UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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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 |
Forward Purchase Agreement Side Letter
On January 20, 2022, ECP Environmental Growth Opportunities Corp. (“ENNV”), ENNV Holdings, LLC (the “Sponsor”) and Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (“GSAM”), entered into a side letter (the “Side Letter”) to that certain forward purchase agreement, dated as of January 24, 2021, by and among ENNV, Sponsor and GSAM, as amended by that certain First Amendment to Forward Purchase Agreement dated as of January 31, 2021, and that certain Letter Agreement, dated as of July 18, 2021 (as so amended, the “Forward Purchase Agreement”). As previously disclosed, pursuant to the Forward Purchase Agreement, GSAM irrevocably consented to purchase twenty-five million dollars ($25,000,000) of units (“Forward Purchase Units”), each consisting of one share of Class A common stock, par value $0.0001 per share, of ENNV (“Class A Common Stock”) and one-quarter of one redeemable warrant (“Forward Purchase Warrant”), each whole redeemable warrant of which is exercisable to purchase one share of Class A Common Stock at an exercise price of $11.50 per share, in connection with the closing of ENNV’s previously announced business combination with Fast Radius, Inc. (the “Closing”). Pursuant to the Side Letter, if GSAM acquires any shares of Class A Common Stock (i) on or after the date of the Side Letter but prior to 4:00 p.m. New York City time on January 25, 2022 (the “Cutoff Time”) and does not exercise any right to redeem such shares in connection with ENNV’s redemption of Class A Common Stock in accordance with ENNV’s organizational documents in connection with the Closing (the “Redemption”) (and, if necessary to revoke any prior redemption elections made with respect to such shares, does so effectuate such revocation) or (ii) on or after the Cutoff Time but prior to February 1, 2022 and delivers evidence reasonably satisfactory to ENNV that (a) the stockholder from whom such shares were acquired had, prior to such acquisition, validly elected to redeem such shares in connection with the Redemption and (b) such stockholder or GSAM, as applicable, has, prior to Closing, validly revoked such election to redeem such shares in connection with the Redemption (such shares of Class A Common Stock described in clauses (i) and (ii), the “Eligible Shares”), and, in each case, does not transfer such Eligible Shares prior to the date of the Closing (the “Closing Date”), then such Eligible Shares shall be “Non-Redeemed Shares,” and the number of Forward Purchase Units GSAM is obligated to purchase under the Forward Purchase Agreement will be reduced by the number of Non-Redeemed Shares. Notwithstanding any such reduction in the number of Forward Purchase Units that GSAM is obligated to purchase under the Forward Purchase Agreement, upon consummation of the sale of such Forward Purchase Units, ENNV shall issue to GSAM a number of redeemable warrants, each of which is exercisable to purchase one share of Class A Common Stock at an exercise price of $11.50 per share, which warrants shall have the same terms as ENNV’s private placement warrants (the “Additional Warrants”), such that GSAM shall receive 625,000 Forward Purchase Warrants and Additional Warrants in the aggregate. Pursuant to the merger agreement, dated as of July 18, 2021 and amended on December 26, 2021 (the “Merger Agreement”), Fast Radius is required to provide its consent in order for ENNV to take certain actions under the Merger Agreement, including but not limited to, making amendments to the Forward Purchase Agreement. Fast Radius has provided its consent under the Merger Agreement for ENNV to enter into the Side Letter.
The foregoing description of the Side Letter does not purport to be complete and is qualified in its entirety by the terms and conditions of the Side Letter filed as Exhibit 10.1 hereto and incorporated by reference herein.
