ENOVIX CORPORATION Item 1.01 Entry into a Material Definitive Agreement.
Lock-Up Agreements
In connection with the Business Combination, the Company and certain stockholders, officers and directors of Legacy Enovix entered into lock-up agreements (each, a "Lock-Up Agreement"). The terms of the Lock-Up Agreement are described in the Proxy Statement/Prospectus in the section titled "The Merger Agreement-Related Agreements-Lock-Up Agreements" beginning on page 127 of the Proxy Statement/Prospectus. Holders of 106,411,168 shares of Common Stock are subject to a Lock-Up Agreement. The foregoing description of the Lock-Up Agreement is qualified in its entirety by the full text of the forms of Lock-Up Agreement, copies of which are attached hereto as Exhibits 10.16, 10.17 and 10.18 and incorporated herein by reference.
Amended and Restated Registration Rights Agreement
On the Closing Date, that certain Registration Rights Agreement, datedDecember 1, 2020 , was amended and restated, and certain persons and entities receiving shares of Common Stock pursuant to the Merger Agreement and certain persons and entities holding securities of RSVAC prior to the Closing entered into the Amended and Restated Registration Rights Agreement (the "A&R Registration Rights Agreement"). The terms of the A&R Registration Rights Agreement are described in the Proxy Statement/Prospectus in the section titled "The Merger Agreement-Related Agreements-Registration Rights Agreement" beginning on page 127 of the Proxy Statement/Prospectus. Following the Closing, holders of approximately 67,177,071 million shares of Common Stock (including up to 6,000,000 shares issuable upon the exercise of warrants to purchase Common Stock) are entitled to certain registration rights. 2 -------------------------------------------------------------------------------- The foregoing description of the A&R Registration Rights Agreement is qualified in its entirety by reference to the full text of the form of A&R Registration Rights Agreement, a copy of which is attached hereto as Exhibit 10.10 and incorporated herein by reference. Indemnification Agreements . . . Item 2.01 Completion or Acquisition of Disposition of Assets.
The disclosure set forth in the "Introductory Note" above is incorporated by reference into this Item 2.01 of this Current Report on Form 8-K.
As of the Closing Date and following the completion of the Business Combination, the Company had the following outstanding securities:
• 145,245,643 shares of Common Stock;
• 17,500,000 warrants, each exercisable for one share of Common Stock at a price of
FORM 10 INFORMATION
Item 2.01(f) of this Current Report on Form 8-K states that if the predecessor
registrant was a shell company, as RSVAC was immediately before the Business
Combination, then the registrant must disclose the information that would be
required if the registrant were filing a general form for registration of
securities on Form 10. Accordingly, the Company, as the successor registrant to
RSVAC, is providing the information below that would be included in a Form 10 if
it were to file a Form 10. Please note that the information provided below
relates to the combined company after the consummation of the Business
Combination unless otherwise specifically indicated or the context otherwise
requires.
Forward-Looking Statements
The Company makes forward-looking statements in this Current Report on Form 8-K
and in documents incorporated herein by reference. All statements, other than
statements of present or historical fact included or incorporated by reference
in this Current Report on Form 8-K, regarding the Company's future financial
performance, as well as the Company's strategy, future operations, financial
position, estimated revenues, and losses, projected costs, prospects, plans and
objectives of management are forward-looking statements. When used in this
Current Report on Form 8-K, the words "anticipate," "believe," "continue,"
"could," "estimate," "expect," "intends," "may," "might," "plan," "possible,"
"potential," "predict," "project," "should," "will," "would" the negative of
such terms and other similar expressions are intended to identify
forward-looking statements, although not all forward-looking statements contain
. . .
Item 3.02 Unregistered Sales of
The disclosure set forth in the "Introductory Note" above is incorporated by reference into this Item 3.02 of this Current Report on Form 8-K.
The securities issued in connection with the Subscription Agreements have not been 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.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Item 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
Item 4.01 Changes in Registrant's Certifying Accountant.
