Item 1.01. | Entry Into A Material Definitive Agreement. |
On October 15, 2022, Blockchain Moon Acquisition
Corp., a Delaware corporation (“BMAC”), announced that it executed a Business Combination Agreement (the “Business
Combination Agreement”), dated as of October 14, 2022, with Malibu Parent Inc., a Delaware corporation (“New
BMAC”), Hermosa Merger Sub LLC, a Delaware limited liability company (“Merger Sub”), and DLTx ASA, a Norwegian
public limited liability company (“DLTx”) (the transactions contemplated by the Business Combination Agreement, the
“Business Combination”). This Current Report on Form 8-K (or this “report”), provides a summary of the
Business Combination Agreement and the other agreements entered into (and certain agreements to be entered into) in connection with the
Business Combination. The descriptions of these agreements do not purport to be complete and are qualified in their entirety by the terms
and conditions of such agreements or the forms thereof, as applicable, copies of which are filed as Exhibits 2.1, 10.1 and 10.2 hereto
and are incorporated by reference herein.
Business Combination Agreement
The following description of the Business Combination
Agreement and the transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to,
the actual agreement, a copy of which is filed with this report as Exhibit 2.1, and the terms of which are incorporated herein by reference.
Capitalized terms used but not otherwise defined herein will have the meanings given to them in the Business Combination Agreement. The
Business Combination Agreement has been attached to provide investors with information regarding its terms. It is not intended to provide
any other factual information about BMAC, New BMAC, Merger Sub or DLTx. In particular, the assertions embodied in the representations
and warranties in the Business Combination Agreement were made as of a specified date, may be subject to a contractual standard of materiality
different from what might be viewed as material to investors, may be qualified by the schedules thereto, or may have been used for the
purpose of allocating risk between the parties. Accordingly, the representations and warranties in the Business Combination Agreement
are not necessarily characterizations of the actual state of facts about BMAC, New BMAC, Merger Sub or DLTx at the time they were made
or otherwise and should only be read in conjunction with the other information that BMAC makes publicly available in reports, statements
and other documents filed with the Securities and Exchange Commission (the “SEC”).
The Business Combination Agreement
sets forth the terms and conditions of the Business Combination, which includes, among other things, the consummation of the following
transactions: (a) prior to the closing of the Business Combination (the “Closing”), DLTx will assign, contribute or
otherwise convey certain assets to its subsidiaries such that, by the closing date, the subsidiaries of DLTx will hold all assets of the
DLTx company group other than specific, enumerated assets and associated liabilities (the “Conveyances”), in accordance
with a plan to be provided by DLTx to BMAC (the “Conveyance Plan”); (b) prior to the Closing, on the closing date,
BMAC will merge with and into Merger Sub, with Merger Sub surviving (the “Merger”, and the effective time of the Merger,
the “Effective Time”) as a direct subsidiary of New BMAC, and New BMAC will continue as the public company with (i)
each outstanding share of common stock, $0.0001 par value, of BMAC (each, a “BMAC Common Share”), being automatically
converted into the right of the holder thereof to receive one share of common stock, par value $0.0001 of New BMAC (each, a “New
BMAC Common Share”), (ii) each outstanding right to receive one-tenth (1/10) of a BMAC Common Share upon the consummation of
an initial business combination (“BMAC Right”) of BMAC being automatically exchanged for 1/10th of a share of a New
BMAC Common Share upon the Closing without any further action by the holders of the BMAC Rights and (iii) each outstanding warrant of
BMAC (“BMAC Warrant”) automatically ceasing to represent a right to acquire BMAC Common Shares and instead representing
a right to acquire New BMAC Common Shares; (c) following the Effective Time, (i) New BMAC will amend and restate the pre-Closing certificate
of incorporation of New BMAC in a form to be agreed by BMAC and DLTx, until thereafter changed or amended as provided therein or by applicable
law and (ii) the board of directors of New BMAC will adopt the New BMAC bylaws in a form to be agreed by BMAC and DLTx; (d) following
the Effective Time, at the Closing, New BMAC will acquire all of the subsidiaries of DLTx (the “Acquisition”) in exchange
for New BMAC Common Shares, as described in more detail below; and (e) promptly following the Required Company Distribution Transaction
Approval (as defined below), DLTx shall distribute to the Company Shareholders as of a record date to be on our about three business days
following Closing their respective portion of the Adjusted Transaction Share Consideration (as defined below) (the “Distribution”).
In connection with the Closing, New BMAC will change its name to DLTx Inc., which will continue as the public company following the consummation
of the Business Combination.
