Forum Merger III Corp (Form: 8-K, Received: 05/07/2021 17:04:17)

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

Date of Report (Date of earliest event reported): May 7, 2021

FORUM MERGER III CORPORATION

(Exact name of registrant as specified in its charter)

Delaware		001-39457		84-2308711
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

1615 South Congress Avenue, Suite 103

Delray Beach, FL 33445

(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: (212) 739-7860

Not Applicable

(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 (17 CFR 230.425)

☒	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Units, each consisting of one share of Class A common stock and one-third of one redeemable warrant	FIIIU	The Nasdaq Stock Market LLC
Class A common stock, par value $0.0001 per share	FIII	The Nasdaq Stock Market LLC
Warrants, each whole warrant exercisable for one share of Class A common stock, each at an exercise price of $11.50 per share	FIIIW	The Nasdaq 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 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

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.

First Amendment to the Agreement and Plan of Merger

On May 7, 2021, Forum Merger III Corporation (“Forum”) entered into an amendment (the “First Amendment”) to that certain Agreement and Plan of Merger entered into on December 10, 2020 (the “Merger Agreement”) with ELMS Merger Corp., a Delaware corporation and a wholly owned subsidiary of Forum (“Merger Sub”), Electric Last Mile, Inc., a Delaware corporation (“ELM”), and Jason Luo, in his capacity as the initial stockholder representative to ELM, pursuant to which, subject to the satisfaction or waiver of certain conditions set forth therein (including the completion of the Carveout Transaction (as defined below)), Merger Sub will merge with and into ELM, with ELM surviving the merger in accordance with the Delaware General Corporation Law as a wholly owned subsidiary of Forum (the transactions contemplated by the Merger Agreement, the “Business Combination”).

The consummation of the Business Combination is subject to, among other conditions, (i) the effectiveness of (A) the exclusive IP license agreement, dated April 9, 2021, by and between SF Motors Inc. (d/b/a SERES), a Delaware corporation (“SERES”), and ELM (the “SERES Exclusive Intellectual Property License Agreement”), (B) the agreement of purchase and sale, dated April 9, 2021, by and between SERES and ELM (the “SERES Asset Purchase Agreement”), and (C) the supply agreement, dated April 9, 2021, by and between Chongqing Sokon Motor (Group) Imp. & Exp. Co., Ltd. (“Sokon”) and ELM (the “Sokon Supply Agreement” and, together with the SERES Exclusive Intellectual Property License Agreement and the SERES Asset Purchase Agreement, the “Key Contracts”), and that each such contract is valid and binding and in full force and effect, no written notice of intent to terminate any such contracts has been delivered and that the transactions contemplated by such contracts have been consummated; (ii) the acquisition by ELM of a leasehold interest in, or fee simple title to, the Mishawaka, Indiana manufacturing facility (provided that Forum has agreed that this condition will be waived upon delivery by ELM of evidence of the mutual written agreement of ELM and SERES as to the date and time of the transfer of possession of the facility to ELM in accordance with the SERES Asset Purchase Agreement, which date and time shall be no later than two business days following the closing of the Business Combination (the “Closing”)); and (iii) the receipt by ELM of key intellectual property rights related to its proposed business from SERES ((i), (ii) and (iii) collectively referred to as the “Carveout Transaction”).

Pursuant to the First Amendment, Forum will issue, at Closing, 5,000,000 shares of common stock, par value $0.0001 per share, of Forum (“common stock”) to SERES in satisfaction of ELM’s obligation under the SERES Asset Purchase Agreement to deliver shares of common stock to SERES as compensation for strategic cooperation, consulting services and technical support provided by SERES to ELM prior to the Closing.

