Class A Common stock
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K/A
(Amendment No. 1)
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): November 18, 2020
RMG ACQUISITION CORP.
(Exact Name of Registrant as Specified in Charter)
| Delaware | 001-38795 | 83-2289787 | ||
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(State or Other Jurisdiction of Incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
|
50 West Street, Suite 40-C New York, New York 10006 |
10006 |
| (Address of Principal Executive Offices) | (Zip Code) |
(212) 785-2579
(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 (see General Instruction A.2. below):
| x | 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 redeemable warrant | RMG.UT | New York Stock Exchange |
| Class A common stock, par value $0.0001 per share | RMG | New York Stock Exchange |
| Redeemable warrants, exercisable for shares of Class A common stock at an exercise price of $11.50 per share | RMG.WT | New York Stock Exchange |
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. x
EXPLANATORY NOTE
This Current Report on Form 8-K/A (this “Amendment”) is being filed as an amendment to the Current Report on Form 8-K filed with the Securities and Exchange Commission by RMG Acquisition Corp. (“RMG”) on November 19, 2020 (the “Original Report”). The sole purpose of this Amendment is to correct a scrivener’s error in Exhibit 2.1 of the Original Report and refile Exhibit 2.1. No other changes have been made to the Original Report.
Important Information and Where to Find It
This Report relates to a proposed transaction between RMG and Romeo Systems, Inc. (“Romeo”). RMG has filed with the Securities and Exchange Commission (“SEC”) a registration statement on Form S-4 that includes a proxy statement and prospectus of RMG and a consent solicitation statement of Romeo. The proxy statement/prospectus/consent solicitation statement will be mailed to stockholders of RMG as of a record date to be established for voting on the proposed business combination. RMG also will file other relevant documents from time to time regarding the proposed transaction with the SEC. INVESTORS AND SECURITY HOLDERS OF RMG ARE URGED TO READ THE PROXY STATEMENT, PROSPECTUS AND OTHER RELEVANT DOCUMENTS THAT HAVE BEEN FILED AND WILL BE FILED BY RMG FROM TIME TO TIME WITH THE SEC CAREFULLY AND IN THEIR ENTIRETY WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE PROPOSED TRANSACTION. Investors and security holders will be able to obtain free copies of the proxy statement/prospectus/consent solicitation statement and other documents containing important information about RMG and Romeo once such documents are filed with the SEC, through the website maintained by the SEC at http://www.sec.gov. Copies of the documents filed with the SEC by RMG when and if available, can be obtained free of charge on RMG’s website at www.rmginvestments.com or by directing a written request to RMG Acquisition Corp., 50 West Street, Suite 40-C, New York, New York 10006.
Participants in the Solicitation
RMG and Romeo and their respective directors and executive officers, under SEC rules, may be deemed to be participants in the solicitation of proxies of RMG’s stockholders in connection with the proposed transaction. Investors and security holders may obtain more detailed information regarding the names and interests in the proposed transaction of RMG’s directors and officers in RMG’s filings with the SEC, including RMG’s Annual Report on Form 10-K for the fiscal year ended December 31, 2019, which was filed with the SEC on April 1, 2019. Information regarding the persons who may, under SEC rules, be deemed participants in the solicitation of proxies to RMG’s stockholders in connection with the proposed business combination will be set forth in the proxy statement/prospectus/consent solicitation statement for the proposed business combination when available. Additional information regarding the interests of participants in the solicitation of proxies in connection with the proposed business combination will be included in the proxy statement/prospectus/consent solicitation statement that RMG intends to file with the SEC.
No Offer or Solicitation
This communication 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.
Forward Looking Statements
This Report includes “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. When used in this Report, the words “estimates,” “projected,” “expects,” “anticipates,” “forecasts,” “plans,” “intends,” “believes,” “seeks,” “may,” “will,” “should,” “future,” “propose” and variations of these words or similar expressions (or the negative versions of such words or expressions) are intended to identify forward-looking statements. These forward-looking statements are not guarantees of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside RMG’s or Romeo’s management’s control, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. Important factors, among others, that may affect actual results or outcomes include: the inability to complete the transactions contemplated by the proposed business combination; the inability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, the amount of cash available following any redemptions by RMG stockholders; the ability to meet the NYSE’s listing standards following the consummation of the transactions contemplated by the proposed business combination; costs related to the proposed business combination; Romeo’s ability to execute on its plans to develop and market new products and the timing of these development programs; Romeo’s estimates of the size of the markets for its products; the rate and degree of market acceptance of Romeo’s products; the success of other competing technologies that may become available; Romeo’s ability to identify and integrate acquisitions; the performance of Romeo’s products; potential litigation involving RMG or Romeo; and general economic and market conditions impacting demand for Romeo’s products. Other factors include the possibility that the proposed transaction does not close, including due to the failure to receive required security holder approvals, or the failure of other closing conditions. The foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties described in the “Risk Factors” section of RMG’s Annual Report on Form 10-K, Quarterly Reports on Form 10-Q, the registration statement on Form S-4 and proxy statement/prospectus/consent solicitation statement discussed below and other documents filed by RMG from time to time with 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 neither RMG nor Romeo undertake any obligation to update or revise any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.
