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
Date
of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
| (State or other jurisdiction | (Commission | (I.R.S. Employer | ||
| of incorporation) | File Number) | Identification No.) |
| (Address of principal executive offices, including zip code) |
Registrant’s
telephone number, including area code:
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K 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)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The Stock Market LLC | ||||
| The Stock Market LLC | ||||
| The Stock Market LLC |
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
growth company
If
an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying
with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.
| Item 1.01. | Entry into a Material Definitive Agreement |
Agreement and Plan of Merger
On December 7, 2021, FoxWayne Enterprises Acquisition Corp., a Delaware corporation (“FoxWayne”), Gotham Merger Sub, Inc., a Delaware corporation and a wholly owned subsidiary of FoxWayne (“Merger Sub”), Aerami Therapeutics Holdings, Inc., a Delaware corporation (“Aerami”), and the stockholders’ representative (the “Stockholders’ Representative”), entered into an Agreement and Plan of Merger (“Merger Agreement”) pursuant to which, among other things, Merger Sub will be merged with and into Aerami (the “Merger,” and together with the other transactions related thereto, the “Proposed Transactions”), with Aerami surviving the Merger as a wholly owned subsidiary of FoxWayne (the “Surviving Corporation”).
The Merger Agreement and the transactions contemplated thereby were approved by the board of directors of FoxWayne, Merger Sub and Aerami. The transactions set forth in the Merger Agreement, including the Merger, will constitute a “Business Combination.” Unless expressly stated otherwise herein, capitalized terms used but not defined herein have the meanings ascribed to them in the Merger Agreement.
Treatment of Aerami Securities
At the Effective Time, by virtue of the Merger and without any action on the part of FoxWayne, Merger Sub, Aerami or the holders of any of Aerami’s securities:
| (i) | each share of common stock of Aerami, par value $0.0001 per share (the “Aerami Common Stock”), each share of Series A Preferred Stock of Aerami, par value $0.0001 per share (the “Aerami Series A Preferred Stock”), each share of Series A-1 Preferred Stock of Aerami, par value $0.0001 per share (the “Aerami Series A-1 Preferred Stock”) and each share of Royalty Series Convertible Preferred Stock of Aerami, par value $0.0001 per share (the “Aerami Royalty Series Convertible Preferred Stock” and together with the Aerami Common Stock, the Aerami Series A Preferred Stock and the Aerami Series A-1 Preferred Stock, the “Aerami Capital Stock”), excluding certain dissenting shares of Aerami capital stock, issued and outstanding immediately prior to the effective time of the Merger (the “Effective Time”) will be canceled and converted into the right to receive the number of shares of FoxWayne’s common stock, par value $0.0001 per share (the “FoxWayne Common Stock”) allocable from the Aggregate Consideration as set forth in the Consideration Schedule of the Merger Agreement (collectively, the “Per Share Consideration”). “Aggregate Consideration” means 25,000,000 shares of FoxWayne Common Stock; |
| -2- |
| (ii) | all shares of Aerami Capital Stock held in treasury by Aerami will be canceled without any conversion thereof and no payment or distribution will be made with respect thereto; | |
| (iii) | each share of Merger Sub issued and outstanding immediately prior to the Effective Time will be converted into one share of the Surviving Corporation; | |
| (iv) | each warrant to acquire Aerami Capital Stock (each, an “Aerami Warrant”) that is outstanding immediately prior to the Effective Time, whether vested or unvested, which is not automatically exercised or terminated by its terms in connection with the Merger, will be assumed by FoxWayne (each, an “Assumed Warrant”). Each Assumed Warrant will be exercisable for such number of whole shares of FoxWayne Common Stock (rounded up) at the per share exercise price (rounded up to the nearest whole cent) as set forth in the Consideration Schedule. The number of shares of FoxWayne Common Stock into which an Assumed Warrant is exercisable shall be based on the Per Share Consideration for the relevant Aerami Capital Stock into which such Assumed Warrant is exercisable, and the per share exercise price shall be ratably adjusted; | |
