Item 1.01 Entry into a Material Definitive Agreement.
As previously announced, on December 21, 2021, Zanite Acquisition Corp., a
Delaware corporation ("Zanite" or the "Company"), entered into a Business
Combination Agreement (the "Business Combination Agreement") with Embraer S.A.,
a Brazilian corporation (sociedade anônima) ("Embraer"), Embraer Aircraft
Holding, Inc., a Delaware corporation and a direct wholly-owned subsidiary of
Embraer ("EAH"), and EVE UAM, LLC, a Delaware limited liability company and a
wholly-owned subsidiary of EAH ("Eve"). In addition, as previously announced, on
December 21, 2021, December 24, 2021 and March 9, 2022, Zanite entered into
subscription agreements (collectively, the "Subscription Agreements") with
certain investors (collectively, the "PIPE Investors"), including certain
strategic PIPE Investors and/or investors with existing relationships with
Embraer (collectively, the "Strategic Investors"), pursuant to, and on the terms
and subject to the conditions of which, Zanite agreed to issue and sell to the
PIPE Investors an aggregate of 31,730,000 shares of the Company's common stock,
par value $0.0001 ("Common Stock") at $10.00 per share, for an aggregate
purchase price of $317,300,000, in private placements to close substantially
concurrently with the closing of the transactions contemplated by the Business
Combination Agreement (the "Closing") (the "PIPE Investment").
On March 16, 2022, Zanite entered into Subscription Agreement with an additional
Strategic Investor, Acciona Logistica, S.A. ("Acciona"), pursuant to which
Acciona subscribed to purchase an aggregate of 3,000,000 shares of Common Stock
for an aggregate purchase price of $30,000,000. As a result, as of March 16,
2021, Zanite has agreed to issue and sell an aggregate of 34,730,000 shares of
Common Stock to the PIPE Investors in the PIPE Investment for an aggregate
purchase price of $347,300,000.
As previously disclosed, the Subscription Agreement provides for certain
registration rights. In particular, the Company is required to, as soon as
practicable but no later than 30 calendar days following the Closing, submit to
or file with the U.S. Securities and Exchange Commission (the "SEC") a
registration statement registering the resale of such shares of Common Stock.
Additionally, the Company is required to use its commercially reasonable efforts
to have the registration statement declared effective as soon as practicable
after the filing thereof, but no later than the earlier of: (i) the 90th
calendar day following the filing if the SEC notifies the Company that it will
"review" such registration statement following the Closing; and (ii) the 10th
business day after the date the Company is notified (orally or in writing,
whichever is earlier) by the SEC that the registration statement will not be
"reviewed" or will not be subject to further review. The Company must use
commercially reasonable efforts to keep the registration statement effective
until the earliest of: (i) three years from the date of effectiveness of the
registration statement; (ii) the date the PIPE Investors no longer hold any
registrable shares; and (iii) the date all registrable shares held by the PIPE
Investors may be sold without restriction under Rule 144. The Subscription
Agreement will terminate, and be of no further force and effect, upon the
earliest to occur of (i) such date and time as the Business Combination
Agreement is terminated in accordance with its terms, (ii) upon the mutual
written agreement of Zanite and the applicable PIPE Investor, (iii) if the
conditions set forth therein are not satisfied or are not capable of being
satisfied prior to the Closing (as defined in the Subscription Agreements) and,
as a result thereof, the transactions contemplated therein will not be or are
not consummated at the Closing (as defined in the Subscription Agreement), and
(iv) September 21, 2022.
On March 16, 2022, concurrently with the execution of the new Subscription
Agreement, Zanite also entered into a Strategic Warrant Agreement with Acciona
and EAH (the "Strategic Warrant Agreement"), pursuant to which, subject to the
consummation of the business combination, Zanite has agreed to issue to Acciona
new warrants to acquire 4,500,000 shares of Common Stock, each with an exercise
price of $0.01 per share. Each warrant is exercisable for a period of five years
following its issuance or first permitted exercise date. The Strategic Warrant
Agreement provides for certain registration rights with respect to the resale of
the shares of Common Stock underlying the warrants which are substantially
similar to the registration rights provided under the Subscription Agreement. In
addition, on March 16, 2022, Acciona entered into a lock-up agreement with
Zanite, pursuant to which Acciona will be restricted from transferring warrants
to acquire 900,000 shares of Common Stock issued at the Closing and the shares
of Common Stock issued upon the exercise of such new warrants until the date
that is two years after the Closing Date.
