CONYERS PARK ACQUISITION CORP. (NASDAQ:CPAA) Files An 8-K Entry into a Material Definitive Agreement
Item 1.01
| Entry Into A Material Definitive Agreement. |
On April 10, 2017, Conyers Park Acquisition Corp.
(Parent), entered into an Agreement and Plan of Merger
(the Agreement), to effect an initial business
combination, by and among Parent, The Simply Good Foods Company,
a Delaware corporation (PubCo), Atkins Intermediate
Holdings, LLC, a Delaware limited liability company
(IntermediateLLC), Conyers Park Parent Merger Sub, Inc., a
Delaware corporation (Parent Merger Sub), Conyers Park
Merger Sub 1, Inc., a Delaware corporation (Company Merger Sub
1), Conyers Park Merger Sub 2, Inc., a Delaware corporation
(Company Merger Sub 2), Conyers Park Merger Sub 3, Inc., a
Delaware corporation (Company Merger Sub 3), Conyers Park
Merger Sub 4, Inc., a Delaware corporation (Company Merger Sub
4, together with, Company Merger Sub 1, Company Merger Sub 2,
and Company Merger Sub 3, Parent Merger Sub, PubCo, Parent and
Parent Merger Sub, theParent Parties), NCP-ATK Holdings,
Inc., a Delaware corporation (theCompany), solely in its
capacity as the Majority Stockholder, Atkins Holdings LLC, a
Georgia limited liability company (theMajority
Stockholder) and, solely in its capacity as the Stockholders
Representative to Section9.15 of the Agreement, Roark
Capital Acquisition, LLC, a Georgia limited liability company
(theStockholders Representative).
The Mergers
The Agreement provides for (a) the merger of Parent Merger Sub
with and into Parent, with Parent continuing as the surviving
corporation (the Parent Surviving Subsidiary) and as a
wholly-owned subsidiary of IntermediateLLC (the Parent
Merger), and (b) immediately after the Parent Merger,
simultaneously (i) the merger of Company Merger Sub 1 with and
into the Company, with the Company continuing as the surviving
company (the Company Surviving Subsidiary) and as a
wholly-owned subsidiary of IntermediateLLC, (ii) the merger of
Company Merger Sub 2 with and into Atkins Nutritionals Holdings,
Inc., a Delaware corporation, with Atkins Nutritionals Holdings,
Inc. continuing as the surviving company and as a wholly-owned
subsidiary of Company Surviving Subsidiary, (iii) the merger of
Company Merger Sub 3 with and into Atkins Nutritionals Holdings
II, Inc., a Delaware corporation, with Atkins Nutritionals
Holdings II, Inc. continuing as the surviving company and as a
wholly-owned subsidiary of Atkins Nutritionals Holdings, Inc.,
and (iv) the merger of Company Merger Sub 4 with and into Atkins
Nutritionals, Inc., a New York corporation, with Atkins
Nutritionals, Inc. continuing as the surviving company and as a
wholly-owned subsidiary of Atkins Nutritionals Holdings II, Inc.
(collectively, the Company Merger, and together with the
Parent Merger, the Mergers), as a result of which Parent
and the Company will become wholly-owned, indirect subsidiaries
of PubCo, and PubCo will become a publicly traded company.
Consideration
to the Agreement, PubCo will pay, or cause to be paid, at the
Closing (as defined in the Agreement) with respect to the shares
of common stock, par value $0.01 per share, of the Company (which
does not include any shares issuable to Exercised Option Shares
(as defined in the Agreement), the Company Common Stock),
and the Exercised Option Shares, an aggregate amount of
$730,125,000, subject to customary purchase price adjustments
(the Merger Consideration). The Merger Consideration will
consist of, and be allocated between, 10,250,000 shares of common
stock (at a reference price of $10.00 per share), par value
$0.0001 per share of PubCo (the PubCo Common Stock) and an
amount of cash equal to the Merger Consideration minus
$102,500,000.00.
The shares of Class A common stock, par value $0.0001 per share,
of Parent (the Parent Common Stock) issued and outstanding
at the Effective Time (as defined in the Agreement), excluding
shares of Parent Common Stock to be canceled to Section 2.5(c) of
the Agreement and any Parent Redeemed Shares (as defined below),
will be canceled and convert automatically into the right to
receive one share of PubCo Common Stock. Each share of Parent
Common Stock held in the treasury of Parent and any shares of
Parent Common Stock owned by any subsidiary of Parent will be
canceled automatically without conversion thereof and no payment
or distribution will be made with respect thereto.