| (v) | each option to acquire shares of Aerami Common Stock that is outstanding immediately prior to the Effective Time (the “Aerami Options”) will be converted into an option to purchase such number of whole shares of FoxWayne Common Stock (rounded down) pursuant to FoxWayne’s equity incentive plan equal to the product of the number of Aerami Common Stock subject to such Aerami Option and the Per Share Consideration with respect to FoxWayne Common Stock (the “Per Share Common Consideration”), and at an exercise price (rounded up to the nearest whole cent) equal to the quotient of the exercise price of such Aerami Option and the Per Share Common Consideration; | |
| (vi) | each restricted stock unit award covering shares of Aerami Common Stock that is outstanding immediately prior to the Effective Time will be converted into the right to receive a restricted stock unit award for whole shares of FoxWayne Common Stock (rounded down) pursuant to FoxWayne’s equity incentive plan (the “Exchanged RSU Award”) in an amount equal to the product of the number of Aerami Common Stock subject to such Exchanged RSU Award and the Per Share Common Consideration; and | |
| (vii) | no fractional shares of FoxWayne Common Stock will be issued by virtue of the Merger and any fractional shares otherwise issuable to a holder of Aerami’s securities (after aggregating all fractional shares of FoxWayne Common Stock that otherwise would be received by such holder) will be rounded down to the nearest whole share of FoxWayne Common Stock. |
| -3- |
Representations and Warranties
The parties to the Merger Agreement have agreed to customary representations and warranties for transactions of this type. The representations and warranties of Aerami, FoxWayne and Merger Sub will not survive the Closing.
Covenants
The Merger Agreement includes covenants of FoxWayne relating to, among other things, (i) operating its business in the ordinary course, (ii) disbursement of Trust Account funds, (iii) providing access and information to Aerami and its Representatives, (iv) restrictions on soliciting, initiating or discussing alternative transaction proposals with third parties and ceasing discussions regarding alternative transaction proposals, (v) indemnification and insurance; and (vi) using reasonable best efforts to cause FoxWayne Common Stock being issued pursuant to the Merger Agreement to be approved for listing on Nasdaq.
The Merger Agreement includes covenants of Aerami relating to, among other things, (i) conducting its business in the ordinary course, (ii) providing access and information to FoxWayne and its Representatives, (iii) not making claims against the Trust Account, (iv) restrictions on soliciting, initiating or discussing alternative transaction proposals with third parties, (v) delivering audited and unaudited financial statements, as applicable, and (vi) soliciting written consents from Aerami’s stockholders in favor of the adoption and approval of the Merger Agreement and the transactions contemplated thereby.
The Merger Agreement also contains additional, customary joint covenants of the parties to, among other things, prepare a registration statement on Form S-4 with respect to the FoxWayne Common Stock issuable under the Merger Agreement, which Form S-4 will contain a proxy statement of FoxWayne (the “Registration Statement / Proxy Statement”) that includes provisions for approval and/or adoption of (i) the Business Combination, including the Merger and Merger Agreement, (ii) amendments and restatements of FoxWayne’s charter and bylaws, (iii) issuance of the Aggregate Consideration pursuant to the Merger Agreement together with any FoxWayne Common Stock being issued pursuant to a Private Placement if and to the extent required by the Nasdaq listing rules, (iv) FoxWayne’s equity incentive plan, and (v) certain other proposals at a special meeting of the holders of FoxWayne Common Stock (collectively, the “Proposals”).