OnJuly 14, 2021 , the Audit Committee of the Board approved the engagement ofDeloitte & Touche LLP ("Deloitte") as the Company's independent registered public accounting firm to audit the Company's consolidated financial statements for the year endingDecember 31, 2021 . Deloitte previously served as the independent registered public accounting firm of Legacy Enovix prior to the Business Combination. Accordingly,Marcum LLP ("Marcum"), 9 -------------------------------------------------------------------------------- RSVAC's independent registered public accounting firm prior to the Business Combination, was informed onJuly 14, 2021 that it would be replaced by Deloitte as the Company's independent registered public accounting firm following the filing of the Company's Quarterly Report on Form 10-Q for the quarter endedJune 30, 2021 . Marcum's report of independent registered public accounting firm datedMarch 8, 2021 , except for the effects of the restatement discussed in Note 2 to the financial statements in Amendment No. 3 to Registration Statement on Form S-4, datedJune 21, 2021 , filed by RSVAC with theSEC and the subsequent event discussed in Note 11B to the financial statements in Amendment No. 3 to Registration Statement on Form S-4, datedJune 21, 2021 , filed by RSVAC with theSEC , as to which the date isMay 4, 2021 , on the RSVAC consolidated balance sheet as ofDecember 31, 2020 , the related consolidated statements of operations, changes in stockholders' equity and cash flows for the period fromSeptember 23, 2020 (RSVAC's inception) throughDecember 31, 2020 and the related notes to the financial statements did not contain any adverse opinion or disclaimer of opinion and were not qualified or modified as to uncertainties, audit scope or accounting principles. During the period fromSeptember 23, 2020 (RSVAC's inception) throughDecember 31, 2020 and the subsequent interim period throughJuly 14, 2021 , there were no "disagreements" (as such term is defined in Item 304(a)(1)(iv) of Regulation S-K) with Marcum on any matter of accounting principles or practices, financial statement disclosure, or auditing scope or procedures, which disagreements, if not resolved to the satisfaction of Marcum, would have caused Marcum to make reference thereto in its reports on RSVAC's financial statements for such periods. During the period fromSeptember 23, 2020 (RSVAC's inception) throughDecember 31, 2020 and the subsequent interim period throughJuly 14, 2021 , there have been no "reportable events" (as such term is defined in Item . . .
Item 5.01 Changes in Control of Registrant.
The information set forth in the section titled "Introductory Note" and in the section titled "Security Ownership of Certain Beneficial Owners and Management" in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference. As a result of the completion of the Business Combination pursuant to the Merger Agreement, a change of control of RSVAC has occurred, and the stockholders of RSVAC as of immediately prior to the Closing held 19.8% of the outstanding shares of Common Stock immediately following the Closing.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
The information set forth in the sections titled "Directors and Executive Officers" and "Certain Relationships and Related Transactions" in Item 2.01 of this Current Report on Form 8-K is incorporated herein by reference.
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2021 Equity Incentive Plan
At the Special Meeting, the RSVAC stockholders considered and approved the 2021 Equity Incentive Plan (the "Equity Incentive Plan"). The Equity Incentive Plan was previously approved, subject to stockholder approval, by RSVAC's board of directors onJune 18, 2021 . The Equity Incentive Plan became effective immediately upon the Closing. A summary of the terms of the Equity Incentive Plan is set forth in the Proxy Statement/Prospectus in the section titled "Proposal 6-The Equity Incentive Plan Proposal" beginning on page 152 of the Proxy Statement/Prospectus and incorporated herein by reference. Such summary and the foregoing description are qualified in their entirety by reference to the text of the Equity Incentive Plan, a copy of which is attached hereto as Exhibit 10.2 and incorporated herein by reference.
2021 Employee Stock Purchase Plan
At the Special Meeting, the RSVAC stockholders considered and approved the 2021 Employee Stock Purchase Plan (the "ESPP"). The ESPP was previously approved, subject to stockholder approval, by RSVAC's board of directors onJune 18, 2021 . The ESPP became effective immediately upon the Closing. A summary of the terms of the ESPP is set forth in the Proxy Statement/Prospectus in the section titled "Proposal 7-The ESPP Proposal" beginning on page 159 of the Proxy Statement/Prospectus and incorporated herein by reference. Such summary and the foregoing description are qualified in their entirety by reference to the text of the ESPP, a copy of which is attached hereto as Exhibit 10.5 and incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
At the Special Meeting, the RSVAC stockholders considered and approved, among other things, Proposal 3-The Charter Amendment Proposal (the "Charter Proposal"), which is described in greater detail in the Proxy Statement/Prospectus beginning on page 141 of the Proxy Statement/Prospectus.
