8-K

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): March 20, 2015

CHART ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

Delaware	001-35762	45-28532218
(State or other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

c/o The Chart Group, L.P. 555 Fifth Avenue, 19th Floor New York, New York	10017
(Address of Principal Executive Offices)	(Zip Code)

Registrant’s telephone number, including area code: 212-350-1150

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))

Item 1.01. Entry into a Material Definitive Agreement.

 Amendment to Agreement and Plan of Merger

On March 20, 2015, Chart Acquisition Corp., a Delaware corporation (“Chart” or the “Company”), entered into a First Amendment to Merger Agreement (the “Amendment”) with the other parties to the Agreement and Plan of Merger, dated as of January 5, 2015 (the “Merger Agreement”), by and among Tempus Applied Solutions, LLC, a Delaware limited liability company (“Tempus”), the holders of Tempus’ membership interests named in the Merger Agreement (the “Members”), Benjamin Scott Terry and John G. Gulbin III, together, in their capacity under the Merger Agreement as the representative of the Members for the purposes set forth therein (the “Members’ Representative”), Chart, Tempus Applied Solutions Holdings, Inc. (“Tempus Holdings”), a Delaware corporation and a wholly-owned subsidiary of Chart which will be the holding company for Tempus and Chart following the consummation of the business combination between Chart and Tempus set forth in the Merger Agreement (the “Business Combination”), Chart Merger Sub Inc., a Delaware corporation and a wholly-owned subsidiary of Tempus Holdings (“Chart Merger Sub”), TAS Merger Sub LLC, a Delaware limited liability company and a wholly-owned subsidiary of Tempus Holdings (“Tempus Merger Sub”), Chart Acquisition Group LLC, in its capacity under the Merger Agreement as the representative of the equity holders of Chart and Tempus Holdings (other than the Members and their successors and assigns) in accordance with the terms thereof (the “Chart Representative”) and, for the limited purposes set forth therein, Chart Acquisition Group LLC (the “Sponsor”), Joseph Wright and Cowen Investments LLC (“Cowen”) (together, the “Warrant Offerors”), to amend certain of the terms of the Merger Agreement.

The terms of the Amendment provide for a reduction in the base value of the merger consideration to be received by the Members at the closing of the Business Combination (the “Closing”) from $52.5 million to $37.0 million, decreasing the aggregate number of shares of Tempus Holdings common stock to be delivered at the Closing from 5,250,000 shares to 3,700,000 shares, subject to certain adjustments based on Tempus’ working capital and/or debt as of the Closing and for indemnification payments under the Merger Agreement after the Closing, plus the right to receive additional shares of Tempus Holdings common stock as earn-out payments (such shares, the “Earn-out Shares”) in accordance with the Merger Agreement (as amended by the Amendment, as described below).

The Amendment also revises the earn-out provisions of the Merger Agreement to (i) extend the end of the measurement period during which the Members are eligible to receive the Earn-out Shares from June 30, 2016 to December 31, 2017, so that the earn-out period runs from January 1, 2015 to December 31, 2017, and (ii) add an additional earn-out payment of 1,550,000 Earn-out Shares if the trailing twelve month consolidated earnings before interest, taxes, depreciation and amortization, as adjusted to account for normal operations, of Tempus Holdings and its subsidiaries exceeds $14,100,00 for any two consecutive fiscal quarters during the earn-out period, so that the Members are eligible to receive a total of 6,300,000 Earn-out Shares under the Merger Agreement.

In addition, the Amendment (i) decreases the aggregate deductible for most indemnification claims based on breaches of representations and warranties from $500,000 to $350,000 and (ii) eliminates any obligations of Chart or Tempus Holdings under the Merger Agreement to be listed on the Nasdaq Capital Market or comply with its listing requirements.

A copy of the Amendment is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference, and the foregoing description of the Amendment is qualified in its entirety by reference thereto.

