |
| (h) | Authorization. The Transaction has been entered into pursuant to authority granted by its board of directors or other governing authority. It has no internal policy, whether written or oral, that would prohibit it from entering into any aspect of the Transaction, including, but not limited to, the purchase of Shares to be made in connection therewith. |
Counterparty represents and warrants to, and covenants and agrees with Seller as of the date on which it enters into the Transaction that (in the absence of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction):
| (a) | Total Assets. It has total assets of at least USD $100,000,000 as of the date hereof. |
| (b) | Non-Reliance. Without limiting the generality of Section 13.1 of the Equity Definitions, Counterparty acknowledges that Seller is not making any representations or warranties or taking any position or expressing any view with respect to the treatment of the Transaction under any accounting standards. |
| (c) | Solvency. Counterparty is, and shall be as of the date of any payment or delivery by Counterparty under the Transaction, solvent and able to pay its debts as they come due, with assets having a fair value greater than liabilities and with capital sufficient to carry on the businesses in which it engages. Counterparty: (i) has not engaged in and will not engage in any business or transaction after which the property remaining with it will be unreasonably small in relation to its business, (ii) has not incurred and does not intend to incur debts beyond its ability to pay as they mature, and (iii) as a result of entering into and performing its obligations under the Transaction, (a) it has not violated and will not violate any relevant state law provision applicable to the acquisition or redemption by an issuer of its own securities and (b) it would not be nor would it be rendered “insolvent” (as such term is defined under Section 101(32) of the Bankruptcy Code). If on any Exchange Business Day the Counterparty has liquidity, including cash and amounts available for borrowing under any applicable credit facility, of less than $20 million, the Counterparty shall promptly provide written notice of such condition to Seller. |
| (d) | Public Reports. As of the Trade Date, Counterparty is in compliance with its reporting obligations under the Exchange Act, and all reports and other documents filed by Counterparty with the Securities and Exchange Commission pursuant to the Exchange Act, when considered as a whole (with the most recent such reports and documents deemed to amend inconsistent statements contained in any earlier such reports and documents), do not contain any untrue statement of a material fact or any omission of a material fact required to be stated therein or necessary to make the statements therein, in the light of the circumstances under which they were made, not misleading. |
| (e) | No Distribution. Counterparty is not entering into the Transaction to facilitate a distribution of the Shares (or any security that may be converted into or exercised or exchanged for Shares, or whose value under its terms may in whole or in significant part be determined by the value of the Shares) or in connection with any future issuance of securities. |
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| (f) | Form 8-K. The Counterparty will not file with the Securities and Exchange Commission any Form 8-K or other document that includes any disclosure regarding this Confirmation or the Transaction without consulting with and reasonably considering any comments received from Seller, provided that, no consultation shall be required with respect to any subsequent disclosures that are substantially similar to prior disclosures by Counterparty that were reviewed by Seller. |
| (g) | No Affiliation. Counterparty, to the best of its knowledge, and each other person that is directly or indirectly through one or more intermediates controlling or controlled by or under common control with the Counterparty is not to be considered and shall not become or be considered an “affiliate” (as defined in Rule 144 under the Securities Act) of the Seller at any time during the term of the Transaction. |
Seller represents and warrants to, and covenants and agrees with Counterparty as of the date on which it enters into the Transaction and each other date specified that (in the absence of any written agreement between the parties that expressly imposes affirmative obligations to the contrary for the Transaction):
| (a) | Regulatory Filings. It together with each other person in the Seller Group (as defined in “Other Provisions” below) is in compliance with all material regulatory filings relating to the Issuer and the Transaction. Counterparty covenants that it will make all regulatory filings that it is required by law or regulation to make with respect to the Transaction including, without limitation, as may be required by Section 13 or Section 16 under the Exchange Act and, assuming the accuracy of Counterparty’s Repurchase Notices (as described under “Repurchase Notices” below) any sales of Subject Shares will be in compliance therewith. |
| (b) | Net Long Position. During the term of this Transaction it together with each other person in the Seller Group will maintain on an aggregated basis a net long position at least equal to the Number of Shares then subject to this Transaction. In computing the net long position it shall aggregate all cash transactions in the Shares as well as the notional amount of all derivatives or other instruments that directly or indirectly give economic exposure to the Shares. |
| (c) | Compliance with SPV Provisions. During the term of this Transaction it will comply with all provisions of Section 7 and Section 9(d) of the Limited Liability Company Agreement of Seller and shall not amend or permit the amendment of such provisions without the written consent of Counterparty. Failure to comply with the foregoing covenant shall constitute an Event of Default hereunder. |
