Class A Common
stock
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
8-K
CURRENT REPORT
Pursuant to
Section 13 or 15(d)
of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
October 5, 2020
RMG ACQUISITION CORP.
(Exact Name of Registrant as Specified in Charter)
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Delaware |
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001-38795 |
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83-2289787 |
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(State or Other Jurisdiction
of Incorporation)
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(Commission
File Number)
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(IRS Employer
Identification No.)
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50 West Street,
Suite 40-C
New York,
New York 10006
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10006 |
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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):
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x |
Written communications pursuant to Rule
425 under the Securities Act (17 CFR 230.425) |
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¨ |
Soliciting material pursuant to Rule
14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications
pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b)) |
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¨ |
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:
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Title of each class |
Trading Symbol(s) |
Name of each exchange on
which registered |
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Units, each consisting of one share of Class A common stock and one
redeemable warrant |
RMG.UT |
New York Stock Exchange |
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Class A common stock, par value $0.0001 per share |
RMG |
New York Stock Exchange |
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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.
Item 1.01 Entry into a Material Definitive Agreement.
On October 5, 2020, RMG Acquisition Corp., a Delaware corporation
(“RMG”), entered
into an Agreement and Plan of Merger (“Merger Agreement”) by and among
RMG, RMG Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of RMG (“Merger
Sub”), and Romeo Systems, Inc., a Delaware corporation
(“Romeo”).
Romeo is an industry leading energy storage technology company
focused on designing and manufacturing lithium-ion battery modules
and packs for commercial electric vehicles.
Pursuant to the Merger Agreement, Merger Sub will merge with and
into Romeo, with Romeo surviving the merger (the “Merger” and, together with the
other transactions contemplated by the Merger Agreement, the
“Transactions”). As
a result of the Transactions, Romeo will become a wholly-owned
subsidiary of RMG, with the stockholders of Romeo becoming
stockholders of RMG.
Under the Merger Agreement, the stockholders of Romeo will receive
a number of shares of RMG common stock based on an exchange ratio
(the “Exchange
Ratio”), the numerator of which is equal to $900 million
(plus net cash of Romeo less debt of Romeo, plus the aggregate
exercise price of all Romeo options and warrants (all calculated at
the closing of the Merger)) divided by $10, and the denominator of
which is equal to the number of outstanding shares of Romeo,
including shares issuable upon conversion of outstanding
convertible notes. The holders of Romeo options and warrants will
receive RMG options and warrants equal to the number of shares of
Romeo Common Stock subject to the Romeo options and warrants
multiplied by the Exchange Ratio at an exercise price per share
divided by the Exchange Ratio.
In connection with the Transactions, RMG Sponsor, LLC (the
“Sponsor”), RMG’s
sponsor from its initial public offering, agreed to enter into a
lock-up agreement, pursuant to which the RMG common stock received
upon conversion of the shares of RMG’s Class B common stock held by
the Sponsor will be subject to transfer restrictions until the
earlier of (i) one year from the closing of the Merger, (ii) the
date on which the last sales price of RMG common stock equals or
exceeds $12.00 per share (as adjusted for stock splits, stock
dividends, reorganizations and recapitalizations) for any 20
trading days within any 30-trading day period commencing 150
trading days after the closing of the Merger and (iii) the date on
which RMG completes a liquidation, merger, capital stock exchange
or other similar transaction that results in all of RMG’s
stockholders having the right to exchange their shares of common
stock for cash, securities or other property, and the warrants held
by the Sponsor will be subject to transfer restrictions until the
date that is 30 days following the closing of the Merger.
Certain stockholders of Romeo receiving shares of RMG common stock
in connection with the Merger will be subject to a 180-day lockup
period for all shares of RMG common stock held by such persons.
The Transactions are expected to be consummated in the fourth
quarter of 2020, after the required approval by the stockholders of
RMG and the fulfillment of certain other conditions.
The following summaries of the Merger Agreement and the other
agreements to be entered into by the parties are qualified in their
entirety by reference to the text of the Merger Agreement and
agreements entered into in connection therewith. The Merger
Agreement is attached as Exhibit 2.1 hereto and incorporated herein
by reference. Capitalized terms not defined herein have the meaning
given in the Merger Agreement.