Letter Agreement

In connection with the execution of the Key Contracts, on May 7, 2021, Forum executed a letter agreement (the “Letter Agreement”) in favor of ELM confirming that, for purposes of the Merger Agreement, (1) the term “Key Contract” is deemed to exclude reference to the Transition Services Agreement and the SERES Exclusive Patent License Agreement (in each case, as defined in the Merger Agreement), (2) each reference in the Merger Agreement to the “SERES Lease Agreement” is deemed to refer to the SERES Asset Purchase Agreement, and (3) each reference in the Merger Agreement to the “Sokon Supply Agreement” is deemed to refer to the Sokon Supply Agreement. In addition, Forum agreed in the Letter Agreement that the condition to closing in the Merger Agreement requiring ELM to acquire a leasehold interest in, or fee simple title to, the Mishawaka, Indiana manufacturing facility will be waived by Forum upon delivery by ELM of evidence of the mutual written agreement of ELM and SERES as to the date and time of the transfer of possession of the facility to ELM in accordance with the SERES Asset Purchase Agreement, which date and time shall be no later than two business days following the Closing. In the Letter Agreement, Forum also confirmed that the closing condition requiring that each of the Key Contracts be executed by each of the parties thereto, in form and substance acceptable to Forum (in Forum’s sole discretion), has been satisfied in full.

The foregoing descriptions of the First Amendment and the Letter Agreement do not purport to be complete and are qualified in their entirety by the terms and conditions of the First Amendment and the Letter Agreement, copies of which are attached as Exhibits 2.1 and 10.1 hereto and are incorporated by reference herein.

Important Information About the Business Combination and Where to Find It

In connection with the Business Combination, Forum filed a preliminary proxy statement with the U.S. Securities and Exchange Commission (“SEC”) and intends to file a definitive proxy statement with the SEC. Forum’s stockholders and other interested persons are advised to read the preliminary proxy statement and any amendments thereto and, when available, the definitive proxy statement, in connection with Forum’s solicitation of proxies for its special meeting of stockholders to be held to approve, among other things, the Business Combination, because these documents contain important information about Forum, ELM and the Business Combination. When available, the definitive proxy statement for the Business Combination will be mailed to stockholders of Forum as of a record date to be established for voting on the Business Combination. Forum’s stockholders may also obtain a copy of the preliminary proxy statement, any amendments thereto, and, once available, the definitive proxy statement, as well as other documents filed with the SEC by Forum, without charge, at the SEC’s website located at www.sec.gov or by directing a request to: Forum Merger III Corporation, 1615 South Congress Avenue, Suite 103, Delray Beach, FL 33445.

Participants in the Solicitation

Forum and its directors and executive officers may be considered participants in the solicitation of proxies with respect to the Business Combination. Information about the directors and executive officers of Forum and a description of their interests in Forum are set forth in the preliminary proxy statement, which was filed with the SEC, and will be set forth in the definitive proxy statement, when it is filed with the SEC, in connection with the proposed Business Combination. These documents can be obtained free of charge from the sources indicated above. ELM and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Forum in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business Combination are set forth in the preliminary proxy statement, which was filed with the SEC, and will be set forth in the definitive proxy statement, when it is filed with the SEC, in connection with the proposed Business Combination. These documents can be obtained free of charge from the sources indicated above.