Item 7.01 Regulation FD Disclosure

Attached as Exhibit 99.l to this Current Report on Form 8-K and incorporated into this Item 7.01 by reference is the Company’s updated investor presentation that will be used by the Company in its discussions and meetings with certain existing and potential stockholders of the Company regarding the Business Combination.

The foregoing (including Exhibit 99.1) is being furnished pursuant to Item 7.01 and shall not be deemed to be filed for purposes of Section 18 of the Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities of that section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act of 1933, as amended, or the Exchange Act.

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Additional Information

On January 9, 2015, Tempus Holdings filed with the SEC a Registration Statement on Form S-4 (as it may be amended, the “Registration Statement”), which includes a preliminary proxy statement of Chart and a prospectus in connection with the Business Combination. The definitive proxy statement and other relevant documents will be mailed to stockholders of Chart as of a record date to be established for voting on the Business Combination. Stockholders of Chart and other interested persons are advised to read the preliminary proxy statement and amendments thereto, and, when available, the definitive proxy statement, in connection with Chart’s solicitation of proxies for the special meeting to be held to approve the Business Combination because these documents will contain important information about Chart, Tempus and the Business Combination. Stockholders may also obtain copies of the Registration Statement and the proxy statement/prospectus, without charge, on the SEC’s website at www.sec.gov or by directing a request to Chart by contacting its Secretary, Michael LaBarbera, c/o The Chart Group, L.P., 555 5th Avenue, 19th Floor, New York, New York 10017, at (212) 350-8200 or at mlab@chartgroup.com.

Participants in the Business Combination

Tempus Holdings, Chart, and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of Chart in connection with the Business Combination. Information regarding the officers and directors of Chart is set forth in Chart’s annual report on Form 10-K, which was filed with the SEC on March 10, 2015. Additional information regarding the interests of such potential participants is included in the Registration Statement (and will be included in the definitive proxy statement/prospectus for the Business Combination) and other relevant documents filed with the SEC.

Forward-Looking Statements

This report contains forward-looking statements that involve risks and uncertainties concerning the Business Combination, Tempus’ expected financial performance, as well as its strategic and operational plans. Actual events or results may differ materially from those described in this report due to a number of risks and uncertainties. These risks and uncertainties could cause actual results or outcomes to differ materially from those indicated by such forward looking-statements. These risks and uncertainties include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement between Chart, Tempus and related parties; (2) the outcome of any legal proceedings that may be instituted against Chart, Tempus or others following announcement of the Merger Agreement and the transactions contemplated therein; (3) the inability to complete the transactions contemplated by the Merger Agreement due to the failure to obtain approval of the stockholders of Chart; (4) delays in obtaining, adverse conditions contained in, or the inability to obtain necessary regulatory approvals required to complete the transactions contemplated by the Merger Agreement; (5) the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the transactions described herein; (6) the inability to recognize the anticipated benefits of the Business Combination; (7) costs related to the Business Combination; (8) changes in applicable laws or regulations; (9) the possibility that Tempus may be adversely affected by other economic, business, and/or competitive factors; and (10) other risks and uncertainties indicated from time to time in filings with the SEC by Chart or Tempus Holdings.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

10.1	First Amendment to the Agreement and Plan of Merger, dated March 20, 2015, by and among Tempus Applied Solutions, LLC, the Members of Tempus Applied Solutions, LLC, the Members’ Representative, Chart Acquisition Corp., Tempus Applied Solutions Holdings, Inc., Chart Merger Sub Inc., TAS Merger Sub LLC, the Chart Representative and the Warrant Offerors
99.1	Investor Presentation dated March 2015

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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.

