Item 2.01 Financial Statements and Exhibits.
As previously reported in the Original Report, effective at 6:00 p.m. eastern
time on August 31, 2021 (the "Closing Date"), pursuant to the previously
announced Share Purchase Agreement (the "Purchase Agreement"), dated as of June
25, 2021, by and between Advent Technologies Holdings, Inc. (the "Company" or
the "Buyer") and F.E.R. fischer Edelstahlrohre GmbH, a limited liability company
incorporated under the Laws of Germany (the "Seller"), the Company acquired (the
"Acquisition") all of the issued and outstanding equity interests in SerEnergy
A/S, a Danish stock corporation and a wholly-owned subsidiary of the Seller
("SerEnergy") and fischer eco solutions GmbH, a German limited liability company
and a wholly-owned subsidiary of the Seller ("FES" and together with SerEnergy,
the "Target Companies"), together with certain outstanding shareholder loan
receivables.
As consideration for the transactions contemplated by the Purchase Agreement, on
the Closing Date, the Company paid to the Seller €15,000,000 in cash and on
August 30, 2021, the Company issued to the Seller 5,124,846 shares of common
stock, par value $0.0001 per share, of the Company ("Common Stock"). For further
information regarding the terms of the Purchase Agreement, see the description
contained in Item 1.01 to the Current Report on Form 8-K filed by the Company
with the Securities and Exchange Commission (the "SEC") on June 25, 2021.
The Company intends to file a resale shelf registration statement on Form S-1 to
register for resale under the Securities Act of 1933, as amended, the shares of
Common Stock issued to the Seller in connection with the Acquisition.
The foregoing description of the Purchase Agreement does not purport to be
complete and is qualified in its entirety by reference to the full copy of the
Purchase Agreement filed as Exhibit 2.1 hereto and incorporated herein by
reference. The summary is not intended to modify or supplement any factual
disclosures about the Company in its public reports filed with the SEC. The
terms of the Purchase Agreement govern the contractual rights and relationships
between, and allocate risks among, the parties thereto in relation to the
transactions contemplated thereby. In particular, the representations and
warranties made by the parties to each other in the Purchase Agreement reflect
negotiations between, and are solely for the benefit of, the parties thereto and
may be limited or modified by a variety of factors, including subsequent events,
information included in public filings, disclosures made during negotiations
among the parties, correspondence between the parties and disclosure schedules
to the Purchase Agreement. Accordingly, such representations and warranties may
not describe the actual state of affairs at the date they were made or at any
other time and should not be relied upon as statements of fact.
As previously reported on Amendment No. 1, we are required to file an amendment
to our Current Report on Form 8-K which we filed with the SEC on September 1,
2021 reporting the completion of our acquisition of the Target Companies, to
provide the audited financial statements of the Target Companies and the pro
forma financial information specified by Item 9.01 of Form 8-K, no later than 71
calendar days after the date that the Original Report on Form 8-K was required
to be filed with the SEC (i.e., by November 15, 2021). We are required to file
audited financial statements of each of SerEnergy and FES for the years ended
December 31, 2020 and 2019 and unaudited interim financial statements for the
six month periods ended June 30, 2021 and 2020.
Based on our current assessment of the status of the preparation of such
financial statements, we have determined that we are not able to file the
required financial statements and financial information by the aforementioned
due date. In connection with the preparation of audited financial statements of
the Target Companies, the Company has determined that the SerEnergy financial
statements need to be reconciled from Danish GAAP to U.S. GAAP, and the FES
financial statements, in addition to requiring an audit of the German GAAP
financial statements, need to be reconciled from German GAAP to U.S. GAAP, with
the reconciliation to U.S. GAAP for each entity also requiring an audit.
Lastly, as the Target Companies had not previously prepared interim financial
statements, those are in process of being prepared as well. Based on our
understanding of the progress of the preparation of the audited financial
statements of the Target Companies, we currently believe that our receipt of the
audited financial statements and their filing with the SEC along with the pro
forma financial information as required by Item 9.01 of Form 8-K, will occur
within the next four to six weeks.
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We cannot assure you, however, that this projection of the timing of that
filing, a forward-looking statement within the meaning of the Private Securities
Litigation Reform Act of 1995, will actually occur or that we will be able to
file the requisite financial statements and financial information in a matter of
days, weeks or months. Issues of which we are presently unaware may be raised
requiring further investigation, examination, reconstruction or reconciliation
of financial records of the Target Companies or other matters or circumstances
may arise that, under generally accepted audited standards, require additional
consideration or revised disclosure before the auditing firm is in a position to
deliver its audit report on the financial statements of the Target Companies.