Each Parent Warrant (as defined in the Agreement) or portion
thereof issued and outstanding immediately prior to the Effective
Time will be converted into a warrant to purchase common stock of
PubCo.
Each issued and outstanding share of Company Common Stock,
excluding shares of Company Common Stock to be canceled to the
Agreement, Exercised Option Shares and any Company Dissenting
Shares (as defined in the Agreement), will be canceled and
convert automatically into the right to receive the following:
(i) an amount in cash equal to the Cash Amount (as defined in the
Agreement) rounded up to the nearest whole cent; (ii) a number of
shares of PubCo Common Stock equal to the Stock Amount (as
defined in the Agreement); and (iii) a contingent right to a
portion of the Escrow Amount (as defined in the Agreement),
Administrative Expense Amount (as defined in the Agreement), any
additional consideration received to the purchase price
adjustment in Section 2.12 of the Agreement, any Bonus Repayment
Amount (as defined in the Agreement) and any amounts payable to a
tax receivables agreement, to be entered into at Closing (the
Tax Receivables Agreement) (clauses (i) through (iii)
collectively, the Stock Consideration), in each case,
payable, without interest, to the applicable Company Stockholder
(as defined in the Agreement) in accordance with the Agreement.
Each share of Company Common Stock held in the treasury of the
Company (including, if applicable, the Contingent Stock Purchase
Shares (as defined in the Agreement)) and any shares of Company
Common Stock owned by PubCo or any subsidiary of the Company will
be canceled automatically without conversion thereof and no
payment or distribution will be made with respect thereto.
Prior to the closing, holders of options to purchase Company
Common Stock will have the opportunity to exercise their vested
options. Such exercised vested options will be cancelled and
terminated at the Effective Time and the holders of such options
will be entitled to the Exercised Option Shares Consideration (as
defined in the Agreement). All options that are either unvested
or unexercised will be cancelled at the Effective Time.
Any outstanding warrants to purchase Company Common Stock will be
sold to the Company to the terms of the Warrant Agreement (as
defined in the Agreement) and cancelled at the Effective Time and
the holder of the warrant will be entitled to receive the
consideration set forth in the Warrant Agreement (as defined in
the Agreement).
Any share of Parent Common Stock held by any Parent Stockholder
(as defined in the Agreement) that exercises redemption rights to
the Offer (as defined in the Agreement) (a Parent Redeemed
Share) will be canceled and converted into the right to
receive the consideration as set forth in the Offer.
Under the terms of the Agreement, any Company Dissenting Share
(as defined in the Agreement) will not be converted into the
right to receive its applicable portion of the Merger
Consideration but will instead be converted into the right to
receive such consideration as may be determined to be due with
respect to any such Company Dissenting Share to the Delaware
General Corporation Law (the DGCL). Each holder of Company
Dissenting Shares who, to the DGCL, becomes entitled to payment
thereunder for such shares will receive payment therefor in
accordance with the DGCL (but only after the value therefor will
have been agreed upon or finally determined to the DGCL). If,
after the Effective Time, any Company Dissenting Share will lose
its status as a Company Dissenting Share, then any such share
will immediately be converted into the right to receive its
applicable portion of the Merger Consideration as if such share
never had been a Company Dissenting Share, and PubCo will
deliver, or cause to be delivered in accordance with the terms of
this Agreement, to the holder thereof, following the satisfaction
of the applicable conditions set forth in Section 2.10 of the
Agreement, its applicable portion of the Merger Consideration as
if such share had never been a Company Dissenting Share.
Representations and Warranties
Under the Agreement, each of the Group Companies (as defined in
the Agreement) and the Parent Parties made customary
representations and warranties for transactions of this type. The
representations and warranties made by the Group Companies under
the Agreement do not survive after the Closing. The
representations and warranties made by the Parent Parties under
the Agreement survive for one year following the Closing.