Representations and Warranties
The Merger Agreement contains representations and warranties of
Romeo relating to, among other things, due organization and
qualification; subsidiaries; the authorization, performance and
enforceability against
Romeo of the Merger Agreement; absence of conflicts; the consent,
approval or authorization of governmental authorities;
pre-transaction capitalization; financial statements; absence of
undisclosed liabilities; litigation and proceedings; compliance
with laws; intellectual property matters; contracts and absence of
defaults; benefit plans; labor matters; tax matters; brokers’ fees;
insurance; assets and real property; environmental matters; absence
of certain changes or events; transactions with affiliates;
internal controls; permits; customers and suppliers; and statements
made in the Registration Statement on Form S-4 required to be
prepared in connection with the Transactions (the “Registration Statement”).
The Merger Agreement contains representations and warranties of
each of RMG and Merger Sub relating to, among other things, due
organization and qualification; the authorization, performance and
enforceability against RMG and Merger Sub of the Merger Agreement;
absence of conflicts; litigation and proceedings; the consent,
approval or authorization of governmental authorities; financial
ability and trust account; brokers’ fees; SEC reports, financial
statements, Sarbanes-Oxley Act and absence of undisclosed
liabilities; business activities and the absence of certain changes
or events; statements made in the Registration Statement; no
outside reliance; tax matters; capitalization; and NYSE
listing.
Covenants
The Merger Agreement includes customary covenants of the parties
with respect to business operations prior to consummation of the
Transactions and efforts to satisfy conditions to the consummation
of the Transactions.
The Merger Agreement also contains additional covenants of the
parties, including, among others, covenants providing for RMG and
Romeo to cooperate in the preparation of the Registration
Statement.
Conditions to Closing
Mutual Conditions
Consummation of the Transactions is conditioned on approval thereof
by RMG’s stockholders. In addition, each party’s obligation to
consummate the Merger is conditioned upon, among other things:
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all necessary permits, approvals,
clearances, and consents of or filings with regulatory authorities
having been procured or made, as applicable; |
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no order, judgment, injunction,
decree, writ, stipulation, determination or award, in each case,
entered by or with any governmental authority, or statute, rule or
regulation being in force that enjoins or prohibits the
consummation of the Transactions; |
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RMG having at least $5,000,001 of
net tangible assets remaining prior to the Merger after taking into
account any redemptions by holders of RMG common stock that
properly demand that RMG redeem their common stock for their pro
rata share of the trust account prior to the closing of the
Transactions; |
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the Registration Statement on Form
S-4 having become effective in accordance with the provisions of
the Securities Act of 1933, as amended (the “Securities Act”), no stop order
having been issued by the SEC that remains in effect with respect
to the Form S-4, and no proceeding seeking such a stop order having
been threatened or initiated by the SEC that remains pending; |
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the delivery by each party to the
other party of a certificate with respect to (i) the truth and
accuracy of such party’s representations and warranties as of
execution of the Merger Agreement and as of the closing of the
Transactions and (ii) the performance by such party of covenants
contained in the Merger Agreement required to by complied with by
such party in all material respects as of or prior to the
closing; |
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approval of the Transactions by the
RMG’s stockholders; and |
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approval of the Transactions by
Romeo’s stockholders. |
Romeo’s Conditions to Closing
The obligations of Romeo to consummate the Merger are also
conditioned upon, among other things:
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the accuracy of the representations
and warranties of RMG and Merger Sub (subject to certain bring-down
standards); |
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performance of the covenants of RMG
and Merger Sub to be performed by such parties in all material
respects as of or prior to the closing; |
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RMG filing an amended and restated
certificate of incorporation with the Secretary of State of the
State of Delaware and adopting amended and restated bylaws, each in
substantially the form as attached to the Merger Agreement; |
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RMG executing the Registration
Rights Agreement (as defined below); |
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RMG executing the Stockholders’
Agreement (as defined below); |
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the covenants of each sponsor
