UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14C
Information Statement Pursuant to Section 14(c) of the
Securities Exchange Act of 1934
(Amendment No. )
Check the appropriate box:
☒ Preliminary Information Statement
☐ Confidential, For Use of the Commission Only (as permitted by Rule 14c-5(d)(2))
☐ Definitive Information Statement
EVE HOLDING, INC.
(Name of Registrant as Specified In Its Charter)
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☐ Fee paid previously with preliminary materials
☐ Fee computed on table in exhibit required by Item 25(b) of Schedule 14A (17 CFR 240.14a-101) per Item 1 of this Schedule and Exchange Act Rules 14c-5(g) and 0-11
PRELIMINARY INFORMATION STATEMENT — SUBJECT TO COMPLETION
Eve Holding, Inc.
1400 General Aviation Drive
Melbourne, Florida 32935
NOTICE OF ACTION BY WRITTEN CONSENT OF MAJORITY STOCKHOLDER
To Our Stockholders:
This Information Statement is being furnished by the board of directors of Eve Holding, Inc., a Delaware corporation (the “Company,” “Eve,” “our” or “we”), and is first being mailed on or about [•], 2024, to the stockholders of record of our outstanding shares of common stock, par value $0.001 per share (“Common Stock”), as of the close of business on [•], 2024. The purpose of this Information Statement is solely to inform you that Embraer Aircraft Holding, Inc., a Delaware corporation and a stockholder representing a majority of the voting power of the Company’s Common Stock (“Embraer” or the “Majority Stockholder”), acted by written consent (the “Stockholder Approval”) to vote in favor of the issuance of shares of Common Stock and a warrant to purchase shares of Common Stock to Embraer in a private placement transaction, as described in more detail in this Information Statement (the “Embraer Issuance”). The Embraer Issuance was approved by the Company’s board of directors (the “Board”), acting upon unanimous approval by the members of the Board (other than the two members of the Board who are employees of Embraer S.A., who did not vote on the Embraer Issuance), upon recommendation of a special committee of independent and disinterested members of the Board (the “Special Committee”), on June 27, 2024. In making its recommendation to approve the Embraer Issuance, the Special Committee consulted with its independent financial and legal advisors, and received an opinion from Houlihan Lokey Capital, Inc. that, as of the date of its opinion and subject to the assumptions and qualifications contained therein, the aggregate consideration to be received by the Company for the shares of Common Stock and Warrants to be issued in the Embraer Issuance was fair to the Company from a financial point of view.
On June 28, 2024 and on July 12, 2024, we entered into certain separate subscription agreements, warrant agreements and warrant exchange agreements (collectively, the “Transaction Agreements”) with certain investors (including Embraer) for (i) the issuance and sale by the Company to such investors of an aggregate of 23,900,000 newly issued shares of Common Stock, for cash at a purchase price of $4.00 per share and an aggregate purchase price of $95,600,000, (ii) the issuance by the Company to certain investors (including Embraer) of warrants exercisable for an aggregate of 2,500,000 shares of Common Stock with an exercise price of $0.01 per share, and (iii) the issuance by the Company to certain investors of an aggregate of 3,318,588 shares of Common Stock in exchange for the surrender and cancellation of public warrants to acquire an aggregate of 8,296,470 shares of Common Stock (such transactions, collectively, the “Private Placement”).
Among the Transaction Agreements, on June 28, 2024, we entered into a subscription agreement (the “Subscription Agreement”) with Embraer, pursuant to which, upon the terms and subject to the conditions set forth therein, Embraer agreed to subscribe for and purchase from the Company, and the Company agreed to issue and sell to Embraer, 7,500,000 shares (the “Acquired Shares”) of the Company’s Common Stock, for a purchase price per share of Common Stock equal to the arithmetic average of the daily volume-weighted average price per share of the shares of Common Stock on the New York Stock Exchange (“NYSE”) over a period of twenty (20) consecutive trading days ending on the last full trading day prior to June 28, 2024, less a discount of 10% from such arithmetic average, which represented a purchase price per share of Common Stock of $4.00 and an aggregate purchase price of $30,000,000.
In connection with the Subscription Agreement and as one of the Transaction Agreements, on June 28, 2024, we entered into a warrant agreement (the “Warrant Agreement”) with Embraer, pursuant to which we agreed to, upon the consummation of the transactions contemplated by the Subscription Agreement, issue and deliver to Embraer a warrant to purchase up to 1,500,000 shares of Common Stock (the “Warrant”). The Warrant has an exercise price of $0.01 per share, subject to customary anti-dilution adjustment provisions. The Warrant can be exercised during the period starting on the 10th business day after the date on which Eve’s eVTOL receives its first type certification and terminates one year thereafter (or, prior to that, upon the Company’s liquidation).
On June 28, 2024, the Majority Stockholder approved the Embraer Issuance to comply with Section 312.03 of the NYSE Listed Company Manual, which requires that the Company secure stockholder approval in the event of certain transactions, including the issuance of more than 1% of a company’s common stock to a related party for a price less than the Minimum Price (as defined in NYSE Listed Company Manual Section 312.03). The closing of the transactions contemplated by the Subscription Agreement and the issuance of the Warrant will not occur until more than 20 days have passed after this Information Statement is mailed to the stockholders of the Company. The Private Placement (other than the Embraer Issuance) does not require stockholder approval to comply with Section 312.03 of the NYSE Listed Company Manual and, as a result, the Private Placement (other than the Embraer Issuance) has already closed.
Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”), Article VII, Section A of our second amended and restated certificate of incorporation and Article II, Section 10 of our amended and restated by-laws permit any action that may be taken at a meeting of the stockholders to be taken by written consent by the Majority Stockholder, in its capacity as the holder of a majority of the voting power of the outstanding capital stock of the Company required to approve the action at a meeting. Accordingly, the holder of a majority of the issued and outstanding shares of Common Stock, approved the Embraer Issuance on June 28, 2024. The full text of this written consent by the Majority Stockholder without a meeting of stockholders is attached to this Information Statement as Annex A. This Information Statement also constitutes notice to you under Section 228 of the DGCL of the actions taken by written consent by the Majority Stockholder without a meeting of stockholders.