| (d) | No Affiliation. Seller and each other person that is directly or indirectly through one or more intermediates controlling or controlled by or under common control with the Seller is not to be considered and shall not become or be considered an “affiliate” (as defined in Rule 144 under the Securities Act) of the Counterparty at any time during the term of the Transaction. |
| (e) | Compliance with Law. Seller with comply with applicable law in all material respects in connection with its purchases or sales of any Shares in connection with the Transaction. |
| (f) | Perfected Security Interest; Other Agreements. Counterparty shall have a first and prior perfected security interest in the Deposit Account during the term of this Transaction. Without limiting the foregoing, Seller shall not (a) transfer any cash from the Deposit Account except as contemplated by this Confirmation, (b) pledge or otherwise grant a security interest in the Deposit Account in favor of any third party or (c) incur any indebtedness or other obligations other than as are incidental to Seller’s performance of its obligations under this Confirmation. |
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Transactions by Seller in the Shares
| (a) | Seller hereby waives the redemption rights (“Redemption Rights”) set forth in Section 9.2 of the Certificate of Incorporation in connection with the Business Combination with respect to Shares it acquires from holders of Shares other than the Issuer or affiliates of the Issuer (each, a “Third Party Shareholder”) who have redeemed Shares or indicated an interest in redeeming Shares pursuant to the Redemption Rights during the period (the “Hedging Period”) beginning on the date of execution of this Agreement and ending at the time reversals of redemptions in connection with the Business Combination are no longer permitted (the Shares so acquired, the “Subject Shares”). Following such date, Seller shall notify Counterparty of the number of Subject Shares. For the avoidance of doubt, Seller may sell or otherwise transfer or dispose of any of the Subject Shares or any other shares or securities of the Issuer in one or more public or private transactions at any time; provided that if such Subject Shares are transferred prior to the Closing of the Business Combination, such transferee also agrees to waive Redemption Rights with respect to such Subject Shares and provided, further, that upon the sale of any Subject Shares the Seller shall immediately be deemed to have delivered an OET Notice with respect to such Subject Shares specifying the settlement date of such sale as the OET Settlement Date. Any Subject Shares sold by Seller during the term of the Transaction will cease to be Subject Shares. |
| (b) | Seller will give written notice to Counterparty of any sale of Subject Shares by Seller within one (1) Local Business Day following the date of such sale, such notice to include the date of the sale and the number of Subject Shares sold. |
| (c) | Counterparty hereby waives the provisions of Section 9.2(c) of the Certificate of Incorporation with respect to the Subject Shares (or any other shares of the Issuer held by Seller or any of its affiliates) and any other applicable provisions that would impose redemption or transfer restrictions with respect to the Subject Shares (or any other shares of the Issuer held by Seller or any of its affiliates) provided that such Subject Shares shall not be permitted to be redeemed by Seller during the term of this Agreement pursuant to Section (a) above. Notwithstanding anything to the contrary set forth herein, the waiver set forth in this paragraph (c) shall survive any termination or expiration of this Confirmation. |
| (d) | Following the closing of the Business Combination, Seller shall not permit an Excess Ownership Position (as defined herein) to exist on a pro forma basis. |
No Arrangements
Seller and Counterparty each acknowledge and agree that: (i) there are no voting, hedging or settlement arrangements between Seller and Counterparty with respect to any Shares or the Issuer, other than those set forth herein; (ii) although Seller may hedge its risk under the Transaction in any way Seller determines, Seller has no obligation to hedge with the purchase or maintenance of any Shares or otherwise; (iii) Counterparty will not be entitled to any voting rights in respect of any of the Shares underlying the Transaction; and (iv) Counterparty will not seek to influence Seller with respect to the voting of any Hedge Positions of Seller consisting of Shares.
Wall Street Transparency and Accountability Act
In connection with Section 739 of the Wall Street Transparency and Accountability Act of 2010 (“WSTAA”), the parties hereby agree that neither the enactment of WSTAA or any regulation under WSTAA, nor any requirement under WSTAA or an amendment made by WSTAA, nor any similar legal certainty provision in any legislation enacted, or rule or regulation promulgated, on or after the date of this Confirmation, shall limit or otherwise impair either party’s otherwise applicable rights to terminate, renegotiate, modify, amend or supplement this Confirmation or the ISDA Form, as applicable, arising from a termination event, force majeure, illegality, increased costs, regulatory change or similar event under this Confirmation, the Equity Definitions incorporated herein, or the ISDA Form.
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Address for Notices
Notice to Seller:
ACM ARRT VII D LLC
c/o Atalaya Capital Management LP
One Rockefeller Center
32nd Floor
New York, NY 10020
With a copy to:
Steven Segaloff
Email: SSegaloff@atalayacap.com
Andrew Weksler
Email: AWeksler@atalayacap.com
Notice to Counterparty:
Seven Oaks Acquisition Corp.