	CHART ACQUISITION CORP.
Date: March 20, 2015	By:	/s/ Michael LaBarbera
		Name: Michael LaBarbera
		Title: Chief Financial Officer

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EX-10.1

Exhibit 10.1

FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER

THIS FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made and entered into as of March 20, 2015 by and among: (i) Tempus Applied Solutions, LLC, a Delaware limited liability company (the “Company”); (ii) each of the Persons set forth on Annex A to the Merger Agreement (as defined below) (the “Members”, and, together with the Company, the “Seller Parties”); (iii) Benjamin Scott Terry and John G. Gulbin III, together in their capacity as Members’ Representative solely for purposes specified in the Merger Agreement (the “Members’ Representative”); (iv) Chart Acquisition Corp., a Delaware corporation (“Parent”); (v) Tempus Applied Solutions Holdings, Inc., a Delaware corporation (“Pubco”); (vi) Chart Merger Sub Inc., a Delaware corporation (“Parent Merger Sub”); (vii) TAS Merger Sub LLC, a Delaware limited liability company (“Company Merger Sub” and together with Parent Merger Sub, the “Merger Subs”); (viii) Chart Acquisition Group LLC, in its capacity as the representative for the equity holders of Parent and Pubco (other than the Members and their successors and assigns) in accordance with the terms and conditions of the Merger Agreement (the “Chart Representative”); and (ix) Chart Acquisition Group LLC, Mr. Joseph Wright and Cowen Investments LLC (together, the “Warrant Offerors”), solely for the purposes specified in the Merger Agreement. The Company, the Members, the Members’ Representative, Parent, Pubco, Parent Merger Sub, Company Merger Sub and the Chart Representative (and for the limited purposes indicated in the Merger Agreement, the Warrant Offerors) are referred to herein individually as a “Party” and collectively as the “Parties”. Capitalized terms used but not otherwise defined herein shall have the respective meanings assigned to such terms in the Merger Agreement.

RECITALS

WHEREAS, the Parties have entered into the Agreement and Plan of Merger, dated as of January 5, 2015, by and among the Parties (as amended, including by this Amendment, the “Merger Agreement”), which sets forth the Parties’ rights and obligations with respect to the Transactions; and

WHEREAS, the Parties desire to amend the Merger Agreement to reflect the revised agreement among the Parties with respect to the Transactions.

NOW, THEREFORE, in consideration of the premises and the mutual promises herein made, and in consideration of the representations, warranties and covenants herein contained, and intending to be legally bound hereby, the Parties agree as follows:

1. Amendment to Definition of Base Company Value. Appendix A to the Merger Agreement is hereby amended to replace the amount “Fifty-Two Million Five Hundred Thousand U.S. Dollars ($52,500,000)” in the definition of “Base Company Value” with the amount “Thirty-Seven Million U.S. Dollars ($37,000,000)”.

2. Amendment to Earnout. Section 1.16 of the Merger Agreement is hereby amended as follows:

(a) the date “June 30, 2016” in clause (i) of Section 1.16(a) of the Merger Agreement is hereby deleted and replaced with the date “December 31, 2017”;

(b) the following is hereby added immediately prior to clause (i) in Section 1.16(b) of the Merger Agreement: “(i) 1,550,000 Earnout Shares if the Adjusted TTM EBITDA as of the end of any two (2) consecutive fiscal quarters of Pubco during the Earnout Period is greater than $14,100,000 for each such fiscal quarter,”;

(c) the number “4,750,000” in clause (ii) of Section 1.16(b) of the Merger Agreement is hereby deleted and replaced with the number “6,300,000”; and

(d) the sequential numbering of clauses (i) and (ii) in Section 1.16(b) of the Merger Agreement prior to giving effect to this Amendment is hereby amended to make them clauses (ii) and (iii).

3. Amendment to Deductible. Section 9.4(a) of the Merger Agreement is hereby amended to replace the amount of “Five Hundred Thousand Dollars ($500,000)” in the first sentence thereof with the amount “Three Hundred Fifty Thousand Dollars ($350,000)”.

