UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Form 8-K
Current Report
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
August 21, 2023
Date of Report (Date of earliest event reported)
Nubia Brand International Corp.
(Exact Name of Registrant as Specified in its Charter)
| Delaware |
|
001-41323 |
|
87-1993879 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer
Identification No.) |
|
13355 Noel Rd, Suite 1100
Dallas, TX |
|
75240 |
| (Address of Principal Executive Offices) |
|
(Zip Code) |
Registrant’s telephone number, including
area code: (972) 918-5120
N/A
(Former name or former address, if changed since
last report)
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:
| Title of each class |
|
Trading Symbol |
|
Name of each exchange on which registered |
| Units, each consisting of one share of Common Stock and one-half of one Redeemable Warrant |
|
NUBIU |
|
The Nasdaq Capital Market LLC |
| Common Stock, par value $0.0001 per share |
|
NUBI |
|
The Nasdaq Capital Market LLC |
| Redeemable Warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50 |
|
NUBIW |
|
The Nasdaq Capital 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 disclosed, on February 16, 2023,
Nubia Brand International Corp. (“Nubia”) entered into a Merger Agreement (the “Merger Agreement”) by and
among Nubia, Honeycomb Battery Company, an Ohio corporation, and Nubia Merger Sub, Inc., an Ohio corporation and wholly-owned subsidiary
of the Corporation.
On August 25, 2023, Nubia entered into Amendment
No. 1 to the Merger Agreement (the “Amendment”) with the other parties thereto. The Amendment extends the termination date
under the Merger Agreement from September 15, 2023 to December 14, 2023. In addition, the Amendment includes a new Section 3.4(c)(iv),
which clarifies that in connection with any transaction resulting in a Change in Control (as defined in the Merger Agreement), the valuation
of the combined company’s common stock shall be calculated inclusive of the Earnout Shares (as defined in the Merger Agreement).
The summary above is qualified in its entirety
by reference to the complete text of the Amendment, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein. Unless
otherwise defined herein, the capitalized terms used above are defined in the Merger Agreement.
Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing
On August 21, 2023, Nubia received a letter (the “MVLS
Notice”) from the Listing Qualifications Department (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”)
notifying Nubia that for the last 30 consecutive business days prior to the date of the MVLS Notice, the Company’s Minimum
Market Value of Listed Securities (“MVLS”) was less than $50.0 million, which does not meet the requirement for continued
listing on The Nasdaq Global Market, as required by Nasdaq Listing Rule 5450(b)(2)(A) (the “MVLS Rule”). In accordance
with Nasdaq Listing Rule 5810(c)(3)(C), the Staff has provided Nubia with 180 calendar days, or until February 19, 2024, to regain compliance
with the MVLS Rule. The MVLS Notice has no immediate effect on the listing of Nubia’s securities on The Nasdaq Global Market.
If Nubia regains compliance with the MVLS Rule, the
Staff will provide written confirmation to Nubia and close the matter. To regain compliance with the MVLS Rule, Nubia’s MVLS
must meet or exceed $50.0 million for a minimum of ten consecutive business days during the 180-day compliance period ending on February
19, 2024. In the event Nubia does not regain compliance with the MVLS Rule prior to the expiration of the compliance period, it will receive
written notification that its securities are subject to delisting. At that time, Nubia may appeal the delisting determination to a Hearings
Panel.
Nubia will continue to monitor its MVLS and consider its available
options to regain compliance with the MVLS Rule. However, there can be no assurance that Nubia will be able to regain compliance with
the MVLS Rule.
Forward-Looking Statements
This Current Report on Form 8-K
contains certain statements that are not historical facts and are forward-looking statements within the meaning of the federal securities
laws with respect to the proposed Transactions between Nubia and Honeycomb. These forward-looking statements generally are identified
by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,”
“think,” “strategy,” “future,” “opportunity,” “potential,” “plan,”
“seeks,” “may,” “should,” “will,” “would,” “will be,” “will
continue,” “will likely result,” and similar expressions, but the absence of these words does not mean that a statement
is not forward-looking. 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.
