Global Gas Corp DEFA14A, filed Jul 15, 2022
Global Gas Corp (HGAS)
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): July 15, 2022
Dune Acquisition Corporation
(Exact name of registrant as specified in its charter)
| Delaware | 001-39819 | 85-1617911 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
700 S. Rosemary Avenue, Suite 204 West Palm Beach, FL |
33401 | |
| (Address of principal executive offices) | (Zip Code) |
(917) 742-1904
(Registrant’s telephone number, including area code)
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:
| ☐ | 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 | DUNEU | The Nasdaq Stock Market LLC | ||
| Class A common stock, par value $0.0001 per share | DUNE | The Nasdaq Stock Market LLC | ||
| Warrants, each whole warrant exercisable for one share of Class A common stock, each at an exercise price of $11.50 per share | DUNEW | 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 ☒
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 1.02. Termination of a Material Definitive Agreement.
As previously disclosed, on October 12, 2021, Dune Acquisition Corporation, a Delaware corporation (“Dune”), entered into an Agreement and Plan of Merger, by and among Dune, Dune Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Dune (“Merger Sub”), Dune Merger Sub II, LLC, a Delaware limited liability company and direct, wholly-owned subsidiary of Dune (“Merger Sub II”), and TradeZero Holding Corp., a Delaware corporation (“TradeZero”), as amended by that certain First Amendment to the Agreement and Plan of Merger, dated as of January 26, 2022, by and among Dune, Merger Sub, Merger Sub II and TradeZero (as so amended, the “Merger Agreement”), pursuant to which, among other things, TradeZero would become a direct, wholly owned subsidiary of Dune (the “Business Combination”).
On July 13, 2022, Dune received a notice from TradeZero that purported to terminate the Merger Agreement pursuant to Sections 10.01(c) and 10.01(i) thereof (the “Purported Termination Notice”). Section 10.01(c) provides that the Merger Agreement may be terminated by either Dune or TradeZero if the merger of TradeZero with Merger Sub has not occurred by 11:59 p.m., Eastern Time, on July 12, 2022 (the “Termination Date”); provided that such termination right is not available to any party whose breach of any provision of the Merger Agreement primarily causes or results in the failure of the mergers contemplated by the Merger Agreement to be consummated by such time. Section 10.01(i) provides that the Merger Agreement may be terminated by TradeZero if Dune has breached or failed to perform any of its representations or warrants or covenants or other agreements contained in the Merger Agreement, which breach or failure to perform would result in the failure of a condition set forth in Section 9.02(a) or Section 9.02(b) of the Merger Agreement to be satisfied and such breach or failure is not capable of being cured or has not been cured as set forth in the Merger Agreement, provided that such termination right is not available to TradeZero if it is then in material breach of any representations, warranties, covenants or other agreements contained in the Merger Agreement that would result in the failure of a condition set forth in Section 9.02(a) or Section 9.02(b) of the Merger Agreement to be satisfied.
On July 15, 2022, Dune sent a letter to TradeZero in response to the Purported Termination Notice stating, among other things, that TradeZero is not permitted to terminate the Merger Agreement pursuant to (1) Section 10.01(c) because TradeZero’s breaches of, and failure to perform under, the Merger Agreement primarily caused or resulted in the failure of the mergers contemplated by the Merger Agreement to be consummated by the Termination Date and (2) Section 10.01(i) because Dune disputes TradeZero’s claims that Dune has breached the Merger Agreement, and even if Dune had breached the Merger Agreement, TradeZero has materially breached multiple provisions of the Merger Agreement and such breaches have resulted in the failure of the conditions set forth in Sections 9.02(a) and 9.02(b) (the “Response Letter”). As a result, the Purported Termination Notice is invalid and unenforceable, and TradeZero continues to be bound to its obligations under the Merger Agreement in all respects. Dune further stated in the Response Letter that it intends to take all necessary steps to protect itself and its investors. A copy the Response Letter is attached as Exhibit 99.1 hereto and is incorporated herein by reference.