contained in the Sponsor Support Agreement (as defined below)
having been performed in all material respects; |
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the RMG common stock to be issued
pursuant to the Merger Agreement and underlying the exchanged
options and warrants having been approved for listing on a national
securities exchange; and |
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the amount of cash available to RMG
as of immediately prior to the closing shall not be less than $150
million after giving effect to payment of amounts that RMG will be
required to pay to redeeming shareholders upon consummation of the
Transactions. |
RMG’s and Merger Sub’s Conditions to Closing
The obligations of RMG and Merger Sub to consummate the Merger are
also conditioned upon, among other things:
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the
accuracy of the representations and warranties of Romeo (subject to
certain bring-down standards); |
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performance of the covenants of Romeo to be performed by Romeo in
all material respects as of or prior to the closing; and |
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all
directors of Romeo that will not continue as directors of Romeo
having executed and delivered to RMG letters of resignation. |
Waiver
If permitted under applicable law, RMG or Romeo may waive any
inaccuracies in the representations and warranties made to such
party and contained in the Merger Agreement and waive compliance
with any agreements or conditions for the benefit of such party
contained in the Merger Agreement. However, pursuant to RMG’s
existing amended and restated certificate of incorporation, the
condition requiring that RMG have at least $5,000,001 of net
tangible assets may not be waived.
Termination
The Merger Agreement may be terminated at any time, but not later
than the closing of the Merger, as follows:
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by mutual written consent of RMG
and Romeo; |
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by either RMG or Romeo if the
Transactions are not consummated on or before the later of February
12, 2021 and such later date as RMG’s stockholders may approve,
provided that the terminating party shall not have been the primary
cause of the failure to close by such date; |
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by either RMG or Romeo if
consummation of the Transactions is permanently enjoined or
prohibited by the terms of a final, non-appealable order, decree or
ruling of a governmental entity or a statute, rule or regulation,
provided that the terminating party shall not have been the primary
cause of thereof; |
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by either RMG or Romeo if the other
party has breached any of its representations, warranties or
covenants, such that the closing conditions would not be satisfied
at the closing, and has not cured such breach within 45 days of
notice from the other party of its intent to terminate, provided
that the terminating party is itself not in breach; |
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by RMG if Romeo stockholder
approval of the Transactions has not been obtained within three
business days following the date that the Registration Statement is
disseminated by Romeo to its stockholders; or |
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by either RMG or Romeo if, at the
RMG shareholder meeting, the Transactions shall fail to be approved
by the required vote described herein (subject to any adjournment
or recess of the meeting). |
Registration Rights Agreement
At the closing of the Merger, certain of Romeo’s stockholders and
other parties thereto will enter into an Amended and Restated
Registration Rights Agreement (the “Registration Rights Agreement”)
pursuant to which RMG agreed to file a shelf registration statement
with respect to the registrable securities under the Registration
Rights Agreement. RMG also agreed to provide customary “piggyback”
registration rights. The Registration Rights Agreement also
provides that RMG will pay certain expenses relating to such
registrations and indemnify the stockholders against certain
liabilities.
Stockholders’ Agreement
At the closing of the Merger, the Sponsor and certain stockholders
of Romeo will enter into a Stockholders’ Agreement (the
“Stockholders’
Agreement”) with RMG, pursuant to which the stockholders of
Romeo will have the right to designate up to two directors for
election to RMG’s board of directors (of which BorgWarner, Inc. has
the right to select one director provided that it maintains
ownership of a certain percentage interest in RMG) for so long as
they maintain collective ownership of a certain percentage interest
in RMG and the Sponsor will have the right to designate up to two
directors for election to RMG’s board of directors for so long as
it maintains ownership of a certain percentage interest in RMG.
Stockholder Support Agreements
In connection with the execution of the Merger Agreement, certain
stockholders of Romeo who hold a majority of the outstanding stock
of Romeo have entered into support agreements pursuant to which
they will agree to vote in favor of the Transactions at a meeting
called to approve the Transactions by Romeo stockholders (or to act
by written consent approving the Transactions).
