UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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| Item 1.01 | Entry into a Material Definitive Agreement. |
Amendment to Business Combination Agreement
On August 12, 2021, Big Cypress Acquisition Corp., a Delaware corporation (the “Company”), together with Big Cypress Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of the Company (“Merger Sub”) and SAB Biotherapeutics, Inc., a Delaware corporation (“SAB” together with the Company and Merger Sub the “Parties”), entered into a first amendment (the “Amendment”) to the business combination agreement dated June 21, 2021 (the “Business Combination Agreement”) in connection with the proposed business combination (the “Business Combination” and the transactions contemplated thereby the “Merger”) between the Company and SAB as further described in the Company’s Current Report on Form 8-K filed with the Securities and Exchange Commission (the “SEC”) on June 22, 2021.
In accordance with the terms and subject to the conditions of the Business Combination Agreement, as amended pursuant to the Amendment, at the effective time of the Merger (the “Effective Time”), (i) each outstanding share of SAB common stock and SAB preferred stock will be automatically cancelled, extinguished and converted into a number of shares of the Company’s common stock (the “New Company Shares”) based on SAB’s equity value; (ii) holders of shares of SAB Biotherapeutics Common Stock and Preferred Stock will be entitled to receive their pro rata share of additional New Company Shares being issued into escrow (the “Earnout Escrow Account”) at the closing (the “Earnout Shares”), which will be released if certain conditions are met within a five-year period following the closing of the Business Combination (the “Earnout Period”), pursuant to the terms and subject to the conditions set forth in the Business Combination Agreement, as amended, and the Earnout Escrow Agreement in the form attached as an exhibit to the Amendment to be entered into at closing (the “Earnout Escrow Agreement”) with the escrow agent (the “Earnout Escrow Agent”) and (iii) outstanding vested and unvested option to purchase shares of SAB common stock will be canceled in exchange for a comparable option to purchase New Company Shares based on the equity value of SAB with respect to vested options. In addition the holders of such vested options shall also receive restricted stock units (the “Earnout RSUs”) based on the pro rata percentage that the vested SAB options represent compare to the fully diluted share capital of SAB prior to closing. Each Earnout RSU will be settled in New Company Shares, subject to the same milestones applicable to the Earnout Shares.
The total maximum number of Earnout Shares and shares underlying the Earnout RSUs will be equal to 12,000,000 additional New Company Shares in the aggregate, which shares shall be allocated on a pro rata basis among the SAB stockholders who have received New Company Shares and the holders of vested SAB stock options in accordance with the Business Combination Agreement, as amended and the Earnout Escrow Agreement (the “Stockholder Earnout Group”).
The Earnout Shares shall be released and delivered to the Stockholder Earnout Group as follows: (i) 25% of the Earnout Shares will be released from the Earnout Escrow Account to the Stockholder Earnout Group if, within the Earnout Period, the volume weighted share price of the New Company Shares equals or exceeds $15.00 during at least 20 trading days within a 30-day trading period; (ii) 25% of the Earnout Shares will be released from the Earnout Escrow Account to the Stockholder Earnout Group if, within the Earnout Period, the volume weighted share price of the New Company Shares equals or exceeds $20.00 during at least 20 trading days within a 30-day trading period; (iii) 25% of the Earnout Shares will be released from the Earnout Escrow Account to the Stockholder Earnout Group if, within the Earnout Period, the volume weighted share price of the New Company Shares equals or exceeds $25.00 during at least 20 trading days within a 30-day trading period and (iv) 25% of the Earnout Shares will be released from the Earnout Escrow Account to the Stockholder Earnout Group if, within the Earnout Period, the volume weighted share price of the New Company Shares equals or exceeds $30.00 during at least 20 trading days within a 30-day trading period.
Each tranche of Earnout Shares will also be earned and released to the Stockholder Earnout Group in the event of a change in control of the Company during the Earnout Period that results in the holders of New Company Shares receiving per-share aggregate consideration equal to or in excess of the applicable tranche of Earnout Shares (which calculation shall be determined by dividing the total aggregate value of the consideration to be paid in the change of control transaction by the total number of shares of New SAB Biotherapeutics Common Stock outstanding prior to the change of control transaction, assuming that, with respect to the applicable tranche of shares of New SAB Biotherapeutics Common Stock, only the applicable tranche of such Earnout Shares shall be deemed outstanding).
The total maximum number of Earnout Shares and shares underlying the Earnout RSUs will be equal to 12,000,000 additional New Company Shares in the aggregate.
A copy of the Amendment is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. A copy of the Business Combination Agreement is filed with the Company’s Current Report on Form 8-K filed on June 22, 2021 and is incorporated herein by reference. The foregoing description of the Amendment, the Business Combination Agreement and the Business Combination does not purport to be complete and is qualified in its entirety by reference thereto. The Amendment and the Business Combination Agreement contain representations, warranties and covenants that the respective parties made to each other as of the date of the Amendment and the Business Combination Agreement, respectively, 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 the Amendment and the Business Combination Agreement. The Amendment is being filed to provide investors with information regarding its terms. It is not intended to provide any other factual information about the parties to the Amendment or the Business Combination Agreement. In particular, the representations, warranties, covenants and agreements contained in the Business Combination Agreement, as amended by the Amendment, which were made only for purposes of the Business Combination Agreement and the Amendment, as applicable and as of specific dates, were solely for the benefit of the parties to the Business Combination Agreement and the Amendment, may be subject to limitations agreed upon by the contracting parties (including being qualified by confidential disclosures made for the purposes of allocating contractual risk between the parties to the Business Combination Agreement and Amendment, instead of establishing these matters as facts) and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors, security holders and reports and documents filed with the SEC. Investors and security holders are not third-party beneficiaries under the Amendment or Business Combination Agreement and should not rely on the representations, warranties, covenants and agreements, or any descriptions thereof, as characterizations of the actual state of facts or condition of any party to the Amendment or Business Combination Agreement. In addition, the representations, warranties, covenants and agreements and other terms of the Amendment and Business Combination Agreement may be subject to subsequent waiver or modification.