PLEASE NOTE THAT THE NUMBER OF VOTES RECEIVED FROM THE MAJORITY STOCKHOLDER BY WRITTEN CONSENT IS SUFFICIENT TO SATISFY THE STOCKHOLDER APPROVAL REQUIREMENT FOR THESE ACTIONS UNDER THE DGCL AND NYSE RULES AND NO ADDITIONAL VOTES WILL CONSEQUENTLY BE NEEDED, OR ARE BEING SOLICITED, TO APPROVE THE EMBRAER ISSUANCE.
This Information Statement is being furnished to all stockholders of the Company pursuant to Section 14(c) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and the rules and regulations promulgated thereunder, solely for the purpose of informing the non-consenting stockholders of these corporate actions before the Acquired Shares or the Warrant are issued.
Holders of our Common Stock do not have appraisal or dissenters’ rights under the DGCL in connection with the matters described in this Information Statement and approved by the Majority Stockholder.
You are urged to read this Information Statement carefully in its entirety, including any information incorporated by reference into this Information Statement. However, no action is required on your part in connection with this document.
THIS IS NOT A NOTICE OF A SPECIAL MEETING OF STOCKHOLDERS, AND NO STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED HEREIN. THIS INFORMATION STATEMENT IS BEING FURNISHED TO YOU SOLELY FOR THE PURPOSE OF INFORMING STOCKHOLDERS OF THE MATTERS DESCRIBED HEREIN PURSUANT TO SECTION 14(c) OF THE EXCHANGE ACT AND THE REGULATIONS PROMULGATED THEREUNDER, INCLUDING REGULATION 14C, AND PURSUANT TO SECTION 228 OF THE DGCL.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
By Order of the Board of Directors | |
/s/Simone Galvão De Oliveira |
|
Simone Galvão De Oliveira | |
General Counsel, Chief Compliance Officer and Secretary | |
Melbourne, Florida | |
[•], 2024 |
TABLE OF CONTENTS
Eve Holding, Inc.
1400 General Aviation Drive
Melbourne, Florida 32935
We are required to deliver this Information Statement to holders of shares of common stock, par value $0.001 per share (“Common Stock”), of Eve Holding, Inc. (the “Company,” “Eve,” “our,” “we” or “us”), in order to provide notice that, on June 28, 2024 (the “Approval Date”), Embraer Aircraft Holding, Inc., a Delaware corporation and the holder of a majority of the voting power of the outstanding shares of our Common Stock (the “Majority Stockholder” or “Embraer”), without holding a meeting of stockholders, has provided written consent to approve an action that would normally require such a meeting (the “Approval”).
THE ACCOMPANYING MATERIAL IS BEING PROVIDED TO YOU FOR INFORMATIONAL PURPOSES ONLY. NO VOTE OR OTHER ACTION OF OUR STOCKHOLDERS IS REQUIRED IN CONNECTION WITH THE MATTERS DESCRIBED IN THIS INFORMATION STATEMENT.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND US A PROXY.
This Information Statement is being mailed on or about [•], 2024 to the holders of record of our Common Stock at the close of business on [•], 2024 (the “Record Date”), pursuant to Rule 14c-2 under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), and Section 228 of the General Corporation Law of the State of Delaware (the “DGCL”).
The purpose of this Information Statement is to inform holders of our Common Stock that on June 28, 2024 and July 12, 2024, we entered into certain separate subscription agreements, warrant agreements and warrant exchange agreements (collectively, the “Transaction Agreements”) with certain investors (including Embraer) for (i) the issuance and sale by the Company to such investors of an aggregate of 23,900,000 newly issued shares of Common Stock, for cash at a purchase price of $4.00 per share and an aggregate purchase price of $95,600,000, (ii) the issuance by the Company to certain investors (including Embraer) of warrants exercisable for an aggregate of 2,500,000 shares of Common Stock with an exercise price of $0.01 per share, and (iii) the issuance by the Company to certain investors of an aggregate of 3,318,588 shares of Common Stock in exchange for the surrender and cancellation of public warrants to acquire an aggregate of 8,296,470 shares of Common Stock (such transactions, collectively, the “Private Placement”).
Among the Transaction Agreements, on June 28, 2024, we entered into a subscription agreement (the “Subscription Agreement”) with Embraer, pursuant to which, upon the terms and subject to the conditions set forth therein, Embraer agreed to subscribe for and purchase from the Company, and the Company agreed to issue and sell to Embraer, 7,500,000 shares (the “Acquired Shares”) of the Company’s Common Stock, for a purchase price per share of Common Stock equal to the arithmetic average of the daily volume-weighted average price per share of the shares of Common Stock on the New York Stock Exchange (“NYSE”) over a period of twenty (20) consecutive trading days ending on the last full trading day prior to June 28, 2024, less a discount of 10% from such arithmetic average, which represented a purchase price per share of Common Stock of $4.00 and an aggregate purchase price of $30,000,000.
In connection with the Subscription Agreement and as one of the Transaction Agreements, on June 28, 2024, we entered into a warrant agreement (the “Warrant Agreement”) with Embraer, pursuant to which we agreed to, upon the consummation of the transactions contemplated by the Subscription Agreement, issue and deliver to Embraer a warrant to purchase up to 1,500,000 shares of Common Stock (the “Warrant”). The Warrant has an exercise price of $0.01 per share, subject to customary anti-dilution adjustment provisions. The Warrant can be exercised during the period starting on the 10th business day after the date on which Eve’s eVTOL receives its first type certification and terminates one year thereafter (or, prior to that, upon the Company’s liquidation).Among such Transaction Agreements.
The transactions contemplated by the Subscription Agreement and the Warrant Agreement are hereinafter collectively referred to as the “Embraer Issuance.” The Embraer Issuance was approved by written consent by the Majority Stockholder on June 28, 2024 (the “Stockholder Approval”) and is described in more detail in this Information Statement, and the full text of this written consent by the Majority Stockholder without a meeting of stockholders is attached to this Information Statement as Annex A.