These matters or circumstances, or others, which will not be known except
through the passage of time, would delay our filing of the required financial
statements and information.
Item 8.01 Other Events.
The information contained in Item 2.01 is hereby incorporated into this Item
8.01.
You should carefully consider and evaluate all of the information in this Report
in combination with the more detailed description of our business, the
acquisition and the risks associated with it in in our Quarterly Report on Form
10-Q for the Quarter ended September 30, 2021, which we filed with the SEC on
November 15, 2021. As a result of our inability to file an amendment to our
Current Report on Form 8-K providing audited financial statements of the Target
Companies and the pro forma financial information specified by Item 9.01 of Form
8-K by the requisite due date, there has been a material change in our Risk
Factors, as set forth below:
As we were unable to file an Amendment to our Form 8-K reporting the completion
of our acquisition of SerEnergy and FES containing their audited consolidated
financial statements and the Pro Forma Financial Information required by Item
9.01 of Form 8-K by the required due date, we are no longer in compliance with
our reporting obligations under the Exchange Act of 1933, as amended (the
"Exchange Act").
On September 1, 2021, within the period required by SEC rules, we filed with the
SEC a Current Report on Form 8-K reporting the completion of our acquisition of
SerEnergy and FES on August 31, 2021. Under Item 9.01 of Form 8-K, we were
required to include the audited consolidated financial statements for each of
SerEnergy and FES and pro forma financial information in the form and for the
periods specified in Regulation S-X, the SEC's regulation containing the rules
governing the form and content of financial statements for public companies, in
an amendment to that Form 8-K that was due by November 15, 2021 (71 days after
the date that our initial Report on Form 8-K must be filed as a result of our
acquisition of the Target Companies).
Our inability to obtain such information by the November 15, 2021 deadline has
resulted in noncompliance with our reporting obligations under the Exchange Act.
Such noncompliance, in turn:
• has, in the absence of a waiver from the SEC, rendered us ineligible for 12
months to use the SEC's short-form registration statement on Form S-3 to
register the issuance of our securities for any capital raising activities;
• will make, in the absence of a waiver from the SEC, during the period that we
are ineligible to use S-3, our existing S-1 registration statements more
expensive and time consuming to maintain; and
• could, depending on when the financial statements of the Target Companies
become available and we file them along with other required financial
information regarding our acquisition of the Target Companies, have other
material and adverse consequences that are summarized below.
Until the date on which the audited financial statements and the pro forma
financial information specified by Item 9.01 of Form 8-K are filed with the SEC,
no new registration statement that we file with the SEC seeking to register our
securities for issuance, sale or resale, including for capital raising
transactions, additional acquisitions or for our employee benefit programs, will
be declared effective by the SEC and thus our capital raising activities and
ability to provide new equity incentives to our employees will be substantially
curtailed during that period.
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Our failure to comply may lead to the delisting of our Common Stock and Warrants
from the NASDAQ Capital Market and/or cause us other adverse consequences.
At some point until we file the audited financial statements of the Target
Companies and the pro forma financial information relating to our acquisition of
the Target Companies, we expect to receive a notification of deficiency from
Nasdaq indicating that we are not in compliance with the Nasdaq continued
listing requirements set forth in Rule 5250(c)(1) because of our failure to
timely comply with Item 9.01 of Form 8-K. Upon receipt of such notification, we
will be required under the rules of the Nasdaq Stock Market to issue a press
release and file with the SEC a Current Report on Form 8-K pursuant to Item 3.01
reporting such notification. In connection with the failure to timely file
pursuant to Rule 5250(c)(1), the Nasdaq notice will provide the Company with 60
calendar days to submit a plan to regain compliance with the listing standard.
Nasdaq may extend this deadline for up to an additional 15 calendar days upon
good cause shown and may request such additional information from the Company as
is necessary to make a determination regarding whether to grant such an
extension. The maximum additional time provided by all exceptions granted by
Nasdaq for a filing deficiency is 180 calendar days from the due date of the
first late periodic report (as extended by Rule 12b-25 under the Act, if
applicable). In determining whether to grant an exception, and the length of any
such exception, Nasdaq will consider, and the Company should address in its plan
of compliance, the Company's specific circumstances, including the likelihood
that the filing can be made within the exception period, the Company's past
compliance history, the reasons for the late filing, corporate events that may
occur within the exception period, the Company's general financial status, and
the Company's disclosures to the market. This review will be based on
information provided by a variety of sources, which may include the Company, its
audit committee, its outside auditors, the staff of the SEC and any other
regulatory body.