Other Agreements
The Amendment contemplates the execution of the Earnout Escrow Agreement in the form attached to the Amendment, on the closing.
| Item 7.01 | Regulation FD Disclosure. |
The information in this Item 7.01 and Exhibits 99.1 and 99.2 attached hereto shall not be deemed “filed” for purposes of Section 18 of the Exchange Act, or otherwise subject to the liabilities of that section, nor shall it be deemed incorporated by reference in any filing under the Securities Act or the Exchange Act, except as expressly set forth by specific reference in such filing.
Additional Information
In connection with the Business Combination, the Company intends to file with the SEC and Registration Statement on Form S-4 (the “Registration Statement”), which will include a preliminary prospectus and preliminary proxy statement. The Company will mail a definitive proxy statement/final prospectus and other relevant documents to its stockholders. This communication is not a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that the Company will send to its stockholders in connection with the Business Combination. Investors and security holders of the Company are advised to read, when available, the proxy statement/prospectus in connection with the Company’s solicitation of proxies for its special meeting of stockholders to be held to approve the Business Combination (and related matters) because the proxy statement/prospectus will contain important information about the Business Combination and the parties to the Business Combination. The definitive proxy statement/final prospectus will be mailed to stockholders of the Company as of a record date to be established for voting on the Business Combination. Stockholders will also be able to obtain copies of the proxy statement/prospectus, without charge, once available, at the SEC’s website www.sec.gov or by directing a request to: ir@bigcypressaccorp.com.
Participants in the Solicitation
The Company, SAB 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 the Company’s 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 the Company’s directors and officers in the Company’s filings with the SEC including the Registration Statement to be filed with the SEC by the Company, which will include the proxy statement of the Company for the Business Combination, and such information and names of SAB’s directors and executive officers will also be in the Registration Statement filed with the SEC by the Company, which will include the proxy statement of the Company for the Business Combination.
Forward-Looking Statements
Certain statements made herein that are not historical facts 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 “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “intend,” “expect,” “should,” “would,” “plan,” “predict,” “potential,” “seem,” “seek,” “future,” “outlook” and similar expressions that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding future events, the Business Combination between the Company and SAB, the estimated or anticipated future results and benefits of the combined company following the Business Combination, including the likelihood and ability of the parties to successfully consummate the Business Combination, future opportunities for the combined company, and other statements that are not historical facts. These statements are based on the current expectations of the Company’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on, by any investor as a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of the Company and SAB. These statements are subject to a number of risks and uncertainties regarding the Company’s businesses and the Business Combination, and actual results may differ materially. These risks and uncertainties include, but are not limited to, general economic, political and business conditions; the inability of the parties to consummate the Business Combination or the occurrence of any event, change or other circumstances that could give rise to the termination of the Business Combination Agreement; the outcome of any legal proceedings that may be instituted against the parties following the announcement of the Business Combination; the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with the Business Combination; the risk that the approval of the stockholders of the Company or SAB for the potential transaction is not obtained; failure to realize the anticipated benefits of the Business Combination, including as a result of a delay in consummating the potential transaction or difficulty in integrating the businesses of the Company or SAB; the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination; the ability of the combined company to grow and manage growth profitably and retain its key employees; the amount of redemption requests made by the Company’s stockholders; the inability to obtain or maintain the listing of the post-acquisition company’s securities on Nasdaq following the Business Combination; costs related to the Business Combination; and those factors discussed in the Company’s final prospectus relating to its initial public offering, dated January 11, 2021, and filed with the SEC on January 12, 2021, in the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2020, filed with the SEC on April 2, 2021, in the Company’s Quarterly Reports on Form 10-Q for the periods ended March 31, 2021 an June 30, 2021, filed with the SEC on May 21, 2021 and August 9, respectively, and other filings with the SEC. If any of these risks materialize or if assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. There may be additional risks that the Company presently does not know or that the Company 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 the Company’s expectations, plans or forecasts of future events and views as of the date of this communication. The Company anticipates that subsequent events and developments will cause the Company’s assessments to change. However, while the Company may elect to update these forward-looking statements at some point in the future, the Company specifically disclaims any obligation to do so. These forward-looking statements should not be relied upon as representing the Company’s assessments as of any date subsequent to the date of this communication. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Disclaimer
This communication is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| † | 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 SEC upon its request. |
SIGNATURE
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.
| Big Cypress Acquisition Corp. | ||
| By: | /s/ Samuel J. Reich | |
| Name: | Samuel J. Reich | |
| Title: | Chief Executive Officer & Chief Financial Officer | |
Dated: August 13, 2021