The Amended and Restated Certificate of Incorporation of the Company (the
"Certificate of Incorporation"), which became effective upon filing with the
Secretary of State of the
On
Copies of the Certificate of Incorporation and the Bylaws are attached hereto as Exhibit 3.1 and Exhibit 3.2, respectively and incorporated herein by reference.
The description of the Certificate of Incorporation and the general effect of the Certificate of Incorporation and the Bylaws upon the rights of holders of the Company's capital stock are included in the Proxy Statement/Prospectus under the section titled "Description of Securities After the Business Combination" beginning on page 236 of the Proxy Statement/Prospectus and incorporated herein by reference.
Item 5.05 Amendments to the Registrant's Code of Ethics, or Waiver of a Provision of the Code of Ethics.
In connection with the Business Combination, onJuly 14, 2021 , the Board approved and adopted a new Code of Business Conduct and Ethics applicable to all employees, officers and directors of the Company. A copy of the Code of Business Conduct and Ethics can be found in the Investors section of the Company's website at www.enovix.com.
Item 5.06 Change in Shell Company Status.
As a result of the Business Combination, the Company ceased being a shell
company. Reference is made to the disclosure in the Proxy Statement/Prospectus
in the section titled "Proposal 1-The Business Combination Proposal" beginning
on page 87 of the Proxy Statement/Prospectus, and such disclosure is
incorporated herein by reference. Further reference is made to the information
contained in Item 2.01 of this Current Report on Form 8-K.
11
--------------------------------------------------------------------------------Item 7.01 Regulation FD Disclosure.
On
The information in this Item 7.01, including Exhibit 99.1, is furnished and shall not be deemed "filed" for purposes of Section 18 of the Exchange Act, or otherwise subject to liabilities under that section, and shall not be deemed to be incorporated by reference into the filings of the registrant under the Securities Act of 1933, as amended, or the Exchange Act, regardless of any general incorporation language in such filings. This Current Report on Form 8-K will not be deemed an admission as to the materiality of any information contained in this Item 7.01, including Exhibit 99.1.
Item 8.01 Other Events.
InMay 2021 , Legacy Enovix received a secured loan from theRodgers Massey Revocable Living Trust dtd4/4/11 in the amount of$15,000,000 (the "Bridge Loan"). The Bridge Loan has a five-month term and bears interest at a rate of 7.5% per annum, payable in kind by adding such amount to the principal amount outstanding under the Bridge Loan on each monthly anniversary of the issuance of the Bridge Loan. In connection with the consummation of the Business Combination, onJuly 14, 2021 , Legacy Enovix repaid all amounts outstanding under the Bridge Loan, which totaled$15,246,695.65 in principal and interest.
Item 9.01 Financial Statement and Exhibits.
(a) Financial Statements of Business Acquired.
The audited consolidated financial statements of Legacy Enovix as of and for the years endedDecember 31, 2020 and 2019 and the related notes are included in the Proxy Statement/Prospectus beginning on page F-40 of the Proxy Statement/Prospectus and incorporated herein by reference. The unaudited condensed consolidated financial statements of Legacy Enovix as of and for the three months endedMarch 31, 2021 and 2020 and the related notes are included in the Proxy Statement/Prospectus beginning on page F-71 of the Proxy Statement/Prospectus and incorporated herein by reference.
The audited financial statements of RSVAC as of and for the period from
The unaudited condensed financial statements of RSVAC as of and for the three months endedMarch 31, 2021 and the related notes are included in the Proxy Statement/Prospectus beginning on page F-25 of the Proxy Statement/Prospectus and incorporated herein by reference.
(b) Pro Forma Financial Information.
The unaudited pro forma combined financial information of the Company as of and for the three months endedMarch 31, 2021 and for the year endedDecember 31, 2020 is included in the Proxy Statement/Prospectus in the section titled "Unaudited Pro Forma Combined Financial Information" beginning on page 76 of the Proxy Statement/Prospectus and incorporated herein by reference. 12
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(d) Exhibits.