445 Park Avenue, 17th Floor
New York, NY 10022
With a copy to:
c/o Boxed, Inc.
451 Broadway
New York, NY 10013
Attention: General Counsel
Email: Legal@boxed.com
Following the Closing of the Business Combination:
c/o Boxed, Inc.
451 Broadway
New York, NY 10013
Attention: General Counsel
Email: Legal@boxed.com
Account Details
Account details for Seller: To be advised.
Account details for Counterparty: To be advised.
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Other Provisions.
| (a) | Rule 10b5-1. |
| (i) | Counterparty represents and warrants to Seller that Counterparty is not entering into the Transaction to create actual or apparent trading activity in the Shares (or any security convertible into or exchangeable for the Shares) or to raise or depress or otherwise manipulate the price of the Shares (or any security convertible into or exchangeable for the Shares) for the purpose of inducing the purchase or sale of such securities or otherwise in violation of the Exchange Act, and Counterparty represents and warrants to Seller that Counterparty has not entered into or altered, and agrees that Counterparty will not enter into or alter, any corresponding or hedging transaction or position with respect to the Shares. Counterparty acknowledges that it is the intent of the parties that the Transaction comply with the requirements of paragraphs (c)(1)(i)(A) and (B) of Rule 10b5-1 under the Exchange Act (“Rule 10b5-1”) and the Transaction shall be interpreted to comply with the requirements of Rule 10b5-1(c). |
| (ii) | Counterparty agrees that it will not seek to control or influence Seller’s decision to make any “purchases or sales” (within the meaning of Rule 10b5-1(c)(1)(i)(B)(3)) under the Transaction, including, without limitation, Seller’s decision to enter into any hedging transactions. Counterparty represents and warrants that it has consulted with its own advisors as to the legal aspects of its adoption and implementation of this Confirmation and the Transaction under Rule 10b5-1. |
| (iii) | Counterparty acknowledges and agrees that any amendment, modification, waiver or termination of this Confirmation must be effected in accordance with the requirements for the amendment or termination of a “plan” as defined in Rule 10b5-1(c). Without limiting the generality of the foregoing, Counterparty acknowledges and agrees that any such amendment, modification, waiver or termination shall be made in good faith and not as part of a plan or scheme to evade the prohibitions of Rule 10b-5, and no such amendment, modification or waiver shall be made at any time at which Counterparty or any officer, director, manager or similar person of Counterparty is aware of any material non-public information regarding Counterparty or the Shares. |
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| (b) | Repurchase Notices. Counterparty shall, on any day on which Counterparty effects any repurchase of Shares, promptly give Seller a written notice of such repurchase (a “Repurchase Notice”) on such day if following such repurchase, the number of outstanding Shares as determined on such day is (i) less than the number of Shares outstanding that would result in the percentage of total Shares outstanding represented by the number of Shares underlying the Transaction increasing by 0.10% (in the case of the first such notice) or (ii) thereafter more than the number of Shares that would need to be repurchased to result in the percentage of total Shares outstanding represented by the number of Shares underlying the Transaction increasing by a further 0.10% less than the number of Shares included in the immediately preceding Repurchase Notice. Counterparty agrees to indemnify and hold harmless Seller and its affiliates and their respective officers, directors, employees, affiliates, advisors, agents and controlling persons (each, an “Indemnified Person”) from and against any and all losses (including losses relating to Seller’s hedging activities as a consequence of remaining or becoming a Section 16 “insider” following the closing of the Business Combination, including without limitation, any forbearance from hedging activities or cessation of hedging activities and any losses in connection therewith with respect to the Transaction), claims, damages, judgments, liabilities and expenses (including reasonable attorney’s fees), joint or several, which an Indemnified Person may become subject to, as a result of Counterparty’s failure to provide Seller with a Repurchase Notice on the day and in the manner specified in this paragraph, and to reimburse, within thirty (30) days, upon written request, each of such Indemnified Persons for any reasonable legal or other expenses incurred in connection with investigating, preparing for, providing testimony or other evidence in connection with or defending any of the foregoing; provided, however, for the avoidance of doubt, Counterparty has no indemnification or other obligations with respect to Seller becoming a Section 16 “insider” prior to the closing of the Business Combination or as a result of Seller’s purchases of Shares in excess of the Maximum Number of Shares. If any suit, action, proceeding (including any governmental or regulatory investigation), claim or demand (a “Third Party Claim”) shall be brought or asserted against the Indemnified Person as a result of Counterparty’s failure to provide Seller with a Repurchase Notice in accordance with this paragraph, such Indemnified Person shall promptly (and in any event within five (5) business days thereafter) notify Counterparty in writing, provided that the failure to notify the Counterparty will not relieve it from liability under this paragraph (unless (and then only to the extent that) Counterparty is actually and materially prejudiced thereby), and at the election of Counterparty, Counterparty shall have the right to assume the defense of such Third