OPORTUN FINANCIAL CORP: conclusion of a material definitive agreement, unrecorded sale of equity securities, other events, financial statements and exhibits (Form 8-K)



Article 1.01. Signing of an important definitive agreement

At November 15, 2021, Opportunity Financial Company (“Oportun” or the “Company”), has entered into an agreement and a reorganization plan (the “Merger Agreement”) with Hello Digit, Inc., a Delaware company (“Number”), Yosemite Fusion Acquisition Corp., a Delaware company and wholly owned subsidiary of the Company (“Fusion Sub I”), Yosemite Acquisition Sub, LLC, a Delaware a limited liability company and a wholly-owned subsidiary of the Company (“Fusion Sub II”, and together with the Fusion Sub I, the “Fusion Subs”) and Shareholder Representative Services LLC, a Colorado limited liability company as representative of security holders.

Upon completion of the transactions contemplated by the Merger Agreement (the “Closing”), Merger Sub I will merge with and into Digit (the “First Merger”), and upon completion of the First Merger, Merger Sub I will cease to operate. exist, and Digit will become a wholly owned subsidiary of the Company. As part of the same overall operation, shortly after the First Merger, the surviving company of the First Merger (the “Society of First Stage Survivors“) will merge with and in the Fusion Sub II (the” Second Merger; “with the First Merger, the” Mergers “), and upon completion of the Second Merger, the Society of First Stage Survivors will cease to exist and Merger Sub II will survive as a wholly owned subsidiary of the Company (the “Surviving Entity”).

Pursuant to the terms and subject to the conditions set out in the Merger Agreement, including customary purchase price adjustments, the total consideration payable in exchange for all outstanding interests of Digit pursuant to the Merger Agreement is d ‘about $ 212.9 million, comprising an aggregate of approximately $ 114.4 million in cash (the “Cash Consideration”) and approximately $ 98.5 million in the ordinary shares of the Company and / or options to purchase ordinary shares of the Company (the “Stock Consideration”). A portion of the cash consideration will be placed in receivership to meet certain obligations of the shareholders of Digit, as described in the merger agreement. The Company intends to issue the common shares of the Company described herein on the basis of the registration exemptions granted by Section 4 (a) (2) and Rule 506 enacted under the Securities Act of 1933, as amended.

The Merger Agreement contains the usual representations, warranties and commitments of the Company, Digit and the Merger Subs.

Closing of Mergers is subject to customary closing conditions, including, inter alia, (i) adoption of the Merger Agreement and approval of Mergers in accordance with Delaware the law, (ii) the expiration or termination of the waiting period applicable under the Hart-Scott Rodino Antitrust Improvements Act of 1976, as amended (the “HSR Act”), (iii) the accuracy of certain representations and warranties made by the parties in the Merger Agreement (subject to certain materiality thresholds), (iv) the material compliance by each party with its commitments set out in the Merger Agreement and (v) the lack of material adverse effect on the parties. The Company’s obligations to complete the Mergers are also subject, among other things, to (i) the signing of Support Agreements (as defined below) by the security holders covering at least 90% of the indemnification obligations described. in the Merger Agreement, (ii) the continued effectiveness of certain agreements entered into with key employees of Digit in connection with the execution of the Merger Agreement and (iii) the absence of pending litigation against the Merger .

The Merger Agreement may be terminated (i) by mutual agreement between the Company and Digit, (ii) by the Company, if the shareholders of Digit do not adopt the Merger Agreement and do not approve the Merger within two (2) hours following completion of the Merger. Agreement, (iii) by the Company or Digit, if the closing of the Merger has not taken place on or before March 15, 2022, (iv) by the Company or Digit, if any law or final decree without appeal directs or prohibits the completion of the Mergers, or (v) by the Company or Digit, if the other party (a) violates any of its statements , warranties or covenants in the Merger Agreement, (b) has not remedied such breach within 30 days of written notice of such breach and (c) such breach would result in breach of certain closing conditions.

