Blog: INDUSTRIAL TECH ACQUISITIONS II, INC. : Entry into a Material Definitive Agreement, Regulation FD Disclosure, Financial Statements and Exhibits (form 8-K) – Marketscreener.com

Item 1.01 Entry Into A Material Definitive Agreement.



Merger Agreement


This section describes the material provisions of the Merger Agreement (as
defined below), but does not purport to describe all of the terms thereof. The
following summary is qualified in its entirety by reference to the complete text
of the Merger Agreement, which is filed as an exhibit to this Form 8-K. The
stockholders of the issuer and other interested parties are urged to read the
Merger Agreement its entirety because it is the primary legal document that
governs the Business Combination (as defined below). Unless otherwise defined
herein, the capitalized terms used below have the meanings given to them in the
Merger Agreement.

General Terms and Effects; Merger Consideration

On November 21, 2022, Industrial Tech Acquisitions II, Inc., a Delaware
corporation (“ITAQ”) entered into an Agreement and Plan of Merger (as may be
amended or supplemented from time to time, the “Merger Agreement”) with NEXT
Renewable Fuels, Inc., a Delaware corporation (the “Company” or “NEXT”), and
ITAQ Merger Sub Inc., a Delaware corporation and wholly owned subsidiary of ITAQ
(“Merger Sub”), pursuant to which Merger Sub will be merged with and into NEXT,
and NEXT will become a wholly-owned subsidiary of ITAQ, which will change its
corporate name to “NXTCLEAN Fuels Inc.,” or such other name as mutually agreed
to by the ITAQ and NEXT (the merger of Merger Sub into NEXT and the transactions
contemplated by the Merger Agreement collectively, the “Transaction” or the
“Business Combination”). ITAQ and NEXT, following effectiveness of the Business
Combination are both referred to herein as the “Combined Company.”

Pursuant to the Merger Agreement, subject to the terms and conditions set forth
therein, following the closing (the “Closing”) of the Business Combination,
Merger Sub will merge with and into the Company, with the Company continuing as
the surviving entity and wholly-owned subsidiary of ITAQ, and with each
stockholder holder of NEXT (collectively, the “Company Securityholders”)
receiving newly-issued ITAQ securities, including, as applicable, shares of ITAQ
Class A common stock and/or options or warrants pursuant to which ITAQ Class A
common stock will be issued, as further described below.

Prior to, and contingent upon, the Closing, the Company is to effect a
recapitalization (the “Recapitalization”) pursuant to which all convertible debt
shall be converted into common stock. The total number of shares of ITAQ Class A
Common Stock (“ITAQ Class A Common Stock”) to be issued to the Company
stockholders, including holders of Company Options and Company Warrants (the
“Merger Consideration”) shall be determined by dividing (i) $450,000,000, which
is the value of the Merger Consideration, by (ii) the Redemption Price, which is
an amount equal to the price at which each public share of ITAQ Class A Common
Stock may be redeemed pursuant to the redemption provisions of ITAQ’s
certificate of incorporation. The number of shares of ITAQ Class A Common Stock
to be issued in respect of each share of Company Common Stock, determined after
completion of the Recapitalization (the “Conversion Ratio”), shall be determined
by dividing the Merger Consideration by the Total Company Shares. The “Total
Company Shares” shall mean the sum of (i) the number of shares of Company Common
Stock outstanding after giving effect to the Recapitalization (excluding (x) any
shares held by the Company or a subsidiary of the Company, and (y) any shares of
Company Common Stock issuable upon conversion or exercise of the certain
specified convertible securities and warrants), (ii) the number of shares of
Company Common Stock issued pursuant to a proposed equity financing by the
Company (iii) the number of shares of Company Common Stock issuable upon
exercise of outstanding Company Options, and, with certain exclusions, Company
Warrants. No fractional shares of ITAQ Class A Common Stock shall be issued to
holders of Company Common Stock, and any fractional shares will be rounded down
in the aggregate to the nearest whole share of Purchaser Class A Common Stock.



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Each option or warrant exercisable for Company common stock that is not
exercised prior to the Closing will be assumed by ITAQ and automatically
converted into an option or warrant exercisable for shares of ITAQ Class A
Common Stock, in each case subject to the equivalent terms and conditions as the
option or warrant exercisable for Company common stock, with the number of
shares of ITAQ Class A Common Stock and the exercise price being adjusted to
reflect the Conversion Ratio.

Representations and Warranties

The Merger Agreement contains representations and warranties made by each of the
Company and ITAQ as of the date of the Merger Agreement or other specified
dates. Certain of the representations and warranties are qualified by
materiality or Material Adverse Effect (as hereinafter defined), as well as
information provided in the disclosure schedules to the Merger Agreement. As
used in the Merger Agreement, “Material Adverse Effect” means, with respect to
any specified person or entity, any change or effect that has had, or would
reasonably be expected to have, individually or in the aggregate, a material
adverse effect upon (i) the business, assets, liabilities, results of operations
or condition (financial or otherwise) of such person or entity and its
subsidiaries, taken as a whole, or (ii) the ability of such person or entity or
any of its subsidiaries on a timely basis to consummate the transactions
contemplated by the Merger Agreement or the ancillary documents relating to the
Merger Agreement to which such person or entity is a party or bound or to
perform the obligations of such person or entity thereunder, in each case,
subject to certain customary exceptions.