These forward-looking statements
are provided for illustrative purposes only and are not intended to serve as, and must not be relied on 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 factors could cause actual future events to differ materially from the forward-looking statements
in this communication, including but not limited to: (i) changes in domestic and foreign business, market, financial, political and legal
conditions; (ii) the inability of the parties to successfully or timely consummate the proposed Transactions, including the risk that
any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect
the Combined Company or the expected benefits of the proposed Transactions or that the approval of the shareholders of Nubia or Honeycomb
is not obtained; (iii) the outcome of any legal proceedings that may be instituted against Honeycomb or Nubia following announcement of
the proposed Transactions; (iv) failure to realize the anticipated benefits of the proposed Transactions; (v) risks relating to the uncertainty
of the projected financial information with respect to Honeycomb; (vi) risks related to the performance of Honeycomb’s batteries;
(vii) the extent to which original equipment manufacturers may elect to pursue other battery cell technologies; (viii) risks related to
the safety of Honeycomb’s high-capacity anode and high-energy solid-state battery technology, for which only preliminary safety
testing has occurred and for which additional and extensive safety testing will need to occur prior to being installed in electric vehicles;
(ix) risks related to any substantial increases in the prices for Honeycomb’s raw materials and components, some of which are obtained
from a limited number of sources where demand may exceed supply; (x) consumers’ willingness to adopt electric vehicles; (xi) risks
related to Honeycomb being an early-stage company with a history of financial losses that expects to incur significant expenses and continuing
losses for the foreseeable future; (xii) the possibility that Honeycomb may require additional capital to support business growth, and
that this capital might not be available on commercially reasonable terms or at all; (xiii) Honeycomb’s heavy reliance on owned
intellectual property, which includes patent rights, trade secrets, copyright, trademarks, and know-how, and its ability to protect and
maintain access to these intellectual property rights; (xiv) risks related to the intentional disruption, security breaches and other
security incidents, or alleged violations of laws, regulations, or other obligations relating to data handling of Honeycomb’s technology
and its website, systems, and data it maintains; (xv) the amount of redemption requests made by Nubia’s public stockholders; (xvi)
the ability of Nubia or the Combined Company to issue equity or equity-linked securities in connection with the proposed transactions
or in the future; (xvii) the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries;
(xviii) the impact of the global COVID-19 pandemic on Honeycomb, Nubia, the Combined Company’s projected results of operations,
financial performance or other financial metrics, or on any of the foregoing risks; and (xix) those factors discussed in Nubia’s
filings with the SEC and that are contained in the preliminary proxy statement relating to the proposed Transactions initial filed with
the SEC on March 20, 2023.
The foregoing list of factors
is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties that will be described in
the “Risk Factors” section of the preliminary proxy statement and the amendments thereto, the definitive proxy statement,
and other documents to be filed by Nubia 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 while Nubia and Honeycomb may elect to update these forward-looking statements at some point in the future, they assume
no obligation to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise,
except as required by applicable law. Neither of Nubia or Honeycomb gives any assurance that Nubia or Honeycomb, or the Combined Company,
will achieve its expectations. These forward-looking statements should not be relied upon as representing Nubia’s or Honeycomb’s
assessments as 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.
Important Information for Investors and Stockholders
This document relates to a proposed
transaction between the Registrant and the Company. This document does not constitute an offer to sell or exchange, or the solicitation
of an offer to buy or exchange, any securities, nor will there be any sale of securities in any jurisdiction in which such offer, sale
or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The Registrant
filed a preliminary proxy statement with the SEC, and when available, will file a definitive proxy statement. Promptly after filing its
definitive proxy statement with the SEC, the Registrant will mail the definitive proxy statement and a proxy card to each stockholder
entitled to vote at the Special Meeting relating to the transaction. The Registrant also will file other documents regarding the proposed
transaction with the SEC. Before making any voting decision, investors and security holders of the Registrant are urged to read the proxy
statement and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they
become available because they will contain important information about the proposed transaction. The definitive proxy statement, the preliminary
proxy statement and other relevant materials in connection with the transaction (when they become available), and any other documents
filed by the Registrant with the SEC, may be obtained free of charge at the SEC’s website (www.sec.gov).
Participants in the Solicitation
Nubia and its directors and executive
officers may be deemed participants in the solicitation of proxies from Nubia’s stockholders with respect to the business combination.
Information about Nubia’s directors and executive officers and a description of their interests in Nubia will be included in the
proxy statement for the proposed transaction and be available at the SEC’s website (www.sec.gov). Additional information regarding
the interests of such participants will be contained in the proxy statement for the proposed transaction when available.
