VIVINT SMART HOME, INC. Item 2.01 Completion of Acquisition or Disposition of Assets
The disclosure set forth in the "Introductory Note" above is incorporated into this Item 2.01 by reference. The material provisions of the Merger Agreement are described in the Proxy Statement in the section titled " The Merger Agreement " beginning on page 261, which is incorporated by reference herein.
The Merger was approved by the Company's stockholders at a special meeting of
the Company's stockholders held on
At the Closing, certain investors (including an affiliate of Fortress) received
an aggregate of 15,789,474 shares of Common Stock at a purchase price of
As of the Effective Time,
In addition, in connection with the Closing, all of the 8,625,000 outstanding
shares of the Founder Shares were converted into shares of Common Stock on a
one-for-one basis, subject to adjustment. Pursuant to the terms of a sponsor
agreement (the "Sponsor Agreement") entered into by the
Pursuant to the Merger Agreement, for a period of five years following the Closing, holders of Legacy Vivint Smart Home common stock and holders of Rollover Restricted Stock (as defined in the Merger Agreement) will be entitled to receive an aggregate of up to 37,500,000 shares of Common in earn-out consideration if, from the Closing until the fifth anniversary thereof, the dollar volume-weighted average price of Common Stock exceeds certain thresholds (as further described in the Merger Agreement).
As of the Closing Date and following the completion of the Merger and the Private Placements, the Company had the following outstanding securities:
• 154,730,618 shares of Common Stock; and . . .
Item 3.02 Unregistered Sales of
Recent Sales of
Founder Shares
On
Forward Purchase Agreements
Certain institutional and accredited investors entered into forward purchase
agreements with the Company, pursuant to which the anchor investors agreed to
purchase an aggregate of 15,789,474 shares of Common Stock at a purchase price
of
In connection with the execution of the Amendment, the Company entered into an
additional subscription agreement (the "Additional Forward Purchaser
Subscription Agreement") with one of the forward purchasers (the "Forward
Purchaser") that had committed at the time of Mosaic's initial public offering
to purchase newly-issued shares of Mosaic Class A common stock upon the
consummation of a business combination, which includes the Merger. Pursuant to
the Additional Forward Purchaser Subscription Agreement, immediately prior to
the Effective Time, the Forward Purchaser purchased from the Company 5,000,000
shares of Mosaic's Common Stock at a purchase price of
Private Placement Warrants
Simultaneously with the Company's initial public offering on
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Subscription Agreements
In connection with the execution of the Merger Agreement, the Company entered
into Subscription Agreements, each dated as
Item 3.03 Material Modification to Rights of Security Holders
The information set forth in Item 5.03 to this Current Report on Form 8-K is incorporated herein by reference.
Item 4.01 Changes in Registrant's Certifying Accountant
Change of the Company's Independent Registered Public Accounting Firm
On
Withum's report on the Company's financial statements as of
During the period from
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During the year period from
The Company has provided Withum with a copy of the disclosures made by the
Company in response to this Item 4.01 and has requested that Withum furnish the
Company with a letter addressed to the
Item 5.01 Changes in Control of the Registrant
The information set forth above under "Introductory Note" and "Item 2.01. Completion of Acquisition or Disposition of Assets" is incorporated herein by reference.
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
The information set forth above in the sections titled "Directors and Officers" and "Certain Relationships and Related Transactions" in Item 2.01 to this Current Report on Form 8-K is incorporated herein by reference. In addition, the information set forth in Exhibit 99.2 to this Current Report on Form 8-K is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws
On
Copies of the A&R Charter, the Name Change Amendment and the A&R Bylaws are attached as Exhibit 3.1, Exhibit 3.2 and Exhibit 3.3 to this Current Report on Form 8-K, respectively, and are incorporated herein by reference.