Incorporated by Reference
Exhibit Schedule/
Number Description Form File No. Exhibit Filing Date
2.1+ Agreement and Plan of Merger, dated 8-K 001-39753 2.1 February 22, 2021
February 22, 2021
3.1* Amended and Restated Certificate of
Incorporation
3.2* Amended and Restated Bylaws
4.1 Specimen Common Stock Certificate S-4/A 333-253976 4.5 June 21, 2021
4.2 Specimen Warrant Certificate S-1/A 333-250042 4.3 November 25, 2020
4.3* Warrant Agreement, dated July 13,
between Computershare Inc. and the
Registrant
10.1 Form of PIPE Subscription Agreements 8-K 001-39753 10.1 February 22, 2021
10.2#* 2021 Equity Incentive Plan
10.3# Form of Stock Option Agreement, Notice S-4/A 333-253976 10.11 May 10, 2021
of Exercise and Stock Option Grant
Notice under the 2021 Equity Incentive
Plan
10.4# Forms of Restricted Stock Unit Grant S-4/A 333-253976 10.12 May 10, 2021
Notice and Restricted Stock Unit Award
Agreement under the 2021 Equity
Incentive Plan
10.5#* 2021 Employee Stock Purchase Plan
10.6# Enovix Corporation 2006 Equity S-4/A 333-253976 10.6 May 10, 2021
Incentive Plan
13
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10.7# Forms of Option Agreement, Stock S-4/A 333-253976 10.7 May 10, 2021
Option Grant Notice and Notice of
Exercise under the 2006 Stock Plan
10.8# Enovix Corporation 2016 Equity S-4/A 333-253976 10.8 May 10, 2021
Incentive Plan
10.9# Forms of Option Agreement, Stock S-4/A 333-253976 10.9 May 10, 2021
Option Grant Notice and Notice of
Exercise under the 2016 Equity Incentive
Plan
10.10* Amended and Restated Registration
Rights Agreement, dated July 14, 2021 ,
by and among the Registrant and certain
other stockholders of the Registrant
party thereto
10.11 Letter Agreement, dated December 1, 8-K 001-39753 10.1 December 7, 2020
2020, by and among the Registrant and
its officers, directors and Initial
Stockholders
10.12* Amendment to Letter Agreement, dated
July 14, 2021 by and among the
Registrant and its officers, directors
and Initial Stockholders
10.13† Office Lease by and between M West S-4/A 333-253976 10.21 May 10, 2021
Propco XX, LLC and Enovix Corporation
10.14† Amendment No. 1 to Office Lease S-4/A 333-253976 10.22 May 10, 2021
10.15† Amendment No. 2 to Office Lease S-4/A 333-253976 10.23 May 10, 2021
14
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10.16 Form of Lock-Up Agreement 8-K 001-39753 10.5 February 22, 2021
10.17 Form of Stockholder Lock-Up Agreement 8-K 001-39753 10.6 February 22, 2021
10.18 Form of Additional Lock-Up Agreement 8-K 001-39753 10.7 February 22, 2021
10.19*# Form of Indemnification Agreement
10.20*# Amended and Restated Employment
Agreement, dated May 28, 2021 , by and
between Enovix Corporation and Harrold
Rust
10.21*# Amended and Restated Employment
Agreement, dated June 17, 2021 , by and
between Enovix Corporation and Gardner
Cameron Dales
10.22*# Amended and Restated Employment
Agreement, dated June 11, 2021 , by and
between Enovix Corporation and Ashok
Lahiri
10.23*# Amended and Restated Employment
Agreement, dated May 28, 2021 , by and
between Enovix Corporation and Steffen
Pietzke
10.24*# Amended and Restated Employment
Agreement, dated June 11, 2021 , by and
between Enovix Corporation and Edward
Hejlek
15
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10.25 Secured Promissory Note, dated May S-4/A 333-253976 10.25 June 21, 2021
24, 2021, by and between Enovix
Corporation and Rodgers Massey Revocable
Living Trust dtd 4/4/11
14.1* Code of Business Conduct and Ethics
16.1* Letter from Marcum LLP
21.1* List of Subsidiaries
99.1* Press Release dated July 14, 2021
* Filed herewith.
+ Certain of the exhibits and schedules to this Exhibit have been omitted in
accordance with Regulation S-K Item 601. The Registrant agrees to furnish a
copy of all omitted exhibits and schedules to the
accordance with Regulation S-K Item 601 as the Registrant has determined that
the omitted information (i) is not material and (ii) is the type that the
Registrant treats as private or confidential.
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