Party Claim and shall retain counsel reasonably satisfactory to the Indemnified Person to represent the Indemnified Person and any others Counterparty may designate in such Third Party Claim and shall pay the fees and expenses of such counsel related to such Third Party Claim. In any Third Party Claim, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) Counterparty and the Indemnified Person shall have mutually agreed to the contrary; (ii) Counterparty has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to Counterparty and which may not be legally asserted by Counterparty; or (iv) the named parties in any such proceeding (including any impleaded parties) include both Counterparty and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. Counterparty shall not be liable for any settlement of any Third Party Claim contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Person from and against any loss or liability by reason of such settlement or judgment in accordance with this paragraph. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that Counterparty reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, Counterparty shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by Counterparty of such request and (ii) Counterparty shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. Counterparty shall not, without the prior written consent of the Indemnified Person (not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened Third Party Claim contemplated by this paragraph that is in respect of which any Indemnified Person is a party and indemnity could have been sought hereunder by such Indemnified Person, unless such settlement includes an unconditional release of such Indemnified Person from all liability on claims that are the subject matter of such Third Party Claim on terms reasonably satisfactory to such Indemnified Person. If the indemnification provided for in this paragraph is unavailable to an Indemnified Person or insufficient in respect of any losses, claims, damages or liabilities referred to therein, then Counterparty hereunder, in lieu of indemnifying such Indemnified Person thereunder, shall contribute to the amount paid or payable by such Indemnified Person as a result of such losses, claims, damages or liabilities. The remedies provided for in this paragraph are not exclusive and shall not limit any rights or remedies which may otherwise be available to any Indemnified Person at law or in equity. The indemnity and contribution agreements contained in this paragraph shall remain operative and in full force and effect regardless of the termination of the Transaction. |
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| (c) | Transfer or Assignment. The rights and duties under this Confirmation may not be transferred or assigned by any party hereto without the prior written consent of the other party, such consent not to be unreasonably withheld. If at any time following the closing of the Business Combination at which (A) the Section 16 Percentage exceeds 9.9%, or (B) the Share Amount exceeds the Applicable Share Limit (if any applies) (any such condition described in clause (A) or (B), an “Excess Ownership Position”), Seller is unable after using its commercially reasonable efforts to effect a transfer or assignment of a portion of the Transaction to a third party on pricing terms reasonably acceptable to Seller and within a time period reasonably acceptable to Seller such that no Excess Ownership Position exists, then Seller shall designate any Exchange Business Day as an Early Termination Date with respect to a portion of the Transaction (the “Terminated Portion”), such that following such partial termination no Excess Ownership Position exists. In the event that Seller so designates an Early Termination Date with respect to a portion of the Transaction, a portion of the Shares with respect to the Transaction shall be delivered to Counterparty as if the Early Termination Date was the Valuation Date in respect of a Transaction having terms identical to the Transaction and a Number of Shares equal to the number of Shares underlying the Terminated Portion. The “Section 16 Percentage” as of any day is the fraction, expressed as a percentage, as determined by Seller, (A) the numerator of which is the number of Shares that Seller and each person subject to aggregation of Shares with Seller under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder and all persons who may form a “group” (within the meaning of Rule 13d-5(b)(1) of the Exchange Act) with Seller directly or indirectly beneficially own (as defined under Section 13 or Section 16 of the Exchange Act and rules promulgated thereunder) (the “Seller Group” ) and (B) the denominator of which is the number of Shares outstanding. |
The “Share Amount” as of any day is the number of Shares that Seller and any person whose ownership position would be aggregated with that of Seller and any group (however designated) of which Seller is a member (Seller or any such person or group, a “Seller Person”) under any law, rule, regulation, regulatory order or organizational documents or contracts of Counterparty that are, in each case, applicable to ownership of Shares (“Applicable Restrictions”), owns, beneficially owns, constructively owns, controls, holds the power to vote or otherwise meets a relevant definition of ownership under any Applicable Restriction, as determined by Seller in its sole discretion.
The “Applicable Share Limit” means a number of Shares equal to (A) the minimum number of Shares that could give rise to reporting or registration obligations or other requirements (including obtaining prior approval from any person or entity) of a Seller Person, or could result in an adverse effect on a Seller Person, under any Applicable Restriction, as determined by Seller in its sole discretion, minus (B) 0.1% of the number of Shares outstanding.