Consideration
Under the terms of the Business
Combination Agreement, the aggregate consideration to be paid to DLTx in connection with the Acquisition will be in the form of New BMAC
Common Shares and will equal the Adjusted Transaction Share Consideration. “Adjusted Transaction
Share Consideration” means an aggregate number of New BMAC Common Shares equal to (a) (i) $106,610,000 (less any Leakage since
June 30, 2022, if any) (the “Equity Value”), divided by (ii) $10.00, minus (b) (i) the Earn Out Adjustment Share Amount
(as defined below), if any, multiplied by (ii) the Exchange Ratio (as defined below).
The
“Earn Out Adjustment Share Amount” means 6,000,000 or such lesser amount (which may be zero) to the extent the DLTx
has complied in full with its obligation to issue an aggregate of 6,000,000 Company Shares prior to the Closing Date to certain individuals
entitled thereto in accordance with Section 6.30 of the Business Combination Agreement.
The
“Exchange Ratio” means a fraction equal to (a) the aggregate number of Equity Securities of DLTx outstanding as of
immediately prior to the Closing on an as-converted-to-common-stock basis, divided by (b) the aggregate number of New BMAC Common Shares
equal to the Adjusted Transaction Share Consideration.
The Closing
The Closing will occur as promptly as reasonably
practicable, but in no event later than the third Business Day, following the satisfaction or, if permissible, waiver of the conditions
to the Closing set forth in the Business Combination Agreement.
Stock Exchange Listing
Pursuant to the terms of the Business Combination
Agreement, BMAC shall use its reasonable best efforts to (a) cause the New BMAC Common Shares to be issued in connection with the Business
Combination to be approved for listing on the Nasdaq Global Market (“Nasdaq”), subject to official notice of issuance
thereof and (b) satisfy any applicable initial listing requirements of Nasdaq, in each case, as promptly as reasonably practicable
after the date of the Business Combination Agreement, and in any event prior to the Effective Time.
Representations and Warranties
The Business Combination Agreement contains customary
representations and warranties of the parties thereto and in respect of the acquired DLTx subsidiaries with respect to, among other things,
(a) entity organization, formation and authority, (b) capitalization, (c) authorization to enter into the Business Combination Agreement,
(d) licenses and permits, (e) taxes, (f) financial statements, (g) real property, (h) material contracts, (i) title to assets, (j) absence
of changes, (k) employee matters, (l) compliance with laws, (m) litigation, (n) transactions with affiliates and (o) regulatory matters.
Covenants
The Business Combination Agreement includes customary
covenants of the parties with respect to the operation of their respective businesses prior to the consummation of the Business Combination
and efforts to satisfy the conditions to consummation of the Business Combination. The Business Combination Agreement also contains additional
covenants of the parties, including, among others, covenants providing for BMAC and DLTx to use their reasonable best efforts to obtain
all permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities and parties to contracts with DLTx
and its subsidiaries as set forth in the Business Combination Agreement necessary for the consummation of the Business Combination and
to fulfill the conditions to the Business Combination, for the preparation and filing of a registration statement on Form S-4 with the
SEC relating to the Business Combination, containing a prospectus and proxy statement of BMAC, for DLTx to convene extraordinary general
meetings of its Company Shareholders in order to approve the Acquisition and, subsequently, the Distribution, for the parties to negotiate
the final forms of certain ancillary documents for the Business Combination in good faith, and for the designation of the members of New
BMAC’s classified board upon the Closing.
DLTx Exclusivity Restrictions
Pursuant to the terms of the Business Combination
Agreement, from the date of the Business Combination Agreement to the Closing or, if earlier, the termination of the Business Combination
Agreement in accordance with its terms, DLTx has agreed, among other things, not to, and to cause its representatives not to (i) solicit,
initiate, encourage (including by way of furnishing or disclosing information), knowingly facilitate, discuss or negotiate, directly or
indirectly, any inquiry proposal or offer (written or oral) relating to a Company Acquisition Proposal (as defined below), (ii) furnish
or disclose any non-public information to any person in connection with, or that could reasonably be expected to lead to, a Company Acquisition
Proposal; (iii) enter into any contract or other arrangement or understanding regarding a Company Acquisition Proposal; (iv) prepare
or make any filings with the SEC or any other governmental entity in connection with a public offering of any equity securities or other
securities of any Group Company (or any affiliate or successor of any Group Company); or (v) otherwise cooperate in any way with, or assist
or participate in, or knowingly facilitate or encourage any effort or attempt by any person to do or seek to do any of the foregoing.
