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 of incorporation) |
(Commission File Number) | (I.R.S. Employer Identification No.) |
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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 |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act: None.
| 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 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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.
As previously announced in the Current Report on Form 8-K by the Company on February 20, 2024, the Company entered into a business combination agreement with Acri Capital Merger Sub I Inc., a Delaware corporation and subsidiary of the Company (“PubCo”), Acri Capital Merger Sub II Inc., a Delaware corporation and subsidiary of the PubCo (“Merger Sub”), and Foxx Development Inc., a Texas corporation (“Foxx”), on February 18, 2024, where, pursuant to the agreement: (a) the Company will merge (the “Reincorporation Merger”) with and into PubCo, with PubCo as the surviving entity; (b) Foxx will merge (the “Acquisition Merger”) with and into Merger Sub, with Merger Sub surviving as a wholly-owned subsidiary of PubCo.
On February 23, 2024, Acri Capital Acquisition Corporation (the “Company”) entered into that certain Amendment (the “UA Amendment”) to the Underwriting Agreement, dated June 9, 2022 (the “Underwriting Agreement”) with EF Hutton LLC (f/k/a EF Hutton, division of Benchmark Investments, LLC, the “EF Hutton”).
Pursuant to the terms of the UA Amendment, EF Hutton and the Company have agreed to amend the Underwriting Agreement to replace the existing deferred underwriting fee under the Underwriting Agreement from $2,587,500 payable in cash at the closing of a business combination, to (x) $1,725,000 payable in cash and (y) 43,125 shares of common stock of PubCo. to be issued, at the closing of the Acquisition Merger.
The foregoing description of the UA Amendment does not purport to be complete and is qualified in its entirety by the terms and conditions of the actual agreement, a copy of which is included as Exhibit 1.1 to this Current Report on Form 8-K, and incorporated herein by reference.
Forward-Looking Statements
This Report includes forward looking statements that involve risks and uncertainties. Forward-looking statements are statements that are not historical facts and may be accompanied by words that convey projected future events or outcomes, such as “believe,” “may,” “will,” “estimate,” “continue,” “anticipate,” “design,” “intend,” “expect,” “could,” “plan,” “potential,” “predict,” “seek,” “target,” “aim,” “plan,” “project,” “forecast,” “should,” “would,” or variations of such words or by expressions of similar meaning. Such forward-looking statements, including statements regarding anticipated financial and operational results, projections of market opportunity and expectations, the estimated post-transaction enterprise value, the advantages and expected growth of PubCo, the cash position of PubCo following closing, the ability of ACAC, PubCo or Foxx to consummate the proposed business combination and the timing of such consummation, are subject to risks and uncertainties, which could cause actual results to differ from the forward-looking statements. These risks and uncertainties include, but are not limited to, those factors described in the section entitled “Risk Factors” in the final prospectus filed with the SEC on June 10, 2022 (the “IPO Prospectus”), the Registration Statement on Form S-4 to be filed by PubCo, which will include a proxy statement containing information about the proposed transaction and the respective businesses of Foxx and ACAC, as well as the prospectus relating to the offer of PubCo’s securities to be issued to Foxx Stockholders in connection with the completion of the proposed transaction (the “Proxy Statement/Prospectus”), and in other documents filed by ACAC or PubCo with the SEC from time to time. Important factors that could cause PubCo’s actual results or outcomes to differ materially from those discussed in the forward-looking statements include: Foxx’s or Pubco’s limited operating history; the ability of Foxx or PubCo to identify and integrate acquisitions; general economic and market conditions impacting demand for the products and services of Foxx or PubCo; the inability to complete the proposed Business Combination; the inability to recognize the anticipated benefits of the proposed Business Combination, which may be affected by, among other things, the amount of cash available following any redemptions by ACAC stockholders; the ability to meet Nasdaq’s listing standards following the consummation of the proposed Business Combination; costs related to the proposed Business Combination; and such other risks and uncertainties as are discussed in the IPO Prospectus and the Proxy Statement/Prospectus. Other factors include the possibility that the proposed Business Combination does not close, including due to the failure to receive required security holder approvals, or the failure of other closing conditions.