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| (d) | Indemnification. Counterparty agrees to indemnify and hold harmless Seller, its affiliates and its permitted assignees and their respective directors, officers, employees, agents and controlling persons (each such person being an “Indemnified Party”) from and against any and all losses (but not including financial losses to an Indemnified Party relating to the economic terms of the Transaction provided that the Counterparty performs its obligations under this Confirmation in accordance with its terms), claims, damages and liabilities (or actions in respect thereof), joint or several, incurred by or asserted against such Indemnified Party (other than costs, expenses and obligations the allocation of which between the parties is otherwise explicitly provided for in this Confirmation opposite the captions, “Reimbursement of Legal Fees” and “Structuring Fees”) arising out of, in connection with, or relating to, the execution or delivery of this Confirmation, the performance by the parties hereto of their respective obligations under the Transaction, any breach of any covenant or representation made by Counterparty in this Confirmation or the ISDA Form or the consummation of the transactions contemplated hereby; provided, however, Counterparty has no indemnification obligations with respect to any loss, claim, damage, liability or expense related to the manner in which Seller sells the Subject Shares or any other Shares owned by Seller. Counterparty will not be liable under the foregoing indemnification provision to the extent that any loss, claim, damage, liability or expense is found in a non-appealable judgment by a court of competent jurisdiction to have resulted from Seller’s material breach of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from Seller’s willful misconduct, gross negligence or bad faith in performing the services that are subject of the Transaction. If any Third Party Claim contemplated by this paragraph shall be brought or asserted against an Indemnified Party, such Indemnified Party shall promptly (and in any event within five (5) business days thereafter) notify Counterparty in writing, provided that the failure to notify the Counterparty will not relieve it from liability under this paragraph (unless (and then only to the extent that) Counterparty is actually and materially prejudiced thereby), and at the election of Counterparty, Counterparty shall have the right to assume the defense of such Third Party Claim and shall retain counsel reasonably satisfactory to the Indemnified Party to represent the Indemnified Party and any others Counterparty may designate in such Third Party Claim and shall pay the fees and expenses of such counsel related to such Third Party Claim. In any Third Party Claim, any Indemnified Person shall have the right to retain its own counsel, but the fees and expenses of such counsel shall be at the expense of such Indemnified Person unless (i) Counterparty and the Indemnified Person shall have mutually agreed to the contrary; (ii) Counterparty has failed within a reasonable time to retain counsel reasonably satisfactory to the Indemnified Person; (iii) the Indemnified Person shall have reasonably concluded that there may be legal defenses available to it that are different from or in addition to those available to Counterparty and which may not be legally asserted by Counterparty; or (iv) the named parties in any such proceeding (including any impleaded parties) include both Counterparty and the Indemnified Person and representation of both parties by the same counsel would be inappropriate due to actual or potential differing interests between them. Counterparty shall not be liable for any settlement of any Third Party Claim contemplated by this paragraph that is effected without its written consent, but if settled with such consent or if there be a final judgment for the plaintiff, Counterparty agrees to indemnify any Indemnified Party from and against any loss or liability by reason of such settlement or judgment in accordance with this paragraph. Notwithstanding the foregoing sentence, if at any time an Indemnified Person shall have requested that Counterparty reimburse the Indemnified Person for fees and expenses of counsel as contemplated by this paragraph, Counterparty shall be liable for any settlement of any proceeding effected without its written consent if (i) such settlement is entered into more than 30 days after receipt by Counterparty of such request and (ii) Counterparty shall not have reimbursed the Indemnified Person in accordance with such request prior to the date of such settlement. Counterparty shall not, without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed), effect any settlement of any pending or threatened Third Party Claim contemplated by this paragraph that is in respect of which any Indemnified Party is a party and indemnity could have been sought hereunder by such Indemnified Party, unless such settlement includes an unconditional release of such Indemnified Party from all liability on claims that are the subject matter of such Third Party Claim on terms reasonably satisfactory to such Indemnified Party. If for any reason the foregoing indemnification is unavailable to any Indemnified Party or insufficient to hold harmless any Indemnified Party, then Counterparty shall contribute, to the maximum extent permitted by law, to the amount paid or payable by the Indemnified Party as a result of such loss, claim, damage or liability. In addition (and in addition to any other reimbursement of legal fees and expenses contemplated by this Confirmation), Counterparty will reimburse any Indemnified Party for all reasonable, out-of-pocket expenses (including reasonable counsel fees and expenses) as they are incurred in connection with the investigation of, preparation for or defense or settlement of any pending or threatened Third Party