Cautionary Statement Regarding Forward Looking Statements
This Report contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed Transactions between ENNV and Fast Radius. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “scales,” “representative of,” “valuation,” “opportunity,” “plan,”
“may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the forward-looking statements in this Report, including but not limited to: (i) the risk that the Transactions may not be completed in a timely manner or at all, which may adversely affect the price of ENNV’s securities, (ii) the risk that the Transactions may not be completed by ENNV’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by ENNV, (iii) the failure to satisfy the conditions to the consummation of the Transactions, including the requisite approvals of ENNV’s and Fast Radius’ stockholders, the satisfaction of the minimum trust account amount following any redemptions by ENNV’s public stockholders and the receipt of certain governmental and regulatory approvals, (iv) the lack of a third party valuation in determining whether or not to pursue the Transactions, (v) the risk that ENNV’s proposed private offering of public equity is not completed, (vi) the occurrence of any event, change or other circumstance that could give rise to the termination of the merger agreement relating to the Transactions, (vii) the effect of the announcement or pendency of the Transactions on Fast Radius’ business or employee relationships, operating results and business generally, (viii) the risk that the Transactions disrupts current plans and operations of Fast Radius, (ix) the risk of difficulties in retaining employees of Fast Radius as a result of the Transactions, (x) the outcome of any legal proceedings that may be instituted against Fast Radius or against ENNV related to the Merger Agreement or the Transactions, (xi) the ability to maintain the listing of ENNV’s securities on a national securities exchange, (xii) changes in the competitive industries in which Fast Radius operates, variations in operating performance across competitors, changes in laws and regulations affecting Fast Radius’ business and changes in the combined capital structure, (xiii) the ability to implement business plans, forecasts, and other expectations after the completion of the Transactions, and the ability to identify and realize additional opportunities, (xiv) risks related to the uncertainty of Fast Radius’ projected financial information, (xv) risks related to Fast Radius’ potential inability to become profitable and generate cash, (xvi) current and future conditions in the global economy, including as a result of the impact of the COVID-19 pandemic, (xvii) the risk that demand for Fast Radius’ cloud manufacturing technology does not grow as expected, (xviii) the ability of Fast Radius to retain existing customers and attract new customers, (xix) the potential inability of Fast Radius to manage growth effectively, (xx) the potential inability of Fast Radius to increase its cloud manufacturing capacity or to achieve efficiencies regarding its cloud manufacturing process or other costs, (xxi) the enforceability of Fast Radius’ intellectual property rights, including its copyrights, patents, trademarks and trade secrets, and the potential infringement on the intellectual property rights of others, (xxii) Fast Radius’ dependence on senior management and other key employees, (xxiii) the risk of downturns and a changing regulatory landscape in the highly competitive industry in which Fast Radius operates, (xxiv) the risk that Fast Radius may require additional funding for its growth plans and may not be able to obtain any additional financing on terms that are acceptable to Fast Radius or at all and (xxv) costs related to the Transactions and the failure to realize anticipated benefits of the Transactions or to realize estimated pro forma results and underlying assumptions, including with respect to estimated stockholder redemptions. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties which will be more fully described in the “Risk Factors” section of ENNV’s Quarterly Reports on Form 10-Q, the Registration Statement (as defined below), the Proxy Statement/Prospectus (as defined below) and other documents filed by ENNV from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and Fast Radius and ENNV assume no obligation and do not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise. Neither Fast Radius nor ENNV gives any assurance that either Fast Radius or ENNV, or the combined company, will achieve its expectations.
Additional Information and Where to Find It
This Report relates to the proposed Transactions between ENNV and Fast Radius. ENNV filed a registration statement on Form S-4 (as amended, the “Registration Statement”), including a proxy statement/prospectus (the “Proxy Statement/Prospectus), relating to the Transaction with the SEC on September 3, 2021, and the SEC declared the Registration Statement effective on January 13, 2022. The definitive Proxy Statement/Prospectus will be sent to all ENNV stockholders as of January 5, 2022, the record date established for voting on the proposed Transaction and the other matters to be voted upon at a meeting of ENNV’s stockholders to be held to approve the proposed Transaction and other matters. ENNV will also file other documents regarding the Transactions with the SEC. Before making any voting decision, investors and security holders of ENNV and Fast Radius are urged to read the Registration Statement, the Proxy Statement/Prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the Transactions as they become available because they will contain important information about the Transactions. Investors and security holders will be able to obtain free copies of the Registration Statement, the Proxy Statement/Prospectus, and all other relevant documents filed or that will be filed with the SEC by ENNV through the website maintained by the SEC at www.sec.gov. The documents filed by ENNV with the SEC also may be obtained free of charge upon written request to ENNV at 40 Beechwood Road, Summit, New Jersey 07901.