The Company and its directors
and executive officers also may be deemed to be participants in the solicitation of proxies from the stockholders of Nubia in connection
with the proposed business combination. Information about the Company’s directors and executive officers and information regarding
their interests in the proposed transaction will be included in the proxy statement for the proposed transaction.
No Offer or Solicitation
This communication 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 will there be any
sale of any 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 other jurisdiction.
Item 9.01. Financial Statements and Exhibits
(c) Exhibits:
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 August 25, 2023 |
|
| |
|
| NUBIA BRAND INTERNATIONAL CORP. |
|
| |
|
| By: |
/s/ Jaymes Winters |
|
| Name: |
Jaymes Winters |
|
| Title: |
Chief Executive Officer |
|
2
Exhibit 2.1
FIRST AMENDMENT TO MERGER AGREEMENT
This First Amendment to Merger
Agreement (this “Amendment”), dated as of August 25, 2023, is entered into by and among Honeycomb Battery Company,
an Ohio corporation (the “Company”), Nubia Brand International Corp., a Delaware corporation (“Parent”),
and Nubia Merger Sub, Inc., an Ohio corporation (“Merger Sub”) and wholly-owned subsidiary of Parent. The Company,
Parent and Merger Sub may each be individually referred to as a “Party” and collectively, as the “Parties.”
RECITALS
WHEREAS, the Company, Parent
and Merger Sub entered into that certain Merger Agreement dated as of February 15, 2023 (the “Original Merger Agreement”);
WHEREAS, pursuant to Section
11.2 of the Original Merger Agreement, the Original Merger Agreement can be amended with the written agreement of the Parties.
WHEREAS, the Company, Parent
and Merger Sub desire to amend certain terms of the Original Merger Agreement as more fully set forth in this Amendment; and
WHEREAS, capitalized and other
defined terms used in this Amendment and not otherwise defined herein have the respective meanings given to them in the Original Merger
Agreement.
NOW, THEREFORE, in consideration
of the mutual covenants and promises set forth in this Amendment, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereby agree as follows:
1. Amendments
of the Original Merger Agreement.
(a) Section
3.4(c) of the Original Merger Agreement is hereby amended to include the following provision following Section 3.4(c)(iii):
“(iv) For purposes
of the this Section 3.4(c), in connection with any transaction resulting in a Change in Control, the valuation of Parent Class
A Common Stock shall be calculated inclusive of the Earnout Shares.”
(b) Section
10.1 of the Original Merger Agreement is hereby amended to replace the reference to “September 15, 2023” with “December
14, 2023.”
2. Representations
and Warranties of the Company. The Company hereby represents and warrants to Parent and Merger Sub that each of the following representations
and warranties are true, correct and complete as of the date of this Amendment and as of the Closing Date:
(a) The
Company has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions contemplated
hereby, in the case of the Merger, subject to receipt of the Company Stockholder Approval. The execution and delivery by the Company of
this Amendment and the consummation by the Company of the transactions contemplated hereby have been duly authorized by all necessary
corporate action on the part of the Company. No other corporate proceedings on the part of the Company is necessary to authorize this
Amendment or to consummate the transactions contemplated by this Amendment (other than, in the case of the Merger, the receipt of the
Company Stockholder Approval). This Amendment has been duly executed and delivered by the Company and, assuming the due authorization,
execution and delivery by each of the other Parties hereto, this Amendment constitutes a legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms, subject to the Enforceability Exceptions.
(b) Neither
the execution, delivery or performance by the Company of this Amendment nor the consummation by the Company of the transactions contemplated
hereby does or will, in each case, subject to receipt of the Company Stockholder Approval, (i) contravene or conflict with the contravene
or conflict with the organizational or constitutive documents of the Company, (ii) contravene or conflict with or constitute a violation
of any provision of any Law or Order binding upon or applicable to the Company or to any of its properties, rights or assets, (iii) (A)
require consent, approval or waiver under, (B) constitute a default under or breach of (with or without the giving of notice or the passage
of time or both), (C) violate, (D) give rise to any right of termination, cancellation, amendment or acceleration of any right or obligation
of the Company or to a loss of any material benefit to which the Company is entitled, in the case of each of clauses (A) – (D),
under any provision of any Permit, Contract or other instrument or obligations binding upon the Company or any of its properties, rights
or assets, (iii) result in the creation or imposition of any Lien (except for Permitted Liens) on any of the Company Parties’ properties,
rights or assets, or (iv) require any consent, approval or waiver from any Person pursuant to any provision of the organizational or constitutive
documents of the Company Parties.