ACAC, PubCo and Foxx each expressly disclaim any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the expectations of ACAC, PubCo or Foxx with respect thereto or any change in events, conditions or circumstances on which any statement is based, except as required by law.
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Additional Information about the Transaction and Where to Find It
The proposed transaction has been approved by the boards of directors of ACAC, PubCo and Foxx, and will be submitted to stockholders of ACAC and the stockholders of Foxx for their approval. In connection with such approval, PNAI intends to file with the SEC the Proxy Statement/Prospectus. After the Registration Statement that forms a part of the Proxy Statement/Prospectus has been declared effective, ACAC will mail a definitive proxy statement and other relevant documents to its stockholders as of the record date established for voting on the proposed transaction. ACAC stockholders are urged to read, once available, the preliminary Proxy Statement/Prospectus and any amendments thereto and the definitive Proxy Statement/Prospectus in connection with the proposed transaction, as these materials will contain important information about ACAC, PubCo, Foxx and the proposed Business Combination. ACAC stockholders will also be able to obtain a free copy of the Proxy Statement/Prospectus, as well as other filings containing information about ACAC, without charge, at the SEC’s website (www.sec.gov).
Participants in the Solicitation
ACAC, PubCo, Foxx and their respective directors and executive officers and other persons may be deemed to be participants in the solicitation of proxies from ACAC stockholders with respect to the proposed Business Combination. Information regarding the ACAC’s directors and executive officers is available in the IPO Prospectus. Additional information regarding the persons who may, under the rules of the SEC, be deemed to be participants in the proxy solicitation relating to the proposed Business Combination and a description of their direct and indirect interests, by security holdings or otherwise, will be contained in the Proxy Statement/Prospectus when it becomes available.
No Offer or Solicitation
This Report does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Number | Description | |
| 1.1 | Amendment to the Underwriting Agreement, dated February 23, 2024, by and between the Registrant and EF Hutton. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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.
| Acri Capital Acquisition Corporation | ||
| Date: February 23, 2024 | By: | /s/ “Joy” Yi Hua |
| Name: | “Joy” Yi Hua | |
| Title: | Chief Executive Officer | |
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Exhibit 1.1
Acri Capital Acquisition Corporation
AMENDMENT TO THE UNDERWRITING AGREEMENT
February 23, 2024
EF Hutton LLC
(f/k/a EF Hutton, division of Benchmark Investments, LLC)
590 Madison Avenue, 39th Floor
New York, NY 10022
Ladies and Gentlemen:
This Amendment (this “Amendment”) to the Underwriting Agreement (the “Underwriting Agreement”), dated as of June 9, 2022, is entered into by and between Acri Capital Acquisition Corporation, a Delaware corporation (the “Company”) and EF Hutton LLC (f/k/a EF Hutton, division of Benchmark Investments, LLC) (the “Representative”), as representative of the several underwriters named on Schedule I to the Underwriting Agreement (the “Underwriters,” together with the Company, the “Parties” and individually, a “Party”).
Reference is made to the Underwriting Agreement by and between the Company and the Underwriters. All capitalized terms used herein, but not otherwise defined, shall have the meanings ascribed to such terms in the Underwriting Agreement.
Reference is further made to the Business Combination Agreement (the “Business Combination Agreement”) by and between the Company, Acri Capital Merger Sub I Inc., a Delaware corporation and wholly-owned subsidiary of the Company (the “PubCo”), Acri Capital Merger Sub II Inc., a Delaware corporation and wholly-owned subsidiary of the PubCo (the “Merger Sub”), and Foxx Development Inc., a Texas corporation, dated February 18, 2024, pursuant to which (a) the Company will merger with and into PubCo (the “Reincorporation Merger”), and (b) Foxx will merge with and into Merger Sub, with Merger Sub surviving as a wholly-owned subsidiary of PubCo (the “Acquisition Merger”, together with the Reincorporation Merger and other transaction contemplated in the Business Combination Agreement, the “Business Combination”).