Additional Information and Where to Find It
Dune filed a preliminary proxy statement relating to the proposed Business Combination (as defined below) with TradeZero Holding Corp. (“TradeZero”) with the United States Securities and Exchange Commission (the “SEC”) on January 26, 2022 and Amendment No. 1 to the preliminary proxy statement on May 27, 2022 (together, the “Preliminary Proxy Statement”). This document 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. Dune’s stockholders, TradeZero’s stockholders and other interested persons are advised to read the Preliminary Proxy Statement and, when available, any further amendments thereto and the definitive Proxy Statement and other documents filed in connection with the proposed Business Combination, as these materials will contain important information about TradeZero, Dune and the Business Combination. When available, the definitive Proxy Statement and other relevant materials for the proposed Business Combination will be mailed to stockholders of Dune as of a record date to be established for voting on the proposed Business Combination. Dune stockholders and TradeZero stockholders are able to obtain copies of the Preliminary Proxy Statement and, once available, copies of the definitive Proxy Statement and other documents filed with the SEC, without charge, at the SEC’s website at www.sec.gov, or by directing a request to Dune’s secretary at 700 S. Rosemary Avenue, Suite 204, West Palm Beach, FL 33401, (917) 742-1904.
1
Participants in Solicitation
Dune and its directors and executive officers may be deemed participants in the solicitation of proxies from Dune’s stockholders with respect to the proposed Business Combination. A list of the names of those directors and executive officers and a description of their interests in Dune is contained in the Preliminary Proxy Statement for the proposed Business Combination.
TradeZero and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from Dune’s stockholders with respect to 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 Preliminary Proxy Statement for the proposed Business Combination.
Forward-Looking Statements Legend
All statements contained in this Current Report on Form 8-K other than statements of historical facts, contains certain forward-looking statements that are forward-looking statements. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target,” “continue,” “may” or other similar expressions that predict or indicate future events or trends or that are not statements of historical matters, but the absence of these words does not mean a statement is not forward looking. Indications of, and guidance or outlook on, future earnings, dividends or financial position or performance are also forward looking statements.
These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially, and potentially adversely, from those expressed or implied in the forward-looking statements. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Most of these factors are outside Dune’s and TradeZero’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 that certain Agreement and Plan of Merger, dated as of October 12, 2021, by and among Dune, Dune Merger Sub, Inc., a Delaware corporation and a direct wholly-owned subsidiary of Dune (“Merger Sub”), Dune Merger Sub II, LLC, a Delaware limited liability company and direct, wholly-owned subsidiary of Dune (“Merger Sub II”), and TradeZero, as amended by that certain First Amendment to the Agreement and Plan of Merger, dated as of January 26, 2022, by and among Dune, Merger Sub, Merger Sub II and TradeZero (as so amended, the “Merger Agreement”), pursuant to which, among other things, TradeZero would become a direct, wholly owned subsidiary of Dune (the “Business Combination”); (ii) the outcome of any legal proceedings that may be instituted against Dune and TradeZero following the announcement of the Merger Agreement and the transactions contemplated therein; (iii) the outcome of the ongoing legal proceeding between Dune and TradeZero relating to the Business Combination; (iv) the inability to complete the proposed Business Combination, including due to failure to obtain approval of the stockholders of Dune, certain regulatory approvals, or the satisfaction of other conditions to closing in the Merger Agreement; (v) the occurrence of any event, change, or other circumstance that could give rise to the termination of the Merger Agreement or could otherwise cause the transaction to fail to close; (vi) the impact of the COVID-19 pandemic on TradeZero’s business and/or the ability of the parties to complete the proposed Business Combination; (vii) the inability to maintain the listing of Dune’s shares on the Nasdaq Stock Market following the proposed Business Combination; (viii) the risk that the proposed Business Combination disrupts current plans and operations as a result of the announcement and consummation of the proposed Business Combination; (ix) the ability to recognize the anticipated benefits of the proposed Business Combination, which may be affected by, among other things, competition, the ability of TradeZero to grow and manage growth profitably, and retain its key employees; (x) costs related to the proposed Business Combination; (xi) changes in applicable laws or regulations; and (xii) the possibility that TradeZero or Dune may be adversely affected by other economic, business, and/or competitive factors. The foregoing list of factors is not exclusive. Additional information concerning certain of these and other risk factors is contained in Dune’s most recent filings with the SEC, including the Preliminary Proxy Statement and Dune’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained herein. All subsequent written and oral forward-looking statements concerning Dune or TradeZero, the transactions described herein or other matters attributable to Dune, TradeZero or any person acting on their behalf are expressly qualified in their entirety by the cautionary statements above. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Each of Dune or TradeZero expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in their expectations with respect thereto or any change in events, conditions, or circumstances on which any statement is based, except as required by law.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| Exhibit No. | Description | |
| 99.1 | Response Letter, dated July 15, 2022. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
2
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.