Claim arising therefrom, whether or not such Indemnified Party is a party thereto and whether or not such Third Party Claim is initiated or brought by or on behalf of Counterparty. Counterparty also agrees that no Indemnified Party shall have any liability to Counterparty or any person asserting claims on behalf of or in right of Counterparty in connection with or as a result of any matter referred to in this Confirmation except to the extent that any losses, claims, damages, liabilities or expenses incurred by Counterparty result from such Indemnified Party’s breach of any covenant, representation or other obligation in this Confirmation or the ISDA Form or from the gross negligence, willful misconduct or bad faith of the Indemnified Party. The provisions of this paragraph shall survive the completion of the Transaction contemplated by this Confirmation and any assignment and/or delegation of the Transaction made pursuant to the ISDA Form or this Confirmation shall inure to the benefit of any permitted assignee of Seller. |
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| (e) | Amendments to Equity Definitions. |
| (i) | Section 11.2(a) of the Equity Definitions is hereby amended by (i) replacing the words “a diluting or concentrative” with the word “an” and adding the phrase “or such Transaction” at the end thereof; |
| (ii) | The first sentence of Section 11.2(c) of the Equity Definitions, prior to clause (A) thereof, is hereby amended to read as follows: ‘(c) If “Calculation Agent Adjustment” is specified as the Method of Adjustment in the related Confirmation of a Share Option Transaction or Share Forward Transaction, then, following the announcement or occurrence of any Potential Adjustment Event, the Calculation Agent will determine whether such Potential Adjustment Event has an economic effect on the Transaction and, if so, will (i) make appropriate adjustment(s), if any, to any one or more of:’ and the portion of such sentence immediately preceding clause (ii) thereof is hereby amended by deleting the words “diluting or concentrative”. |
| (iii) | Section 11.2(e)(vii) of the Equity Definitions is hereby amended by (i) replacing the words “a diluting or concentrative” with the word “an” and (ii) adding the phrase “or the relevant Transaction” at the end thereof; |
| (iv) | Section 12.6(a)(ii) of the Equity Definitions is hereby amended by (i) deleting from the fourth line thereof the word “or” after the word “official” and inserting a comma therefor, and (ii) deleting the semi-colon at the end of subsection (B) thereof and inserting the following words therefor “or (C) the occurrence of any of the events specified in Section 5(a)(vii)(1) through (9) of the ISDA Form with respect to that Issuer.”; |
| (v) | Section 12.6(c)(ii) of the Equity Definitions is hereby amended by replacing the words “the Transaction will be cancelled,” in the first line with the words “Seller will have the right, which it must exercise or refrain from exercising, as applicable, in good faith acting in a commercially reasonable manner, to cancel the Transaction,”; and |
| (vi) | Section 12.9(b)(i) of the Equity Definitions is hereby amended by (i) replacing “either party may elect” with “Seller may elect” and (ii) replacing “notice to the other party” with “notice to Counterparty” in the first sentence of such section. |
| (f) | Waiver of Jury Trial. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to the Transaction. Each party (i) certifies that no representative, agent or attorney of either party has represented, expressly or otherwise, that such other party would not, in the event of such a suit, action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into the Transaction, as applicable, by, among other things, the mutual waivers and certifications provided herein. |
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| (g) | Tax Disclosure. Effective from the date of commencement of discussions concerning the Transaction, Counterparty and each of its employees, representatives, or other agents may disclose to any and all persons, without limitation of any kind, the tax treatment and tax structure of the Transaction and all materials of any kind (including opinions or other tax analyses) that are provided to Counterparty relating to such tax treatment and tax structure. |
| (h) | Securities Contract; Swap Agreement. The parties hereto intend for (i) the Transaction to be (a) a “securities contract” as defined in the Bankruptcy Code, in which case each payment and delivery made pursuant to the Transaction is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “settlement payment,” within the meaning of Section 546 of the Bankruptcy Code, and (b) a “swap agreement” as defined in the Bankruptcy Code, with respect to which each payment and delivery hereunder or in connection herewith is a “termination value,” “payment amount” or “other transfer obligation” within the meaning of Section 362 of the Bankruptcy Code and a “transfer,” as such term is defined in Section 101(54) of the Bankruptcy Code and a “payment or other transfer of property” within the meaning of Sections 362 and 546 of the Bankruptcy Code, and the parties hereto to be entitled to the protections afforded by, among other Sections, Sections 362(b)(6), 362(b)(17), 546(e), 546(g), 555 and 560 of the Bankruptcy Code, (ii) a party’s right to liquidate, terminate and accelerate the Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the ISDA Form with respect to the other party to constitute a “contractual right” as described in the Bankruptcy Code, and (iii) each payment and delivery of cash, securities or other property hereunder to otherwise constitute a “margin payment” or “settlement payment” and a “transfer” as defined in the Bankruptcy Code. |
| (i) | Process Agent. For the purposes of Section 13(c) of the ISDA Form: |
Seller appoints as its Process Agent: None
Counterparty appoints as its Process Agent: None.