In consideration of the Business Combination and mutual covenants and agreements, the Underwriter has agreed to reduce the amount of the Deferred Underwriting Commission payable to the Underwriters under the Underwriting Agreement from $2,587,500 in cash to $1,725,000 in cash and 43,125 shares of PubCo common stock (the “Shares”) to be issued immediately prior to the “Closing” of the Business Combination, as such term is defined in the Business Combination Agreement.
1. Section 2(c) of the Underwriting Agreement shall be amended and replaced in its entirety as follows:
“In addition to the discount from the public offering price represented by the purchase price set forth in the first sentence of Section 2 of this Agreement, the Company hereby agrees to pay to the Underwriters a deferred discount of $0.20 per Unit (including both Firm Units and Optional Units) purchased hereunder (the “Deferred Discount”, representing 2% of the initial public offering price per Unit)), with the Representative receiving 100% of the Deferred Discount on behalf of the Underwriters, and shall issue or cause the surviving listed company of the Business Combination to issue 37,500 shares of common stock or ordinary shares (or up to 43,125 shares of common stock or ordinary shares, if the Underwriters’ over-allotment option is exercised in full) of the surviving listed company at or immediately before the completion of the Business Combination (the “Deferred Discount Shares”). The Underwriters hereby agree that if no Business Combination is consummated within the time period provided in the Trust Agreement and the funds held under the Trust Agreement are distributed to the holders of the Shares included in the Units sold pursuant to this Agreement (the “Public Stockholders,” which term shall include any officers or directors of the Company solely to the extent they hold any Public Shares (as defined below)), (i) the Underwriters will forfeit any rights or claims to the Deferred Discount and Deferred Discount Shares and (ii) the trustee under the Trust Agreement is authorized to distribute the Deferred Discount to the Public Stockholders on a pro rata basis.”
2. The Company irrevocably covenants to perform the following subsequent to the closing of Business Combination:
| A. | Within sixty (60) days from closing of the Business Combination, the Company or the Pubco shall cause the Shares to be registered under the Securities Act. |
| B. | Alternatively, if after twelve (12) months from the Effective Date (the “Twelve-month Period Date”), the Company has not registered any of the Shares on an effective Registration Statement, then the Company will confirm in writing that such Shares are freely sellable under Rule 144. No later than the Twelve-month Period Date, the Company shall provide EF Hutton a valid legal opinion that its Ordinary Shares are eligible for resale pursuant to Rule 144. |
3. Entire Agreement. The Underwriting Agreement, as amended by this Amendment, sets forth the entire agreement of the Parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous understandings and agreements related thereto (whether written or oral), all of which are merged herein.
4. Ratification. Except as amended hereby, the terms and provisions of the Underwriting Agreement shall remain unchanged and in full force and effect. In the event of any conflict between the terms of the Underwriting Agreement and the terms of this Amendment, the terms of this Amendment shall govern and control.
5. Counterparts; Electronic Signatures. This Agreement may be executed in counterparts, each of which shall constitute an original, but all of which shall constitute one agreement. This Agreement shall become effective upon delivery to each Party of an executed counterpart or the earlier delivery to each Party of original, photocopied, or electronically transmitted signature pages that together (but need not individually) bear the signatures of all other Parties.
6. Governing Law. This Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned, intending to be legally bound hereby, have duly executed this Amendment as of the day and year first above written.
| EF HUTTON LLC (f/k/a EF Hutton, division of Benchmark Investments, LLC) | ||
| By: | /s/ Sam Fleischman | |
| Name: | Sam Fleischman | |
| Title: | Supervisory Principal | |
| ACRI CAPITAL ACQUISITION CORPORATION | ||
| By: | /s/ “Joy” Yi Hua | |
| Name: | “Joy” Yi Hua | |
| Title: | Chief Executive Officer | |
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