| DUNE ACQUISITION CORPORATION | ||
| Date: July 15, 2022 | By: | /s/ Carter Glatt |
| Name: | Carter Glatt | |
| Title: | Chief Executive Officer | |
3
Exhibit 99.1
Dune Acquisition
Corporation
700 S. Rosemary Avenue, Suite 204
West Palm Beach, FL 33401
July 15, 2022
VIA FEDEX AND EMAIL
TradeZero Holding Corp.
5700 Lake Worth Road Unit 209-2
Lake Worth, FL 33467
Attn: John Muscatella
E-mail: legal@tradezero.co
with a copy to:
Vinson & Elkins L.L.P.
1001 Fannin Street
Suite 2500
Houston, TX 77002
Attn: Sarah K. Morgan, Benjamin Barron, Michael Telle
Email: smorgan@velaw.com; bbarron@velaw.com; mtelle@velaw.com
Re: Response to Purported Notice of Termination of Merger Agreement
Dear John:
Reference is made to (1) that certain Agreement and Plan of Merger, dated as of October 12, 2021, by and among Dune Acquisition Corporation, a Delaware corporation (“Dune”), Dune Merger Sub, Inc., a Delaware corporation (“Merger Sub”), Dune Merger Sub II, LLC, a Delaware limited liability company (“Merger Sub II”), and TradeZero Holding Corp., a Delaware corporation (“TradeZero”), as amended by that certain First Amendment to Agreement and Plan of Merger, dated as of January 26, 2022, by and among Dune, Merger Sub, Merger Sub II and TradeZero (as so amended, the “Merger Agreement”), and (2) that purported notice of termination of the Merger Agreement, dated as of July 13, 2022 (the “Purported Termination Notice”), delivered by TradeZero to Dune on July 13, 2022. Capitalized terms used but not defined herein shall have the meanings ascribed thereto in the Merger Agreement.
This letter is being provided in response to the Purported Termination Notice. TradeZero purports to terminate the Merger Agreement pursuant to Section 10.01(c) following the occurrence of the Termination Date under the Merger Agreement. However, TradeZero is not permitted to terminate the Merger Agreement pursuant to Section 10.01(c) because such termination right is not available to any party whose breach of the Merger Agreement primarily causes or results in the failure of the Mergers to be consummated by such time. As noted in previous correspondence between Dune and TradeZero, TradeZero has repeatedly breached the terms of the Merger Agreement, and such breaches have primarily caused or resulted in the failure of the Mergers to be consummated by the Termination Date.
TradeZero also attempts to terminate the Merger Agreement pursuant to Section 10.01(i) of the Merger Agreement, alleging that Dune materially breached the Merger Agreement and that such breaches resulted in the failure of the conditions set forth in Sections 9.03(a) and 9.03(b). Dune strongly disputes TradeZero’s allegations of breach by Dune. Furthermore, even if Dune had breached the Merger Agreement and such breaches had resulted in the failure of such conditions, the termination right under Section 10.01(i) of the Merger Agreement is not available to TradeZero if it is then in material breach of its representations, warranties, covenants or other agreements that would result in the failure of a condition set forth in Section 9.02(a) or Section 9.02(b). Dune believes that TradeZero has materially breached multiple provisions of the Merger Agreement and that such breaches have resulted in the failure of the conditions set forth in Sections 9.02(a) and 9.02(b).
