UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(D)
OF THE SECURITIES EXCHANGE ACT OF 1934
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Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
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| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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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
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 Merger Agreement
As previously disclosed, on December 13, 2021, Gores Holdings VIII, Inc. (the “Company”) entered into that certain Agreement and Plan of Merger (as amended by that certain Amendment No. 1 to the Merger Agreement, dated as of May 20, 2022, the “Merger Agreement”), by and among the Company, Frontier Merger Sub, Inc., a Delaware corporation (“First Merger Sub”), Frontier Merger Sub II, LLC, a Delaware limited liability company (“Second Merger Sub”), and Footprint International Holdco, Inc., a Delaware corporation (“Footprint”). Pursuant to the Merger Agreement, at the closing of the transactions contemplated by the Merger Agreement (the “Business Combination”), First Merger Sub will merge with and into Footprint, with Footprint continuing as the surviving corporation, and, immediately following such merger and as part of the same overall transaction, Footprint will merge with and into Second Merger Sub, with Second Merger Sub continuing as the surviving entity.
On September 5, 2022, the parties to the Merger Agreement entered into Amendment No. 2 to the Merger Agreement (“Amendment No. 2”). Amendment No. 2 amends the Merger Agreement to, among other things, account for: (a) a reduction to the Aggregate Company Stock Consideration (as defined in the Merger Agreement) to be issued to Footprint equity holders; (b) the Footprint Class D Financing (as defined below) by revising the amount under clause “(d)” of the definition of “Closing Parent Cash” from $175,000,000 to $250,000,000; (c) the Footprint August Note Financing and the Backstop Agreements (as defined below) by amending the definition of “Closing Parent Cash” to include the aggregate amount of cash proceeds received by Footprint pursuant to the August Note Financing and any amounts received by Footprint pursuant to the Backstop Agreements; (d) the Subscription Agreement Amendments (as defined below) and the termination of the Sponsor Subscription Agreement (as defined below) by revising the aggregate number of shares of Class A common stock, par value $0.0001 per share, of the Company (the “Class A Stock”) contemplated by the PIPE Investment from 28,555,000 shares to 9,090,000 shares; (e) the amendment of the Waiver and Share Surrender Agreement (as defined below); (f) the number of earnout shares and performance-based restricted stock units that certain stockholders and optionholders of Footprint shall be entitled to receive from Footprint, subject to the terms provided in the Merger Agreement and the Parent Performance Plan; (g) the extension of the Termination Date (as defined in the Merger Agreement) from July 13, 2022 to November 15, 2022; and (h) certain other administrative changes.
As a result, the aggregate consideration issuable in connection with the closing of the Business Combination is 106,757,750 shares of Class A Stock, or equity awards exercisable for shares of Class A Stock, which is equal to (i) 102,807,750 plus (ii) the aggregate amount of cash proceeds received by Footprint pursuant to the August Note Financing (as defined below) divided by $10.00. Such consideration is issuable to holders of Footprint common stock, Footprint Class A preferred stock, Footprint Class B preferred stock, Footprint Class C preferred stock, Footprint Class D preferred stock, Footprint convertible promissory notes or Footprint warrants.
The foregoing description of Amendment No. 2 does not purport to be complete and is qualified in its entirety by the terms and conditions of Amendment No. 2, a copy of which is attached hereto as Exhibit 2.1 and is incorporated herein by reference.
Entry into the Backstop Agreements
On September 5, 2022, in connection with the signing of Amendment No. 2, Footprint, the Company and 222 Investments, LLC, an entity affiliated with Don Thompson, the Chairman of Footprint’s board of directors (“222 Investments”), entered into a Backstop Agreement (the “222 Backstop Agreement”). Pursuant to the 222 Backstop Agreement and subject to the terms and conditions contained therein, 222 Investments has committed to purchase from the Company, upon the election of Footprint and the Company and in connection with the closing of the Business Combination, between 10,000,000 and 25,000,000 shares of a newly created Class A preferred stock, par value $0.0001 per share (the “Class A Preferred Stock”), at a price of $10.00 per share (the “222 Preferred Shares”).
Additionally, on the same date, Gores Sponsor VIII LLC (“Sponsor”) provided the Company and Footprint with a commitment letter to purchase up to 5,460,000 shares of Class A Preferred Stock, at a price of $10.00 per share (the “Sponsor Preferred Shares” and, together with the 222 Preferred Shares, the “Backstop Shares”) and on the same terms as those set forth in the 222 Backstop Agreement (the “Sponsor Commitment Letter” and, together with the 222 Backstop Agreement, the “Backstop Agreements”).