4. Nasdaq Requirements. The Parties hereby acknowledge that Parent is no longer listed on Nasdaq, and waive (i) any requirements under the Merger Agreement for Parent or Pubco to be listed on Nasdaq or comply with Nasdaq’s requirements and (ii) any breach of the Merger Agreement for Parent or Pubco failing to so be listed or to comply. Without limiting the foregoing, the Merger Agreement is hereby amended as follows:

(a) Section 5.5(d) of the Merger Agreement is hereby amended to delete the following phrase at the end of such Section: “including, without limitation, with respect to Parent, any rules or regulations of Nasdaq”.

(b) Section 5.6 of the Merger Agreement is hereby amended to delete the second sentence thereof in its entirety.

(c) Section 6.23 of the Merger Agreement is hereby deleted in its entirety and replaced with the following: “[Reserved].

5. Miscellaneous. Except as expressly provided in this Amendment, all of the terms and provisions in the Merger Agreement and the other Transaction Documents are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment or waiver of any provision of the Merger Agreement or any other Transaction Document, or any other right, remedy, power or privilege of any Party, except as expressly set forth herein. Any reference to the Merger Agreement in the Merger Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Merger Agreement, as amended by this Amendment (or as the Merger Agreement may be further amended or modified after the date hereof in accordance with the terms thereof). Sections 12.1 through 12.7 and 12.9 through 12.16 of the Merger Agreement are hereby incorporated herein by reference and apply to this Amendment as if all references to the “Agreement” contained therein were instead references to this Amendment.

[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK; SIGNATURE PAGES FOLLOW]

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IN WITNESS WHEREOF, each party hereto has signed or has caused to be signed by its officer thereunto duly authorized this First Amendment to Agreement and Plan of Merger as of the date first above written.

PARENT:
CHART ACQUISITION CORP.
By:	/s/ Christopher D. Brady
	Name:  Christopher D. Brady
	Title:  President
PUBCO:
TEMPUS APPLIED SOLUTIONS HOLDINGS, INC.
By:	/s/ Christopher D. Brady
	Name:  Christopher D. Brady
	Title:  President
MERGER SUBS:
CHART MERGER SUB INC.
By:	/s/ Christopher D. Brady
	Name:  Christopher D. Brady
	Title:  President
TAS MERGER SUB LLC
By:	/s/ Christopher D. Brady
	Name:  Christopher D. Brady
	Title:  President

[SIGNATURES CONTINUE ON FOLLOWING PAGE]

[Signature Page to First Amendment to Agreement and Plan of Merger]

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CHART REPRESENTATIVE:
CHART ACQUISITION GROUP LLC
By: The Chart Group L.P.
	By:	/s/ Christopher D. Brady
		Name:  Christopher D. Brady
		Title:  Manager
WARRANT OFFERORS:
CHART ACQUISITION GROUP LLC
By: The Chart Group L.P.
	By:	/s/ Christopher D. Brady
		Name:  Christopher D. Brady
		Title:  Manager
/s/ Joseph Wright
Joseph Wright
COWEN INVESTMENTS LLC
By:	/s/ John Holmes
	Name: John Holmes
	Title: Chief Operating Officer

[SIGNATURES CONTINUE ON FOLLOWING PAGE]

[Signature Page to First Amendment to Agreement and Plan of Merger]

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COMPANY:
TEMPUS APPLIED SOLUTIONS, LLC
By:	/s/ Benjamin Scott Terry
	Name: Benjamin Scott Terry
	Title:  Manager
MEMBERS’ REPRESENTATIVE:
/s/ Benjamin Scott Terry
Benjamin Scott Terry
/s/ John G. Gulbin III
John G. Gulbin III
MEMBERS:
/s/ Benjamin Scott Terry
Benjamin Scott Terry
/s/ John G. Gulbin III
John G. Gulbin III
/s/ Joshua Paul Allen
Joshua Paul Allen
EARLY VENTURES, LLC
By:	/s/ Sheldon Early
	Name:  Sheldon Early
	Title:  President
/s/ Rober Lee Priest, Jr.
Robert Lee Priest, Jr.

[Signature Page to First Amendment to Agreement and Plan of Merger]

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EX-99.1

Exhibit 99.1