The approval of the Embraer Issuance is required by the NYSE Listed Company Manual, as further described in this Information Statement. While typically the required vote under the NYSE Listed Company Manual is the approval by a majority of votes cast at a meeting of stockholders, because the required Stockholder Approval was obtained by use of written consent in lieu of a special stockholders meeting, the required vote was the written consent of the holder of a majority of the shares entitled to vote as of the Approval Date. The written consent of the Majority Stockholder was sufficient to approve the Embraer Issuance. The approval of the Private Placement (other than the Embraer Issuance) is not required by the NYSE Listed Company Manual. Therefore, no proxies or consents were, or are, being solicited in connection with the Embraer Issuance.
THIS IS NOT A NOTICE OF A MEETING OF STOCKHOLDERS AND NO STOCKHOLDER MEETING WILL BE HELD TO CONSIDER ANY MATTER DESCRIBED IN THIS INFORMATION STATEMENT.
WE ARE NOT ASKING YOU FOR A PROXY AND YOU ARE REQUESTED NOT TO SEND USA PROXY.
Other than the stockholder written consent described above, no other votes are necessary or required to effectuate the Embraer Issuance described in this Information Statement.
This Information Statement is being furnished to all holders of Common Stock pursuant to Section 14(c) of the Exchange Act and the rules and regulations promulgated thereunder solely for the purpose of informing stockholders of the approval by the Majority Stockholder of the Embraer Issuance before the Acquired Shares and the Warrant are issued. In accordance with Exchange Act Rule 14c-2, the written consent by the Majority Stockholder without a meeting of stockholders will become effective no sooner than 20 calendar days following the mailing of this Information Statement to Eve stockholders. After the expiration of the 20-day period required under Rule 14c-2 promulgated under the Exchange Act, and in accordance with the terms of the Subscription Agreement and the Warrant Agreement, the Acquired Shares and the Warrant will be issued, but the Warrant will only be exercisable for shares of Common Stock after the Company’s eVTOL obtains its first type certification.
As of the Approval Date, our authorized capital stock consisted of 1,000,000,000 shares of Common Stock and 100,000,000 preferred shares, par value $0.001 per share (“Preferred Stock”). As of the Approval Date, 269,525,708 shares of Common Stock and no shares of Preferred Stock were issued and outstanding.
Except as otherwise required under our second amended and restated certificate of incorporation (the “Certificate of Incorporation”), each share of our outstanding Common Stock is entitled to one vote on matters submitted for stockholder approval.
On June 28, 2024, the Majority Stockholder executed and delivered to the Company a written consent by which the holder of 238,899,589 shares of our Common Stock, or approximately 88.6% of the voting power of the outstanding shares of Common Stock entitled to vote on the matter, approved the Embraer Issuance. Since the Embraer Issuance has been approved by the Majority Stockholder, no proxies are being solicited in connection with this Information Statement.
The DGCL permits the holders of a corporation’s outstanding stock representing a majority of that corporation’s voting power to approve and authorize corporate actions by written consent as if such actions were undertaken at a duly called and held meeting of stockholders. In order to significantly reduce the costs and management time involved in soliciting and obtaining proxies to approve the Embraer Issuance and in order to timely effectuate issuance of the Acquired Shares and the Warrant, the Board of Directors of the Company elected to utilize, and did in fact obtain, the written consent of the holder of a majority of the voting power of the Company. The Company obtained the written consent of the stockholder who, as of the Approval Date, owned approximately 88.6% of the Company’s voting stock. The written consent satisfies the stockholder approval requirement for the action taken. Accordingly, under the DGCL, no other Board of Directors or stockholder approval is required in order to effect such action.
The DGCL does not provide dissenters’ or appraisal rights to stockholders of the Company in connection with the Embraer Issuance or any matter described in this Information Statement.
The cost of furnishing this Information Statement will be borne by the Company. We will mail this Information Statement to registered stockholders and certain beneficial stockholders of the Company where requested by brokerage houses, nominees, custodians, fiduciaries and other like parties.
Q: Why am I receiving these materials?
A: We are providing this Information Statement to you for your information to comply with the requirements of the Exchange Act and the DGCL. You are urged to read this Information Statement carefully in its entirety, including any information incorporated by reference into this Information Statement. However, no action is required on your part in connection with this document.
The record date for determining our stockholders who were entitled to notice of the matters set forth in this Information Statement was [•], 2024. While typically the required vote under the NYSE rules is the approval by a majority of votes cast at a meeting of stockholders, because the required Stockholder Approval was obtained by use of written consent in lieu of a special shareholders meeting, the required vote was the written consent of the holder of a majority of the shares entitled to vote as of the Approval Date. The written consent of the Majority Stockholder was sufficient to approve the Embraer Issuance, including the issuance of an aggregate of up to 7,500,000 shares of our Common Stock, the issuance of the Warrant and, upon exercise of the Warrant, the issuance of up to 1,500,000 shares of Common Stock. In accordance with Exchange Act Rule 14c-2, the written consent by the Majority Stockholder will become effective no sooner than 20 calendar days following the mailing of this Information Statement to Eve stockholders. This Information Statement is being mailed on or about [•], 2024, to stockholders of record as of [•], 2024. Therefore, these actions will be effective on or about [•], 2024.
Q: What information is contained in this Information Statement?
A: This Information Statement contains information regarding actions approved by the Board of Directors, upon recommendation of a special committee of independent and disinterested directors of the Company, and approved by the holder of an aggregate of 238,899,589 shares of our Common Stock, representing a majority of the voting power of our Common Stock as of June 28, 2024.
Q: What action was taken by written consent of the Majority Stockholder?
A: The action approved by the written consent of the Majority Stockholder without a meeting of stockholders is more completely described elsewhere in this Information Statement, but in summary the Embraer Issuance involves the issuance of 7,500,000 shares of Common Stock for an aggregate purchase price of $30,000,000 and the issuance of the Warrant to acquire up to 1,500,000 shares of Common Stock (including the issuance of such shares of Common Stock upon exercise of the Warrant), as described in more detail in this Information Statement. The full text of this written consent by the Majority Stockholder without a meeting of stockholders is attached to this Information Statement as Annex A.
