SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 12, 2020
MUDRICK CAPITAL ACQUISITION CORPORATION
|(Exact name of registrant as specified in its charter)|
|(State or other jurisdiction of incorporation)||(Commission File Number)||(IRS Employer Identification No.)|
527 Madison Avenue, Sixth Floor
New York, New York 10022
(Address of principal executive offices, including zip code)
Registrant’s telephone number, including area code: (646) 747-9500
(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||Name of each exchange on which registered|
|Class A Common Stock, par value of $0.0001 per share||MUDS||The NASDAQ Stock Market LLC|
|Warrants to purchase one share of Class A Common Stock||MUDSW||The NASDAQ Stock Market LLC|
|Units, each consisting of one share of Class A Common Stock and one Warrant||MUDSU||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 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company x
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.|
Amendment to Underwriting Agreement
On February 12, 2020, Mudrick Capital Acquisition Corporation (the “Company”) entered into an amendment (the “UA Amendment”) to that certain Underwriting Agreement (the “Underwriting Agreement”), dated as of February 7, 2018, by and between MUDS and Cantor Fitzgerald & Co. (“Cantor”), as representative of the several underwriters named on Schedule A of the Underwriting Agreement (the “Underwriters”), pursuant to which the deferred underwriting fees provided for by the Underwriting Agreement, which were originally payable by MUDS to the Underwriters in cash upon completion of the Company’s initial business combination, shall be payable upon completion of the business combination transaction (the “business combination”) contemplated by that certain Purchase Agreement (the “Purchase Agreement”), dated as of January 13, 2020, by and among the Company, MUDS Acquisition Sub, Inc. and Hycroft Mining Corporation, through a combination of (i) shares of the Company’s Class A common stock, par value $0.0001 per share (“Class A Common Stock”), valued at $10.00 per share, (ii) cash and (iii) additional Class A Common Stock or cash dependent upon the amount of Class A Common Stock owned by Cantor as of February 12, 2020 and by independent third parties as of the consummation of the business combination, after taking into account any redemptions of Class A common stock by stockholders of the Company. The UA Amendment does not amend, modify or supplement any other terms of the Underwriting Agreement.
A copy of the UA Amendment is attached as Exhibit 10.1 hereto and incorporated herein by reference.
This Current Report includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “forecast,” “intend,” “seek,” “target,” “anticipate,” “believe,” “expect,” “estimate,” “plan,” “outlook,” and “project” and other similar expressions that predict or indicate future events or trends or that are not statements of historical matters. Such forward-looking statements may include estimated financial information, including with respect to revenues, earnings, performance, strategies, prospects and other aspects of the businesses of the Company, Seller or the combined company after completion of the business combination, and are based on current expectations that are subject to known and unknown risks and uncertainties, which could cause actual results or outcomes to differ materially from expectations expressed or implied by such forward-looking statements. These factors include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could result in the proposed business combination not being completed at all or on the expected timeline, including as a result of the termination of the Purchase Agreement or the failure to obtain approval of the Company’s stockholders or other conditions to closing in the Purchase Agreement; (2) the ability to meet applicable NASDAQ listing standards; (3) the risk that the proposed business combination disrupts current plans and operations of Seller’s business as a result of the announcement and consummation of the transactions described herein; (4) the ability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably, maintain relationships with customers and suppliers and retain its management and key employees; (5) costs related to the proposed business combination; (6) changes in applicable laws or regulations; (7) the possibility that Seller’s business may be adversely affected by other economic, business, and/or competitive factors; and (8) other risks and uncertainties indicated from time to time in the definitive version of the registration statement of the Company to be filed in connection with the proposed business combination and the joint proxy statement/prospectus contained therein (as amended or supplemented, the “Registration Statement”), including those under “Risk Factors” therein, and other documents filed or to be filed with the Securities and Exchange Commission by the Company. Investors are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. The Company and Seller undertake no commitment to update or revise the forward-looking statements, whether as a result of new information, future events or otherwise. Anyone using the presentation does so at their own risk and no responsibility is accepted for any losses which may result from such use directly or indirectly. Investors should carry out their own due diligence in connection with the assumptions contained herein. The forward-looking statements in this current report speak as of the date of its filing. Although the Company may from time to time voluntarily update its prior forward-looking statements, it disclaims any commitment to do so whether as a result of new information, future events, changes in assumptions or otherwise except as required by applicable securities laws.
