UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 25, 2024
FOCUS IMPACT BH3 ACQUISITION COMPANY
(Exact name of registrant as specified in its charter)
| Delaware | 001-40977 | 86-2433757 |
| (State or other jurisdiction of incorporation or organization) | (Commission File Number) | (I.R.S. Employer Identification No.) |
1345 Avenue of the Americas, 33rd Floor New York, NY (Address of principal executive offices) | 10105 (Zip Code) |
(212) 213-0243
Registrant’s telephone number, including area code
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-half of one warrant | BHACU | The Nasdaq Stock Market LLC |
| Class A Common Stock, par value $0.0001 per share | BHAC | The Nasdaq Stock Market LLC |
| Warrants, each whole warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 | BHACW | 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 or Rule 12b-2 of the Securities Exchange Act of 1934.
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 4.02 | Non-Reliance on Previously Issued Financial Statements or a Related Audit Report or Completed Interim Review. |
On November 2, 2023, Focus Impact BH3 Acquisition Company (the “Company”) received an irrevocable waiver from the underwriters of its initial public offering (the “IPO”) pursuant to which the underwriters waived all rights (the “Waiver”) to the deferred underwriting discounts and commissions of $8,050,000 (the “Deferred Underwriting Commissions”), which were payable upon completion of an initial business combination and deposited into the trust account established in connection with the Company’s IPO.
Upon subsequent review and analysis, the Company’s management and the Audit Committee of the Company’s Board of Directors (the “Audit Committee”) determined that the waived Deferred Underwriting Commissions had previously been improperly classified as a gain in the Company’s statement of operations after the waiver was obtained, and concluded that the Company should have recognized the extinguishment of the contingent liability as a credit to shareholders’ deficit and not as a gain in the statement of operations.
On September 25, 2024, the Audit Committee concluded that the financial statements for the year ended December 31, 2023 (the “Financial Statements”) should no longer be relied upon due to this error. Therefore, the Company will restate the Financial Statements (the “Restatement”) by filing an amended Annual Report on Form 10-K for the year ended December 31, 2023 (the “Amended Form 10-K”). The Company plans to file the Amended Form 10-K as soon as reasonably practicable.
The change in accounting for the liability extinguishment in connection with the Waiver does not impact the Company’s cash position or funds in the trust account.
The Company’s management and the Audit Committee have discussed the matters disclosed in this Current Report on Form 8-K pursuant to this Item 4.02 with Grant Thornton LLP, the Company’s independent registered public accounting firm.
Additional Information about the Company’s Proposed Business Combination and Where to Find It
In connection with the proposed business combination among the Company and XCF Global Capital, Inc. (“XCF”), the Company and XCF have prepared, and Focus Impact BH3 Newco, Inc. (“NewCo”) has filed with the Securities and Exchange Commission (the “SEC”) a registration statement on Form S-4 (the “Registration Statement”) containing a prospectus with respect to the securities to be issued in connection with the business combination, a proxy statement with respect to the stockholders’ meeting of the Company to vote on the business combination and certain other related documents. Investors, securityholders and other interested persons are urged to read the preliminary proxy statement/prospectus in connection with the Company’s solicitation of proxies for its special meeting of stockholders to be held to approve the business combination (and related matters) and general amendments thereto and the definitive proxy statement/prospectus, when available, because the proxy statement/prospectus contains important information about the Company, XCF and the business combination. When available, the Company will mail the definitive proxy statement/prospectus and other relevant documents to its stockholders as of a record date to be established for voting on the business combination. This communication is not a substitute for the Registration Statement, the definitive proxy statement/prospectus or any other document that the Company will send to its stockholders in connection with the business combination. Once the Registration Statement is declared effective, copies of the Registration Statement, including the definitive proxy statement/prospectus and other documents filed by the Company, XCF or a newly formed successor entity with the SEC, may be obtained, free of charge, by directing a request to Focus Impact BH3 Acquisition Company, 1345 Avenue of the Americas, 33rd Floor, New York, NY 10105. The preliminary and definitive proxy statement/prospectus to be included in the Registration Statement, once available, can also be obtained, without charge, at the SEC’s website (www.sec.gov).
Participants in the Solicitation
The Company, NewCo and each of their directors, executive officers and other members of management may be deemed to be participants in the solicitation of proxies of the Company’s stockholders in connection with the business combination under SEC rules. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of the Company’s stockholders in connection with the business combination is included in the Registration Statement and the proxy statement/prospectus included therein, which has been filed with the SEC. Investors and security holders may obtain more detailed information regarding the names and interests in the business combination of the Company’s directors and officers in the Company’s filings with the SEC and such information is also in the Registration Statement that has been filed with the SEC, which includes the preliminary proxy statement/prospectus of the Company for the business combination.
XCF and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the stockholders of the Company 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 is included in the Registration Statement and the proxy statement/prospectus included therein, which has been filed with the SEC.
No Offer or Solicitation
This Current Report on Form 8-K relates to the above-described non-reliance on the Financial Statements and the Restatement and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the business combination or otherwise, nor shall there be any sale, issuance or transfer or securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom, and otherwise in accordance with applicable law.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the safe harbor provisions of the United States Private Securities Litigation Reform Act of 1995. Certain of these forward-looking statements can be identified by the use of words such as “believes,” “expects,” “intends,” “plans,” “estimates,” “assumes,” “may,” “should,” “will,” “seeks,” or other similar expressions. Such statements may include, but are not limited to, statements regarding the Company’s expectations regarding the proposed business combination and the impact of the Company’s restatement of certain historical financial statements, the Company’s cash position and cash held in the trust account and any proposed remediation measures with respect to identified material weaknesses. These statements are based on current expectations on the date of this Current Report on Form 8-K and involve a number of risks and uncertainties that may cause actual results to differ significantly, including those risks set forth in the Registration Statement filed by NewCo with the SEC on July 31, 2024, the Company’s most recent Annual Report on Form 10-K and subsequent Quarterly Reports on Form 10-Q and other documents filed with the SEC. Copies of such filings are available on the SEC’s website at www.sec.gov. The Company does not assume any obligation to update or revise any such forward-looking statements, whether as the result of new developments or otherwise. Readers are cautioned not to put undue reliance on forward-looking statements.
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.
| Dated: September 25, 2024 | ||
| FOCUS IMPACT BH3 ACQUISITION COMPANY | ||
| By: | /s/ Carl Stanton | |
| Name: | Carl Stanton | |
| Title: | Chief Executive Officer | |