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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of Report (Date of earliest event reported):
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| 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) | |
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Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging
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complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On September 30, 2020, Forum Merger II Corporation (the “Forum”) filed with the Secretary of State of the State of Delaware an amendment (the “Extension Amendment”) to Forum’s amended and restated certificate of incorporation to extend the date by which Forum has to consummate a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses from September 30, 2020 to October 30, 2020 (the “Extension”). Forum’s stockholders approved the Extension Amendment at a special meeting of stockholders of Forum (the “Special Meeting”) on September 30, 2020. The foregoing description of the Extension Amendment is qualified in its entirety by the full text of the Extension Amendment, which is filed as Exhibit 3.1 hereto and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On September 30, 2020, at the Special Meeting, a total of 17,603,702 (or 68.63%) of Forum’s issued and outstanding shares of Class A common stock and Class B common stock held of record as of August 24, 2020, the record date for the Special Meeting, were present either in person or by proxy, which constituted a quorum. Forum’s stockholders voted on the following proposal at the Special Meeting, which was approved. The final vote tabulation for the proposal is set forth below.
To approve and adopt the Extension Amendment.
| Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
| 17,407,115 | 151,352 | 45,235 | N/A |
Item 7.01 Regulation FD Disclosure.
In connection with the Extension, none of Forum’s public shares were redeemed. As a result, approximately $207.4 million remains in the trust account.
On September 30, 2020 Forum issued a press release announcing that the Extension Amendment was approved at the Special Meeting. A copy of the press release is attached as Exhibit 99.1 hereto and incorporated by reference herein.
The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of Forum under the Securities Act of 1933, as amended (the “Securities Act”), or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report on Form 8-K will not be deemed an admission as to the materiality of any information of the information in this Item 7.01, including Exhibit 99.1.
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Important Information About the Business Combination and Where to Find It
Forum has filed a preliminary proxy statement in connection with its proposed business combination (the “Business Combination”) with Ittella International (“Tattooed Chef”) and other matters and will mail a definitive proxy statement to its stockholders as of September 28, 2020, the record date established for voting on the Business Combination. Forum’s stockholders and other interested persons are advised to read the preliminary proxy statement and any amendments thereto and, once available, the definitive proxy statement, in connection with Forum’s solicitation of proxies for its special meeting of stockholders to be held to approve, among other things, the Business Combination, because these documents contain important information about Forum, Tattooed Chef and the Business Combination. Forum’s stockholders may also obtain a copy of the preliminary proxy statement and the definitive proxy statement, once available, as well as other documents filed with the SEC by Forum, without charge, at the SEC’s website located at www.sec.gov or by directing a request to: Forum Merger II Corporation, 1615 South Congress Avenue, Suite 103, Delray Beach, FL 33445. The information contained on, or that may be accessed through, the websites referenced in this press release is not incorporated by reference into, and is not a part of, this press release.
Participants in the Solicitation
Forum and its directors and executive officers may be considered participants in the solicitation of proxies with respect to the Business Combination. Information about the directors and executive officers of Forum and a description of their interests in Forum are set forth in the preliminary proxy statement relating to the Business Combination, and will also be contained in the definitive proxy statement, once it is filed with the SEC, in connection with the Business Combination. These documents can be obtained free of charge from the sources indicated above.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forum and Tattooed Chef’s actual results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, Forum’s and Tattooed Chef’s expectations with respect to future performance and anticipated financial impacts of the Business Combination, the satisfaction of the closing conditions to the Business Combination and the timing of the completion of the Business Combination. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside Forum’s and Tattooed Chef’s control and are difficult to predict. Factors that may cause such differences 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 or could otherwise cause the Business Combination to fail to close; (2) the outcome of any legal proceedings that may be instituted against Forum or Tattooed Chef following the announcement of the Merger Agreement and the Business Combination; (3) the inability to complete the Business Combination, including due to failure to obtain approval of the stockholders of Forum or other conditions to closing in the Merger Agreement; (4) the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with the Business Combination; (5) the inability to obtain the listing of the ordinary shares of the post-acquisition company on the Nasdaq Stock Market or any alternative national securities exchange following the Business Combination; (6) the risk that the announcement and consummation of the Business Combination disrupts current plans and operations; (7) the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably and retain its key employees; (8) costs related to the Business Combination; (9) changes in applicable laws or regulations; (10) the possibility that Tattooed Chef may be adversely affected by other economic, business, and/or competitive factors; (11) the impact of COVID-19 on the combined company’s business; and (12) other risks and uncertainties indicated from time to time in the proxy statement filed relating to the Business Combination, including those under “Risk Factors” therein, and in Forum’s other filings with the SEC. Some of these risks and uncertainties may in the future be amplified by the COVID-19 outbreak and there may be additional risks that Forum considers immaterial or which are unknown. Forum cautions that the foregoing list of factors is not exclusive. Forum cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. Forum does not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which any such statement is based.