In the Purported Termination Notice, TradeZero further alleges that “Dune has not made any efforts to pursue completing this transaction in several months. . .. .” Dune first notified TradeZero that it was in breach of the Merger Agreement in January 2022, and despite Dune’s concerted efforts to work collaboratively toward the consummation of the transactions contemplated by the Merger Agreement, TradeZero has failed to comply with its obligations under the Merger Agreement. Dune went so far as to obtain an extension of its expiration date to give Dune more time to complete a business combination while the Proxy Statement was being reviewed by the Securities and Exchange Commission (the “SEC”). Most recently, TradeZero failed to respond to comments regarding TradeZero’s Proxy Statement disclosures, which were received by Dune from the SEC on July 1, 2022 and provided to TradeZero’s counsel on that same day.
TradeZero also cites the failure of the closing condition in Section 9.01(e) of the Merger Agreement, which requires the Available Closing SPAC Cash to not be less than $80,000,000 (the “Minimum Cash Condition”). The Minimum Cash Condition must be satisfied or waived by TradeZero at the Closing, but the condition does not need to be satisfied at this time and only Dune (and not TradeZero) has a termination right if the condition would not be satisfied following the Special Meeting (see Section 10.01(f)). Dune has attempted to engage with TradeZero to raise additional financing to ensure compliance with the Minimum Cash Condition, and even though TradeZero is obligated pursuant to Section 7.08 of the Merger Agreement to use its commercially reasonable efforts to cooperate in connection with the arrangement of any Pre-Approved Arrangements sought by Dune, TradeZero has not done so.
In light of the foregoing, the Purported Termination Notice is invalid and unenforceable and is hereby rejected. Dune demands that TradeZero withdraw the Purported Termination Notice immediately and take all necessary steps to consummate the transactions contemplated by the Merger Agreement. The Purported Termination Notice and any further failure to comply with TradeZero’s obligations under the Merger Agreement constitute a material breach, and TradeZero remains bound by its obligations pursuant to the Merger Agreement, including, without limitation, the obligation set forth in Section 8.01(a) to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things reasonably necessary or advisable to consummate and make effective as promptly as reasonably practicable the Transactions (including the satisfaction of the closing conditions).
TradeZero’s material breaches of the Merger Agreement have and will cause irreparable injury, and Dune intends to take all necessary steps to protect Dune and its investors, including to continue to pursue its ongoing litigation against TradeZero and certain of its affiliates.
The contents of this written notice are without prejudice to any rights which Dune, Merger Sub or Merger Sub II may have pursuant to the Merger Agreement or otherwise, which are hereby expressly reserved. Nothing herein is intended to limit or waive any rights of Dune, Merger Sub or Merger Sub II related to the Merger Agreement or otherwise.
| Sincerely, | ||
| DUNE ACQUISITION CORP. | ||
| By: | /s/ Carter Glatt | |
| Name: | Carter Glatt | |
| Title: | Chief Executive Officer | |
| cc: | White & Case LLP |
| 555 South Flower Street, Suite 2700 | |
| Los Angeles, CA 90071-2433 | |
| Attn: Daniel E. Nussen | |
| Email: daniel.nussen@whitecase.com | |
| Winston & Strawn LLP | |
| 200 Park Avenue | |
| New York, NY 10166 | |
| Attn: Jason D. Osborn | |
| Email: josborn@winston.com | |
| Gibson, Dunn & Crutcher LLP | |
| 811 Main Street, Suite 3000 | |
| Houston, TX 77002-6117 | |
| Attn: Collin J. Cox | |
| Email: ccox@gibsondunn.com |