| (j) | Amendments; Third Party Beneficiary. This Confirmation may be amended or modified in whole or in part, only by a duly authorized agreement in writing executed by each of Seller, Counterparty and Target. Target is an intended third-party beneficiary of, and may enforce, this clause (j) and the other provisions of this Confirmation, including its consent right under the “Maximum Number of Shares” definition above. |
[Signature page follows]
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Please confirm that the foregoing correctly sets forth the terms of our agreement by executing a copy of this Confirmation and returning it to us at your earliest convenience.
| Very truly yours, | ||
| ACM ARRT VII D LLC | ||
| By: | /s/ Ivan Q. Zinn | |
| Name: Ivan Q. Zinn | ||
| Title: Authorized Signatory | ||
| Agreed and accepted by: | ||
| SEVEN OAKS ACQUISITION CORP. | ||
| By: | /s/ Gary Matthews | |
| Name: Gary Matthews | ||
| Title: Chief Executive Officer | ||
SCHEDULE A
FORM OF PRICING DATE NOTICE
| Date: | [__], 2021 |
| To: | Seven Oaks Acquisition Corp. (“Counterparty”) |
| Address: | 445 Park Avenue, 17th Floor |
| New York, NY 10022 | |
| Phone: | (917) 214-6371 |
| From: | ACM ARRT VII D LLC, a Delaware limited liability company (“Seller”) |
| Re: | OTC Equity Prepaid Forward Transaction |
1. This Pricing Date Notice supplements, forms part of, and is subject to the Confirmation Re: OTC Equity Prepaid Forward Transaction dated as of November 28, 2021 (the “Confirmation”) between Counterparty and Seller, as amended and supplemented from time to time. All provisions contained in the Confirmation govern this Pricing Date Notice except as expressly modified below.
2. The purpose of this Pricing Date Notice is to confirm certain terms and conditions of the Transaction entered into between Seller and Counterparty pursuant to the Confirmation.
| Pricing Date: | [ ], 2021 |
| Number of Shares: | [ ] |
Exhibit 99.1
Boxed and Seven Oaks Announce Up to $100 Million Forward-Purchase Agreement in Connection with Proposed Business Combination
New York, November 29, 2021 – Boxed (“Boxed” or the “Company”), an e-commerce grocery platform which sells bulk consumables and licenses its e-commerce software to enterprise retailers, and Seven Oaks Acquisition Corp. (“Seven Oaks” or “SVOK”) (Nasdaq: SVOK, SVOKU, SVOKW), a publicly-traded special purpose acquisition company, today provided updates related to their proposed business combination.
Seven Oaks has entered into a forward purchase agreement for up to $100 million with an affiliate of Atalaya Capital Management LP (“Atalaya”), a privately held, SEC-registered alternative investment advisory firm that focuses primarily on private credit and special opportunities investments. Please refer to Seven Oaks’ current report on Form 8-K, filed today with the SEC, for additional information.
On June 13, 2021, Boxed and Seven Oaks entered into a definitive agreement relating to the business combination that would result in Boxed becoming a public company upon the closing of the transaction. Boxed also announced its intention to list on the New York Stock Exchange (“NYSE”) upon the closing of the business combination, which is expected in the fourth quarter of 2021. The combined company will be called Boxed, Inc. and its common stock and warrants are expected to list on the NYSE under the new ticker symbols “BOXD” and “BOXD WS,” respectively.
About Boxed
Boxed is an e-commerce retailer and an e-commerce enabler. The Company operates an e-commerce retail service that provides bulk pantry consumables to businesses and household customers, without the requirement of a “big-box” store membership. This service is powered by the Company’s own purpose-built storefront, marketplace, analytics, fulfillment, advertising, and robotics technologies. Boxed further enables e-commerce through its Software & Services business, which offers customers in need of an enterprise-level e-commerce platform access to its end-to-end technology. The Company has developed a powerful, unique brand, known for doing right by its customers, employees and society.
About Seven Oaks Acquisition Corp.
Seven Oaks Acquisition Corp. is a special purpose acquisition company formed for the purpose of entering into a business combination. Its goal is to deliver attractive and sustainable returns to investors through an investment in a growth-oriented company that aspires to make a positive social impact with an emphasis on good Environmental, Social and Governance (“ESG”) practices. Seven Oaks raised $258.75 million in its initial public offering in December 2020 and its securities are listed on Nasdaq under the tickers “SVOK,” “SVOKU” and “SVOKW.” Seven Oaks is led by an experienced team of managers, operators and investors who have played important roles in helping build and grow profitable public and private businesses to create value for stockholders. For more information please visit www.sevenoaksacquisition.com.