Although we intend to file the audited financial statements and pro forma
financial information within four to six weeks, we may not be able to convince
Nasdaq to allow the continued listing of our Common Stock and Warrants until we
are able to satisfy our reporting obligations under the Exchange Act by filing
the requisite financial statements and pro forma financial information and thus
the listing of our Common Stock and Warrants on Nasdaq may be terminated for
such noncompliance. If our Common Stock and Warrants are delisted from Nasdaq,
public trading, if any, in our Common Stock and Warrants would be limited to the
over-the-counter market. Consequently, the liquidity of our Common Stock and
Warrants could be impaired and the ability of holders to sell our securities
could be adversely affected as would our ability to raise additional capital.
Even if we thereafter obtain the requisite financial statements of the Target
Companies, we may not be able to satisfy Nasdaq's initial listing requirements
necessary to relist our securities on Nasdaq or to satisfy the initial listing
criteria to list our securities on any other securities exchange and thus may
not be able to re-establish an active trading market for our securities
promptly.
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Cautionary Note Regarding Forward-Looking Statements
This Current Report on Form 8-K includes forward-looking statements. These
forward-looking statements generally can be identified by the use of words such
as "anticipate," "expect," "plan," "could," "may," "will," "could," "believe,"
"estimate," "forecast," "goal," "project," and other words of similar meaning.
These forward-looking statements address various matters including the Company's
plans and expectations with respect to the acquisition, the anticipated benefits
of the acquisition and the anticipated schedule on when required financial
statements will be filed with the SEC. Each forward-looking statement contained
in this Current Report on Form 8-K is subject to risks and uncertainties that
could cause actual results to differ materially from those expressed or implied
by such statement. Risks and uncertainties include, among other things, risks
related to the ability to realize the anticipated benefits of the acquisition,
including the possibility that the expected benefits from the proposed
acquisition will not be realized or will not be realized within the expected
time period; the risk that the business will not be integrated successfully;
disruption from the transaction making it more difficult to maintain business
and operational relationships; negative effects of this announcement or the
consummation of the acquisition on the market price of Advent's common stock and
on Advent's operating results; significant transactions costs; unknown
liabilities; the risk of litigation and/or regulatory actions related to the
acquisition; risks related to the inability to file the requisite financial
statements of the Target Companies as required by Form 8-K; risks related to
failure to comply with Nasdaq listing rules, including risk of the delisting of
our securities; and risks of which we are presently unaware that may be raised
requiring further investigation, examination, reconstruction or reconciliation
of financial records of the Target Companies or other matters or circumstances
that may arise that under generally accepted audited standards require
additional consideration or revised disclosure before the auditing firm is in a
position to deliver its audit report on the financial statements of the Target
Companies. A further description of risks and uncertainties including, among
others, the Company's ability to realize the benefits from the business
combination; the Company's ability to maintain the listing of the Company's
common stock on Nasdaq; future financial performance; public securities'
potential liquidity and trading; impact from the outcome of any known and
unknown litigation; ability to forecast and maintain an adequate rate of revenue
growth and appropriately plan its expenses; expectations regarding future
expenditures; future mix of revenue and effect on gross margins; attraction and
retention of qualified directors, officers, employees and key personnel; ability
to compete effectively in a competitive industry; ability to protect and enhance
our corporate reputation and brand; expectations concerning our relationships
and actions with our technology partners and other third parties; impact from
future regulatory, judicial and legislative changes to the industry; ability to
locate and acquire complementary technologies or services and integrate those
into the Company's business; future arrangements with, or investments in, other
entities or associations; and intense competition and competitive pressure from
other companies worldwide in the industries in which the Company will operate;
and other risks identified under the heading "Risk Factors" are set forth in our
Annual Report on Form 10-K/A filed with the Securities and Exchange Commission
on May 20, 2021, as well as the other information we file with the SEC,
including filings on Current Reports on Form 8-K. We caution investors not to
place considerable reliance on the forward-looking statements contained in this
Current Report on Form 8-K. You are encouraged to read our filings with the SEC,
available at www.sec.gov, for a discussion of these and other risks and
uncertainties. The forward-looking statements in this Current Report on Form 8-K
speak only as of the date of this document, and we undertake no obligation to
update or revise any of these statements. Our business is subject to substantial
risks and uncertainties, including those referenced above. Investors, potential
investors, and others should give careful consideration to these risks and
uncertainties.
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