Neither 222 Investments nor Sponsor will have any right, title, interest or claim of any kind in or to any monies in the Company’s trust account held for its public stockholders, and has agreed not to, and has waived any right to, make any claim against the trust account (including any distributions therefrom). The requirement of the Company to issue any Backstop Shares is subject to, among other items, the consummation of the Business Combination. The Backstop Agreements will automatically terminate pursuant to their terms upon a termination of the Merger Agreement.
In connection with the Backstop Agreements, the Company has agreed to update the form of Second Amended and Restated Certificate of Incorporation to be filed by the Company at the closing of the Business Combination (the “Second Amended and Restated Certificate of Incorporation”) and the form of Amended and Restated Registration Rights Agreement to be entered into at the closing of the Business Combination (the “Amended and Restated Registration Rights Agreement”). As a result of such updates to the Amended and Restated Registration Rights Agreement, the Company has agreed to file a resale registration statement for shares of common stock issuable upon conversion of the Backstop Shares within 30 days after the closing of the Business Combination and to use its commercially reasonable efforts to have the registration statement declared effective as soon as practicable after the filing thereof. Both the Second Amended and Restated Certificate of Incorporation and the Amended and Restated Registration Rights Agreement are attached as annexes to Amendment No. 2.
The foregoing description of the 222 Backstop Agreement, the Sponsor Commitment Letter, the Second Amended and Restated Certificate of Incorporation and the Amended and Restated Registration Rights Agreement do not purport to be complete and are qualified in their entirety by the terms and conditions of the Backstop Agreement, the Sponsor Commitment Letter, the Amended and Restated Registration Rights Agreement and the Second Amended and Restated Certificate of Incorporation, copies of which are attached hereto as Exhibit 10.2, 10.3, Annex I to Amendment No. 2 and Annex II to Amendment No. 2, respectively, and are incorporated by reference.
Amendment to the Waiver and Share Surrender Agreement
As previously disclosed, on December 13, 2021, the Company, Gores Sponsor VIII LLC (the “Sponsor”), and each other holder of Class F common stock, par value $0.0001 per share, of the Company (the “Class F Stock”) entered into a waiver and share surrender agreement (as amended by that certain Amendment No. 1 to the Waiver and Share Surrender Agreement, dated as of May 20, 2022, the “Waiver and Share Surrender Agreement”), pursuant to which Sponsor agreed to irrevocably surrender 1,751,925 shares of Class F Stock, in connection with, and subject to, the closing of the Business Combination.
On September 5, 2022, the parties to the Waiver and Share Surrender Agreement entered into Amendment No. 2 to the Waiver and Share Surrender Agreement (the “Waiver and Share Surrender Agreement Amendment No. 2”), pursuant to which the Sponsor has agreed to irrevocably surrender a total of 2,502,750 shares of Class F Stock, in connection with, and subject to, the closing of the Business Combination.
The foregoing description of the Waiver and Share Surrender Agreement Amendment No. 2 does not purport to be complete and is qualified in its entirety by the terms and conditions of the Waiver and Share Surrender Agreement Amendment No. 2, a form of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Subscription Agreements; Termination of Sponsor Subscription Agreement; August Convertible Note Financing; Footprint Class D Financing
As previously disclosed, concurrently with the execution of the Merger Agreement, the Company entered into subscription agreements with certain investors, including certain individuals, institutional investors and Sponsor (such agreements collectively, the “Subscription Agreements” and such investors party thereto collectively, the “Subscribers”), pursuant to which the Subscribers agreed to purchase an aggregate of 28,555,000 shares of Class A Stock in a private placement for $10.00 per share (the “PIPE Investment”). As part of the PIPE Investment, the Sponsor agreed to purchase 9,450,000 shares of Class A Stock, at a price per share of $10.00 for an aggregate purchase price of $94,500,000 (the “Sponsor Subscription Agreement”).
In connection with the execution of Amendment No. 2 to the Merger Agreement, certain Subscribers agreed to amend the terms of the Subscription Agreements (“Subscription Agreement Amendments”) to consent to (i) the terms of Amendment No. 2 to the Merger Agreement and (ii) amend the terms of the Subscription Agreement such that each Subscription Agreement will terminate with no further force and effect upon the earliest to occur of: (a) such date and time as the Merger Agreement is terminated in accordance with its terms; (b) upon the mutual written agreement of the parties to such Subscription Agreement; (c) if any of the conditions to closing set forth in such Subscription Agreement are not satisfied or waived on or prior to the closing and, as a result thereof, the transactions contemplated by such Subscription Agreement are not consummated at the closing; and (d) 30 days after the October 31, 2022, if the closing of the Business Combination shall not have occurred by such date other than as a result of a breach of the investor’s obligations under the Subscription Agreement, unless further extended by the subscribers to the PIPE Investment.
As a result of the Subscription Agreement Amendments and the Termination Agreement (as defined below), the aggregate number of shares to be purchased in the PIPE Investment will be 9,090,000 shares of Class A Stock at $10.00 per share for an aggregate purchase price equal to $90,900,000.