| Item 9.01. | Financial Statements and Exhibits |
| (d) | Exhibits. |
| Exhibit No. | Description | |
| 2.1 | Amendment No. 1 to Merger Agreement, dated as of November 18, 2020, to the Agreement and Plan of Merger, dated as of October 5, 2020, by and among RMG Acquisition Corp., RMG Merger Sub, Inc. and Romeo Systems, Inc. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
SIGNATURES
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.
| Date: November 20, 2020 | RMG Acquisition Corp. | |
| By: | /s/ Robert S. Mancini | |
| Name: | Robert S. Mancini | |
| Title: | Chief Executive Officer | |
Exhibit 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1, dated as of November 18, 2020 (this “Amendment No. 1”) to the Agreement and Plan of Merger, dated as of October 5, 2020 (the “Merger Agreement”), by and among RMG Acquisition Corp., a Delaware corporation (“Acquiror”), RMG Merger Sub, Inc., a Delaware corporation (“Merger Sub”), and Romeo Systems, Inc., a Delaware corporation (the “Company” and, together with Acquiror and Merger Sub, each, a “Party” and collectively, the “Parties”), is made and entered into by and among the Parties. Capitalized terms used but not defined in this Amendment No. 1 shall have the respective meanings ascribed to such terms in the Merger Agreement, which will remain in full force and effect as amended hereby.
RECITALS
WHEREAS, pursuant to Section 11.10 of the Merger Agreement, the Parties desire to amend the Merger Agreement, as set forth in this Amendment No. 1, effective as of the date hereof.
AGREEMENT
NOW THEREFORE, in consideration of the mutual promises and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, intending to be legally bound, the Parties hereby agree as follows:
1. Amendments to the Merger Agreement.
1.1 Article III of the Merger Agreement. Article III of the Merger Agreement is hereby amended by adding the following to the end of Article III:
3.11 Cash in Lieu of Fractional Shares. Notwithstanding anything to the contrary contained herein, no certificates or scrip representing fractional shares of Acquiror Common Stock shall be issued upon the conversion of Company Stock pursuant to Section 3.01(a) or Company Convertible Notes pursuant to Section 3.02(a), and such fractional share interests shall not entitle the owner thereof to vote or to any other rights of a holder of Acquiror Common Stock. In lieu of the issuance of any such fractional share, Acquiror shall pay to each former Company Stockholder or Company Convertible Noteholder who otherwise would be entitled to receive such fractional share an amount in cash, without interest, rounded down to the nearest cent, equal to the product of (i) the amount of the fractional share interest in a share of Acquiror Common Stock to which such holder otherwise would have been entitled but for this Section 3.11 multiplied by (ii) $10.
1.2 Section 5.02(b) of the Merger Agreement. Section 5.02(b) of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
(b) The affirmative vote of (i) holders of a majority of the outstanding shares of Acquiror Pre-Transaction Common Stock entitled to vote at the Acquiror Meeting, shall be required to approve each of the Transaction Proposal, the Issuance Proposal and the Director Election Proposal, and (ii) holders of (1) a majority of the outstanding shares of Acquiror Pre-Transaction Common Stock
entitled to vote at the Acquiror Meeting and (2) a majority of the outstanding shares of Acquiror Pre-Transaction Sponsor Stock entitled to vote at the Acquiror Meeting, shall be required to approve the Amendment Proposal, in each case, assuming a quorum is present, to approve the Proposals are the only votes of any of Acquiror’s capital stock necessary in connection with the entry into this Agreement by Acquiror, and the consummation of the transactions contemplated hereby, including the Closing (the approval by Acquiror Stockholders of all of the foregoing, collectively, the “Acquiror Stockholder Approval”).
1.3 Section 7.04 of the Merger Agreement. Section 7.04 of the Merger Agreement is hereby amended and restated in its entirety to read as follows:
Trust Account and Other Closing Payments. Prior to or at the Closing (subject to the satisfaction or waiver of the conditions set forth in Article IX), Acquiror shall make appropriate arrangements to cause the funds in the Trust Account to be disbursed in accordance with the Trust Agreement and the net proceeds of any PIPE Investment, if any, to be applied, in each case, for the following: (a) the redemption of any shares of Acquiror Stock in connection with the Offer; (b) the payment of the Outstanding Company Expenses and Outstanding Acquiror Expenses pursuant to Section 3.07 and the payment of the cash in lieu of the issuance of any fractional shares pursuant to Section 3.11; and (c) the balance of the assets in the Trust Account and net proceeds of any PIPE Investment, if any, after payment of the amounts required under the foregoing clauses (a) and (b), to be disbursed to Acquiror or the Surviving Company.