Participants in the Solicitation
ENNV, Fast Radius and their respective directors and executive officers may be deemed to be participants in the solicitation of proxies from ENNV’s stockholders in connection with the Transactions. A list of the names of such directors and executive officers and information regarding their interests in the Transactions is included in the Proxy Statement/Prospectus when available. You may obtain free copies of these documents as described in the preceding paragraph.
No Offer or Solicitation
This Report shall not constitute an offer to sell or exchange or the solicitation of an offer to buy or exchange any securities, nor shall there be any sale or exchange of securities in any jurisdiction in which such offer, solicitation, sale or exchange 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 the U.S. Securities Act of 1933, as amended.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits:
| Exhibit | Description | |
| 10.1 | Side Letter to Forward Purchase Agreement, dated as of January 20, 2022, by and among ECP Environmental Growth Opportunities Corp., ENNV Holdings, LLC and Goldman Sachs Asset Management, L.P. | |
| 104 | Cover Page Interactive Data File (embedded within Inline XBRL document) | |
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.
| Dated: January 20, 2022 | ECP Environmental Growth Opportunities Corp. | |||||
| By: | /s/ Tyler Reeder | |||||
| Tyler Reeder | ||||||
| President and Chief Executive Officer | ||||||
Exhibit 10.1
Execution Version
ECP Environmental Growth Opportunities Corp.
40 Beechwood Road Summit,
New Jersey 07901
January 20, 2022
Goldman Sachs Asset Management
200 West Street, 3rd Floor
New York, NY 10282
Attention: Kyri Loupis
Re: Forward Purchase Agreement – Side Letter
Reference is made to that certain Forward Purchase Agreement, dated as of January 24, 2021, by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (the “Company”), ENNV Holdings, LLC, a Delaware limited liability company (the “Sponsor”), and Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (the “Purchaser” and, together with the Company and the Sponsor, each a “Party” and, collectively, the “Parties”), as amended by that certain First Amendment to Forward Purchase Agreement, dated as of January 31, 2021, and that certain Letter Agreement, dated as of July 18, 2021 (as so amended, the “Forward Purchase Agreement”). Capitalized terms used but not defined herein shall have the meanings set forth for such terms in the Forward Purchase Agreement.
In accordance with Section 4(c)(iv) of the Forward Purchase Agreement, the Purchaser has provided irrevocable written consent to the Company confirming its commitment to purchase twenty-five million dollars ($25,000,000) of Forward Purchase Units in connection with the closing of the FR Business Combination (the “Closing”).
This letter (this “Letter Agreement”) supersedes all prior written or oral and all contemporaneous oral agreements, understandings and negotiations with respect to the subject matter hereof solely with respect to the FR Business Combination, and for the avoidance of doubt, does not apply to any other Business Combination that the Company may pursue should it not consummate the FR Business Combination.
1. Terms of Agreement. Notwithstanding anything to the contrary contained in the Forward Purchase Agreement, if the Purchaser acquires any shares of Class A Common Stock (i) on or after the date of this Agreement but prior to 4:00 p.m. New York City time on January 25, 2022 (the “Cutoff Time”) and does not exercise any right to redeem such shares in connection with the Company’s redemption of Class A Common Stock in accordance with the Company’s organizational documents in connection with the Closing (the “Redemption”) (and, if necessary to revoke any prior redemption elections made with respect to such shares, does so effectuate such revocation) or (ii) on or after the Cutoff Time but prior to February 1, 2022 and delivers evidence reasonably satisfactory to the Company that (a) the stockholder from whom such shares were acquired had, prior to such acquisition, validly elected to redeem such shares in connection with the Redemption and (b) such stockholder or the Purchaser, as applicable, has, prior to Closing,
validly revoked such election to redeem such shares in connection with the Redemption (such shares of Class A Common Stock described in clauses (i) and (ii), the “Eligible Shares”), and, in each case, does not Transfer (as defined below) such Eligible Shares prior to the date of the Closing (the “Closing Date”), then such Eligible Shares shall be “Non-Redeemed Shares,” and the number of Forward Purchase Units the Purchaser is obligated to purchase under the Forward Purchase Agreement will be reduced by the number of Non-Redeemed Shares; provided, that, the Purchaser must deliver to the Company a certificate in the form attached hereto as Exhibit A by 12:00 p.m. New York City time on February 1, 2022, and shall further, upon the Company’s request, promptly provide such additional documents reasonably requested by