Q: Why are you not soliciting proxies on this action?
A: We are not soliciting proxies on the Embraer Issuance because the Majority Stockholder, who holds approximately 88.6% of our voting power, provided written consent approving the action, and no other action on the part of our stockholders is necessary or required to effectuate the Embraer Issuance.
Q: Why do the other transactions in the Private Placement not require stockholder approval?
A: The other transactions entered into in connection with the Private Placement were independently negotiated and consummated and do not include (i) the issuance of securities in a private placement transaction of 20% or more of the Company’s outstanding shares of common stock for less than the Minimum Price (as defined in NYSE Listed Company Manual Section 312.03) or (ii) the issuance of securities of more than 1% of the Company’s common stock to a related party for a price less than the Minimum Price.
Q: When will the Acquired Shares and Warrant be issued and when will the Warrant become exercisable?
A: In accordance with Exchange Act Rule 14c-2, the written consent of the Majority Stockholder without a meeting of stockholders will become effective no sooner than 20 calendar days following the mailing of this Information Statement to Eve stockholders. After the expiration of the 20-day period required under Rule 14c-2 promulgated under the Exchange Act, and in accordance with the DGCL and the terms of the Subscription Agreement and Warrant Agreement entered into with the investor in connection with the Embraer Issuance, the Acquired Shares and the Warrant will be issued to Embraer, but the Warrant will only be exercisable for shares of Common Stock after the Company’s eVTOL obtains its first type certification.
Q: To whom may I direct any additional questions regarding this Information Statement?
A: Any additional questions regarding this Information Statement may be directed to:
Eve Holding, Inc.
Attention: Simone Galvão de Oliveira, General Counsel, Chief Compliance Officer and Secretary
1400 General Aviation Drive
Melbourne, Florida 32935
(321) 751-5050
Private Placement
On June 28, 2024 and July 12, 2024, the Company entered into certain separate subscription agreements, warrant agreements and warrant exchange with certain investors (including Embraer) relating to the Private Placement involving (i) the issuance and sale of an aggregate of 23,900,000 newly issued shares of Common Stock to such investors (including Embraer) for cash at a purchase price of $4.00 per share and an aggregate purchase price of $95,600,000, (ii) the issuance by the Company to certain investors (including Embraer) of warrants exercisable for an aggregate of 2,500,000 shares of Common Stock with an exercise price of $0.01 per share, and (iii) the issuance by the Company to certain investors of an aggregate of 3,318,588 shares of Common Stock in exchange for the surrender and cancellation of warrants to acquire an aggregate of 8,296,470 shares of Common Stock.
As part of the Private Placement, the Company entered into the Subscription Agreement with Embraer, pursuant to which, upon the terms and subject to the conditions set forth therein, Embraer agreed to subscribe for and purchase from the Company, and the Company agreed to issue and sell to Embraer, 7,500,000 shares of the Company’s Common Stock, for a purchase price per share of Common Stock of $4.00 and an aggregate purchase price of $30,000,000.
The Subscription Agreement and the issuance and sale of the Acquired Shares have been approved by the Majority Stockholder. The closing of the transactions contemplated by the Subscription Agreement (the “Closing”), including the issuance of the Acquired Shares, will not occur until more than 20 days have passed after this Information Statement is mailed to Eve stockholders or such later time as is necessary to comply with the listing requirements of the NYSE.
The Company intends to use the net proceeds from the issuance and sale of the Acquired Shares for general corporate purposes, including to support the development of its eVTOL.
Under the terms of the Subscription Agreement, the Company has agreed to file a registration statement covering the resale of the Acquired Shares within ninety (90) calendar days after the Closing and to use reasonable best efforts to cause the registration statement to be declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the ninetieth (90th) calendar day if the SEC notifies the Company that it will “review” such registration statement following the Closing and (ii) the tenth (10th) business day after the date the Company is notified by the SEC that such registration statement will not be “reviewed” or will not be subject to further review.
The Subscription Agreement described above includes customary representations, warranties and covenants by the Company and Embraer, which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
As part of the Private Placement and in connection with the Subscription Agreement, we entered into the Warrant Agreement with Embraer, pursuant to which the Company agreed to, upon the Closing, issue and deliver to Embraer a Warrant to purchase up to 1,500,000 shares of Common Stock. The Warrant has an exercise price of $0.01 per share, subject to customary anti-dilution adjustment provisions. The Warrant can be exercised during the period starting on the 10th business day after the date on which the Company’s eVTOL receives its first type certification and terminating one year thereafter (or, prior to that, upon the Company’s liquidation).
The Warrant Agreement and the issuance of the Warrant (as well as the issuance of the underlying shares of Common Stock upon exercise of the Warrant) have also been approved by the Majority Stockholder. The Warrant will not be issued until more than 20 days have passed after this Information Statement is mailed to Eve stockholders or such later time as is necessary to comply with the listing requirements of the NYSE. The Warrant will not be exercisable until at least 10 business days after the date on which the Company’s eVTOL receives its first type certification.
The Company intends to use the net proceeds from the Warrant for general corporate purposes, including to support the development of its eVTOL.
Under the terms of the Warrant Agreement, the Company has agreed to file a registration statement covering the resale of the Acquired Shares within ninety (90) calendar days after the Closing and to use reasonable best efforts to cause the registration statement to be declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the ninetieth (90th) calendar day if the SEC notifies the Company that it will “review” such registration statement following the Closing and (ii) the tenth (10th) business day after the date the Company is notified by the SEC that such registration statement will not be “reviewed” or will not be subject to further review.