Forward-Looking Statements

This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. Forum’s and ELM’s actual results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward-looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, Forum’s and ELM’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, the size, demands and growth potential of the markets for ELM’s products and ELM’s ability to serve those markets, ELM’s ability to develop innovative products and compete with other companies engaged in the commercial delivery vehicle industry and/or the electric vehicle industry, ELM’s ability to attract and retain customers, the estimated go to market timing and cost for ELM’s products, the implied valuation of ELM and the timing of the completion of the Business Combination. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside Forum’s and ELM’s control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement relating to the Business Combination or could otherwise cause the Business Combination to fail to close; (2) the inability of ELM to consummate the Carveout Transaction (as defined below); (3) the outcome of any legal proceedings that may be instituted against Forum or ELM following the announcement of the Business Combination; (4) the inability to complete the Business Combination, including due to failure to obtain approval of the stockholders of Forum or other conditions to closing in the Merger Agreement; (5) the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with the Business Combination; (6) the inability to obtain the listing of the common stock of the post-acquisition company on the Nasdaq Stock Market or any alternative national securities exchange following the Business Combination; (7) the risk that the announcement and consummation of the Business Combination disrupts current plans and operations; (8) the inability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition and the ability of the combined company to grow and manage growth profitably and retain its key employees; (9) costs related to the Business Combination; (10) changes in applicable laws or regulations; (11) the possibility that ELM may be adversely affected by other economic, business, and/or competitive factors; (12) the impact of COVID-19 on the combined company’s business; and (13) other risks and uncertainties indicated from time to time in the proxy statement filed relating to the Business Combination, including those under the “Risk Factors” section therein, and in Forum’s other filings with the SEC. Some of these risks and uncertainties may in the future be amplified by the COVID-19 outbreak and there may be additional risks that Forum and ELM consider immaterial or which are unknown. Forum and ELM caution that the foregoing list of factors is not exclusive. Forum and ELM caution readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. ELM is currently engaged in limited operations only and its ability to carry out its business plans and strategies in the future are contingent upon the closing of the Business Combination. The consummation of the Business Combination is subject to, among other conditions, (i) the effectiveness of certain agreements between ELM and SF Motors, Inc. (d/b/a SERES) (“SERES”), (ii) the acquisition by ELM of a leasehold interest in, or fee simple title to, the Indiana manufacturing facility prior to the Business Combination (provided that Forum has agreed that this condition will be waived upon delivery by ELM of evidence of the mutual written agreement of ELM and SERES as to the date and time of the transfer of possession of the facility to ELM, which date and time shall be no later than two business days following the closing of the Business Combination), and (iii) the securing by ELM of key intellectual property rights related to its proposed business (collectively, the “Carveout Transaction”). All statements herein regarding ELM’s anticipated business assume the completion of the Carveout Transaction. Forum and ELM do not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in their expectations or any change in events, conditions or circumstances on which any such statement is based.

No Offer or Solicitation

This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination. This Current Report on Form 8-K shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit No.		Description
2.1		First Amendment to the Agreement and Plan of Merger, dated as of May 7, 2021, by and among Forum Merger III Corporation, ELMS Merger Corp., Electric Last Mile, Inc. and Jason Luo.
10.1		Letter Agreement, dated as of May 7, 2021, by Forum Merger III Corporation.

SIGNATURE

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.

	FORUM MERGER III CORPORATION

Dated: May 7, 2021	By:	/s/ David Boris
		Name:	David Boris
		Title:	Co-Chief Executive Officer and Chief Financial Officer

Exhibits 2.1

Execution Version

AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER

This AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER (this “Amendment”) is made as of May 7, 2021, by and among Forum Merger III Corporation, a Delaware corporation (“Parent”), ELMS Merger Corp., a Delaware corporation and a wholly owned Subsidiary of Parent (“Merger Sub”), Electric Last Mile, Inc., a Delaware corporation (the “Company”), and Jason Luo, in the capacity as the initial Stockholder Representative hereto. Each of the signatories to this Amendment are referred to herein as a “Party” or, collectively, as the “Parties”. Capitalized terms used in this Amendment without definition have the respective meanings given to them in the Merger Agreement (as defined below).

WHEREAS, the Parties entered into that certain Agreement and Plan of Merger, dated as of December 10, 2020 (the “Merger Agreement”);

WHEREAS, pursuant to Section 9.1 of the Merger Agreement, the Merger Agreement may be amended by an agreement in writing signed by the Parties; and

WHEREAS, the Parties desire to amend the Merger Agreement as set forth herein.