the Company relating to the Eligible Shares; and provided, further, that, notwithstanding any such reduction in the number of Forward Purchase Units that the Purchaser is obligated to purchase under the Forward Purchase Agreement, upon consummation of the sale of such Forward Purchase Units, the Company shall issue to the Purchaser a number of redeemable warrants, each of which is exercisable to purchase one share of Class A Common Stock at an exercise price of $11.50 per share, which warrants shall have the same terms as the Private Placement Warrants (the “Additional Warrants”), such that the Purchaser shall receive 625,000 Forward Purchase Warrants and Additional Warrants in the aggregate. “Transfer” means any (i) sale, offer to sell, contract or agreement to sell, hypothecate, pledge, grant any option to purchase or otherwise dispose of or agree to dispose of, directly or indirectly, or establish or increase a put equivalent position or liquidate or decrease a call equivalent position within the meaning of Section 16 of the Securities Exchange Act of 1934, as amended, with respect to any relevant securities, (ii) entry into any swap or other arrangement that transfers to another, in whole or in part, any of the economic consequences of ownership of any relevant securities, or (iii) public announcement of any intention to effect any transaction specified in clause (i) or (ii).
2. Material Non-Public Information. Each of the Company and the Sponsor hereby represents and warrants to the Purchaser that it has not provided any information to the Purchaser that could reasonably be expected to constitute material non-public information with respect to the Company or Fast Radius.
3. References. All references in the Forward Purchase Agreement to the “Agreement” shall be deemed to refer to the Forward Purchase Agreement, as amended and modified by this Letter Agreement.
4. Entire Agreement. This Letter Agreement, together with the Forward Purchase Agreement and any documents, instruments and writing that are delivered pursuant hereto or referenced herein, constitute the entire agreement and understanding of the Parties in respect of its subject matter and supersedes all prior understandings, agreements or representations by or among the Parties, written or oral, to the extent they relate in any way to the subject matter hereof or the transactions contemplated hereby.
5. No Other Amendments. This Letter Agreement shall not constitute an amendment or waiver of any provisions of the Forward Purchase Agreement not expressly referred to herein. Except as expressly amended hereby, the Forward Purchase Agreement is and shall remain in full force and effect in accordance with the terms thereof.
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6. Miscellaneous.
(a) Governing Law. This Letter Agreement and the rights and obligations of the Parties shall be construed in accordance with and governed by the laws of Delaware applicable to contracts wholly performed within the borders of such state, without giving effect to the conflict of law principles thereof.
(b) Jurisdiction. The Parties (i) hereby irrevocably and unconditionally submit to the jurisdiction of the state courts of Delaware for the purpose of any suit, action or other proceeding arising out of or based upon this Letter Agreement, (ii) agree not to commence any suit, action or other proceeding arising out of or based upon this Letter Agreement except in state courts of Delaware and (iii) hereby waive, and agree not to assert, by way of motion, as a defense, or otherwise, in any such suit, action or proceeding, any claim that it is not subject personally to the jurisdiction of the above-named courts, that its property is exempt or immune from attachment or execution, that the suit, action or proceeding is brought in an inconvenient forum, that the venue of the suit, action or proceeding is improper or that this Letter Agreement or the subject matter hereof may not be enforced in or by such court.
(c) Severability. In the event that any court of competent jurisdiction shall determine that any provision, or any portion thereof, contained in this Letter Agreement shall be unreasonable or unenforceable in any respect, then such provision shall be deemed limited to the extent that such court deems it reasonable and enforceable, and as so limited shall remain in full force and effect. In the event that such court shall deem any such provision, or portion thereof, wholly unenforceable, the remaining provisions of this Letter Agreement shall nevertheless remain in full force and effect.
(d) Execution. This Letter Agreement may be executed in one or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each Party and delivered to the other Party, it being understood that both Parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or any other form of electronic delivery, such signature shall create a valid and binding obligation of the Party executing (or on whose behalf such signature is executed) with the same force and effect as if such signature page were an original thereof.