This Current Report shall neither constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any jurisdiction in which the offer, solicitation, or sale would be unlawful prior to the registration or qualification under the securities laws of any such jurisdiction. This Current Report relates to a proposed business combination between the Company and Seller.
Additional Information About the Business Combination
In connection with the proposed business combination between the Company and Seller, the Company intends to file with the Securities and Exchange Commission (the “SEC”) the Registration Statement on Form S-4 and will mail a definitive Registration Statement and other relevant documentation to the Company’s stockholders. The Company’s stockholders and other interested persons, including Seller’s stockholders, are advised to read, when available, the preliminary Registration Statement and the amendments thereto that will be filed with the SEC and the definitive Registration Statement and documents incorporated by reference therein filed with the SEC and mailed to such stockholders as these materials will contain important information about the Company, Seller and the proposed business combination. The definitive Registration Statement will be mailed to the Company’s stockholders and to Seller’s stockholders, in each case, as of the applicable record date to be established for voting on the proposed business combination, when it becomes available.
The Company’s stockholders will also be able to obtain free copies of the preliminary and definitive Registration Statements (if and when available) and other documents containing important information about the Company, Seller and the proposed business combination, without charge, at the SEC’s website at http://sec.gov, once such documents are filed with the SEC, or by directing a request to: Mudrick Capital Acquisition Corporation, 27 Madison Avenue, 6th Floor, New York, New York 10022.
Participants in the Solicitation
The Company and its directors, executive officers and other members of its management and employees and Seller and its directors and management may be deemed to be participants in the solicitation of proxies from the Company’s stockholders in connection with the proposed business combination. Stockholders are urged to carefully read the Registration Statement when it becomes available, because it will contain important information about the Company, Seller and the proposed business combination. The Registration Statement will also contain information regarding the persons who may, under the rules of the SEC, be deemed participants in the solicitation of the Company’s stockholders in connection with the proposed business combination, including information about the Company’s directors and executive officers, which will be set forth in the Registration Statement when it becomes available.
Item 9.01 Financial Statements and Exhibits.
|(d)||List of Exhibits.|
The Exhibit Index is incorporated by reference
|10.1||Amendment to Underwriting Agreement, dated as of February 12, 2020, by and among Mudrick Capital Acquisition Corporation and Cantor Fitzgerald & Co., as representatives of the several underwriters.|
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.
|Mudrick Capital Acquisition Corporation|
|Date: February 14, 2020||By:||/s/ Jason Mudrick|
|Name: Jason Mudrick|
|Title: Chief Executive Officer|
Mudrick Capital Acquisition Corporation
527 Madison Avenue, 6th Floor
New York, New York 10022
February 12, 2020
Cantor Fitzgerald & Co.
As Representative of the several Underwriters
499 Park Avenue
New York, New York 10022
Re: Underwriting Agreement
Ladies and Gentlemen:
Reference is made to that certain Underwriting Agreement, dated February 7, 2018, by and among Mudrick Capital Acquisition Corporation, a Delaware corporation (the “Company”), and Cantor Fitzgerald & Co., as representative (the “Representative”) of the several underwriters named on Schedule A thereto (the “Underwriting Agreement”). Except as otherwise specifically provided herein, all capitalized terms used in this amendment to the Underwriting Agreement (this “Amendment”) shall have the meanings ascribed to them in the Underwriting Agreement.