The material terms of each of the A&R Charter and the A&R Bylaws and the general effect upon the rights of holders of the Company's capital stock are included in the Proxy Statement under the sections titled " Proposals No. 2 through No. 12-The Charter Proposals " beginning on page 97 of the Proxy Statement and " Comparison of Stockholders Rights " beginning on page 298 of the Proxy Statement, which is incorporated herein by reference.
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Item 5.06 Change in Shell Company Status
As a result of the Merger, which fulfilled the definition of a business
combination as required by the Certificate of Incorporation of the Company,
dated
Item 9.01 Financial Statements and Exhibits
(a) Financial Statements of Business Acquired
The audited consolidated financial statements of Legacy Vivint Smart Home for
the years ended
The unaudited condensed consolidated financial statements of Legacy Vivint Smart
Home for the nine months ended
(b) Pro Forma Financial Information
The unaudited pro forma condensed combined financial information of the Company
for the year ended
(d) Exhibits. Exhibit No. Description 2.1 Agreement and Plan of Merger, dated as ofSeptember 15, 2019 , by and among the Company,Maiden Merger Sub, Inc. andLegacy Vivint Smart Home, Inc. (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed onSeptember 16, 2019 ) 2.2 Amendment No. 1 to the Agreement and Plan of Merger, dated as ofDecember 18, 2019 , by and among the Company,Maiden Merger Sub, Inc. andLegacy Vivint Smart Home, Inc. (incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed onDecember 19, 2019 ) 3.1 Amended and Restated Certificate of Incorporation ofVivint Smart Home, Inc. , dated as ofJanuary 17, 2020 3.2 Certificate of Amendment of Certificate of Incorporation ofVivint Smart Home, Inc. , dated as ofJanuary 17, 2020 3.3 Amended and Restated Bylaws ofVivint Smart Home, Inc. , dated as ofJanuary 17, 2020 10.1Vivint Smart Home, Inc. 2020 Omnibus Incentive Plan (incorporated by reference to Annex D to the Company's Registration Statement on Form S-4) 10.2 Form of Indemnification Agreement 10.3 Amended and Restated Credit Agreement, dated as ofJune 28, 2013 , amongAPX Group, Inc. , the other guarantors party thereto,Bank of America, N.A ., as Administrative Agent and the other lenders and parties thereto (incorporated by reference to Exhibit 10.1 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.4 Second Amended and Restated Credit Agreement, dated as ofMarch 6, 2015 , amongAPX Group, Inc. , the other guarantors party thereto,Bank of America, N.A ., as Administrative Agent and the other lenders and parties thereto (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onMarch 11, 2015 . (File Number: 333-191132-02)) 12
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Exhibit No. Description 10.5 Third Amended and Restated Credit Agreement, dated as ofAugust 10, 2017 , by and amongAPX Group, Inc. ,APX Group Holdings, Inc. , the other guarantors party thereto, each lender from time to time party thereto andBank of America, N.A ., as administrative agent, L/C issuer and swing line lender (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onAugust 10, 2017 (File Number: 333-191132-02)) 10.6 Security Agreement, dated as ofNovember 16, 2012 , among the grantors named therein andWilmington Trust, National Association , as Collateral Agent (incorporated by reference to Exhibit 10.3 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.7 Intercreditor Agreement and Collateral Agency Agreement, dated as ofNovember 16, 2012 , among 313Group Inc. , the other grantors named therein,Bank of America, N.A ., as Credit Agreement Collateral Agent,Wilmington Trust, National Association , as Notes Collateral Agent, and each Additional Collateral Agent from time to time party thereto (incorporated by reference to Exhibit 10.4 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.8 Credit Agreement, dated as ofSeptember 6, 2018 , amongAPX Group, Inc. ,APX Group Holdings, Inc. , the other guarantors party thereto, each lender from