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree to amend the Merger Agreement as follows:

1. Section 2.5 of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

“The aggregate consideration to be paid to the Stockholders shall be the Aggregate Consideration Value (as defined below), as calculated below. The Aggregate Consideration Value will be paid to the Stockholders in the form of the Stock Merger Consideration, the Earnout Share Rights and the Adjustment Escrow Share Rights. The Merger Consideration shall be allocated among the Stockholders in accordance with the terms of the Company Certificate (as reflected in the Merger Consideration Schedule). Subject to the post-Closing adjustments contemplated by and set forth in Section 2.7, the “Aggregate Consideration Value” shall be calculated as follows:

(a) $1,300,000,000.00, plus

(b) the amount of Estimated Closing Date Cash, plus

(d) the Estimated Closing Date Indebtedness, minus

(e) the Convertible Note Adjustment Amount, minus

(f) the LTIP Value, minus

(g) the SERES Payment Amount.”

2. Section 2.11(d) of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

“(d) Payment of Other Amounts at Closing. At the Closing, Parent:

(i) shall, on behalf of the Company, pay or cause to be paid to such account or accounts as the Company specifies to Parent pursuant to the Closing Date Statement, the Company Transaction Expenses for which invoices have been delivered pursuant to Section 2.11(b)(v) above which have not been paid prior to the Closing; provided, that any Company Transaction Expenses payable to any director, officer or employee of the Company (including any director, officer, or employee bonuses) shall instead be deposited with the Company and paid on the next regularly scheduled payroll date;

(ii) shall pay or cause to be paid the Parent Transaction Expenses by wire transfer of immediately available funds;

(iii) may, in its sole discretion, elect to pay or cause to be paid to any holder of Funded Indebtedness (including any Stockholder who holds Funded Indebtedness) for which payoff letters have been delivered pursuant to Section 2.11(b)(v) above, an amount sufficient to repay such Funded Indebtedness, with the result that immediately following the Closing there will be no further monetary obligations of the Company or any of its Subsidiaries with respect to such Funded Indebtedness outstanding immediately prior to the Closing; and

(iv) shall, on behalf of the Company, deliver Five Million (5,000,000) shares of Parent Common Stock to SERES in satisfaction of the Company’s obligation to pay to SERES the SERES Payment Amount, upon Parent’s and the Company’s receipt of the Amended and Restated Registration Rights Agreement and Accredited Investor questionnaire, in each case duly executed by SERES.

3. Section 3.23 of the Merger Agreement is hereby deleted in its entirety and replaced with the following:

“To the Knowledge of the Company, each Stockholder, each Convertible Note Holder and SERES is an Accredited Investor.”

4. Exhibit A to the Merger Agreement is hereby amended to add the following definition to Exhibit A:

““SERES Payment Amount” means an amount equal to $50,000,000 (the value of 5,000,000 shares of Parent Common Stock issuable to SERES, on behalf of the Company, in consideration of SERES’ and its Affiliates’ strategic cooperation, consulting services and technical support provided to the Company prior to the Closing).”

5. Exhibit D to the Merger Agreement is hereby deleted in its entirety and replaced with the exhibit entitled “Exhibit D – Form of Amended and Restated Registration Rights Agreement” attached hereto as Annex A to this Amendment.

6. Except as set forth in this Amendment, the terms and conditions of the Merger Agreement shall remain in full force and effect.

7. This Amendment shall be governed by the Laws of the State of Delaware, including its statutes of limitations, without giving effect to applicable principles of conflicts of law to the extent that the application of the Laws of another jurisdiction (whether of the State of Delaware or any other jurisdiction would be required thereby).

8. In the event of any discrepancy between the provisions of this Amendment and any provision of the Merger Agreement, the provisions of this Amendment shall control.

9. This Amendment, together with the Merger Agreement, constitutes the entire agreement between the Parties and supersedes any prior understandings, agreements or representations by or between the Parties, written or oral, to the extent they relate in any way to the subject matter hereof.

10. This Amendment may be executed in two or more counterparts, each of which shall be an original, and all of which together shall constitute one and the same instrument.

[Signature page follows]

IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1 to Agreement and Plan of Merger as of the date first written above.

FORUM MERGER III CORPORATION

By	/s/ Marshall Kiev
	Name:	Marshall Kiev
	Title:	Co-CEO and President

ELMS MERGER CORP.