| -4- |
Conditions to Closing
Mutual
The respective obligations of each of Aerami, FoxWayne and Merger Sub to consummate the Merger are subject to the satisfaction or waiver, at or prior to the Closing of each of the following conditions:
| (i) | approval by FoxWayne stockholders of certain Proposals set forth in the Registration Statement / Proxy Statement; and receipt of the requisite written consent of Aerami stockholders adopting the Merger Agreement and approving the Merger and other transactions contemplated by the Merger Agreement; | |
| (iii) | no Governmental Authority of competent jurisdiction having enacted, issued, promulgated, enforced or entered any Law or Order that is in effect and restrains, enjoins, makes illegal or otherwise prohibits the consummation of the Merger Agreement and other transactions contemplated thereby; | |
| (iv) | specified consents, registrations, approvals, clearances, Permits and authorizations from Governmental Entities shall have been obtained; and | |
| (v) | the Registration Statement / Proxy Statement having been declared effective by the Securities and Exchange Commission (“SEC”) and no stop order suspending the effectiveness of the Registration Statement / Proxy Statement being in effect, and no Proceedings for purposes of suspending the effectiveness of the Registration Statement / Proxy Statement having been initiated or threatened by the SEC. |
FoxWayne and Merger Sub
The obligations of FoxWayne and Merger Sub to consummate the Merger are subject to the satisfaction or waiver, at or prior to the Closing of additional conditions, including, but not limited to, the following:
| (i) | Aerami’s representations and warranties being true and correct to the extent set forth in the Merger Agreement; | |
| (ii) | Aerami having complied with or performed in all material respects with all covenants and obligations required by the Merger Agreement to be complied with or performed by it on or prior to the Closing; | |
| (iii) | no Material Adverse Effect having occurred on Aerami and/or its Subsidiaries between the date of the Merger Agreement and the Closing; | |
| (iv) | there not being more than 25.0% of dissenting shares of Aerami capital stock ; and | |
| (v) | payment of all consulting fees (not to exceed, in the aggregate, $500,000) incurred by FoxWayne in connection with the consummation of the transactions contemplated by the Merger Agreement. |
Aerami
The obligation of Aerami to consummate the Merger is subject to the satisfaction or waiver, at or prior to the Closing of additional conditions, including, but not limited to, the following:
| (i) | the representations and warranties of FoxWayne and Merger Sub being true and correct to the extent set forth in the Merger Agreement; | |
| (ii) | each of FoxWayne and Merger Sub having complied with or performed in all material respects with all covenants and obligations required by the Merger Agreement to be complied with or performed by it on or prior to the Closing; |
| -5- |
| (iii) | no Material Adverse Effect having occurred on FoxWayne between the date of the Merger Agreement and the Closing; | |
| (iv) | FoxWayne having made all necessary arrangements with the Trustee to have the funds in the Trust Account disbursed or available to FoxWayne in accordance with the Trust Agreement and the Merger Agreement, contemporaneously with the Closing; | |
| (v) | FoxWayne having at least $5,000,001 of net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) and an aggregate of at least $15,000,000 in cash, following payment by FoxWayne to its stockholders who have validly elected to have their shares of FoxWayne Common Stock redeemed for cash and after giving effect to the payment of FoxWayne’s transaction expenses; | |
| (vi) | The FoxWayne Common Stock to be issued pursuant to the Merger Agreement being listed or approved for listing on Nasdaq; and | |
| (vii) | receipt by Aerami of the effective resignations of all directors and executive officers of FoxWayne. |
Closing
The closing of the Merger will occur as promptly as practicable, but in no event later than three Business Days following the satisfaction or waiver of all of the conditions to Closing.
Termination
The Merger Agreement may be terminated at any time prior to the consummation of the Merger by mutual written consent of Aerami and FoxWayne and in certain other limited circumstances, including if the Merger has not been consummated by April 30, 2022 (as such date may be extended pursuant to the Merger Agreement).
Either FoxWayne or Aerami may also terminate the Merger Agreement if (i) certain Proposals fail to receive the requisite vote for approval at a special meeting of the holders of FoxWayne Common Stock; (ii) a Governmental Authority issues an Order or takes any other action which restrains, enjoins or otherwise prohibits the Merger or (iii) if (A) any representation or warranty of FoxWayne, Merger Sub or Aerami contained in the Merger Agreement shall be inaccurate or (B) the covenants or obligations of FoxWayne, Merger Sub or Aerami contained in the Merger Agreement shall have been breached in any material respect; provided, however, that if an inaccuracy or breach is curable by the breaching party during the 30 calendar day period after the non-breaching party notifies the breaching party in writing of the existence of such inaccuracy or breach (the “Cure Period”), then the non-breaching party may not terminate the Merger Agreement as a result of such inaccuracy or breach prior to the expiration of the Cure Period unless the breaching party is no longer continuing to exercise reasonable best efforts to cure such inaccuracy or breach. FoxWayne may also terminate the Merger Agreement if a Material Adverse Effect shall have occurred with respect to Aerami and/or its Subsidiaries, and Aerami may terminate the Merger Agreement if a Material Adverse Effect shall have occurred with respect to FoxWayne and its Subsidiaries, taken as a whole.