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No Offer or Solicitation
This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination. This Current Report on Form 8-K shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act, or an exemption therefrom.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
| Exhibit No. | Description | |
| 3.1 | Amendment to Amended and Restated Certificate of Incorporation of Forum Merger II Corporation | |
| 99.1 | Press Release, dated September 30, 2020 | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL) | |
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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.
| FORUM MERGER II CORPORATION | |||
| Dated: September 30, 2020 | By: | /s/ David Boris | |
| Name: | David Boris | ||
| Title: | Co-Chief
Executive Officer and Chief Financial Officer | ||
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Exhibit 3.1
AMENDMENT
TO THE AMENDED AND
RESTATED CERTIFICATE OF INCORPORATION OF
FORUM MERGER II CORPORATION
September 30, 2020
The undersigned, being a duly authorized officer of Forum Merger II Corporation (the “Corporation”), a corporation existing under the laws of the State of Delaware, does hereby certify as follows:
| 1. | The name of the Corporation is “Forum Merger II Corporation”. |
| 2. | The Corporation’s original certificate of incorporation was filed with the Secretary of State of the State of Delaware on May 4, 2018 (the “Original Certificate”). An amended and restated certificate of incorporation was filed with the Secretary of State of the State of Delaware on August 2, 2018. Amendments to the Amended and Restated Certificate were filed with the State of Delaware on February 7, 2020 and June 8, 2020 (as amended, the “Amended and Restated Certificate”). |
| 3. | This Amendment to the Amended and Restated Certificate (this “Amendment”) amends the Amended and Restated Certificate. |
| 4. | This Amendment was duly adopted by the affirmative vote of the holders of 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Sections 242 of the General Corporation Law of the State of Delaware. |
| 5. | This Amendment shall become effective on the date of filing with the Secretary of State of the State of Delaware. |
| 6. | The text of Section 9.1(b) of Article IX of the Amended and Restated Certificate is hereby amended and restated to read in full as follows: |
“(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ overallotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-l, as initially filed with the U.S. Securities and Exchange Commission on July 6, 2018, as amended (the “Registration Statement”), shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay franchise and income taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination by October 30, 2020 and (iii) the redemption of shares in connection with a vote seeking to amend any provisions of the Amended and Restated Certificate relating to stockholders’ rights or pre-initial Business Combination activity (as described in Section 9.7). Holders of shares of Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
| 7. | The text of Section 9.2(d) of Section IX of the Amended and Restated Certificate is hereby amended and restated to read in full as follows: |
“(d) In the event that the Corporation has not consummated an initial Business Combination by October 30, 2020, the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its franchise and income taxes (less up to $100,000 of such net interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.”
| 8. | The text of Section 9.7 of Article IX of the Amended and Restated Certificate is hereby amended and restated to read in full as follows: |
“Section 9.7. Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to Section 9.2(d) to modify the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by October 30, 2020 or to provide for redemption in connection with an initial business combination, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its franchise and income taxes, divided by the number of then outstanding Offering Shares; provided, however, that any such amendment will be voided, and this Article IX will remain unchanged, if any stockholders who wish to redeem are unable to redeem due to the Redemption Limitation.”
[Signature Page Follows]
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IN WITNESS WHEREOF, Forum Merger II Corporation has caused this Amendment to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.
| FORUM MERGER II CORPORATION | |||
| By: | /s/ David Boris | ||
| Name: | David Boris | ||
| Title: | Co-Chief Executive Officer | ||
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Exhibit 99.1
Forum Merger II Announces Extension of Date to Complete a Business Combination
| · | Encourages stockholders to submit their vote relating to the Ittella business combination prior to that special meeting |
Delray Beach, FL, September 30, 2020 (GLOBE NEWSWIRE) -- Forum Merger II Corporation (Nasdaq: FMCI) (“Forum” or the “Company”) today announced that its stockholders approved an extension of the date by which it must consummate a business combination from September 30, 2020 to October 30, 2020 (the “Extension”). In connection with the Extension, none of the Company’s public shares were redeemed by stockholders.
As previously announced, Forum has scheduled a special meeting of its stockholders to approve its proposed business combination with Ittella International (“Tattooed Chef”) for Thursday, October 15, 2020 at 9:00 a.m., Eastern time. Forum expects to mail the definitive proxy statement relating to the business combination to its stockholders of record as of September 28, 2020, the record date established for voting on the proposed business combination. Forum encourages its stockholders of record to submit their vote in advance of the special meeting. The vote relating to the business combination is separate from the vote relating to the Extension. You are encouraged to submit your vote as soon as possible after receiving the new proxy material relating to the business combination meeting. Your vote is important no matter how many shares you own. If you hold your shares in an account at a brokerage firm, bank or other similar agent, you may vote prior to the meeting by using your voting control number and instructions provided by your brokerage firm, bank or other similar agent. If you are a stockholder of record, you may vote prior to the special meeting by signing, dating and mailing your proxy card in the return envelope provided with your proxy material. If you are a stockholder of record as of the record date and would like to attend and vote at the special meeting, you will need to follow the instructions applicable to them provided in the definitive proxy statement.
