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): February 22, 2022
NUKKLEUS
INC.
(Exact name of registrant as specified in its charter)
| Delaware |
|
000-55922 |
|
38-3912845 |
(State
or other jurisdiction of
incorporation or organization) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification Number) |
525
Washington Blvd.
Jersey
City, New Jersey 07310
(Address
of principal executive offices)
212-791-4663
(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 to 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 |
| Not
applicable |
|
Not
applicable |
|
Not applicable |
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 1.01.
Entry into a Material Definitive Agreement.
Overview
On February
22, 2022, Nukkleus Inc., a Delaware corporation (“Nukkleus” or the “Company”), entered into an Agreement
and Plan of Merger (as it may be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”),
by and among Nukkleus and Brilliant Acquisition Corporation, a British Virgin Islands company (“Brilliant”). Upon consummation
of the transactions contemplated by the Merger Agreement, Nukkleus would become the Nasdaq-listed parent company of Brilliant (“PubCo”),
with former Nukkleus stockholders owning approximately 66% and former Brilliant shareholders owning approximately 34% of the ordinary
shares of PubCo issued and outstanding immediately after closing (the “PubCo Shares”), assuming no redemptions from
Brilliant’s trust account.
The
transactions contemplated by the Merger Agreement, are hereinafter referred to as the “Business Combination.” The
Merger Agreement and the transactions contemplated thereby have been approved by the boards of directors of each of Nukkleus and Brilliant.
The
Merger Agreement
The
Business Combination
The
Merger Agreement provides that, promptly following the signing of the Merger Agreement, Nukkleus will form a British Virgin Islands company
and wholly owned subsidiary of Nukkleus (“Merger Sub”), and cause Merger Sub to join the Merger Agreement by executing
a joinder to the Merger Agreement and to assume all of the rights and obligations of Merger Sub under the Merger Agreement. The Merger
Agreement further provides that, subject to satisfaction of certain conditions discussed below, Merger Sub will merge with and into Brilliant
(the “Merger”), and each ordinary share of Merger Sub will be converted into one share of the surviving corporation,
and the shares of Brilliant issued and outstanding immediately prior to the effective time of the Business Combination will be converted
into the right to receive the Applicable Per Share Merger Consideration (as defined in the Merger Agreement). Additionally, the Company
will register certain of its securities for public trading on the Nasdaq Stock Market.
The
Merger Agreement also contemplates that, prior to the effective time of the Merger, the Nukkleus board of directors will submit for approval
by the Nukkleus shareholders an amendment to Nukkleus’s certificate of incorporation to authorize the board of directors to effect
a reverse stock split of all outstanding shares of Nukkleus at a reverse stock split ratio such that 14.0 million shares of Nukkleus common
stock will be outstanding immediately prior to the effective time (currently anticipated to be 1:26.227) or such other ratio as may be
agreed between Nukkleus and Brilliant. Nukkleus has 352,024,371 shares of common stock issued and outstanding, and an additional 15,151,515
shares of common stock are expected to be issued in March 2022 in connection with a Purchase and Sale Agreement, dated as of December
30, 2021, between the Company and the shareholder of Digiclear Ltd. disclosed in the Company’s Quarterly Report on Form 10-Q for
the period ended December 31, 2021, filed with the SEC on February 14, 2022.
The
Business Combination is expected to close in the second quarter of 2022, following the receipt of the required approvals by Nukkleus’s
and Brilliant’s shareholders, respectively, and the fulfillment or waiver of other closing conditions described below.
Business
Combination Consideration
In
accordance with the terms and subject to the conditions of the Merger Agreement,
| ● | each
ordinary share of Brilliant issued and outstanding immediately prior to the time the Merger
becomes effective (the “Effective Time”) (other than Dissenting Shares
(as defined in the Merger Agreement) and shares owned by Brilliant or any of its controlled
entities, which will be cancelled for no consideration) will be converted into the right
to receive the Applicable Per Share Merger Consideration; |
| ● | each
share of ordinary share of Merger Sub issued and outstanding immediately prior to the Effective
Time will be converted into one share of common stock, par value $0.0001 per share, of the
surviving corporation of the Merger; and |
| ● | each
Dissenting Share of Brilliant shall be entitled to rely on such rights as are granted by
the British Virgin Islands Business Companies Act, subject to certain conditions set forth
in the Merger Agreement and in accordance with applicable law. |
Governance
Immediately
after the closing of the Business Combination and Nukkleus’s registration with Nasdaq, PubCo’s board of directors will initially
include Emil Assentato, Jamal Khurshid, Craig Marshak, and such other directors as Nukkleus shall determine in accordance with applicable
law and regulations.