| -6- |
Effect of Termination
If the Merger Agreement is terminated, the Merger Agreement will become void, and there will be no liability under the Merger Agreement on the part of any party thereto, except as set forth in the Merger Agreement.
A copy of the Merger Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1 and is incorporated herein by reference. The foregoing description of the Merger Agreement and the Proposed Transactions is incomplete and is subject to, and qualified in its entirety by, reference to the actual agreement. The Merger Agreement and other agreements described below have been included as exhibits to this Current Report on Form 8-K to provide security holders with information regarding their terms. They are not intended to provide any other factual information about FoxWayne, Merger Sub or Aerami. In particular, the assertions embodied in representations and warranties by FoxWayne, Merger Sub and Aerami contained in the Merger Agreement were made as of a specified date, are subject to important qualifications and limitations agreed to by the parties in connection with negotiating such agreement, including being qualified by confidential information in the disclosure letters provided by the parties in connection with the execution of the Merger Agreement, and are subject to standards of materiality applicable to the contractive parties that may differ from those applicable to security holders. The confidential disclosures contain information that modifies, qualifies and creates exceptions to the representations and warranties set forth in the Merger Agreement. Moreover, certain representations and warranties in the Merger Agreement were used for the purpose of allocating risk between the parties, rather than establishing matters as facts. Accordingly, security holders should not rely on the representations and warranties in the Merger Agreement as characterizations of the actual state of facts about FoxWayne, Merger Sub or Aerami. Moreover, information concerning the subject matter of the representations and warranties may change after the date of the Merger Agreement, which subsequent information may or may not be fully reflected in FoxWayne’s public disclosures.
Support Agreements
Aerami Stockholder Support Agreement
Contemporaneously with the execution of the Merger Agreement, certain officers and directors of Aerami delivered Stockholder Support Agreements to FoxWayne. Under the Stockholder Support Agreement terms, such Aerami stockholders agreed to vote in favor of the Merger and the transactions contemplated by the Merger Agreement. In addition, Aerami agreed to use its best efforts to obtain additional Stockholder Support Agreements from certain of its larger stockholders. A copy of the form of Stockholder Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference. The foregoing description of the form of Stockholder Support Agreement is incomplete and is subject to, and qualified in its entirety by, reference to the actual agreement.
Sponsor Support Agreement
Contemporaneously with the execution of the Merger Agreement, FoxWayne Enterprises Acquisition Sponsor LLC, a Delaware limited liability company (“Sponsor”), delivered the Sponsor Support Agreement, pursuant to which, among other things, Sponsor agreed to vote in favor of the Merger and the transactions contemplated by the Merger Agreement. A copy of the form of Sponsor Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.2 and is incorporated herein by reference. The foregoing description of the form of Sponsor Support Agreement is incomplete and is subject to, and qualified in its entirety by, reference to the actual agreement.
FoxWayne Stockholder Support Agreement
Contemporaneously with the execution of the Merger Agreement, certain officers and directors of FoxWayne delivered Parent Support Agreements, pursuant to which, among other things, such FoxWayne stockholders agreed to vote in favor of the Merger and the transactions contemplated by the Merger Agreement. In addition, FoxWayne agreed to use its best efforts to obtain additional Parent Support Agreements from certain of its larger stockholders. A copy of the form of Parent Support Agreement is filed with this Current Report on Form 8-K as Exhibit 10.3 and is incorporated herein by reference. The foregoing description of the form of Parent Support Agreement is incomplete and is subject to, and qualified in its entirety by, reference to the actual agreement.