No Survival


The representations and warranties of the parties contained in the Merger
Agreement terminate as of, and do not survive, the Closing, and there are no
indemnification rights for another party’s breach. The covenants and agreements
of the parties contained in the Merger Agreement do not survive the Closing,
except those covenants and agreements to be performed after the Closing, which
covenants and agreements will survive until fully performed.



Covenants of the Parties


Each party agreed in the Merger Agreement to use its commercially reasonable
efforts to effectuate the Closing. The Merger Agreement also contains certain
customary covenants by each of the parties during the Interim Period, including
(i) the provision of access to their properties, books and personnel; (ii) the
operation of their respective businesses in the ordinary course of business;
(iii) the delivery of certain specified financial statements by the Company to
ITAQ, including the delivery by December 15, 2022 of audited financial
statements for the year ended December 31, 2021; (iv) ITAQ’S public filings; (v)
no insider trading; (vi) notifications of certain breaches, consent requirements
or other matters; (vii) efforts to consummate the Closing; (viii) tax matters;
(ix) further assurances; (x) public announcements; and (xi) confidentiality.
During the Interim Period, ITAQ with the assistance of the Company, will use its
commercially reasonable efforts to enter into agreements with investors pursuant
to which the Investors will agree to purchase from ITAQ at the Closing the
securities to have such terms and conditions as shall be acceptable to ITAQ
subject to the approval of the Company, such approval not to be unreasonably
withheld, delayed or conditioned, of up to $50,000,000 or such other amount as
may be acceptable to ITAQ, and ITAQ agreed to obtain the waiver of the deferred
underwriters’ fees due to the underwriters of its initial public offering in
connection with the Business Combination. The Merger Agreement also contains
certain customary post-Closing covenants regarding (a) indemnification of
directors and officers and the purchase of tail directors’ and officers’
liability insurance; and (b) use of Trust Account proceeds. In addition, the
Company agreed to obtain its required stockholder approvals in the manner
required under its organizational documents and applicable law for, among other
things, the adoption and approval of the Merger Agreement, Ancillary Documents
and the Transaction, and agreed to enforce the Voting Agreements in connection
therewith.

Registration Statement on Form S-4

The parties made customary covenants regarding the registration statement on
Form S-4 to be filed by ITAQ (the “Registration Statement”) with the U.S.
Securities and Exchange Commission (the “SEC”) under the Securities Act of 1933,
as amended (the “Securities Act”), in connection with the registration under the
Securities Act of the shares of ITAQ Class A Common Stock to be issued pursuant
to the Merger Agreement as the Merger Consideration. The Registration Statement
also will contain the ITAQ proxy statement to solicit proxies from ITAQ’s
stockholders to approve, among other things, (i) the Merger Agreement and the
Transactions, including the Merger and the issuance of ITAQ securities in
connection with the Transaction; (ii) the amendment of the ITAQ Certificate of
Incorporation to change the name of ITAQ to “NXTCLEAN Fuels Inc.,” or such other
name as mutually agreed to by ITAQ and the Company, to eliminate provisions
relating to ITAQ’s status as a SPAC and include provisions appropriate for a
privately-owned corporation; (iii) the adoption the Equity Incentive Plan with
terms acceptable to ITAQ and the Company; and (iv) the election of the members
. . .

Item 7.01. Regulation FD Disclosure.

On November 21, 2022, ITAQ and the Company issued a joint press release
announcing their entry into the Merger Agreement. The press release is furnished
as Exhibit 99.1.

The investor presentation that ITAQ and the Company prepared for use in
connection with the announcement of the Merger Agreement is furnished as Exhibit
99.2.

On November 15, 2022, the Company and United issued a press release announcing
United’s strategic investment in NEXT. The press release is furnished as Exhibit
99.3.

Exhibits 99.1, 99.2 and 99.3 are being furnished pursuant to Item 7.01 of Form
8-K and will not be deemed to be filed for purposes of Section 18 of the
Securities 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 or the Exchange
Act.





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Item 9.01 Financial Statements and Exhibits.



(d) Exhibits



Exhibit No.   Description

2.1*            Agreement and Plan of Merger, dated as of November 21, 2022, by and
              among ITAQ, NEXT and Merger Sub  .

10.1            Form of Voting Agreement, dated as of November 21, 2022, by and among
              ITAQ, NEXT and certain stockholders of NEXT.

10.2            Form of Lock-Up Agreement by and between ITAQ, and certain
              stockholders of NEXT.

10.3            Form of Non-Competition Agreement by and among ITAQ, NEXT and certain
              stockholders of NEXT.

10.4            Sponsor Voting Agreement dated November 21, 2022 by and among ITAQ,
              NEXT and the Sponsor.

99.1            Press Release dated November 21, 2022.

99.2            Investor Presentation dated November 2022.

99.3            Press Release for United Agreement dated November 15, 2022.

104           Cover Page Interactive Data File (embedded within the Inline XBRL
              document)




*   The exhibits, schedules or similar attachments to this Exhibit have been
    omitted in accordance with Item 601(a)(5) of Regulation S-K. The Registrant
    agrees to furnish supplementally to the SEC a copy of all omitted exhibits,
    schedules or similar attachments upon its request.




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