The Warrant Agreement described above include customary covenants by the Company and Embraer, which were made only for purposes of such agreement and as of specific dates, were solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
In order to comply with the requirements of the NYSE Listed Company Manual relating to stockholder approval of certain issuances of a listed company’s common stock, immediately after the execution of the Subscription Agreement and Warrant Agreement by the parties thereto, we obtained the written consent of the Majority Stockholder, as the holder of 238,899,589 shares of our Common Stock, representing a majority of the voting power of our common stock as of such date, for the approval of the Embraer Issuance, including the issuance of an aggregate of 7,500,000 shares of Common Stock and the Warrant upon the Closing and the issuance of up to 1,500,000 shares of Common Stock upon the exercise of the Warrant. The full text of the written consent by the Majority Stockholder is attached to this Information Statement as Annex A. The written consent of the Majority Stockholder was sufficient to approve the Embraer Issuance, including the issuance of the Acquired Shares and the Warrant upon the Closing and, upon exercise of the Warrant, the issuance of the shares of Common Stock underlying the Warrant under the continued listing requirements of the NYSE. Therefore, no proxies or additional consents are being solicited by us.
In accordance with Exchange Act Rule 14c-2, the written consent of the Majority Stockholder will become effective no sooner than 20 days following the mailing of this Information Statement. After the expiration of the 20-day period required under Rule 14c-2 promulgated under the Exchange Act, subject to the satisfaction of the conditions set forth in the Subscription Agreement and Warrant Agreement, the Acquired Shares and the Warrant will be issued in accordance with the terms of the Subscription Agreement and Warrant Agreement, but the Warrant will only be exercisable for shares of Common Stock after the Company’s eVTOL obtains its first type certification.
On June 28, 2024 and July 12, 2024, the Company entered into certain separate subscription agreements, warrant agreements and warrant exchange with certain investors (including Embraer) relating to the Private Placement for (i) the issuance and sale by the Company to such investors of 23,900,000 newly issued shares of Common Stock, for cash at a purchase price of $4.00 per share and an aggregate purchase price of $95,600,000, (ii) the issuance by the Company to certain investors (including Embraer) of warrants exercisable for an aggregate of 2,500,000 shares of Common Stock with an exercise price of $0.01 per share, and (iii) the issuance of an aggregate by the Company to certain investors of 3,318,588 shares of Common Stock in exchange for the surrender and cancellation of warrants to acquire an aggregate of 8,296,470 shares of Common Stock.
As described in more detail under “Description of Embraer Issuance and Transaction Documents”, in connection with the Private Placement, on June 28, 2024, we entered into a Subscription Agreement with Embraer, pursuant to which, upon the terms and subject to the conditions set forth therein, we agreed to sell and issue to Embraer 7,500,000 shares of Common Stock, and we entered into a Warrant Agreement with Embraer, pursuant to which, upon the terms and subject to the conditions set forth therein, we agreed to issue and deliver to Embraer a Warrant to purchase an aggregate of 1,500,000 shares of Common Stock with an exercise price of $0.01 per share, subject to certain customary anti-dilution adjustment provisions and exercisable after our eVTOL receives its first type certification.
Upon the consummation of the Private Placement, the Company is expected to receive aggregate gross proceeds from the Private Placement of approximately $94 million. Of this amount, $30 million in gross proceeds are expected to be received from Embraer for the 7,500,000 newly issued shares of Common Stock and the Warrant to acquire 1,500,000 shares of Common Stock as part of the Private Placement. We expect to use the net proceeds from the Private Placement for general corporate purposes, including to support the development of its eVTOL.
Our Common Stock is listed on the NYSE. The NYSE Listed Company Manual Section 312.03 requires that the Company secure stockholder approval in the event of certain transactions, including the issuance of more than 1% of a company’s common stock to a related party for a price less than the Minimum Price (as defined in the NYSE Listed Company Manual Section 312.03).
Because a related party has agreed to purchase Acquired Shares and the Warrant that once subscribed, issued and fully exercised will represent more than 1% of the Company’s Common Stock as of the date of the Subscription Agreement and Warrant Agreement, the approval of our stockholders was required under the NYSE rules. To comply with these rules, we structured the closing of the Embraer Issuance so that the Acquired Shares are not subscribed and the Warrants are not issued until more than 20 days have passed following the mailing of this Information Statement to Eve stockholders.
The Company’s Related Person Transaction Policy defines a “Related Person Transaction” as a transaction that would be required to be disclosed pursuant to Item 404(a) of Regulation S-K in which the Company was, is or will be a participant and the amount involved exceeds $120,000, and in which any Related Person (as defined therein) had, has or will have a direct or indirect material interest. The Embraer Issuance constitutes a Related Person Transaction required to be approved by a majority of disinterested directors of the Board. To comply with the Related Person Transaction Policy, we formed a special committee of independent and disinterested members of the Board (the “Special Committee”). The Embraer Issuance was approved by the Board, acting upon unanimous approval by the members of the Board (other than the two members of the Board who are employees of Embraer S.A., who did not vote on the Embraer Issuance), upon recommendation of the Special Committee, on June 27, 2024. In making its recommendation to approve the Embraer Issuance, the Special Committee consulted with its independent financial and legal advisors, and received an opinion from Houlihan Lokey Capital, Inc. that, as of the date of its opinion and subject to the assumptions and qualifications contained therein, the aggregate consideration to be received by the Company for the shares of Common Stock and Warrants to be issued in the Embraer Issuance was fair to the Company from a financial point of view.
Immediately after the execution of the Subscription Agreement and Warrant Agreement by the parties thereto, we obtained the written consent of the holder of 238,899,589 shares of our Common Stock, representing a majority of the voting power of our Common Stock as of such date, pursuant to the continued listing requirements of the NYSE and in accordance with applicable provisions of the DGCL and the Company’s Certificate of Incorporation. The full text of this written consent by the Majority Stockholder is attached to this Information Statement as Annex A. The written consent of the Majority Stockholder satisfied the requirements under the NYSE Listed Company Manual Section 312.03 to approve the Embraer Issuance, including the issuance of 7,500,000 shares of Common Stock pursuant to the Subscription Agreement and the issuance of the Warrant to acquire up to 1,500,000 shares of Common Stock (and, upon exercise of the Warrant, the issuance of such shares of Common Stock underlying the Warrant) pursuant to the Warrant Agreement. Therefore, no proxies or additional consents are being solicited by us in connection with the Embraer Issuance.