Conditions to Consummation of the Mergers
Consummation of the transactions contemplated by the Agreement is
subject to customary conditions of the respective parties, and
conditions customary to special purpose acquisition companies,
including the approval of Parents stockholders in accordance with
the Parent Organizational Documents (as defined in the Agreement)
and minimum proceeds (including debt financing proceeds)
available to Parent at the Closing.
In addition, consummation of the transactions contemplated by the
Agreement is subject to other closing conditions, including,
among others: (i) all applicable waiting periods under the HSR
Act (as defined in the Agreement) have expired or been
terminated; (ii) there has been no material adverse effect to the
business, assets, liabilities, financial condition or results of
operations of the Group Companies, taken as a whole; (iii) the
completion of the Offer in accordance with the terms of the
Agreement and Parents proxy statement related to the initial
business combination; (iv) the registration statement to be filed
by PubCo has become effective; (v) execution and delivery by both
the Company and the Parent Parties of an officers certificate
certifying compliance with certain obligations under the
Agreement; (vi) consent of the majority stockholder of the
Company; and (vii) Parent stockholder redemptions not exceeding
the amounts identified in the Agreement.
Termination
The Agreement may be terminated under certain customary and
limited circumstances at any time prior to the Closing, including
(i) if the Closing has not occurred by August 21, 2017 (the
Outside Date), unless because of the delay and/or
nonperformance of the party seeking such termination, (ii) if the
Parents board of directors changes its recommendation with
respect to the transactions contemplated by the Agreement and
(iii) if the approval of the Transaction Proposals (as defined in
the Agreement) is not obtained at the Parent Common Stockholders
Meeting (as defined in the Agreement). If the Agreement is
validly terminated, none of the Parent Parties or the Company
will have any liability or any further obligation under the
Agreement with certain limited exceptions, including liability
arising out of a partys willful or intentional breach of any
provision contained in the Agreement.
A copy of the Agreement is filed with this Current Report on Form
8-K as Exhibit 2.1 and is incorporated herein by reference, and
the foregoing description of the Agreement is qualified in its
entirety by reference thereto. The Agreement contains
representations, warranties and covenants that the respective
parties made to each other as of the date of the Agreement or
other specific dates. The assertions embodied in those
representations, warranties and covenants were made for purposes
of the contract among the respective parties and are subject to
important qualifications and limitations agreed to by the parties
in connection with negotiating such agreement. The
representations, warranties and covenants in the Agreement are
also modified in important part by the underlying disclosure
schedules which are not filed publicly and which are subject to a
contractual standard of materiality different from that generally
applicable to stockholders and were used for the purpose of
allocating risk among the parties rather than establishing
matters as facts. We do not believe that these schedules contain
information that is material to an investment decision.
Tax Receivables Agreement
The Tax Receivables Agreement will generally provide for the
payment by PubCo to the holders of equity interests in the
Company as of the time immediately before the transactions
contemplated by the Agreement for certain federal, state, local
and non-U.S. tax benefits deemed realized in post-closing taxable
periods by PubCo, Parent, the Company and the Companys eligible
subsidiaries from the use of up to $100 million of the following
tax attributes: (i) net operating losses available to be carried
forward as of the closing of the transactions contemplated by the
Agreement; (ii) certain deductions generated by the consummation
of the transactions contemplated by the Agreement; and (iii)
remaining depreciable tax basis from the 2003 acquisition of
Atkins Nutritionals, Inc. In addition, PubCo will pay the
Stockholders Representative (on behalf of holders of equity
interests in the Company as of the time immediately before the
transactions contemplated by the Agreement) for the use of
certain alternative minimum tax credit carryforwards.
Investor Rights Agreement
At the closing of the Business Combination, PubCo, Sponsor and
Atkins Holdings LLC will enter into an Investor Rights Agreement,
providing for, among other things, subject to the terms thereof,
customary registration rights, including demand and piggy-back
rights subject to cut-back provisions, and information rights in
favor of Atkins Holdings LLC. PubCo has agreed to use its
commercially reasonable efforts to file a shelf registration
statement to register Atkins Holdings LLCs shares at any time
that PubCo is eligible to do so. to the Investor Rights
Agreement, Atkins Holdings LLC will agree not to sell, transfer,
pledge or otherwise dispose of shares of common stock in PubCo it
receives in connection with the Business Combination for 180 days
from the closing of the Business Combination, as well as to
certain other lock-up provisions set forth therein. In addition,
to the Investor Rights Agreement, for so long as Atkins Holdings
LLC holds approximately 50% of the shares of PubCo common stock
that it holds as of the date of the closing of the merger, it
will have the right to nominate one director to serve on the
Board of Directors of PubCo as a Class III Director or, if it
chooses not to do so or its nominated director resigns or is
removed and is not replaced or nominated in accordance with the
Investor Rights Agreement, to select one non-voting observer to
participate in any meeting of the Board of Directors. Sponsor and
its affiliates have agreed to vote their respective shares of
common stock then beneficially owned in favor of the election or
appointment of Atkins Holdings LLCs director. Atkins Holdings
LLCs director will also serve on a standing committee of the
Board of Directors chosen by Atkins Holdings LLC.