Important Information About the Business Combination and Where to Find It
Seven Oaks has filed a registration statement on Form S-4 with the SEC, which includes a proxy statement/prospectus. The registration statement has been declared effective and the proxy statement/prospectus has been distributed to Seven Oaks' stockholders that is both the proxy statement in connection with its solicitation of proxies for the vote by Seven Oaks’ stockholders with respect to the business combination and other matters as may be described in the registration statement, as well as the prospectus relating to the offer and sale of the securities to be issued in the business combination to certain of Boxed’s stockholders. This press release 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. Seven Oaks' stockholders and other interested persons are advised to read the preliminary proxy statement/prospectus included in the registration statement and the amendments thereto and the definitive proxy statement/prospectus and other documents filed in connection with the proposed business combination, as these materials will contain important information about Boxed, Seven Oaks and the business combination.
The definitive proxy statement/prospectus and other relevant materials for the proposed business combination have been mailed to stockholders of Seven Oaks as of October 26, 2021, the record date established for voting on the proposed business combination. Stockholders can obtain copies of the definitive proxy statement and other documents filed with the SEC, at the SEC’s website at www.sec.gov, or by directing a request to Seven Oaks’ secretary at 445 Park Avenue, 17th Floor, New York, NY 10022, (917) 214-6371.
Participants in the Solicitation
Seven Oaks and its directors, executive officers, other members of management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Seven Oaks’ stockholders in connection with the business combination. Investors and security holders may obtain more detailed information regarding the names and interests in the business combination of Seven Oaks’ directors and officers in Seven Oaks’ filings with the SEC, including the Registration Statement on Form S-4 filed with the SEC by Seven Oaks, which includes the proxy statement/prospectus of Seven Oaks for the business combination. Stockholders can obtain copies of Seven Oaks’ filings with the SEC, without charge, at the SEC’s website at www.sec.gov.
Boxed and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Seven Oaks 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 are included in the proxy statement/prospectus for the business combination.
Forward-Looking Statements
Certain statements in this press release may be considered forward-looking statements. Forward-looking statements generally relate to future events, such as expected timing for the proposed business combination. For example, statements regarding the timing of the completion of the proposed business combination are forward-looking statements. In some cases, you can identify forward-looking statements by terminology such as "pro forma", "may", "should", "could", "might", "plan", "possible", "project", "strive", "budget", "forecast", "expect", "intend", "will", "estimate", "anticipate", "believe", "predict", "potential" or "continue", or the negatives of these terms or variations of them or similar terminology. Such forward-looking statements are subject to risks, uncertainties, and other factors which could cause actual results to differ materially from those expressed or implied by such forward-looking statements.
These forward-looking statements are based upon estimates and assumptions that, while considered reasonable by Seven Oaks and its management, and Boxed and its management, as the case may be, are inherently uncertain. Factors that may cause actual results to differ materially from current expectations include, but are not limited to: (i) the occurrence of any event, change or other circumstances that could give rise to the termination of subsequent definitive agreements with respect to the proposed business combination; (ii) the outcome of any legal proceedings that may be instituted against Seven Oaks, Boxed, the combined company or others following the announcement of the business combination and any definitive agreements with respect thereto; (iii) the inability to complete the business combination due to the failure to obtain approval of the stockholders of Seven Oaks or Boxed; (iv) the inability of Boxed to satisfy other conditions to closing; (v) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; (vi) the ability to meet stock exchange listing standards in connection with and following the consummation of the proposed business combination; (vii) the risk that the proposed business combination disrupts current plans and operations of Boxed as a result of the announcement and consummation of the proposed business combination; (viii) the ability to recognize the anticipated benefits of the business combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; (ix) costs related to the business combination; (x) changes in applicable laws or regulations; (xi) the possibility that Boxed or the combined company may be adversely affected by other economic, business, regulatory, and/or competitive factors; (xii) Boxed's estimates of expenses and profitability; (xiii) the evolution of the markets in which Boxed competes; (xiv) the ability of Boxed to implement its strategic initiatives and continue to innovate its existing offerings; (xv) the ability of Boxed to defend its intellectual property; (xvi) the ability of Boxed to satisfy regulatory requirements; (xvii) the impact of the COVID-19 pandemic on Boxed's and the combined company's business; and (xviii) other risks and uncertainties set forth in the section entitled "Risk Factors" and "Cautionary Note Regarding Forward-Looking Statements" in the registration statement on Form S-4 referenced above and other documents to be filed with the SEC by Seven Oaks.
Nothing in this press release should be regarded as a representation by any person that the forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward-looking statements will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Neither Seven Oaks nor Boxed undertakes any duty to update these forward-looking statements.
Investor Contacts
Seven Oaks:
Drew Pearson
drew@sevenoaksacquisition.com
Boxed:
Chris Mandeville
ICR
BoxedIR@icrinc.com
Media Contacts
Boxed:
Keil Decker
ICR
BoxedPR@icrinc.com