In consideration of the mutual promises and agreements contained in this Amendment, and for other good and valuable consideration, the sufficiency and adequacy of which is hereby acknowledged, the undersigned hereby agree as follows:
|I.||Amendment Regarding Payment of Deferred Underwriting Commission|
The Underwriting Agreement is hereby amended by this Amendment, effective as of the date first listed above, as follows:
|1.||The first sentence of Section 1.3 of the Underwriting Agreement is hereby deleted and replaced with the following:|
“In the event that the Company consummates its Business Combination with Hycroft Mining Corporation, a Delaware corporation (“Hycroft”), as contemplated by that certain Purchase Agreement, dated as of January 13, 2020 (the “Hycroft Purchase Agreement”), by and among the Company, Mudrick Acquisition Sub, Inc. and Hycroft (such Business Combination, the “Acquisition”), the Company shall pay, or cause to be paid, to Cantor for its own account upon consummation of the Acquisition, a deferred underwriting commission of (i) $2,500,000, payable in cash and directly from the Trust Account, (ii) $2,000,000, payable in shares of Common Stock, valued for these purposes at $10.00 per share and (iii) an amount up to $2,780,000, determined as follows: (A) if Third Party Equity Value (as defined below) is less than or equal to $75,000,000, an amount payable in Common Stock, valued for these purposes at $10.00 per share, equal to the product of (x) 2,780,000 and (y) a fraction, the numerator of which is the Third Party Equity Value and the denominator of which is $75,000,000 or (B) if Third Party Equity Value is greater than $75,000,000, $2,780,000 payable in cash and directly from the Trust Account (collectively, the “Deferred Underwriting Commission”); provided, however, to the extent Cantor continues to beneficially own and hold for its own account the Specified Shares (as defined below) on the date of the consummation of the Acquisition (the “Acquisition Closing Date”), (1) the Deferred Underwriting Commission payable in Common Stock pursuant to clauses (ii) and (iii) above shall be reduced by an amount equal to the product of (x) $10.00 and (y) the number of Specified Shares beneficially owned and held by Cantor for its own account on the Acquisition Closing Date, as evidenced by a certificate signed by an authorized officer of Cantor and delivered to the Company on or prior to the Acquisition Closing Date, and (2) the Deferred Underwriting Commission payable in cash and directly from the Trust Account pursuant to this sentence shall be increased by such same and equal amount. For purposes of this agreement, the term “Third Party Equity Value” shall mean an amount in cash equal to (A) the product of (i) $10.00 and (ii) the number of IPO Shares minus the number of IPO Shares that Public Stockholders elect to redeem in connection with the consummation of the Business Combination, plus (B) the gross proceeds received from the sale of Common Stock to Third Party Private Investors prior to the consummation of the Business Combination (but in no event greater than $75,000,000). For purposes of this Agreement, “Third Party Private Investors” shall mean any person other than investment funds affiliated with or managed by Mudrick Capital Management, L.P., Whitebox Advisors LLC, Highbridge Capital Management, LLC, Aristeia Capital, LLC, Wolverine Asset Management, LLC and Sprott Inc. For purposes of this Agreement, “Specified Shares” means 200,000 shares of Common Stock acquired by Cantor and beneficially owned and held by Cantor for its own account as of the date hereof.”
|2.||Section 3.16 of the Underwriting Agreement is hereby deleted and replaced with the following:|
“3.16 Payment of Deferred Underwriting Commission on Business Combination. Upon the consummation of the Company’s initial Business Combination, the Company agrees that it will cause the Trustee to pay the cash portion of the Deferred Underwriting Commission directly from the Trust Account to the Representative and deliver the Common Stock portion of the Deferred Underwriting Commission to Cantor in book entry form, in each case, in accordance with Section 1.3. Any such Common Stock shall be registered in such name or names as Cantor may request in writing at least two (2) full Business Days prior to the consummation of the initial Business Combination.”
|3.||Notwithstanding the foregoing, if the Hycroft Purchase Agreement is terminated, Section 1.3 and 3.16 will each automatically revert back to their original form in the Underwriting Agreement in respect of any Business Combination between the Company and a party other than Hycroft.|
|II.||Company Representations and Covenants|
The Company represents, warrants and covenants to Cantor that:
a. Subject to obtaining all required approvals necessary in connection with the performance of the Hycroft Purchase Agreement (including, without limitation the approval of the Company's stockholders) (together, the “Required Approvals”), the Company has all requisite corporate power and authority to deliver and perform its obligations under this Amendment.
b. Subject to obtaining the Required Approvals, the Common Stock issued as part of the Deferred Underwriting Commission (the “Deferred Commission Shares”) have been duly authorized and, when issued and delivered to Cantor against receipt of full consideration therefor in accordance with the terms of the Underwriting Agreement, as amended by this Amendment, the Deferred Commission Shares will be validly issued, fully paid and non-assessable.
c. Subject to obtaining the Required Approvals, this Amendment has been duly authorized, executed and delivered by the Company, and assuming that Amendment constitutes the valid and binding agreement of the Representative and the Underwriters, is the valid and binding obligations of the Company, enforceable against it in accordance with its terms, except as may be limited or otherwise affected by (i) applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other laws relating to or affecting the rights of creditors generally, and (ii) principles of equity, whether considered at law or equity.
d. Any “Common Stock” issued to Cantor pursuant to the Amendment will be subject to registration rights on substantially the same terms as set forth in the form of Amended and Restated Registration Rights Agreement among the Company, Cantor and the other parties thereto attached to the Hycroft Purchase Agreement.
