On October 28, 2020, Spartan Energy Acquisition Corp.
(“Spartan”), the predecessor to Fisker Inc. (the “Company”), held a
special meeting of stockholders (the “Spartan Special Meeting”) to
approve certain matters relating to the business combination
between Spartan and then privately held Fisker Inc. (“Private
Fisker”). One of these matters was a proposal to increase the total
number of authorized shares of Spartan’s Class A common stock,
par value $0.0001 per share (the “Class A common stock”), from
200,000,000 shares to 750,000,000 shares (the “2020 Share
Authorization Proposal”). The 2020 Share Authorization Proposal was
approved by a majority of the shares of Class A and
Class B common stock of Spartan, voting together as a single
class, that were outstanding as of the record date for the Spartan
Special Meeting. After the Spartan Special Meeting, Spartan and
Private Fisker closed the business combination, and Spartan changed
its name to Fisker Inc.
A recent ruling by the Court of Chancery introduces uncertainty as
to whether Section 242(b)(2) of the Delaware General
Corporation Law (the “DGCL”) would have required the 2020 Share
Authorization Proposal to be approved by a separate vote of the
majority of Spartan’s then-outstanding shares of Class A
common stock.
In light of the recent Court of Chancery decision, the Company
filed a petition in the Court of Chancery pursuant to
Section 205 of the DGCL seeking validation of the 2020 Share
Authorization Proposal and the shares issued pursuant thereto to
resolve any uncertainty with respect to those matters.
Section 205 of the DGCL permits the Court of Chancery, in its
discretion, to ratify and validate potentially defective corporate
acts after considering a variety of factors.
If the Company is not successful in the Section 205
proceeding, the uncertainty with respect to the Company’s
capitalization resulting from the Court of Chancery’s ruling
referenced above could have a material adverse impact on the
Company, including on the Company’s ability to complete equity or
debt financing transactions or issue stock-based compensation to
its employees, directors and officers until the underlying issues
are definitively resolved. This uncertainty could impair the
Company’s ability to execute its business plan, attract and retain
employees, management and directors and adversely affect its
commercial relationships.
Forward-Looking Statements
This report includes forward looking statements. These statements
are made under the “safe harbor” provisions of the U.S. Private
Securities Litigation Reform Act of 1995. These statements may be
identified by words such as “feel,” “believes,” expects,”
“estimates,” “projects,” “intends,” “should,” “is to be,” or the
negative of such terms, or other comparable terminology.
Forward-looking statements are statements that are not historical
facts. Such forward-looking statements are not guarantees of future
performance and are subject to risks and uncertainties, which could
cause actual results to differ materially from the forward-looking
statements contained herein due to many factors.
In particular, no assurances can be made regarding the outcome or
the timing of the Section 205 proceeding described above. If
the Company is unsuccessful in the Section 205 proceeding, the
uncertainty with respect to the Company’s capitalization could
limit its ability to complete equity or debt financing transactions
or issue stock-based compensation to its employees, directors and
officers until the underlying issues are definitively resolved. As
described above, this uncertainty could have a material adverse
impact on the Company.