By	/s/ David Boris
	Name:	David Boris
	Title:	President and Treasurer

ELECTRIC LAST MILE, INC.

By	/s/ Benjamin Wu
	Name:	Benjamin Wu
	Title:	Secretary

JASON LUO, solely in his capacity as the initial Stockholder Representative hereunder.

By	/s/ Jason Luo
	Name:	Jason Luo
	Title:	Stockholder Representative

[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]

Annex A

Exhibit D

FORM OF AMENDED AND RESTATED REGISTRATION RIGHTS AGREEMENT

See attached.

Exhibit 10.1

Execution Version

May 7, 2021

Electric Last Mile, Inc.
2541 High Meadow Circle
Suite 170
Auburn Hills, MI 48362

Re: Satisfaction or Amendment of Certain Closing Conditions in Merger Agreement; Approval of Entry into Material Agreement

Dear Sir or Madam:

Reference is hereby made to that certain Agreement and Plan of Merger (as amended from time to time in accordance with its terms, the “Merger Agreement”), dated as of December 10, 2020, by and among Forum Merger III Corporation, a Delaware corporation (“Parent”), ELMS Merger Corp., a Delaware corporation and a wholly owned Subsidiary of Parent, Electric Last Mile, Inc., a Delaware corporation (the “Company”), and Jason Luo, in the capacity as the initial Stockholder Representative hereto. Capitalized terms used in this letter without definition have the respective meanings given to them in the Merger Agreement.

Parent hereby confirms to the Company the following:

The condition to Parent’s obligations to consummate the Merger set forth in the first sentence of Section 6.2(f) of the Merger Agreement has been satisfied in full.

The conditions to Parent’s obligations to consummate the Merger set forth in Section 6.2(g) of the Merger Agreement shall be waived upon the Company’s delivery to Parent of evidence (in form and substance reasonably satisfactory to Parent) of the mutual written agreement of the Company and SERES as to the date and time of the Possession Date (as defined in the Asset Purchase Agreement) which shall be no later than two (2) Business Days following the Closing Date, at which time (i) SERES will deliver possession of the Property (as defined in the Asset Purchase Agreement) to the Company in accordance with the Asset Purchase Agreement, and (ii) SERES will sublease the Subleased Real Property (as defined in the Asset Purchase Agreement), with the consent of the prime landlord thereunder, in accordance with the Asset Purchase Agreement.

For purposes of the Merger Agreement (including, but not limited to, determining whether the conditions to Parent’s obligations to consummate the Merger set forth in the second sentence of Section 6.2(f) of the Merger Agreement have been satisfied at or prior to Closing): (a) the defined term “Key Contract” shall be deemed to exclude reference to the Transition Services Agreement and the SERES Exclusive Patent License Agreement; (b) each reference to the SERES Lease Agreement shall instead be deemed to refer to the “Agreement of Purchase and Sale” attached hereto as Exhibit A (the “Asset Purchase Agreement”); and (c) each reference to the Sokon Supply Agreement” shall instead be deemed to refer to the “Supply Agreement” attached hereto as Exhibit B.

For purposes of Section 7.1(g) of the Merger Agreement, each of the “Key Contracts” have been executed by each of the parties thereto in form and substance acceptable to Parent (in Parent’s sole discretion).

Pursuant to Section 5.1, Parent approves of the Company entering into the Services Agreement attached hereto as Exhibit C.

[Remainder of page left intentionally blank]

Sincerely,

forum merger iii corporation

By:	/s/ Marshall Kiev
Name: Marshall Kiev
Title: Co-CEO and President

cc:

Foley & Lardner LLP
111 Huntington Avenue
Suite 2500
Boston, MA 02199
Email: pbroude@foley.com
Attn: Paul D. Broude

[Signature Page to Letter]

Exhibit A

Agreeement OF PURCHASE AND SALE

[See Attached]

EXhibit B

SUPPLY Agreement

[See attached]

EXhibit C

SERVICES Agreement

[See attached]