A “Company Acquisition Proposal”
means (a) any direct or indirect acquisition, in one or a series of transactions, (i) of or with DLTx or any of its controlled Affiliates
or (ii) of all or a material portion of assets, Equity Securities or businesses of DLTx or any of its controlled Affiliates (in the case
of each of clause (i) and (ii), whether by merger, consolidation, recapitalization, purchase or issuance of Equity Securities, purchase
of assets, tender offer or otherwise), or (b) any equity or similar investment in DLTx or any of its controlled Affiliates.
BMAC Exclusivity Restrictions
Pursuant to the terms of the Business Combination
Agreement, from the date of the Business Combination Agreement to the Effective Time or, if earlier, the termination of the Business
Combination Agreement in accordance with its terms, BMAC has agreed among other things, to the extent not inconsistent with the fiduciary
duties of the BMAC Board, not to, and to cause its representatives not to, (i) solicit, initiate, encourage (including by means of furnishing
or disclosing information), knowingly facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written
or oral) relating to a BMAC Acquisition Proposal (as defined below), (ii) furnish or disclose any non-public information to any person in connection with, or that could reasonably
be expected to lead to, a BMAC Acquisition Proposal; (iii) enter into any contract or other arrangement or understanding regarding a
BMAC Acquisition Proposal; or (iv) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or encourage
any effort or attempt by any person (other than any DLTx subsidiary) to do or seek to do any of the foregoing.
A “BMAC Acquisition Proposal”
means any direct or indirect acquisition (or other business combination), in one or a series of related transactions, by BMAC (a) of
or with an unaffiliated entity or (b) of all or a material portion of the assets, equity securities or businesses of an unaffiliated
entity (in the case of each of clause (a) and (b), whether by merger, consolidation, recapitalization, purchase or issuance of equity
securities, purchase of assets, tender offer or otherwise), other than with DLTx and its representatives.
Due Diligence Investigation and Renegotiation or Reconsideration
Period
Following the signing of the Business Combination
Agreement, BMAC will have a period ending on the later of (x) 30 days following the signing of the Business Combination Agreement and
(y) five days following DLTx’s delivery of certain required PCAOB-compliant audited financial statements to complete its due diligence
review of the DLTx business (the “Diligence Period”). Any any time prior to the expiration of the Diligence Period,
BMAC may notify DLTx in writing (a “Diligence Deficiency Notice”) that it intends to terminate the Business Combination
Agreement as a result of its due diligence investigation (including as a result of the Conveyance Plan and/or any updates to the disclosure
schedules delivered by DLTx). BMAC may, in its sole discretion, propose a revised Equity Value, or such other amended or additional terms,
on which BMAC would be willing to consummate the Business Combination.
No later
than three Business Days after its receipt of a Diligence Deficiency Notice (if any), DLTx may, in its sole discretion, negotiate with
BMAC with respect to any such amended or additional terms and/or make a counterproposal to BMAC (a “Company Counterproposal”).
During the fifteen days following BMAC’s receipt of a Company Counterproposal (if any) (the “Renegotiation Period”),
BMAC will consider and discuss in good faith with DLTx all proposals submitted by DLTx. Neither party will be required to accept any proposal
by the other party, and the BMAC Board is not required to recommend the adoption and approval of any such proposal to BMAC’s stockholders.
To the extent that DLTx does not deliver a Company Counterproposal, BMAC will have 15 days following the delivery of the Diligence Deficiency
Notice (a “Reconsideration Period”) in order to consider, together with its legal and financial advisors, whether to
exercise its rights to terminate the Business Combination Agreement as a result of its due diligence investigation of DLTx.
Conditions to Closing
The consummation of the Business Combination is
subject to the fulfillment of the conditions described below.
Mutual Conditions
Under the terms of the Business Combination Agreement,
the obligations of DLTx, BMAC and Merger Sub to consummate the Business Combination, including the Merger, are subject to the satisfaction
or waiver (where permissible) at or prior to the Closing of the following conditions: (i) each applicable waiting period or Consent under
the HSR Act shall have expired, been terminated or obtained (or deemed, by applicable Law, to have been obtained), as applicable; (ii)
the Required Company Shareholder Transaction Approval (as defined below) shall have been obtained; (iii) the Required BMAC Stockholder
Approval (as defined below) shall have been obtained; (iv) no Order or Law issued by any court of competent jurisdiction or other Governmental
Entity or other legal restraint or prohibition preventing the consummation of the Business Combination or the Ancillary Documents shall
be in effect; (v) the Registration Statement / Proxy Statement shall have been declared effective under the Securities Act of 1933, as
amended (the “Securities Act”), no stop order suspending the effectiveness of the Registration Statement / Proxy Statement
shall be in effect, and no proceedings seeking such a stop order shall have been initiated or threatened by the SEC and remain pending;
(vi) New BMAC’s initial listing application with Nasdaq in connection with the Business Combination shall have been conditionally
approved and, immediately following the Closing, New BMAC shall satisfy any applicable initial and continuing listing requirements of
Nasdaq, and New BMAC shall not have received any notice of non-compliance therewith that has not been cured prior to, or would not be
cured at or immediately following, the Closing, and the New BMAC Common Shares (including the New BMAC Common Shares to be issued hereunder)
shall have been approved for listing on Nasdaq; and (vii) after giving effect to the Business Combination, BMAC shall have at least $5,000,001
of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange
Act”)) immediately after the Closing.