Additional Information and Where to Find It
The Company has filed with the U.S. Securities and Exchange Commission (“SEC”) a preliminary proxy statement in connection with its business combination and other matters and will mail a definitive proxy statement to its stockholders as of September 28, 2020, the record date established for voting on the proposed business combination. Forum’s stockholders and other interested persons are advised to read the preliminary proxy statement and any amendments thereto and, when available, the definitive proxy statement, in connection with Forum’s solicitation of proxies for its special meeting of stockholders to be held to approve, among other things, the proposed business combination, because these documents contain important information about Forum, Tattooed Chef and the proposed business combination. Forum’s stockholders may also obtain a copy of the preliminary proxy statement and the definitive proxy statement, once available, as well as other documents filed with the SEC by Forum, without charge, at the SEC’s website located at www.sec.gov or by directing a request to: Forum Merger II Corporation, 1615 South Congress Avenue, Suite 103, Delray Beach, FL 33445. The information contained on, or that may be accessed through, the websites referenced in this press release is not incorporated by reference into, and is not a part of, this press release.
About Forum Merger II Corporation
Forum Merger II Corporation is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. For more information, please visit www.forummerger.com.
About Tattooed Chef and Ittella International
Tattooed Chef is a leading plant-based food company offering a broad portfolio of innovative plant-based food products that taste great and are sustainably sourced. Tattooed Chef’s signature products include ready-to-cook bowls, zucchini spirals, riced cauliflower, acai and smoothie bowls, and cauliflower pizza crusts, which are available in the frozen food sections of leading national retail food stores across the United States. Understanding consumer lifestyle and food trends, and a commitment to innovation, allows Tattooed Chef to continuously introduce new products. Tattooed Chef provides great-tasting, approachable, and innovative products not only to the growing group of consumers who seek to adopt a plant-based lifestyle, but to any of the “People Who Give a Crop”. For more information, please visit www.tattooedchef.com. Following completion of the proposed business combination, the combined Tattooed Chef and Forum will be renamed Tattooed Chef, Inc.
Forward-Looking Statements
Certain statements made in this release are “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. When used in this release, the words “estimates,” “projected,” “expects,” “anticipates,” “forecasts,” “plans,” “intends,” “believes,” “seeks,” “may,” “will,” “should,” “future,” “propose,” “runway,” “trend,” “accelerate,” “on-track” and variations of these words or similar expressions (or the negative versions of such words or expressions) are intended to identify forward-looking statements. These forward-looking statements are not guarantees of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside Forum’s or Tattooed Chef's control, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. Important factors, among others, that may affect actual results or outcomes include: the inability to complete the transactions contemplated by the proposed business combination due to the failure to obtain approval of the stockholders of Forum or satisfy other conditions to the closing of the proposed business combination; the occurrence of any event, change or other circumstances that could give rise to the termination of the proposed business combination; uncertainty surrounding the launch and ultimate success of the e-commerce platform; the need to prove ability to increase distribution to new retail customers; the outcome of any legal proceedings that may be instituted against Tattooed Chef or Forum; the inability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, the amount of funds available in Forum’s trust account following any redemptions by Forum’s public stockholders, competition and the ability of the combined business to grow and manage growth profitably; the ability to meet Nasdaq’s listing requirements following the consummation of the transactions contemplated by the proposed business combination; costs related to the proposed business combination; and other risks and uncertainties indicated from time to time in the preliminary and definitive proxy statements filed or to be filed by Forum with the SEC in connection with the proposed business combination, including those under “Risk Factors” therein, and other factors identified in Forum’s prior and future filings with the SEC, available at www.sec.gov. Some of these risks and uncertainties may be amplified by the COVID-19 outbreak. None of Forum or Tattooed Chef undertakes any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
Participants in the Solicitation
Forum and its directors and executive officers may be considered participants in the solicitation of proxies with respect to the proposed business combination. Information about the directors and executive officers of Forum and a description of their interests in Forum are set forth in the preliminary proxy statement relating to the proposed business combination, and will also be contained in the definitive proxy statement, once it is filed with the SEC, in connection with the proposed business combination. These documents can be obtained free of charge from the sources indicated above.
Non-Solicitation
This press release does not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed business combination. This press release also does not constitute an offer to sell or the solicitation of an offer to buy any securities, nor will there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities will be made except by means of a prospectus meeting the requirements of section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.
Contact
Investor Relations
(212) 739-7860
investors@forummerger.com