Item 1.01 Entry into a Material Definitive Agreement.
Reclassification
On
The Reclassification Agreement provides that, following the satisfaction of the
conditions thereto, the Company will amend and restate its Restated Certificate
of Incorporation (the "A&R Charter"). Upon the A&R Charter being duly filed with
the
The closing of the Reclassification is subject to customary conditions,
including, (i) approval of the A&R Charter by the affirmative vote of the
holders of (a) a majority of the voting power of the issued and outstanding
shares of Class A Common Stock and Class B Common Stock entitled to vote
thereon, voting together as a single class, (b) a majority of the issued and
outstanding shares of Class B Common Stock, and (c) the affirmative vote of at
least 50.3% of the issued and outstanding shares of Class A Common Stock held by
the Unaffiliated Class A Holders (as defined in the Reclassification Agreement),
(ii) the effectiveness of the Company's registration statement on Form S-4 to be
filed with the
Subject to specified exceptions, the members of the
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representing approximately 98% of issued and outstanding Class B Common Stock
and approximately 60% of the combined voting power of the issued and outstanding
Class A Common Stock and Class B Common Stock when voting together as a single
class, in favor of the A&R Charter.
The Reclassification Agreement contains certain termination rights, including
the right of either party to terminate for specified breaches of the other party
(subject to a cure period), the requisite stockholder approvals not being
obtained or if the Reclassification does not occur on or prior to
Post-Closing Matters
The Reclassification Agreement also sets forth the arrangements between the
Company and the
Until the fifth anniversary of the Effective Time,
The Reclassification Agreement imposes certain (x) transfer restrictions with
respect to the shares of common stock held by the
In addition to the provisions stated above, the Reclassification Agreement contains customary representations, warranties and covenants of each of the parties thereto for a transaction of this type. The Company anticipates completing the Reclassification during the second half of 2022.
At the Effective Time, the Board will also (i) amend and restate the bylaws of the Company to implement certain conforming changes in connection with the A&R Charter and to implement certain
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other changes to update the bylaws in accordance with best corporate practices, including adopting a majority standard in uncontested elections of directors, (ii) amend and restate the Board Corporate Governance Guidelines and the Corporate Governance and Responsibility Committee Charter to reflect modernizing, clarifying, and conforming changes in connection with the A&R Charter and Bylaws Amendment, and (iv) adopt a Board anti-pledging policy applicable to directors and executive officers. Individuals nominated by WildStar for appointment to the Board will be permitted to continue to pledge their shares subject to certain limitations set forth in the Reclassification Agreement.
The foregoing description of the Reclassification Agreement does not purport to be complete and is qualified in its entirety by reference thereto. The Reclassification Agreement (including the appended form of the Amended and Restated Certificate of Incorporation of the Company, reflecting the A&R Charter, the form of Amended and Restated Bylaws of the Company, the form of Registration Rights Agreement, the form of Amended and Restated Board Corporate Governance Guidelines, the form of Amended and Restated Corporate Governance and Responsibility Charter and form of Board Anti-Pledging Policy) is filed as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
The information contained in Item 1.01 above is incorporated by reference herein in its entirety.
Messrs. Robert and
Forward-Looking Statements
This Current Report on Form 8-K contains forward-looking statements. All statements other than statements of historical fact are forward-looking statements. The word "expect," and similar expressions are intended to identify forward-looking statements, although not all forward-looking statements contain such identifying words. These statements may relate to future plans and objectives of management and Constellation's Board of Directors, as well as information concerning expected actions of third parties. All forward-looking statements involve risks and uncertainties that could cause actual results to differ materially from those set forth in, or implied by, such forward-looking statements. No assurances can be given that any of the events anticipated by the forward-looking statements will transpire or occur.
The forward-looking statements are based on management's current expectations and should not be construed in any manner as a guarantee that such results will in fact occur. All forward-looking statements speak only as of the date of this Current Report on Form 8-K and Constellation does not undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise.
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Statements in this Current Report on Form 8-K regarding Constellation and the
Reclassification transaction that are forward-looking, including projections as
to the anticipated benefits of the proposed transaction, the impact of the
proposed transaction on Constellation's business and future financial and
operating results and capital structure following the closing of the proposed
Reclassification and the closing date for the proposed transaction, are based on
management's estimates, assumptions and projections, and are subject to
significant uncertainties and other factors, many of which are beyond
Constellation's control. These factors include, among other things, (1) failure
to receive the requisite approvals of Constellation's shareholders necessary to
achieve the Reclassification; (2) any other delays with respect to, or the
failure to complete, the Reclassification; (3) the ultimate outcome of any
litigation matter related to the Reclassification, (4) the ability to recognize
the anticipated benefits of the Reclassification, (5) Constellation's ability to
execute successfully its strategic plans, and (6) the effect of the announcement
or the consummation of the proposed Reclassification on the market price of the
capital stock of Constellation. The foregoing review of important factors should
not be construed as exhaustive and should be read in conjunction with the other
cautionary statements that are included elsewhere. Additional information
concerning risks that could cause actual future performance or events to differ
from current expectations can be found in Constellation's filings with the
IMPORTANT ADDITIONAL INFORMATION
This Current Report on Form 8-K does not constitute an offer to sell or the
solicitation of an offer to buy any securities or a solicitation of any vote or
approval nor shall there be any sale of securities in any jurisdiction in which
such offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such jurisdiction. No offer of
securities shall be made except by means of a prospectus meeting the
requirements of Section 10 of the Securities Act of 1933, as amended.
Constellation intends to file with the
PARTICIPANTS IN THE SOLICITATION
The directors and executive officers of Constellation and other persons may be
considered participants in the solicitation of proxies from stockholders in
connection with the proposed transaction. Information regarding Constellation's
directors and executive officers is available in Constellation's most recent
proxy statement, dated
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Item 9.01 Financial Statements and Exhibits.
For the exhibits that are filed or furnished herewith, see the Index to Exhibits immediately following.
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