Representations
and Warranties; Covenants
The
Merger Agreement contains representations, warranties and covenants of each of the parties thereto that are customary for transactions
of this type. In addition, Brilliant has agreed to adopt an equity incentive plan effective at the closing of the Business Combination,
substantially in the form attached to the Merger Agreement.
Conditions
to Each Party’s Obligations
The
obligation of Nukkleus, Brilliant, and Merger Sub to consummate the Business Combination is subject to the fulfillment or waiver of certain
closing conditions, including, but not limited to, (i) the approval of Nukkleus’s stockholders, (ii) the approval of Brilliant’s
shareholders, (iii) Nukkleus’s Registration Statement (as defined in the Merger Agreement) becoming effective, (iv) the approval
of Nukkleus’s listing application for the PubCo Shares, and (v) certain other closing conditions as set forth in the Merger
Agreement.
In
addition, the obligation of Nukkleus to consummate the Business Combination is subject to the fulfillment or waiver of other closing
conditions, including, but not limited to, (i) the representations and warranties of Brilliant being true and correct to the standards
applicable to such representations and warranties and each of the covenants of Brilliant having been performed or complied with in all
material respects, (ii) no Material Adverse Effect (as defined in the Merger Agreement) having occurred, (iii) Nukkleus having a gross
amount of no less than $10,000,000 in cash and cash equivalents available to it immediately after the Closing, including the proceeds
from the Trust Fund (prior to the payment of Transaction Costs), (iv) Brilliant remaining listed on Nasdaq, and (v) Brilliant’s
unpaid debt, excluding certain transactions costs, not exceeding a threshold specified in the Merger Agreement.
The
obligation of Brilliant to consummate the Business Combination is also subject to the fulfillment or waiver of other closing conditions,
including, but not limited to, (i) the representations and warranties of Nukkleus being true and correct to the standards applicable
to such representations and warranties and each of the covenants of Nukkleus having been performed or complied with in all material respects,
(ii) no Material Adverse Effect (as defined in the Merger Agreement) having occurred, and (iii) transactions costs of the Business Combination
not exceeding certain thresholds set forth in the Merger Agreement.
Termination
The
Merger Agreement may be terminated under certain customary and limited circumstances prior to the closing of the Business Combination,
including, but not limited to, (i) by either Nukkleus or Brilliant if the Business Combination is not consummated by March 23, 2022,
or, in the event that the life of Brilliant is extended beyond such date in accordance with Brilliant’s organizational documents,
September 23, 2022, (ii) by Brilliant if there is a material breach of the representations and warranties of Nukkleus, subject to a fifteen
(15) day cure period following notice of such breach, and (iii) by Nukkleus upon a material breach of the representations and warranties
of Brilliant, subject to a fifteen (15) day cure period following notice of such breach.
A
copy of the Merger Agreement is filed with this Current Report on Form 8-K as Exhibit 2.1, and is incorporated herein by reference,
and the foregoing description of the Merger Agreement is qualified in its entirety by reference thereto. The Merger Agreement contains
representations, warranties and covenants that the respective parties made to each other as of the date of the Merger Agreement or other
specific dates. The assertions embodied in those representations, warranties and covenants were made for purposes of the contract among
the respective parties and are subject to important qualifications and limitations agreed to by the parties in connection with negotiating
such agreement. The representations, warranties and covenants in the Merger Agreement are also modified in important part by the underlying
disclosure schedules which are not filed publicly and which are subject to a contractual standard of materiality different from that
generally applicable to stockholders and were used for the purpose of allocating risk among the parties rather than establishing matters
as facts. Nukkleus does not believe that these schedules contain information that is material to an investment decision.
Stockholder
Support Agreements
Concurrently
with the execution of the Merger Agreement, certain holders of Nukkleus common stock entered into a Support Agreement with Brilliant
(each, a “Nukkleus Stockholder Support Agreement”), pursuant to which each such holder agreed, among other things,
(a) to vote all of the shares of Nukkleus beneficially owned by such holder (which vote may be done by executing a written consent)
in favor of the adoption of the Merger Agreement and the approval of the Business Combination, and (b) not to engage in any transactions
involving the securities of Brilliant prior to the Closing.