BMAC Conditions to Closing
Under the terms of the Business Combination
Agreement, the obligations of BMAC and Merger Sub to consummate the transactions contemplated by the Business Combination Agreement
are subject to the satisfaction or waiver (where permissible) at or prior to the Closing of, in addition to other customary closing
conditions, (a) no Company Material Adverse Effect having occurred between the date of the Business Combination Agreement and the
Closing Date, (b) the BMAC Board having received a fairness opinion satisfactory to the BMAC Board and its Special
Committee, (c) the Conveyances having been completed in accordance with the Conveyance Plan, (d) delivery of a Restrictive Covenant
Agreement containing customary non-competition, non-solicitation, and non-disparagement covenants by DLTx, in a form to be agreed by
the parties, and (e) the Required Company Distribution Transaction Approval having been obtained, or if the Required Company
Distribution Transaction Approval has not been obtained, DLTx having delivered a six-month “lock-up” agreement and the
DLTx’s board of directors having resolved to recommend the Distribution, recommended the Distribution and not changed such
recommendation.
“Required Company Distribution Transaction
Approval” means the approval of the Distribution by the affirmative vote of the holders of the requisite number of Company Shares
entitled to vote thereon, whether in person or by proxy at DLTx Distribution Special Meeting (or any adjournment or postponement
thereof), in accordance with the Governing Documents of DLTx and applicable Law.
DLTx Conditions to Closing
Under the terms of the Business Combination Agreement,
the obligations of DLTx to consummate the transactions contemplated by the Business Combination Agreement are subject to the satisfaction
or waiver (where permissible) at or prior to the Closing of, among other customary closing conditions, no BMAC Material Adverse Effect
having occurred between the date of the Business Combination Agreement and the Closing Date, and cash available from the Trust Account
and all BMAC Financing equaling or exceeding $10,000,000 after payment of transaction expenses.
Termination
The Business Combination Agreement allows the parties
to terminate the agreement upon the occurrence of certain conditions, including if the Effective Time has not occurred by July 21, 2023
(the “Termination Date”). Additionally, the Business Combination Agreement may be terminated:
(i) by mutual written consent of BMAC and DLTx;
(ii) by BMAC, if any of the representations or
warranties of DLTx set forth in the Business Combination Agreement shall not be true and correct or if DLTx has failed to perform any
covenant or agreement set forth in the Business Combination Agreement such that certain conditions to closing cannot be satisfied and
the breach or breaches causing such representations or warranties not to be true and correct, or the failures to perform any covenant
or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier of (i) 30 days after written notice thereof is
delivered to DLTx by BMAC and (ii) the Termination Date;
(iii) by DLTx, if any of the representations or
warranties of BMAC set forth in the Business Combination Agreement shall not be true and correct or if any BMAC Party has failed to perform
any covenant or agreement on the part of such applicable BMAC Party set forth in the Business Combination Agreement such that certain
conditions to Closing could not be satisfied and the breach or breaches causing such representations or warranties not to be true and
correct, or the failures to perform any covenant or agreement, as applicable, is (or are) not cured or cannot be cured within the earlier
of (i) 30 days after written notice thereof is delivered to BMAC by DLTx and (ii) the Termination Date;
(iv) by either BMAC or DLTx, if any governmental
entity shall have issued an order or taken any other action permanently enjoining, restraining or otherwise prohibiting the transactions
contemplated by the Business Combination and such order or other action shall have become final and nonappealable;
(v) by either BMAC or DLTx, if certain required
approvals are not obtained from BMAC stockholders (“Required BMAC Stockholder Approval”) after the conclusion of a
meeting of BMAC’s stockholders held for such purpose on which such stockholders voted for such approvals;
(vi) by either BMAC or DLTx, if certain required
approvals are not obtained from DLTx shareholders (“Required Company Shareholder Transaction Approval”) after the conclusion
of a meeting of DLTx’s shareholders held for such purpose on which such shareholders voted for such approvals;
(vii) by BMAC, at any time before the time the
Required Company Shareholder Transaction Approval is obtained, upon a Company Change in Recommendation; provided, that the BMAC
Expense Reimbursement shall be paid pursuant the terms of the Business Combination Agreement;
(viii) by BMAC, following the expiration of the
Renegotiation Period or Reconsideration Period, as applicable, based on its due diligence review of the DLTx or if, at such time, the
BMAC Special Committee has not received a satisfactory Fairness Opinion;
(ix) by DLTx, at any time before the time the Required
BMAC Stockholder Approval is obtained, upon a BMAC Change in Recommendation; and
(x) by DLTx prior to the receipt of the Required
Company Shareholder Transaction Approval, if DLTx’s board of directors authorizes DLTx to enter into a definitive agreement with
respect to a unsolicited Company Superior Proposal and DLTx enters into such definitive agreement with respect to such Company Superior
Proposal; provided, that the BMAC Expense Reimbursement shall be paid pursuant the terms of the Business Combination Agreement.