(e) Termination. In the event that certain Agreement and Plan of Merger, dated as of July 18, 2021, as amended on December 26, 2021, by and among the Company, Fast Radius and ENNV Merger Sub, Inc., a Delaware corporation, is terminated prior to the closing of the FR Business Combination, this Letter Agreement shall automatically terminate and be of no further force and effect.
[Signature pages follow]
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IN WITNESS WHEREOF, the undersigned have executed this Letter Agreement to be effective as of the date first set forth above.
| GOLDMAN SACHS ASSET MANAGEMENT, L.P., in its capacity as investment adviser on behalf of its clients, including the Permitted Fund Assignees | ||
| By: | /s/ Ganesh Jois | |
| Name: Ganesh Jois | ||
| Title: Managing Director | ||
| Address for Notices: 200 West Street | ||
|
New York, NY 10282 | ||
| E-mail: Ganesh.Jois@gs.com | ||
[Signature Page to Letter Agreement]
| ECP ENVIRONMENTAL GROWTH OPPORTUNITIES CORP. | ||
| By: | /s/ Tyler Reeder | |
| Name: Tyler Reeder | ||
| Title: President and Chief Executive Officer | ||
| ENNV HOLDINGS, LLC | ||
| By: | /s/ Tyler Reeder | |
| Name: Tyler Reeder | ||
| Title: President and Chief Executive Officer | ||
[Signature Page to Letter Agreement]
EXHIBIT A
PURCHASER CERTIFICATE
Reference is made to that certain Forward Purchase Agreement, dated as of January 24, 2021, by and among ECP Environmental Growth Opportunities Corp., a Delaware corporation (the “Company”), ENNV Holdings, LLC, a Delaware limited liability company (the “Sponsor”), and Goldman Sachs Asset Management, L.P., in its capacity as investment adviser on behalf of its clients (the “Purchaser” and, together with the Company and the Sponsor, each a “Party” and, collectively, the “Parties”), as amended by that certain First Amendment to Forward Purchase Agreement, dated as of January 31, 2021, that certain Letter Agreement, dated as of July 18, 2021 and that certain Letter Agreement, dated as of January 20, 2022 (as so amended, the “Forward Purchase Agreement”). Capitalized terms used but not defined herein shall have the meanings set forth for such terms in the Forward Purchase Agreement.
Pursuant to Section 1 of that certain Letter Agreement, dated as of January 20, 2022 (the “Letter Agreement”), the Purchaser hereby certifies as follows:
(i) The Purchaser wishes to decrease the number of Forward Purchase Units that it is obligated to purchase under the Forward Purchase Agreement by ____________ Forward Purchase Units, which amount equals the number of Non-Redeemed Shares that the Purchaser beneficially owns as of the date hereof.
(ii) The Purchaser hereby represents, warrants and agrees that the Non-Redeemed Shares referenced in clause (i) will qualify as Non-Redeemed Shares as of the Closing Date. In connection therewith, the Purchaser agrees and acknowledges that in order to qualify as Non-Redeemed Shares, such shares of Class A Common Stock were acquired (i) on or after the date of the Letter Agreement but prior to the Cutoff Time and the Purchaser did not exercise any right to redeem such shares in connection with the Redemption (and, if necessary to revoke any prior redemption elections made with respect to such shares, has so effectuated such revocation) or (ii) on or after the Cutoff Time but prior to February 1, 2022 and the Purchaser has delivered evidence reasonably satisfactory to the Company that (a) the stockholder from whom such shares were acquired had, prior to such acquisition, validly elected to redeem such shares in connection with the Redemption and (b) such stockholder or the Purchaser, as applicable, has validly revoked such election to redeem such shares in connection with the Redemption, and, in the case of clause (i) and (ii), has not Transferred, and will not Transfer prior to the Closing, such Eligible Shares.
[Signature page follows]
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| GOLDMAN SACHS ASSET MANAGEMENT, L.P., | ||
| in its capacity as investment adviser on behalf of its clients, including the Permitted Fund Assignees | ||
| By: | ||
| Name: Ganesh Jois | ||
| Title: Managing Director | ||
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