The foregoing description of the Subscription Agreements, as amended by the Subscription Agreement Amendments does not purport to be complete and is qualified in its entirety by the terms and conditions of the Subscription Agreements and the Subscription Agreement Amendments, a form of which is attached hereto as Exhibits 10.5 and 10.6 and is incorporated by reference.
| Item 1.02 | Termination of a Material Definitive Agreement |
Subscription Agreements; Termination of Sponsor Subscription Agreement; August Convertible Note Financing; Footprint Class D Financing
On August 19, 2022, Footprint issued and sold to certain purchasers, including certain persons affiliated with the Sponsor, $39,500,000 in aggregate principal amount of unsecured convertible promissory notes (the “Footprint August Note Financing”). In addition, on September 6, 2022, Footprint agreed to issue and sell 3,000 shares of Footprint’s Class D Non-Participating Preferred Stock, par value $0.001 per share, at a purchase price of $25,000 per share, for a total purchase price of $75,000,000 (the “Footprint Class D Financing”) to KSP Footprint Investments, LLC.
In connection with the Footprint August Note Financing and the Footprint Class D Financing, the parties terminated the Sponsor Subscription Agreement (the “Termination Agreement”). As a result, the aggregate number of shares to be purchased in the PIPE Investment will be 9,090,000 shares of Class A Stock at $10.00 per share for an aggregate purchase price equal to $90,900,000.
The foregoing description of the Termination Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Termination Agreement, a form of which is attached hereto as Exhibit 10.4 and is incorporated herein by reference.
| Item 3.02 | Unregistered Sale of Equity Securities |
The disclosure set forth above in Item 1.01 of this Current Report on Form 8-K (this “Current Report”) is incorporated by reference herein. Certain shares of Class A Stock and Class A Stock Preferred Stock to be issued in connection with the Merger Agreement and the Backstop Agreements, respectively, and the transactions contemplated thereby will not be registered under the Securities Act, and will be issued in reliance on the exemption from registration requirements thereof provided by Section 4(a)(2) of the Securities Act and/or Regulation D promulgated thereunder as a transaction by an issuer not involving a public offering.
| Item 8.01 | Other Events |
On September 6, 2022, the Company and Footprint issued a press release announcing the execution of Amendment No. 2. The press release is attached hereto as Exhibit 99.1 and incorporated by reference herein. Notwithstanding the foregoing, information contained on the Company’s or Footprint’s website and the websites of any of their affiliates referenced in Exhibit 99.1 or linked therein or otherwise connected thereto does not constitute part of nor is it incorporated by reference into this Current Report.
Forward-looking Statements
Certain statements in this current report may be considered “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995 and within the meaning of the federal securities laws with respect to the proposed business combination between the Company and Footprint, including statements regarding the benefits of the proposed business combination, the anticipated timing of the proposed business combination, the likelihood and ability of the parties to successfully consummate the proposed business combination and the PIPE investment, the amount of funds available in the trust account as a result of shareholder redemptions or otherwise, the services offered by Footprint and the markets in which Footprint operates, business strategies, debt levels, industry environment, potential growth opportunities, the effects of regulations and the Company’s or Footprint’s projected future results. These forward-looking statements generally are identified by the words “believe,” “predict,” “project,” “potential,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “forecast,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “should,” “will be,” “will continue,” “will likely result,” and similar expressions (including the negative versions of such words or expressions).
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: (a) 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 the Company’s securities; (b) the risk that the proposed business combination may not be completed by the Company’s business combination deadline and the potential failure to obtain an extension of the business combination deadline if sought by the Company; (c) the failure to satisfy the conditions to the consummation of the proposed business combination and PIPE investment, including the approval of the proposed business combination by the Company’s stockholders, the satisfaction of the minimum trust account amount following redemptions by the Company’s public stockholders and the receipt of certain governmental and regulatory approvals; (d) the failure to obtain financing to complete the proposed business combination, including to consummate the PIPE investment; (e) the effect of the announcement or pendency of the proposed business combination on Footprint’s business relationships, performance, and business generally; (f) risks that the proposed business combination disrupts current plans of Footprint and potential difficulties in Footprint’s employee retention as a result of the proposed business combination; (g) the outcome of any legal proceedings that may be instituted against the Company or Footprint related to the agreement and the proposed business combination; (h) changes to the proposed structure of the business combination that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of the business combination; (i) the ability to maintain the listing of the Company’s securities on the NASDAQ; (j) the price of the Company’s securities, including volatility resulting from changes in the competitive and highly regulated industries in which Footprint plans to operate, variations in performance across competitors, changes in laws and regulations affecting Footprint’s business and changes in the combined capital structure; (k) the ability to implement business plans, forecasts, and other expectations after the completion of the proposed business combination, and identify and realize additional opportunities; and (l) other risks and uncertainties set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statement” in the Company’s final prospectus relating to its initial public offering (File No. 333-252483) declared effective by the U.S. Securities and Exchange Commission (the “SEC”) on February 24, 2021 and other documents filed, or to be filed with the SEC by the Company, including the Registration Statement. The foregoing list of factors is not exhaustive. There may be additional risks that neither the Company or Footprint presently know or that the Company or Footprint currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. You should carefully consider the foregoing factors and the other risks and uncertainties that will be described in the Company’s definitive proxy statement contained in the Registration Statement (as defined below), including those under “Risk Factors” therein, and other documents filed by the Company 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 the Company and Footprint 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 the Company nor Footprint gives any assurance that either the Company or Footprint will achieve its expectations.