The
foregoing description of the Nukkleus Stockholder Support Agreement is subject to and qualified in its entirety by reference to the full
text of the Nukkleus Stockholder Support Agreement, a copy of which is included as Exhibit 10.1 hereto, and the terms of which are
incorporated herein by reference.
Lock-Up
Agreements
At
the effective time of the Business Combination, Nukkleus and certain shareholders of Brilliant will enter into lock-up agreements (the
“Lock-Up Agreements”), pursuant to which, among other things, the shareholders will agree to be subject, for a one-year
period, to restrictions on the transfer of the PubCo Shares they receive in the Business Combination.
The
foregoing descriptions of the Lock-Up Agreements are subject to and qualified in its entirety by reference to the full text of the forms
of Lock-Up Agreements, a form of which is included as Exhibit 10.3, and the terms of which are incorporated herein by reference.
Registration
Rights Agreement
At
the effective time of the Business Combination, Nukkleus and certain shareholders of Brilliant will enter into a registration rights
agreement (the “Registration Rights Agreement”), pursuant to which, among other things, Nukkleus will grant to such
shareholders certain customary registration rights with respect to the PubCo Shares they receive in the Business Combination.
The
foregoing description of the Registration Rights Agreements is subject to and qualified in its entirety by reference to the full text
of the forms of Registration Rights Agreements, a form of which is included as Exhibit 10.2, and the terms of which are incorporated
herein by reference.
Item
7.01. Regulation FD Disclosure.
On
February 23, 2022, Nukkleus and Brilliant issued a joint press release announcing their entry into the Merger Agreement. The press release
is attached hereto as Exhibit 99.1 and incorporated by reference herein.
The foregoing
(including Exhibits 99.1) is being furnished pursuant to Item 7.01 of Form 8-K and will not be deemed to be filed for purposes of Section
18 of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities
of that section, nor will it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act.
Additional
Information and Where to Find It
This
Current Report relates to a proposed business combination among Nukkleus, Brilliant and Merger Sub in which Merger Sub would merge into
Brilliant. In connection with the proposed transaction, Nukkleus intends to file with the Securities and Exchange Commission (the “SEC”)
a registration statement on Form S-4 that will include a proxy statement of Nukkleus and that also will constitute a prospectus of Nukkleus
with respect to the PubCo Shares to be issued in the proposed transaction (the “proxy statement/prospectus”). The definitive
proxy statement/prospectus (if and when available) will be delivered to Nukkleus’s stockholders. Each of Nukkleus and Brilliant
may also file other relevant documents regarding the proposed transaction with the SEC. BEFORE MAKING ANY VOTING OR INVESTMENT DECISION,
INVESTORS AND SECURITY HOLDERS OF NUKKLEUS ARE URGED TO READ THE REGISTRATION STATEMENT, PROXY STATEMENT/PROSPECTUS AND ALL OTHER RELEVANT
DOCUMENTS THAT ARE FILED WITH THE SEC IN CONNECTION WITH THE PROPOSED TRANSACTION, INCLUDING ANY AMENDMENTS OR SUPPLEMENTS TO THESE DOCUMENTS,
CAREFULLY AND IN THEIR ENTIRETY BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION.
Investors
and security holders may obtain free copies of the proxy statement/prospectus (if and when available) and other documents that are filed
or will be filed with the SEC by Brilliant or Nukkleus through the website maintained by the SEC at www.sec.gov. Stockholders of Nukkleus
will also be able to obtain a copy of the definitive proxy statement, without charge by directing a request to: Nukkleus, Inc., 525 Washington
Boulevard, Jersey City, New Jersey 07310. Shareholders of Brilliant will also be able to obtain a copy of the definitive proxy statement,
without charge by directing a request to: Brilliant Acquisition Corporation, 99 Dan Ba Road, C-9, Putuo District, Shanghai, Peoples Republic
of China.
Participants
in the Solicitation
Nukkleus
and its directors and executive officers are participants in the solicitation of proxies from the stockholders of Nukkleus in respect
of the proposed transaction. Information about Nukkleus’s directors and executive officers and their ownership of Nukkleus common
stock is set forth in Nukkleus’s Annual Report on Form 10-K for the year ended September 30, 2020, filed with the SEC on December
28, 2020. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect interests,
by security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be filed with
the SEC in respect of the proposed transaction when they become available. You may obtain free copies of these documents as described
in the preceding paragraph.