Subscription Agreements
In connection with the execution of the Merger Agreement, RMG
entered into Subscription Agreements with certain accredited
investors or qualified institutional buyers (collectively, the
“Subscription
Investors”) concurrently with the execution of the Merger
Agreement on October 5, 2020. Pursuant to the Subscription
Agreements, the Subscription Investors agreed to subscribe for and
purchase, and RMG agreed to issue and sell, to the Subscription
Investors an aggregate of 15,000,000 shares of Class A common stock
of RMG for a purchase price of $10.00 per share, or an aggregate of
approximately $150 million, in a private placement. Additionally,
RMG has granted a Subscription Investor a 30-day option to purchase
an additional 2,500,000 shares of Class A common stock at the same
purchase price and on the same terms as described in the
Subscription Agreements.
The closing of the private placement will occur on the date of and
immediately prior to the consummation of the Transactions and is
conditioned thereon and on other customary closing conditions. The
Class A common stock to be issued pursuant to the Subscription
Agreements has not been registered under the Securities Act, and
will be issued in reliance upon the exemption provided under
Section 4(a)(2) of the Securities Act and/or Regulation D
promulgated thereunder. The Subscription Agreements will terminate
and be void and of no further force or effect upon the earlier to
occur of: (a) such date and time as the Merger Agreement is validly
terminated in accordance with its terms, (b) upon the mutual
written consent of each of the parties to each such Subscription
Agreement, (c) RMG's notification to the Subscriber Investor in
writing that it has abandoned its plans to move forward with the
Transactions and/or terminates Subscriber's obligations, (d) if the
conditions to closing set forth in the Subscription Agreement are
not satisfied on or prior to the closing date and, as a result
thereof, the transactions contemplated by the Subscription
Agreement are not consummated at the closing or (e) at the election
of Subscriber, on or after the date that is 270 days after the date
hereof if the closing has not occurred on or prior to such
date.
The foregoing description of the Subscription Agreements does not
purport to be complete and is qualified in its entirety by the
terms and conditions of the form Subscription Agreement, which is
filed as Exhibit 10.1 hereto and is incorporated by reference
herein.
Item 3.02 Unregistered Sales of Equity Securities
The information contained in Item 1.01 of this Current Report on
Form 8-K (this “Report”) with respect to the
Subscription Agreements dated October 5, 2020 is incorporated by
reference herein and made a part hereof.
Item 7.01 Regulation FD Disclosure.
The information set forth below under this Item 7.01, including the
exhibits attached hereto, is intended to be furnished and shall not
be deemed “filed” for purposes of Section 18 of the Exchange
Act or otherwise subject to the liabilities of that section, nor
shall it be deemed incorporated by reference in any filing under
the Securities Act or the Exchange Act, except as expressly set
forth by specific reference in such filing.
Press Release
Attached as Exhibit 99.1 to this Report is the press release issued
by the parties related to the proposed Transactions.
Conference Call Script
Attached as Exhibit 99.2 to this Report is the form of conference
call script for use by RMG in conference calls to certain of its
stockholders and other persons interested in purchasing common
stock of RMG.
Investor Meetings
Attached as Exhibit 99.3 to this Report is the form of investor
presentation for use by RMG in presentations to certain of its
stockholders and other persons interested in purchasing common
stock of RMG.
Important Information and Where to Find It
This Report relates to a proposed transaction between RMG and
Romeo. RMG intends to file with the Securities and Exchange
Commission (“SEC”) a registration statement on Form S-4 that will
include a proxy statement and prospectus of RMG. The proxy
statement/prospectus 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 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 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 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 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
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:
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Certain exhibits and schedules to
this Exhibit have been omitted in accordance with Regulation S-K
Item 601(b)(2). RMG agrees to furnish supplementally a copy of all
omitted exhibits and schedules to the Securities and Exchange
Commission 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.
| Dated: October 5,
2020 |
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RMG ACQUISITION
CORP. |
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By: |
/s/ Robert S. Mancini
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Robert S. Mancini |
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Chief Executive Officer |