3. Representations
and Warranties of the Parent Parties. Parent and Merger Sub (the “Parent Parties”) hereby represent and warrant
to the Company that each of the following representations and warranties are true, correct and complete as of the date of this Amendment
and as of the Closing Date:
(a) Each
of the Parent Parties has all requisite corporate power and authority to execute and deliver this Amendment and to consummate the transactions
contemplated hereby, in the case of the Merger, subject to receipt of the Parent Stockholder Approval. The execution and delivery by each
of the Parent Parties of this Amendment and the consummation by each of the Parent Parties of the transactions contemplated hereby have
been duly authorized by all necessary corporate action on the part of such Parent Party. No other corporate proceedings on the part of
such Parent Party are necessary to authorize this Amendment or to consummate the transactions contemplated by this Amendment (other than,
in the case of the Merger, the receipt of the Parent Stockholder Approval). This Amendment has been duly executed and delivered by such
Parent Party and, assuming the due authorization, execution and delivery by each of the other parties hereto and thereto (other than a
Parent Party), this Amendment constitutes a legal, valid and binding obligation of such Parent Party, enforceable against such Parent
Party in accordance with its terms, subject to the Enforceability Exceptions.
(b) The
execution, delivery and performance by a Parent Party of this Amendment or the consummation by a Parent Party of the transactions contemplated
hereby does not and will not (i) contravene or conflict with the organizational or constitutive documents of the Parent Parties, or (ii)
contravene or conflict with or constitute a violation of any provision of any Law or any Order binding upon the Parent Parties.
4. No
Waiver. No waiver of any breach or default hereunder shall be considered valid unless in writing, and no such waiver shall be deemed
a waiver of any subsequent breach or default of the same or similar nature.
5. Miscellaneous.
(a) Entire
Agreement. The Original Merger Agreement, as amended by this Amendment, together with the Additional Agreements, 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.
(b) Ratification.
Except as amended hereby, the terms and provisions of the Original Merger Agreement shall remain unchanged and in full force and effect.
In the event of any conflict between the terms of the Original Merger Agreement and the terms of this Amendment, the terms of this Amendment
shall govern and control.
(c) Counterparts;
Electronic Signatures. This Amendment may be executed in counterparts, each of which shall constitute an original, but all of which
shall constitute one agreement. This Amendment 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.
(d) Governing
Law. This Amendment and all disputes or controversies arising out of or relating to this Amendment or the transactions contemplated
hereby, including the applicable statute of limitations, shall be governed by and construed in accordance with the Laws of the State of
Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the Law of any jurisdiction other than the State of Delaware.
(e) Incorporation
by Reference. Sections 11.1 (Notices), 11.2 (Amendments; Waivers; Extensions; Remedies), 11.3 (Arm’s Length Bargaining; No Presumption
Against Drafter), 11.5 (Expenses), 11.6 (No Assignment or Delegation), 11.10 (Severability), 11.11 (Further Assurances), 11.12 (Third
Party Beneficiaries), 11.13 (Waiver), 11.14 (No Other Representations; No Reliance), 11.15 (Waiver of Jury Trial), 11.16 (Submission to
Jurisdiction), 11.17 (Remedies) and 11.18 (Non-Recourse) are hereby incorporated by reference herein mutatis mutandis.
[Signature Page Follows]
* * * * *
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.
| |
Parent: |
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|
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NUBIA
BRAND INTERNATIONAL CORP. |
| |
|
| |
By: |
/s/ Jaymes
Winters |
| |
Name: |
Jaymes Winters |
| |
Title: |
Chief Executive Officer |
| |
|
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Merger
Sub: |
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|
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NUBIA
MERGER SUB, INC. |
| |
|
| |
By: |
/s/ Jaymes
Winters |
| |
Name: |
Jaymes Winters |
| |
Title: |
Chief Executive Officer |
| |
|
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Company: |
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HONEYCOMB
BATTERY COMPANY |
| |
|
| |
By: |
/s/
Bor Jang |
| |
Name: |
Bor Jang |
| |
Title: |
Chief Executive
Officer |
Nubia Brand (NASDAQ:NUBIU)
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