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Out of the warrants that Zanite has agreed to issue pursuant to the Strategic
Warrant Agreement, (i) warrants to acquire 900,000 shares of Common Stock will
be issued and exercisable at the Closing, (ii) warrants to acquire up to
3,600,000 shares of common stock will be issued upon the achievement of certain
UAM Business (as defined in the Business Combination Agreement) milestones,
including upon achievement of certain vertiport operation thresholds and upon
receipt of the first type certification for eVTOL in compliance with certain
airworthiness authorities.
The Strategic Warrant Agreement also provides Acciona with the non-transferable
right to designate a Class I director of the Company, who shall be Mr. José
Manuel Entrecanales, the Chairman and Chief Executive Officer of Acciona. In
addition, the Strategic Warrant Agreement provides that Acciona may designate a
member to a non-board advisory committee following the consummation of the
business combination, to the extent that the Company chooses, in its sole
discretion, to form such a committee.
The foregoing descriptions of the Subscription Agreement and the Strategic
Warrant Agreement are not complete and are subject to and qualified in their
entirety by reference to the form of Subscription Agreement and the form of
Strategic Warrant Agreement, copies of which are filed as Exhibits 99.1 and 99.2
hereto and the terms of which are incorporated by reference herein.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report
on Form 8-K with respect to the issuance of shares of Common Stock in the
business combination and the PIPE Investment and the issuance of warrants
pursuant to the Strategic Warrant Agreement is incorporated by reference herein.
Neither the shares of Common Stock issuable in connection with the business
combination and the PIPE Investment, nor the warrants issuable pursuant to the
Strategic Warrant Agreement, will be registered under the Securities Act of
1933, as amended (the "Securities Act"), in reliance on the exemption from
registration provided by Section 4(a)(2) of the Securities Act and/or Regulation
D promulgated thereunder.
Important Information about the Business Combination and Where to Find It
In connection with the business combination, on December 30, 2021, Zanite has
filed with the SEC a preliminary proxy statement (as amended by Amendment No. 1
to the preliminary proxy statement, filed on February 9, 2022, as further
amended by Amendment No. 2 to the preliminary proxy statement, filed on
March 18, 2022) relating to the business combination. When available, Zanite
will mail a definitive proxy statement and other relevant documents to its
stockholders. This Current Report on Form 8-K does not contain all the
information that should be considered concerning the proposed business
combination and is not intended to form the basis of any investment decision or
any other decision in respect of the business combination. Zanite's stockholders
and other interested persons are advised to read the preliminary proxy statement
and the amendments thereto and the definitive proxy statement, when available,
and documents incorporated by reference therein filed in connection with
Zanite's solicitation of proxies for its special meeting of stockholders to be
held to approve the business combination and other matters, as these materials
contain or will contain important information about Zanite, Eve and the business
combination. When available, the definitive proxy statement and other relevant
materials for the business combination will be mailed to stockholders of Zanite
as of a record date to be established for voting on the business combination.
Stockholders of Zanite may obtain copies of the preliminary proxy statement, the
definitive proxy statement (when available) and other documents that are filed
or will be filed with the SEC or that are incorporated by reference therein,
without charge, once available, at the SEC's website at www.sec.gov, or by
directing a request to Zanite Acquisition Corp. at 25101 Chagrin Boulevard Suite
350, Cleveland, Ohio 44122, Attention: Steven H. Rosen, or by
calling (216) 292-0200.
This Current Report on Form 8-K is for informational purposes only and 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 offering of securities shall be made except by
means of a prospectus meeting the requirements of Section 10 of the Securities
Act, or an applicable exemption from the registration requirements thereof.
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Participants in the Solicitation
Zanite and its directors and executive officers may be deemed participants in
the solicitation of proxies from Zanite's stockholders with respect to the
proposed business combination. A list of the names of those directors and
executive officers and a description of their interests in Zanite is contained
in Zanite's Registration Statement on Form S-1/A and by Zanite's Current Report
on Form 8-K filed on September 15, 2021, each of which was filed with the SEC
and is available free of charge at the SEC's web site at www.sec.gov, or by
directing a request to Zanite Acquisition Corp. at 25101 Chagrin Boulevard Suite
350, Cleveland, Ohio 44122, Attention: Steven H. Rosen, or by calling
(216) 292-0200.
Eve, Embraer, EAH and their respective directors and executive officers may also
be deemed to be participants in the solicitation of proxies from the
stockholders of Zanite in connection with the proposed business combination.