Opinion of Houlihan Lokey Capital, Inc.
On June 27, 2024, Houlihan Lokey orally rendered its opinion to the Special Committee (which was subsequently confirmed in writing by delivery of Houlihan Lokey’s written opinion addressed to the Special Committee dated June 27, 2024) as to, as of such date, the fairness, from a financial point of view, to the Company of the aggregate consideration to be received by the Company for the shares of Common Stock and the Warrant to be issued in the Embraer Issuance pursuant to the Subscription Agreement and the Warrant Agreement.
Houlihan Lokey’s opinion was furnished for the use of the Special Committee (in its capacity as such), and only addressed the fairness, from a financial point of view, to the Company of the aggregate consideration to be received by the Company for the shares of Common Stock and the Warrant to be issued in the Embraer Issuance pursuant to the Subscription Agreement and the Warrant Agreement and did not address any other aspect or implication of the Transaction, the other transactions contemplated by the Private Placement or any other agreement, arrangement or understanding. The references to Houlihan Lokey’s opinion in this Information Statement are qualified in their entirety by reference to the full text of its written opinion, which is attached as Annex B to this Information Statement and describes the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Houlihan Lokey in connection with the preparation of its opinion. However, Houlihan Lokey’s opinion is not intended to be, and do not constitute, advice or a recommendation to the Special Committee, the Board, the Company, any security holder or any other person as to how to act or vote with respect to any matter relating to the Embraer Issuance, the other transactions contemplated by the Private Placement or otherwise.
Our stockholders have no preemptive rights to acquire any shares issued by us under our Certificate of Incorporation, as amended, or otherwise. In addition, no share of our Common Stock is convertible, redeemable, assessable or entitled to the benefits of any sinking or repurchase fund.
The principal effect upon the rights of our existing stockholders (other than the Majority Stockholder) of the Embraer Issuance will be a dilution in their current percentage ownership in the Company. Based on the number of shares of our common stock outstanding as of July 23, 2024, and assuming the full exercise of the Warrants, the Majority Stockholder following the Embraer Issuance will own approximately 82.84% of our outstanding Common Stock. The other stockholders of the Company, who owned approximately 17.69% of our outstanding common stock prior to the Embraer Issuance, will be diluted from an ownership standpoint and will own approximately 17.16% of our outstanding common stock following the Embraer Issuance.
In addition, the Embraer Issuance and the resale of significant amounts of the shares of our Common Stock to be issued pursuant to the Embraer Issuance could materially and adversely affect the market price of our Common Stock.
Under the terms of the Subscription Agreement and Warrant Agreement, the Company has agreed to file a registration statement covering the resale of the Acquired Shares and Warrants within ninety (90) calendar days after the Closing and to use reasonable best efforts to cause the registration statement to be declared effective as soon as practicable after the filing thereof, but no later than the earlier of (i) the ninetieth (90th) calendar day if the SEC notifies the Company that it will “review” such registration statement following the Closing and (ii) the tenth (10th) business day after the date the Company is notified by the SEC that such registration statement will not be “reviewed” or will not be subject to further review.
The following table sets forth information regarding beneficial ownership of our Common Stock as of July 23, 2024, by:
Beneficial ownership is determined according to the rules of the SEC, which generally provide that a person has beneficial ownership of a security if he, she or it possesses sole or shared voting or investment power over that security, including options and warrants that are currently exercisable or exercisable within 60 days. In computing the number of shares beneficially owned by a person or entity and the percentage ownership of that person or entity in the table below, all shares subject to options or warrants held by such person or entity were deemed outstanding if such securities are currently exercisable, or exercisable within 60 days. These shares were not deemed outstanding, however, for the purpose of computing the percentage ownership of any other person or entity.
Except as described in the footnotes below and subject to applicable community property laws and similar laws, the Company believes that each person listed below has sole voting and investment power with respect to such shares.
Name and Address of Beneficial Owner(1) |
|
Number of Shares of Common Stock |
Percentage of Shares of Common Stock |
|
5% Holders |
|
|
||
Embraer Aircraft Holding, Inc.(2) |
238,899,589 |
82.3% |
||
Directors and Named Executive Officers |
|
|
||
Johann Bordais |
— |
— |
||
Gerard J. DeMuro(3) |
521,817 |
* |
||
Eduardo Couto |
|
— |
||
Luis Carlos Affonso |
— |
— |
||
Michael Amalfitano(4) |
9,676 |
* |
||
Marion Clifton Blakey(5) |
30,000 |
* |
||
María Cordón(6) |
21,687 |
* |
||
Paul Eremenko(7) |
30,000 |
* |
||
Sergio Pedreiro(8) |
30,000 |
* |
||
All Company directors and executive officers as a group (9 individuals) |
643,180 |
* |
*Less than one percent |
(1) | Unless otherwise noted, the business address of each of those listed in the table above is c/o Eve Holding, Inc., 1400 General Aviation Drive, Melbourne, Florida 32935. |
(2) | Comprised of (i) 220,000,000 shares of common stock issued in connection with our business combination, (ii) 18,500,000 shares of common stock issued in a private placement consummated in connection with our business combination, and (iii) 399,589 shares of common stock sold to Embraer Aircraft Holding, Inc. by SkyWest Leasing, Inc. Embraer Aircraft Holding, Inc. is controlled by Embraer S.A. The address of the principal business office of Embraer Aircraft Holding, Inc. is 276 S.W. 34th Street Fort Lauderdale, Florida, 33315. The address of the principal business office of Embraer S.A. is Avenida Dra. Ruth Cardoso, 8501, 30th floor (part), Pinheiros, São Paulo, SP, 05425-070, Brazil. |