Brilliant
and its directors and executive officers are participants in the solicitation of proxies from the shareholders of Brilliant in respect
of the proposed transaction. Information about Brilliant’s directors and executive officers and their ownership of Brilliant’s
ordinary shares is set forth in Brilliant’s Annual Report on Form 10-K for the year ended December 31, 2020, filed with the SEC
on October 13, 2021. Other information regarding the participants in the proxy solicitation and a description of their direct and indirect
interests, by security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be
filed with the SEC in respect of the proposed transaction when they become available. You may obtain free copies of these documents as
described above.
Cautionary
Note Regarding Forward-Looking Statements
Forward-looking
statements are predictions, projections and other statements about future events that are based on current expectations and assumptions
and, as a result, are subject to risks and uncertainties. Many factors could cause actual future events to differ materially from the
forward-looking statements in this document, including but not limited to: (i) the risk that the proposed business combination may not
be completed in a timely manner or at all, which may adversely affect the price of Nukkleus and/or Brilliant securities; (ii) the risk
that the proposed business combination may not be completed by Brilliant’s business combination deadline and the potential failure
to obtain an extension of the business combination deadline if sought by Brilliant; (iii) the failure to satisfy the conditions to the
consummation of the proposed business combination, including the approval of the proposed business combination by the stockholders of
Nukkleus and/or Brilliant, the satisfaction of the minimum trust account amount following redemptions by Brilliant’s public shareholders
and the receipt of certain governmental and regulatory approvals; (iv) the effect of the announcement or pendency of the proposed business
combination on Nukkleus’s business relationships, performance, and business generally; (v) risks that the proposed business combination
disrupts current plans of Nukkleus and potential difficulties in Nukkleus employee retention as a result of the proposed business combination;
(vi) the outcome of any legal proceedings that may be instituted against Nukkleus or Brilliant related to the agreement and plan of merger
or the proposed business combination; (vii) the ability to maintain the listing of Brilliant’s securities on the Nasdaq Stock Market;
(viii) the price of Nukkleus’s and/or Brilliant’s securities, including volatility resulting from changes in the competitive
and highly regulated industries in which Nukkleus and Brilliant plan to operate, variations in performance across competitors, changes
in laws and regulations affecting Nukkleus’s business and changes in the combined capital structure; and (ix) the ability to implement
business plans, forecasts, and other expectations after the completion of the proposed business combination, and identify and realize
additional opportunities. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the
other risks and uncertainties described in the proxy statement/prospectus contained in Nukkleus’s Form S-4 registration statement
described below, including those under “Risk Factors” therein, the Annual Report on Form 10-K for Nukkleus and Brilliant,
Quarterly Reports on Form 10-Q for Nukkleus and Brilliant and other documents filed by Nukkleus and/or Brilliant from time to time with
the U.S. Securities and Exchange Commission (the “SEC”). These filings identify and address other important risks and uncertainties
that could cause actual events and results to differ materially from those contained in the forward-looking statements. Forward-looking
statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and
Nukkleus and Brilliant assume no obligation and, except as required by law, do not intend to update or revise these forward-looking statements,
whether as a result of new information, future events, or otherwise. Neither Nukkleus nor Brilliant gives any assurance that either Nukkleus
or Brilliant will achieve its expectations.
No
Offer or Solicitation
This
communication is not intended to and shall not constitute an offer to sell or the solicitation of an offer to sell or to buy any securities
or a solicitation of any vote or approval and is not a substitute for the proxy statement/prospectus or any other document that Brilliant
or Nukkleus may file with the SEC or send to Nukkleus’s and/or Brilliant’s shareholders in connection with the proposed transaction.
No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
| † |
Certain of the exhibits and schedules to this exhibit
have been omitted in accordance with Regulation S-K Item 601(b)(2). The Registrant agrees to furnish supplementally a copy of all
omitted exhibits and schedules to the SEC upon its request. |
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.
| |
NUKKLEUS INC. |
| |
|
|
| Date: February 23, 2022 |
By: |
/s/
Emil Assentato |
| |
Name: |
Emil Assentato |
| |
Title: |
President and Chief Executive
Officer |
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