|III.||Cantor Representations and Warranties|
Cantor represents and warrants to the Company that:
a. At the time Cantor was offered the Deferred Commission Shares, it was, and as of the date hereof, Cantor is an institutional “accredited investor” (within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Act), (ii) is acquiring the Deferred Commission Shares only for its own account and (iii) not for the account of others, and not on behalf of any other account or person or entity or with a view to, or for offer or sale in connection with, any distribution thereof in violation of the Act.
b. Cantor understands that the Deferred Commission Shares are being offered in a transaction not involving any public offering within the meaning of the Act and that the Deferred Commission Shares delivered at the Closing have not been registered under the Act.
c. Cantor understands that the Deferred Commission Shares may not be resold, transferred, pledged or otherwise disposed of by Cantor absent an effective registration statement under the Act, except (i) to the Company 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 Act or (iii) pursuant to another applicable exemption from the registration requirements of the Act, and that any certificates representing the Deferred Commission Shares shall contain a legend to such effect. Cantor acknowledges that the Deferred Commission Shares will not be eligible for resale pursuant to Rule 144A promulgated under the Act. Cantor understands and agrees that the Deferred Commission Shares will be subject to transfer restrictions and, as a result of these transfer restrictions, Cantor may not be able to readily resell the Deferred Commission Shares and may be required to bear the financial risk of an investment in the Deferred Commission Shares for an indefinite period of time. Cantor understands that it has been advised to consult legal counsel prior to making any offer, resale, pledge or transfer of any of the Deferred Commission Shares.
d. Cantor acknowledges that there have been no representations, warranties, covenants and agreements made to Cantor by the Company, or any of their respective officers or directors, expressly (other than those representations, warranties, covenants and agreements included in this Amendment) or by implication. In making its decision to acquire the Deferred Commission Shares, Cantor has relied solely upon independent investigation made by Cantor and the representations and warranties of the Company set forth herein.
e. Cantor acknowledges its obligations under applicable securities laws with respect to the treatment of non-public information relating to the Company.
f. As of the date hereof, Cantor beneficially owns and holds for its own account 200,000 shares of Common Stock (the “Specified Shares”). Cantor acknowledges that any shares of Common Stock acquired after the date hereof shall not be considered Specified Shares for purposes of this Amendment or the Underwriting Agreement.
Except as expressly provided in this Amendment, all of the terms and provisions in the Underwriting Agreement are and shall remain in full force and effect, on the terms and subject to the conditions set forth therein. This Amendment does not constitute, directly or by implication, an amendment, modification or waiver of any provision of the Underwriting Agreement, or any other right, remedy, power or privilege of any party to the Underwriting Agreement, except as expressly set forth herein. Any reference to the Underwriting Agreement in the Underwriting Agreement or any other agreement, document, instrument or certificate entered into or issued in connection therewith shall hereinafter mean the Underwriting Agreement, as amended or modified by this Amendment (or as the Underwriting Agreement may be further amended or modified after the date hereof in accordance with the terms thereof). The Underwriting Agreement, as amended and modified by this Amendment, together with the other agreements and documents delivered pursuant to or in connection with the Underwriting Agreement, constitutes the entire agreement between the parties with respect to the subject matter of the Underwriting Agreement, as amended by this Amendment, and supersedes all prior agreements and understandings, both oral and written, between the parties with respect to its subject matter. The provisions of Section 10 of the Underwriting Agreement (other than Section 10.4) are hereby incorporated herein by reference and apply to this Amendment as if all references to the “Agreement” contained therein were instead references to this Amendment. The terms of this Amendment shall be interpreted, enforced, governed by and construed in a manner consistent with the provisions of the Underwriting Agreement.
[Signature Page Follows]
If the foregoing is in accordance with your understanding of our agreement, kindly indicate your acceptance in the space provided for that purpose below, whereupon it will become a binding agreement among the Company and the several Underwriters in accordance with its terms.
|Very truly yours,|
|MUDRICK CAPITAL ACQUISITION CORPORATION|
|By:||/s/ Jason Mudrick|
|Name: Jason Mudrick|
|Title: Chief Executive Officer|
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT AMENDMENT]
The foregoing Amendment
is hereby confirmed and accepted as
of the date first above written.
CANTOR FITZGERALD & CO., as
Representative of the several Underwriters
|By:||/s/ Shawn P. Matthews|
|Name: Shawn P. Matthews|
[SIGNATURE PAGE TO UNDERWRITING AGREEMENT AMENDMENT]