(3) | Comprised of (i) 150,000 shares of Class B Common Stock, which converted into shares of Common Stock upon the Closing on a one-for-one basis, (ii) 61,917 shares of Common Stock underlying the private placement warrants received from Zanite Sponsor. LLC in a pro-rata distribution of its securities to its members, (iii) 140,000 shares of Common Stock issued to Mr. DeMuro at the Closing pursuant to the terms of his Employment Agreement, and (iv) 200,000 shares of Common Stock underlying restricted stock units granted to Mr. DeMuro at the Closing and vested on the first and second anniversaries of the grant pursuant to the terms of his Employment Agreement, net of 30,100 shares of Common Stock withheld to cover tax withholding obligations in connection with the vesting and settlement of such restricted stock units. |
(4) | Consists of shares held in a joint account with Mr. Amalfitano’s wife. |
(5) | Consists of (i) 15,000 shares of Common Stock underlying restricted stock units granted to Ms. Blakey in connection with the 2022 annual equity grants for the Company’s independent directors and vested on May 9, 2024 and (ii) 15,000 shares of Common Stock underlying restricted stock units granted to Ms. Blakey in connection with the 2022 annual equity grants for the Company’s independent directors and vested on July 31, 2023. |
(6) | Consists of (i) 6,687 shares of Common Stock underlying restricted stock units granted to Ms. Cordon in connection with the 2022 annual equity grants for the Company’s independent directors and vested on February 3, 2024 and (ii) 15,000 shares of Common Stock underlying restricted stock units granted to Ms. Cordon in connection with the 2022 annual equity grants for the Company’s independent directors and vested on May 9, 2024. |
(7) | Consists of (i) 15,000 shares of Common Stock underlying restricted stock units granted to Mr. Eremenko in connection with the 2022 annual equity grants for the Company’s independent directors and vested on May 9, 2024 and (ii) 15,000 shares of Common Stock underlying restricted stock units granted to Mr. Eremenko in connection with the 2022 annual equity grants for the Company’s independent directors and vested on July 31, 2023. |
(8) | Consists of (i) 15,000 shares of Common Stock underlying restricted stock units granted to Mr. Pedreiro in connection with the 2022 annual equity grants for the Company’s independent directors and vested on May 9, 2024 and (ii) 15,000 shares of Common Stock underlying restricted stock units granted to Mr. Pedreiro in connection with the 2022 annual equity grants for the Company’s independent directors and vested on July 31, 2023. |
No matters other than those discussed in this Information Statement are contained in the written consent signed by the Majority Stockholder. No security holder has requested the Company to include any proposal in this Information Statement.
The SEC has adopted rules that permit companies and intermediaries (such as banks and brokers) to satisfy the delivery requirements for information statements with respect to two or more stockholders sharing the same address by delivering a single information statement addressed to those stockholders. This delivery method is referred to as “householding” and can result in cost savings for us. To take advantage of this opportunity, we may deliver a single information statement to multiple stockholders who share an address unless contrary instructions have been received. We will deliver upon oral or written request a separate copy of this Information Statement to any stockholder of a shared address to which a single copy of this Information Statement was delivered. If you prefer to receive separate copies of this Information Statement or if you currently are a stockholder sharing an address with another stockholder and wish to receive only one copy of future information statements, proxy statements or annual reports for your household, please call us at (321) 751-5050 or send your request in writing to us at the following address: 1400 General Aviation Drive, Melbourne, Florida 32935 Attention: General Counsel, Chief Compliance Officer and Secretary.
The Company files annual, quarterly and current reports, proxy statements and other information with the SEC pursuant to the Exchange Act. The SEC maintains an Internet site that contains reports, proxy statements and other information about registrants, like the Company, that have been filed electronically with the SEC. You can access the SEC’s Internet site at http://www.sec.gov. You can also obtain information about us on our website at https://ir.eveairmobility.com. Information on our website or any other website is not incorporated by reference into this Information Statement and does not constitute a part of this Information Statement unless specifically so designated and filed with the SEC.
The SEC allows the Company to “incorporate by reference” information that it files with the SEC, which means that it can disclose important information to you by referring you to documents previously filed with the SEC. The information incorporated by reference is an important part of this Information Statement. The following documents the Company filed with the SEC pursuant to the Exchange Act are incorporated herein by reference:
Any statement contained in this Information Statement or in a document incorporated by reference herein shall be deemed to be modified or superseded for purposes of this Information Statement to the extent that a statement contained in any subsequently filed document that is incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this Information Statement.
This Information Statement does not constitute an offer to sell, or a solicitation of an offer to buy, any securities, or the solicitation of a proxy. The delivery of this Information Statement should not create an implication that there has been no change in the affairs of the Company since the date of this Information Statement or that the information herein is correct as of any later date regardless of the time of delivery of this Information Statement.
You may also request a free copy of these filings (other than an exhibit to a filing unless that exhibit is specifically incorporated by reference into that filing) at no cost by writing or telephoning us at the following address and telephone number:
Eve Holding, Inc.
Attention: General Counsel, Chief Compliance Officer and Secretary
1400 General Aviation Drive
Melbourne, Florida 32935
(321) 751-5050
Exhibits to the filings will not be sent, however, unless those exhibits have specifically been incorporated by reference in this prospectus or any accompanying prospectus supplement.
You should rely only on the information provided in this filing. You should not assume that the information in this Information Statement is accurate as of any date other than the date of this document. The Company has not authorized anyone else to provide you with any information.