| -7- |
Registration Rights Agreement
In connection with the Closing, Aerami, FoxWayne, and certain of their respective stockholders will enter into a registration rights agreement (the “Registration Rights Agreement”). Following the Business Combination of FoxWayne and Aerami (together with their subsidiaries, the “Combined Company”), pursuant to the Registration Rights Agreement, the Combined Company will be required to file a registration statement covering the resale of registrable securities held by the stockholders party thereto.
| Item 7.01. | Regulation FD Disclosure. |
On December 7, 2021, FoxWayne and Aerami issued a joint press release announcing the execution of the Merger Agreement. A copy of the press release is furnished hereto as Exhibit 99.1 and incorporated in this Item 7.01 by reference.
The information in this Item 7.01 and Exhibit 99.1 will not be deemed to be filed for purposes of Section 18 of 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, except as expressly set forth by specific reference in such filing. The submission of the information set forth in this Item 7.01 shall not be deemed an admission as to the materiality of any information in this Item 7.01, including the information presented in Exhibit 99.1, that is provided solely in connection with Regulation FD.
Important Information for Stockholders
This Current Report on Form 8-K and the exhibits hereto is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Potential Transactions and shall not constitute an offer to sell or a solicitation of any vote or approval, or of an offer to buy the securities of FoxWayne or Aerami, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.
In connection with the Proposed Transactions, FoxWayne intends to file the Registration Statement with the SEC, which will include a proxy statement/prospectus of FoxWayne. FoxWayne also plans to file other documents with the SEC regarding the Proposed Transactions. After the Registration Statement has been cleared by the SEC, a definitive proxy statement/prospectus will be mailed to the stockholders of FoxWayne. STOCKHOLDERS OF FOXWAYNE AND AERAMI ARE URGED TO CAREFULLY READ THE PROXY STATEMENT/PROSPECTUS (INCLUDING ALL AMENDMENTS AND SUPPLEMENTS THERETO) AND OTHER DOCUMENTS RELATING TO THE PROPOSED TRANSACTIONS THAT WILL BE FILED WITH THE SEC IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTIONS. Stockholders will be able to obtain free copies of the proxy statement/prospectus and other documents containing important information about FoxWayne and Aerami once such documents are filed with the SEC, through the website maintained by the SEC at http://www.sec.gov.
| -8- |
Participants in the Solicitation
FoxWayne and its directors and executive officers may be deemed to be participants in the solicitation of proxies from the stockholders of FoxWayne in connection with the Proposed Transactions. Aerami and its officers and directors may also be deemed participants in such solicitation. Information about the directors and executive officers of FoxWayne is set forth in FoxWayne’s Annual Report on Form 10-K, which was filed with the SEC on March 29, 2021. To the extent that holdings of FoxWayne’s securities have changed from the amounts reported in such Form 10-K, such changes have been or will be reflected on Statements of Change in Ownership on Form 4 filed with the SEC. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be filed with the SEC when they become available.
Cautionary Note on Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of the “safe harbor “provisions under the United States Private Securities Litigation Reform Act of 1995. All statements other than statements of historical facts contained in this Current Report on Form 8-K, including statements regarding FoxWayne’s or Aerami’s future results of operations and financial position, the amount of cash expected to be available to Aerami after the Closing and giving effect to any redemptions by FoxWayne stockholders, Aerami’s business strategy, prospective drug products, product approvals, research and development costs, timing and likelihood of success, plans and objectives of management for future operations, future results of current and anticipated products and expected use of proceeds, are forward-looking statements. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “target,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. These statements are based on various assumptions, whether or not identified in this Current Report on Form 8-K, and on the current expectations of the respective management teams of Aerami and FoxWayne and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by an investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and will differ from assumptions. Many actual events and circumstances are beyond the control of Aerami and FoxWayne.