The “BMAC Expense Reimbursement”
shall be an amount equal to the reasonable and documented out-of-pocket expenses incurred by BMAC in connection with the Business Combination
Agreement and the transactions contemplated thereunder, in an amount not to exceed $7,500,000.
Sponsor Side Letter
BMAC, Jupiter Sponsor LLC, a Delaware limited liability
company and BMAC’s sponsor (the “Sponsor”), DLTx, and, solely for purposes of Section 1.3(b) and Article II,
Enzo Villani, (“Villani”), concurrently with the execution and delivery of the Business Combination Agreement, have
entered into a sponsor letter agreement (the “Sponsor Side Letter”), pursuant to which the Sponsor has agreed, among
other things, (A) to vote (or execute and return an action by written consent), or cause to be voted at such meeting (or validly execute
and return and cause such consent to be granted with respect thereto), all of its or his Covered Shares (as defined below) (i) in
favor of each Transaction Proposal contemplated in the Business Combination Agreement, and (ii) against any action, proposal, transaction
or agreement relating to any BMAC Acquisition Proposal, and (B) not to elect to make or effect a BMAC Share Redemption with respect
to any such Covered Shares. Capitalized terms used but not otherwise defined herein will have the meanings given to them in the Sponsor
Side Letter.
In addition, the Sponsor and DLTx have agreed,
among other things, (A) to cancel certain equity interests in the Sponsor, upon Closing, for no consideration while New BMAC concurrently
redeems, for no consideration, 240,000 BMAC Common Shares, 19,500 BMAC Warrants and 39,000 BMAC Rights held by the Sponsor. The Sponsor,
Villani and DLTx have agreed, among other things, that certain equity interests held by Villani shall, upon the Closing, be cancelled
for no consideration while New BMAC will simultaneously redeem for no consideration 150,000 New BMAC Common Shares held by the Sponsor
(such redeemed New BMAC Common Shares, the “Forfeited Shares”). BMAC shall cause New BMAC to reserve such Forfeited
Shares for issuance, upon the Closing, to the employees of the Group Companies and in such amounts as BMAC and DLTx agree prior to the
Closing.
“Covered Shares” means all Sponsor
Shares held by the Sponsor, as of the date hereof together with any BMAC Common Shares or any shares of capital stock of BMAC acquired.
The foregoing description of the Sponsor Side Letter
and the transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to, the actual
agreement, a copy of which is filed with this report as Exhibit 10.1, and the terms of which are incorporated herein by reference.
Shareholder Support Agreement
BMAC, DLTx and certain of the shareholders of DLTx
(the “DLTx Shareholders”), concurrently with the execution and delivery of the Business Combination Agreement, have
entered into the Shareholder Support Agreement (the “Shareholder Support Agreement”), pursuant to which such DLTx Shareholders
have agreed, among other things, to vote (i) all of their ordinary shares of DLTx, par value NOK 1.60 (the “DLTx Ordinary Shares”),
(ii) any additional DLTx Ordinary Shares (or any securities convertible into or exercisable or exchangeable for DLTx Ordinary Shares)
in which such DLTx Shareholder acquires record and beneficial ownership after the date hereof and (iii) any additional DLTx Ordinary Shares
with respect to which such DLTx Shareholder has the discretionary right to vote through a proxy in favor of the Business Combination Agreement
and the Business Combination, including the Merger.
The foregoing description of the Shareholder Support
Agreement and the transactions contemplated thereby is not complete and is subject to, and qualified in its entirety by reference to,
the actual agreement, a copy of which is filed with this report as Exhibit 10.2, and the terms of which are incorporated herein by reference.