By Order of the Board of Directors | |
Simone Galvão De Oliveira |
|
Simone Galvão De Oliveira | |
General Counsel, Chief Compliance Officer and Secretary | |
Melbourne, Florida | |
[•], 2024 |
ANNEX A
The undersigned (the “Stockholder”), being the holder of a majority of the issued and outstanding shares of capital stock of Eve Holding, Inc., a Delaware corporation (the “Company”), hereby irrevocably consents in writing, pursuant to Section 228(a) of the General Corporation Law of the State of Delaware (the “DGCL”) and as authorized by the Article II, Section 10 of the Amended and Restated By-laws of the Company, to the following actions and adoption of the following resolutions by written consent in lieu of a meeting of stockholders:
WHEREAS, the Company has entered into a Subscription Agreement (the “Subscription Agreement”), dated as of June 28, 2024, by and between the Company and Stockholder, a copy of which has been provided to the undersigned Stockholder and is attached hereto as Exhibit A (capitalized terms used herein without definition shall have the respective meanings ascribed to them in the Subscription Agreement);
WHEREAS, the Company has entered into a Warrant Agreement (the “Warrant Agreement”), dated as of June 28, 2024, by and between the Company and Stockholder, a copy of which has been provided to the undersigned Stockholder and is attached hereto as Exhibit B;
WHEREAS, pursuant to the Subscription Agreement, Stockholder has agreed to subscribe for and purchase from the Company 7,500,000 shares (the “Acquired Shares”) of the Company’s common stock, par value $0.001 per share (the “Common Stock”), for a purchase price per share of Common Stock equal to the arithmetic average of the daily volume-weighted average price per share of the shares of Common Stock on the New York Stock Exchange (“NYSE”) over a period of twenty (20) consecutive trading days ending on the last full trading day prior to June 28, 2024, less a discount of 10% from such arithmetic average, which represents a purchase price per share of Common Stock of $4.00 and an aggregate purchase price of $30,000,000 (the “Purchase Price”) upon the terms and subject to the conditions set forth in the Subscription Agreement; and
WHEREAS, pursuant to the Warrant Agreement, the Company has agreed to grant the Stockholder warrants to purchase an aggregate of 1,500,000 shares of Common Stock (the “Warrants”) with an exercise price of $0.01 per share (the “Warrant Price”) upon the terms and subject to the conditions set forth in the Warrant Agreement; and
WHEREAS, the Board of Directors of the Company has (i) determined that it is in the best interests of the Company and its stockholders, and declared it advisable, to enter into the Subscription Agreement and the Warrant Agreement and to consummate the transactions contemplated thereby, including the issuance of the Common Stock issuable pursuant to the Subscription Agreement and the issuance of the Warrants issuable pursuant to the Warrant Agreement (the “Issuance”), (ii) approved the execution, delivery and performance of the Subscription Agreement and the Warrant Agreement and the consummation of the transactions contemplated thereby, including the Issuance, upon the terms and subject to the conditions set forth in the Subscription Agreement and the Warrant Agreement, and (iii) resolved to recommend the adoption of the Subscription Agreement and the Warrant Agreement and the approval of the transactions contemplated thereby, including the Issuance, by the holders of the shares of the Company Common Stock, upon the terms and subject to the conditions set forth therein;
NOW, THEREFORE, BE IT RESOLVED as follows:
RESOLVED, that the Issuance be, and hereby is, authorized and approved in all respects, and that the undersigned Stockholder hereby votes all of the shares of capital stock of the Company held by such Stockholder and entitled to vote thereon in favor of the adoption and approval of the Subscription Agreement and the Warrant Agreement and the transactions contemplated thereby, including the Issuance; and
FURTHER RESOLVED, that this written consent is coupled with an interest and is irrevocable.
This written consent shall be filed with the minutes of the meetings of the stockholders of the Company and shall be treated for all purposes as action taken at a meeting.
IN WITNESS WHEREOF, the Stockholder has executed this written consent effective as of June 28, 2024.
|
Embraer Aircraft Holding, Inc. |
|
|
By: |
/s/ Michael Klevens |
|
Name: |
Michael Klevens |
|
Title: |
Officer |
|
|
|
|
By: |
/s/ Gary Kretz |
|
Name: |
Gary Kretz |
|
Title: |
Officer |
SUBSCRIPTION AGREEMENT
This SUBSCRIPTION AGREEMENT (this “Subscription Agreement”) is entered into on June 28, 2024, by and between Eve Holding, Inc. (the “Issuer”), and the subscriber party set forth on the signature page hereto (“Subscriber”).
WHEREAS, Subscriber desires to subscribe for and purchase from the Issuer 7,500,000 shares (the “Acquired Shares”) of the Issuer’s common stock, par value $0.001 per share (the “Common Stock”), for a purchase price per share of Common Stock equal to the arithmetic average of the daily volume-weighted average price per share of the shares of Common Stock on the New York Stock Exchange (“NYSE”) over a period of twenty (20) consecutive trading days ending on the last full trading day prior to June 28, 2024, less a discount of 10% from such arithmetic average, which represents a purchase price per share of Common Stock of $4.00 and an aggregate purchase price of $30,000,000 (the “Purchase Price”), and the Issuer desires to issue and sell to Subscriber the Acquired Shares in consideration of the payment of the Purchase Price by or on behalf of Subscriber to the Issuer on or prior to the Closing (as defined below); and
WHEREAS, the Issuer and Subscriber are executing and delivering this Subscription Agreement in reliance upon the exemption from securities registration afforded by Section 4(a)(2) of the Securities Act of 1933, as amended (the “Securities Act”).
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants, and subject to the conditions, herein contained, and intending to be legally bound hereby, the parties hereto hereby agree as follows:
“THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY STATE SECURITIES LAWS. THE HOLDER HEREOF, BY PURCHASING SUCH SECURITIES, AGREES FOR THE BENEFIT OF THE ISSUER THAT THESE SECURITIES MAY NOT BE OFFERED, RESOLD, TRANSFERRED, PLEDGED OR OTHERWISE DISPOSED OF BY THE HOLDER ABSENT AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT EXCEPT (I) TO THE ISSUER OR A SUBSIDIARY THEREOF, (II) TO NON-U.S. PERSONS PURSUANT TO OFFERS AND SALES THAT OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE SECURITIES ACT, OR (III) PURSUANT TO ANOTHER APPLICABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND IN EACH CASE IN ACCORDANCE WITH APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND THE APPLICABLE LAWS OF ANY OTHER JURISDICTION.”
Notwithstanding anything to the contrary set forth herein, the Issuer shall not, when so advising Subscriber of such events, provide Subscriber with any material, nonpublic information regarding the Issuer other than to the extent that providing notice to Subscriber of the occurrence of the events listed in (1) through (4) above may constitute material, nonpublic information regarding the Issuer;