Private Placement
Parent entered into subscription agreements with the investors
named therein (the Private Placement Investors), to which
Parent agreed to issue and sell to the Private Placement
Investors approximately $100 million of the Parents Class A
Shares at $10.00 per share immediately prior to closing of the
initial business combination, which will become shares in PubCo
upon consummation of the Mergers (the Private Placement).
The Private Placement is conditioned on the substantially
concurrent closing of the initial business combination and other
customary closing conditions. The proceeds from the Private
Placement will be used to fund a portion of the cash
consideration for the initial business combination. The form of
subscription agreement is attached as Exhibit 10.1 hereto.
Item 3.02 Unregistered Sales of Equity
Securities.
The disclosure set forth above under the heading Private
Placement in Item 1.01 of this Current Report is incorporated by
reference into this Item 3.02. The shares of Company Common Stock
to be issued in connection with the Merger Agreement and the
transactions contemplated thereby 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 and/or Regulation D
promulgated thereunder.
Item 7.01 Regulation FD Disclosure.
On April 11, 2017, Parent issued a press release announcing the
execution of the Agreement.The press release is attached hereto
as Exhibit99.1 and incorporated by reference herein.
Attached as Exhibit 99.2 hereto and incorporated into this Item
7.01 by reference is the investor presentation that will be used
by Parent.
The foregoing (including Exhibits 99.1 and 99.2) is being
furnished to Item 7.01 and will not be deemed to be filed for
purposes of Section 18 of the Securities and Exchange Act of
1934, as amended (the Exchange Act), or otherwise be
subject to the liabilities of that section, nor will it be deemed
to be incorporated by reference in any filing under the
Securities Act of 1933, as amended, or the Exchange Act.
Item 8.01 Other Events
In connection with the execution of the Agreement, Parent has
received commitments from Barclays Bank PLC and Goldman Sachs
Bank USA to provide debt financing of up to $300 million at the
closing of the initial business combination, and Parent has
entered into customary commitment letters in connection
therewith.
Additional Information
In connection with the proposed transaction, PubCo intends to
file a Registration Statement on Form S-4, which will include a
preliminary proxy statement/prospectus of Parent. Parent will
mail a definitive proxy statement/prospectus and other relevant
documents to its stockholders. Investors and security
holders of Parent are advised to read, when available, the
preliminary proxy statement, and amendments thereto, and the
definitive proxy statement in connection with Parents
solicitation of proxies for its special meeting of stockholders
to be held to approve the proposed transaction because the proxy
statement/prospectus will contain important information about the
proposed transaction and the parties to the proposed transaction.
The definitive proxy statement/prospectus will be mailed to
stockholders of Parent as of a record date to be established for
voting on the proposed transaction. Stockholders will also be
able to obtain copies of the Registration Statement and proxy
statement/prospectus, without charge, once available, at the
Securities and Exchange Commissions (SEC) website at www.sec.gov
or by directing a request to: Conyers Park Acquisition Corp., 3
Greenwich Office Park, 2nd Floor, Greenwich, CT.
Participants in the Solicitation
Parent and Atkins and their respective directors, executive
officers, other members of management, and employees, under SEC
rules, may be deemed to be participants in the solicitation of
proxies of Parents stockholders in connection with the proposed
transaction. Investors and security holders may obtain
more detailed information regarding the names and interests in
the proposed transaction of Parents directors and officers in
Parents filings with the SEC, including Parents Annual Report on
Form 10-K for the fiscal year ended December 31, 2016, which was
filed with the SEC on March 31, 2017, and Conyers Parks Current
Report on Form 8-K, which was filed with the SEC on April 11,
2017, and such information will also be in the Registration
Statement to be filed with the SEC by PubCo, which will include
the proxy statement/prospectus of Parent for the proposed
transaction.