Additional information regarding the persons who may, under SEC rules, be deemed
participants in the solicitation of Zanite's stockholders in connection with the
proposed business combination, including a description of their direct and
indirect interests, by security holdings or otherwise, which may be different
than those of Zanite stockholders generally, may be obtained by reading Zanite's
preliminary proxy statement for the proposed business combination and, when it
is filed with the SEC, the definitive proxy statement and any other relevant
documents that are filed or will be filed with the SEC relating to the proposed
business combination. Stockholders, potential investors and other interested
persons should read the preliminary proxy statement carefully and, when it
becomes available, the definitive proxy statement and any other relevant
documents that are filed or will be filed with the SEC relating to the proposed
business combination before making any voting or investment decisions. These
documents can be obtained free of charge from the sources indicated above.
Forward-Looking Statements
This Form 8-K includes "forward-looking statements" within the meaning of the
"safe harbor" provisions of the United States Private Securities Litigation
Reform Act of 1995. Forward-looking statements may be identified by the use of
words such as "estimate," "plan," "project," "forecast," "intend," "will,"
"expect," "anticipate," "believe," "seek," "target", "may", "intend", "predict",
"should", "would", "predict", "potential", "seem", "future", "outlook" or other
similar expressions (or negative versions of such words or expressions) that
predict or indicate future events or trends or that are not statements of
historical matters. These forward-looking statements include, but are not
limited to, statements regarding Zanite's, Eve's, Embraer's and EAH's
expectations with respect to future performance and anticipated financial
impacts of the business combination, the satisfaction of the closing conditions
to the business combination and the PIPE Investment, the level of redemptions by
Zanite's public stockholders, the timing of the completion of the business
combination and the use of the cash proceeds therefrom. These statements are
based on various assumptions, whether or not identified herein, and on the
current expectations of Zanite's, Eve's, Embraer's and EAH's management 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 any 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 may differ from
assumptions, and such differences may be material. Many actual events and
circumstances are beyond the control of Zanite, Eve, Embraer and EAH.
These forward-looking statements are subject to a number of risks and
uncertainties, including: (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 business combination, 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 business combination or that
the approval of the stockholders of Zanite or Eve is not obtained and or that
the proposed business combination and the private placement of common stock are
not able to concurrently close; (iii) failure to realize the anticipated
benefits of the proposed business combination; (iv) risks relating to the
uncertainty of the projected financial information with respect to Eve; (v) the
outcome of any legal proceedings that may be instituted against Zanite, Embraer,
EAH and/or Eve following the announcement of the business combination agreement
and the transactions contemplated therein; (vi) future global, regional or local
economic and market conditions; (vii) the development, effects and enforcement
of laws and regulations; (viii) Eve's ability to grow and manage future growth ,
maintain relationships with customers and suppliers and retain its key
employees; (ix) Eve's ability to develop new products and solutions, bring them
to market in a timely manner, and make enhancements to its platform; (x) the
effects of competition on Eve's future business; (xi) the amount of redemption
requests made by Zanite's public stockholders; (xii) the ability of Zanite or
the combined company to issue equity or equity-linked securities in connection
with the proposed business combination or in the future; (xiii) the outcome of
any potential litigation, government and regulatory proceedings, investigations
and inquiries; (xiv) the risk that the proposed business combination disrupts
current plans and operations as a result of the announcement and consummation,
(xv) costs related to the business combination, (xvi) the impact of the
global COVID-19 pandemic and (xvii) those factors discussed in Zanite's Annual
Report on Form 10-K for the fiscal year ended December 31, 2021 under the
heading "Risk Factors," and other documents of Zanite filed, or to be filed,
with the SEC. If any of these risks materialize or our assumptions prove
incorrect, actual results could differ materially from the results implied by
these forward-looking statements. There may be additional risks that neither Eve
nor Zanite presently know or that Eve and Zanite 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 Eve's and Zanite's expectations, plans or forecasts of future events and
views as of the date of this Form 8-K. Eve and Zanite anticipate that subsequent
events and developments will cause Eve's and Zanite's assessments to change.
However, while Eve and Zanite may elect to update
these forward-looking statements at some point in the future, Eve and Zanite
specifically disclaim any obligation to do so. These forward-looking statements
should not be relied upon as representing Eve's and Zanite'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.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
99.1 Form of Subscription Agreement (incorporated by reference to
Annex S to the Registrant's Preliminary Proxy Statement on Form
PRER14A, filed with the SEC on March 18, 2022).
99.2 Form of Strategic Warrant Agreement (incorporated by reference
to Annex R to the Preliminary Proxy Statement on Form PRER14A,
filed with the SEC on March 18, 2022).
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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