1.4 Exhibit B of the Merger Agreement. Exhibit B of the Merger Agreement is hereby amended by (a) adding Republic Services Alliance Group III, Inc. (“Republic”) as a party thereto by adding a Republic signature page to such form of Stockholders’ Agreement (resulting in Republic constituting a “Stockholder” thereunder), (b) changing the two references to "seven (7) directors" in Section 3.1 of such form of Stockholders' Agreement to “nine (9) directors”, and (b) amending and restating Sections 3.2.1, 3.2.4, 3.2.5 and 3.2.6 of such form of Stockholders’ Agreement to read as follows:
“3.2.1 five (5) Independent Directors, which individuals shall initially be Philip Kassin, Robert Mancini, Susan Brennan, Donald Gottwald and Timothy Stuart, collectively, the “Independent Directors”) and shall thereafter be designated as determined by the Board; provided, that at least one of the Independent Directors must qualify as an “audit committee financial expert” within the meaning of U.S. Securities and Exchange Commission Regulation S-K;”
“3.2.4 one (1) director designated from time to time by BorgWarner (the “BorgWarner Designee”) for so long as BorgWarner Beneficially Owns [___]1 or more shares of Common Stock owned by BorgWarner on the Closing Date, as adjusted in the event of any stock split, stock dividend, recapitalization, reorganization or the like affecting the Common Stock, which BorgWarner Designee shall initially be Brady Ericson;” [FN will not be amended and will continue to read “This minimum number of shares of Common Stock that BorgWarner must continue to own will equate to 5% of the total issued and outstanding shares of Common Stock on the Closing Date.”]
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“3.2.5 one (1) director who shall be the individual serving as the Chief Executive Officer of the Company (the “CEO Director”), which individual shall initially be Lionel Selwood Jr.; and”
“3.2.6one (1) director designated from time to time by Republic (the “Republic Designee” and together with the Romeo Designees, the RMG Sponsor Designees and the BorgWarner Designee, the “Designees”) for so long as Republic Beneficially Owns one million five hundred thousand (1,500,000) or more shares of Common Stock, as adjusted in the event of any stock split, stock dividend, recapitalization, reorganization or the like affecting the Common Stock, which Republic Designee shall initially be Timothy Stuart.”
2. Effective Date. The Parties hereby acknowledge and agree that this Amendment No. 1 shall be effective as of the date hereof.
3. Approval and Consent. The Parties hereby approve and consent to this Amendment No. 1.
4. Other Provisions. The provisions of Article XI (Miscellaneous) of the Merger Agreement shall apply mutatis mutandis to this Amendment No. 1.
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5. Effect of Amendment No. 1.
5.1 No Other Amendments. Except as expressly amended by this Amendment No. 1, the Merger Agreement will remain in full force and effect and is hereby ratified and confirmed.
5.2 References. On and after the date hereof, each reference in the Merger Agreement to “this Agreement,” “hereof,” “herein,” “hereby,” “hereunder,” “hereto” and derivative or similar words referring to the Merger Agreement, and each reference in any other document relating to the “Agreement and Plan of Merger, the “Merger Agreement,” the “Agreement,” “thereunder,” “thereof,” or words of like import referring to the Merger Agreement, means and references the Merger Agreement as amended hereby.
6. Counterparts. This Amendment No. 1 may be executed in separate counterparts (including, without limitation, counterparts transmitted by facsimile or by other electronic means), each of which shall be an original and all of which taken together shall constitute one and the same agreement. Signatures of the Parties transmitted by facsimile or by other electronic means shall be deemed to be original signatures for all purposes and shall have the same force and effect as a manual signature.
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IN WITNESS WHEREOF, the Parties have caused this Amendment No. 1 to be duly executed as of the date first above written.
RMG ACQUISITION CORP.
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By: |
/s/ Philip Kassin |
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Name: Philip Kassin |
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Title: President |
RMG MERGER SUB, INC.
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By: |
/s/ James Carpenter |
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Name: James Carpenter |
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Title: Secretary |
ROMEO SYSTEMS, INC.
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By: |
/s/ Lionel Selwood, Jr. |
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Name: Lionel Selwood, Jr. |
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Title: Chief Executive Officer |
[Signature Page to Amendment No. 1 to Agreement and Plan of Merger]