Forward Looking Statements
Certain statements made herein are not historical facts but are
forward-looking statements for purposes of the safe harbor
provisions under The Private Securities Litigation Reform Act of
1995. Forward-looking statements generally are accompanied by
words such as may, should, would, plan, intend, anticipate,
believe, estimate, predict, potential, seem, seek, continue,
future, will, expect, outlook or other similar words, phrases or
expressions. These forward-looking statements include statements
regarding Parents industry, future events, the proposed
transaction between Parent, PubCo, Parent Merger Sub, Company
Merger Sub 1, Company Merger Sub 2, Company Merger Sub 3, Company
Merger Sub 4, NCP-ATK Holdings, Inc., Atkins Holdings LLC, and
Roark Capital Acquisition, LLC, the estimated or anticipated
future results and benefits of the combined company following the
transaction, including the likelihood and ability of the parties
to successfully consummate the proposed transaction, future
opportunities for the combined company, and other statements that
are not historical facts. These statements are based on the
current expectations of Parents management and are not
predictions of actual performance. These statements are subject
to a number of risks and uncertainties regarding Parents
businesses and the transaction, and actual results may differ
materially. These risks and uncertainties include, but are not
limited to, changes in the business environment in which Parent
operates, including inflation and interest rates, and general
financial, economic, regulatory and political conditions
affecting the industry in which Parent operates; changes in
taxes, governmental laws, and regulations; competitive product
and pricing activity; difficulties of managing growth profitably;
the loss of one or more members of Parents management teams; the
inability of the parties to successfully or timely consummate the
proposed transaction, including the risk that the required
regulatory approvals are not obtained, are delayed or are subject
to unanticipated conditions that could adversely affect the
combined company or the expected benefits of the transaction or
that the approval of the stockholders of Parent is not obtained;
failure to realize the anticipated benefits of the transaction,
including as a result of a delay in consummating the transaction
or a delay or difficulty in integrating the businesses of Parent
and Atkins; uncertainty as to the long-term value of Parents
common stock; those discussed in the Parents Annual Report on
Form 10-K for the year ended December 31, 2016 under the heading
Risk Factors, as updated from time to time by Parents Quarterly
Reports on Form 10-Q and other documents of Parent on file with
the SEC or in the proxy statement that will be filed with the SEC
by Parent. There may be additional risks that Parent presently
does not know or that Parent currently believes are immaterial
that could also cause actual results to differ from those
contained in the forward-looking statements. In addition,
forward-looking statements provide Parents expectations, plans or
forecasts of future events and views as of the date of this
communication. Parent anticipates that subsequent events and
developments will cause Parents assessments to change. However,
while Parent may elect to update these forward-looking statements
at some point in the future, Parent specifically disclaims any
obligation to do so. These forward-looking statements should not
be relied upon as representing Parents assessments as of any date
subsequent to the date of this communication.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number | Description | |
|
2.1* |
Agreement and Plan of Merger, dated as of April 10, 2017, by and among Conyers Park Acquisition Corp., The Simply Good Foods Company, Atkins Intermediate Holdings, LLC, Conyers Park Parent Merger Sub, Inc., Conyers Park Merger Sub 1, Inc., Conyers Park Merger Sub 2, Inc., Conyers Park Merger Sub 3, Inc., Conyers Park Merger Sub 4, Inc., NCP-ATK Holdings, Inc., Atkins Holdings LLC, and Roark Capital Acquisition, LLC. |
|
|
10.1* |
Form of Subscription Agreement |
|
|
99.1* |
Press Release dated April 11, 2017. |
|
|
99.2* |
Investor Presentation, dated April 11, 2017. |
| * | Filed herewith. |
|
Certain of the exhibits and schedules to this Exhibit have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all omitted exhibits and schedules to the Securities and Exchange Commission upon its request. |
CONYERS PARK ACQUISITION CORP. (NASDAQ:CPAA) Recent Trading Information
CONYERS PARK ACQUISITION CORP. (NASDAQ:CPAA) closed its last trading session 00.00 at 10.43 with 0 shares trading hands.