| -9- |
These forward-looking statements are subject to a number of risks including, but not limited to, the following risks relating to the Proposed Transactions: (1) the risk that the Proposed Transactions may not be completed in a timely manner or at all, which may adversely affect the price of FoxWayne’s securities; (2) the failure to satisfy the conditions to Closing the Proposed Transactions, including the approval by the stockholders of FoxWayne and Aerami; (3) the risk that some or all of FoxWayne’s stockholders may redeem their shares at the Closing of the Proposed Transactions; (4) the effect of the announcement or pendency of the Proposed Transactions on Aerami’s business relationships and business generally; (5) the outcome of any legal proceedings that may be instituted related to the Proposed Transactions; (6) the ability to realize the anticipated benefits of the Proposed Transactions; (7) the risk that Aerami may use its capital resources sooner than it expects; (8) the risk that the product candidates that Aerami is developing may not progress through clinical development or receive regulatory approvals within expected timelines or at all; (9) the risk that Aerami’s clinical trials, including the Phase 1 trial currently underway for AER-901, may not confirm any safety, efficacy or other product characteristics that would enable subsequent clinical trials, such as the Phase 2/3 trial planned for AER-901, or filing for regulatory approval; (10) the risk that Aerami will be unable to successfully market or gain market acceptance of its product candidates, if approved; (11) the risk that Aerami’s product candidates may not be beneficial to patients or successfully commercialized, if approved; (12) the risk that Aerami has overestimated the size of the target patient population, their willingness to try new therapies and the willingness of physicians to prescribe these therapies; (13) the effects of competition on Aerami’s business; (14) the risk that third parties on which Aerami depends for clinical trials and other critical services will fail to perform satisfactorily; (15) the risk that Aerami may not be able to recruit and retain qualified personnel; (16) the risk that Aerami’s business, operations, clinical development plans and timelines, and supply chain could be adversely affected by the effects of health epidemics, including the ongoing COVID-19 pandemic; (17) the risk that Aerami will be unable to obtain and maintain sufficient intellectual property protection for its drug products or will infringe the intellectual property protection of others; (18) the risk the Combined Company will fail to realize the anticipated benefits of the Proposed Transactions; and (19) other risks and uncertainties indicated from time to time in FoxWayne’s public filings with the SEC. If any of these risks materialize or FoxWayne’s and Aerami’s assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements. You should carefully consider the risks and uncertainties described in the “Risk Factors” section of our Annual Report on Form 10-K for the fiscal year ended December 31, 2020 and other documents we filed, or will file, including the proxy statement/prospectus, with the SEC. There may be additional risks that neither FoxWayne nor Aerami presently know, or that FoxWayne or Aerami currently believe are immaterial, that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect FoxWayne’s and Aerami’s expectations, plans or forecasts of future events and views as of the date of this Current Report on Form 8-K. FoxWayne and Aerami anticipate that subsequent events and developments will cause FoxWayne’s and Aerami’s assessments to change. However, while FoxWayne and Aerami may elect to update these forward-looking statements at some point in the future, FoxWayne and Aerami specifically disclaim any obligation to do so, except as otherwise required by law. These forward-looking statements should not be relied upon as representing FoxWayne’s and Aerami’s assessments of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
No Offer or Solicitation
This Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed Business Combination and shall not constitute an offer to sell or a solicitation of an offer to buy any securities, nor shall there be any sale of securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act.
| -10- |
| Item 9.01. | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit No. | Exhibit | |
| 2.1 † | Agreement and Plan of Merger, dated as of December 7, 2021, by and among FoxWayne, Merger Sub, Aerami and the Stockholder Representative. | |
| 10.1 | Form of Stockholder Support Agreement. | |
| 10.2 | Form of Sponsor Support Agreement. | |
| 10.3 | Form of Parent Support Agreement. | |
| 99.1 | Press Release, dated December 7, 2021. | |
| 104 | Cover Page Interactive Data File (embedded within the XBRL document) |
† Certain of the schedules (and/or exhibits) have been omitted pursuant to Item 601(b)(2) of Regulation S-K. A copy of any omitted schedule (and/or exhibit) will be furnished to the SEC upon request
| -11- |
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.
| FoxWayne Enterprises Acquisition Corp. | ||
| Date: December 7, 2021 | By: | /s/ Robb Knie |
| Name: | Robb Knie | |
| Title: | Chief Executive Officer | |
| -12- |