Additional Information and Where to Find It
In connection with the business combination, the Company has filed a registration statement on Form S-4 (the “Registration Statement”) that includes a preliminary prospectus and preliminary proxy statement of the Company. The proxy statement/prospectus is not yet effective. The definitive proxy statement/prospectus, when it is declared effective by the SEC, will be sent to all the Company stockholders as of a record date to be established for voting on the proposed business combination and the other matters to be voted upon at a meeting of the Company’s stockholders to be held to approve the proposed business combination and other matters (the “Special Meeting”). The Company may also file other documents regarding the proposed business combination with the SEC. The definitive proxy statement/final prospectus will contain important information about the proposed business combination and the other matters to be voted upon at the Special Meeting and may contain information that an investor will consider important in making a decision regarding an investment in the Company’s securities. Before making any voting decision, investors and security holders of the Company and other interested parties are urged to read the Registration Statement and the proxy statement and all other relevant documents filed or that will be filed with the SEC in connection with the proposed business combination as they become available because they will contain important information about the proposed business combination.
The definitive proxy statement/final prospectus will be mailed to stockholders of the Company as of a record date to be established for voting on the business combination. Investors and security holders will also be able to obtain free copies of the definitive proxy statement/final prospectus and all other relevant documents filed or that will be filed with the SEC by the Company through the website maintained by the SEC at www.sec.gov, or by directing a request to Gores Holdings VIII, Inc., 6260 Lookout Road, Boulder, CO 80301, attention: Jennifer Kwon Chou or by contacting Morrow Sodali LLC, the Company’s proxy solicitor, for help, toll-free at (800) 662-5200 (banks and brokers can call collect at (203) 658-9400).
INVESTMENT IN ANY SECURITIES DESCRIBED HEREIN HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SEC OR ANY OTHER REGULATORY AUTHORITY NOR HAS ANY AUTHORITY PASSED UPON OR ENDORSED THE MERITS OF THE OFFERING OR THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED HEREIN. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
Participants in Solicitation
The Company, Footprint and certain of their respective directors, executive officers may be deemed participants in the solicitation of proxies from the Company’s stockholders with respect to the proposed business combination. A list of the names of those directors and executive officers of the Company and a description of their interests in the Company is set forth in the Company’s filings with the SEC (including the Company’s final prospectus relating to its initial public offering (File No. 333-252483) declared effective by the SEC on February 24, 2021). Additional information regarding the interests of those persons and other persons who may be deemed participants in the proposed business combination may be obtained by reading the Registration Statement. The documents described in this paragraph are available free of charge at the SEC’s web site at www.sec.gov, or by directing a request to Gores Holdings VIII, Inc., 6260 Lookout Rd., Boulder, CO 80301, attention: Jennifer Kwon Chou. Additional information regarding the names and interests of such participants will be contained in the Registration Statement for the proposed business combination when available.
No Offer and Non-Solicitation
This current report is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transaction and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of the Company, Footprint or the combined company, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits
| Exhibit |
Exhibit | |
| 2.1 | Amendment No. 2, dated September 5, 2022. | |
| 10.1 | Waiver and Share Surrender Agreement Amendment No. 2, dated September 5, 2022. | |
| 10.2 | Backstop Agreement, dated September 5, 2022. | |
| 10.3 | Sponsor Commitment Letter, dated September 5, 2022. | |
| 10.4 | Form of Termination Agreement | |
| 10.5 | Form of Subscription Agreement (incorporated by reference to Exhibit 10.1 of the Company’s current report on Form 8-K filed with the SEC on December 14, 2021) | |
| 10.6 | Form of Subscription Agreement Amendment | |
| 99.1 | Press Release, dated September 6, 2022 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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.
| Gores Holdings VIII, Inc. | ||||||
| Date: September 6, 2022 |
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| By: | /s/ Andrew McBride | |||||
| Name: | Andrew McBride | |||||
| Title: | Chief Financial Officer and Secretary | |||||