The foregoing description of the Merger Agreement does not purport to be complete and is qualified in its entirety by reference to the Merger Agreement, which is filed as Exhibit 2.1 attached and is incorporated herein by reference. The Merger Agreement has been included to provide investors and securityholders with information regarding its terms. It is not intended to provide other factual information about Opportune, Digit or their respective subsidiaries and affiliates. The merger agreement contains representations and warranties of each of the Opportune and the Merger Subs, on the one hand, and Digit, on the other hand, carried out solely for the benefit of the other. The assertions contained in these representations and warranties are qualified by the information contained in the confidential disclosure schedules that the parties exchanged in connection with the signing of the merger agreement. The Disclosure Schedules contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger Agreement. In addition, certain representations and warranties of the Merger Agreement have been used for the purpose of allocating risk between Opportune and the Merger Subs, on the one hand, and Digit, on the other. Therefore, investors and securityholders should not rely on any representations and warranties contained in the Merger Agreement as characterizations of the actual state of the facts or the condition of Opportune, Merger Subs, Digit or their respective subsidiaries or affiliates. In addition, information regarding the subject matter of any representations, warranties and covenants may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in public disclosures.

The information disclosed in Section 8.01 of this current report on Form 8-K is hereby incorporated by reference in this Section 1.01.

Article 3.02. Unrecorded sales of Equity securities

The information disclosed in Section 8.01 of this current report on Form 8-K is hereby incorporated by reference in this Section 3.02.

Article 8.01. Other events

The Company announced that it had obtained a commitment to finance the Cash Counterparty, through a financing facility secured by the residual cash flows of its securitizations.

At November 16, 2021, the Company issued a press release announcing the imminent acquisition of Digit. A copy of the press release is attached as Exhibit 99.1 herein and is incorporated herein by reference.

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The Company has announced that it will host an investor conference call and webcast on Investor.oportun.com on November 16, 2021 To 2:00 p.m. Eastern Time to discuss the acquisition of Digit. In advance of this call, the Company also makes available on its website an investor presentation which will be discussed during the call and which is attached as Exhibit 99.2 attached.

Also on November 16, 2021, the company posted a blog post on its website providing additional commentary on the ongoing acquisition of Digit. A copy of the blog post is attached as Attachment 99.3 attached.

Forward-looking statements

This current report on Form 8-K may be deemed to contain forward-looking statements, which are subject to the safe harbor provisions of the Private Securities Litigation Reform Act of 1995, including statements regarding opportunities, conditions, timing , the completion and effects of the proposed acquisition of Digit. These forward-looking statements often contain words such as “assume”, “will”, “anticipate”, “believe”, “predict”, “plan”, “potential”, “consider”, “plan”, “anticipate”, ” estimate “,” expect “,” intend “,” aim “,” may “,” should “,” should “,” could “,” aim “,” seek “,” hope “,” aim “,” continue “and other similar words or expressions or their negative or other variations thereof. Statements regarding future events are based on the current expectations of the parties and are necessarily subject to associated risks relating to, among other things, closing conditions which may not be met or canceled in a timely manner or not at all, including the fact that a government entity may prohibit, delay or refuse to grant a regulatory approval or that regulatory approval is obtained subject to conditions that are not anticipated, the potential impact on the business of the Company or the relations of the Company with clients or partners due to the announcement of the acquisition, the occurrence of any event, change or other circumstance that could result in the termination of the Merger Agreement, and general economic conditions, many of which escape to the control of the Company and Digit. Therefore, actual results may differ materially and adversely from those expressed in forward-looking statements. For more information on other related risks, see the “Risk Factors” section of the Company’s most recent annual reports on Form 10-K and Quarterly Reports on Form 10-Q. The forward-looking statements included herein are made only as of the date hereof, and the Company assumes no obligation to revise or update any forward-looking statements for any reason.

Article 9.01. Financial statements and supporting documents

(d) Exhibits
Exhibit Number
                    Agreement and Plan of Reorganization, dated as of November 15,
                  2021, by and among Oportun Financial Corporation, Yosemite Merger
                  Acquisition Corp., Yosemite Acquisition Sub, LLC, Hello Digit,
2.1               Inc. and Shareholder Representative Services LLC *
99.1                Press Release dated     November     16    , 2021
99.2                Investor Presentation
99.3                Company Blog Post
                  Cover Page Interactive Data File embedded within the Inline XBRL
104               document

* Annexes and exhibits have been omitted in accordance with Article 601 (b) (2) of Regulation SK. The declarant undertakes to provide in addition to the SECOND a copy of any program or part omitted at the request of the SECOND.

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