time to time party thereto andBank of America, N.A ., as administrative agent (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onSeptember 6, 2018 (File Number 333-191132-02)) 10.9 Security Agreement, dated as ofSeptember 6, 2018 , among the grantors identified therein andBank of America, N.A ., as administrative agent (incorporated by reference to Exhibit 10.2 to the Quarterly Report on Form 10-Q ofAPX Group Holdings, Inc. for the quarterly period endedSeptember 30, 2018 (File Number 333-191132-02)) 10.10 Collateral Agent Joinder Agreement No. 1, dated as ofSeptember 6, 2018 to the Intercreditor and Collateral Agency Agreement dated as ofNovember 16, 2012 , amongAPX Group, Inc. , the grantors party thereto,Bank of America, N.A . as the Credit Agreement Collateral Agent,Wilmington Trust, National Association , as Notes Collateral Agent, and each additional collateral agent from time to time party thereto (incorporated by reference to Exhibit 10.3 to the Quarterly Report on Form 10-Q ofAPX Group Holdings, Inc. for the quarterly period endedSeptember 30, 2018 (File Number 333-191132-02)) 10.11 Amended and Restated Employment Agreement, datedMarch 4 2019 , betweenAPX Group, Inc. andAlex Dunn (incorporated by reference to Exhibit 10.19 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2018 ) (File Number 333-191132-02)) 10.12 Amended and Restated Employment Agreement, datedMarch 4, 2019 , betweenAPX Group, Inc. andTodd Pedersen (incorporated by reference to Exhibit 10.20 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2018 ) (File Number 333-191132-02)) 10.13 Employment Agreement, datedMarch 8, 2016 , by and betweenAPX Group, Inc. andMark Davies (incorporated by reference to Exhibit 10.17 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2015 (File Number 333-191132-02)) 10.14 Employment Agreement, datedMarch 8, 2016 , by and betweenAPX Group, Inc. andTodd Santiago (incorporated by reference to Exhibit 10.18 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2015 (File Number 333-191132-02)) 13
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Exhibit No. Description 10.15 Employment Agreement, datedMarch 8, 2016 , by and betweenAPX Group, Inc. andTodd Santiago (incorporated by reference to Exhibit 10.18 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2015 (File Number 333-191132-02)) 10.16 Employment Agreement, datedMarch 8, 2016 , by and betweenAPX Group, Inc. andMatthew Eyring (incorporated by reference to Exhibit 10.19 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2016 (File Number 333-191132-02)) 10.17 Form of Letter Amendment, datedMarch 8, 2016 , to Management Subscription Agreement (Incentive Units) (incorporated by reference to Exhibit 10.20 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2015 (File Number 333-191132-02)) 10.18 Form of Outside DirectorOffer Letter (incorporated by reference to Exhibit 10.1 to the Quarterly Report on Form 10-Q ofAPX Group Holdings, Inc. for the quarterly period endedSeptember 30, 2015 (File Number: 333-191132-02)) 10.19 Form of Retention Award Agreement (incorporated by reference to Exhibit 10.4 to the Quarterly Report on Form 10-Q ofAPX Group Holdings, Inc. for the quarterly period endedSeptember 30, 2018 (File Number 333-191132-02)) 10.20Vivint Group, Inc. Amended and Restated 2013 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.5 to the Quarterly Report on Form 10-Q ofAPX Group Holdings, Inc. for the quarterly period endedSeptember 30, 2018 (File Number 333-191132-02)) 10.21 Form of Restricted Stock Unit Award Agreement under theVivint Group , Inc. Amended and Restated 2013 Omnibus Incentive Plan (incorporated by reference to Exhibit 10.6 to the Quarterly Report on Form 10-Q ofAPX Group Holdings, Inc. for the quarterly period endedSeptember 30, 2018 (File Number 333-191132-02)) 10.22 Form of Note Purchase Agreement, relating to the Company's 8.875% Senior Secured Notes due 2022 (incorporated by reference to Exhibit 10.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onOctober 19, 2015 (File Number: 333-191132-02)) 10.23 Second Amended and Restated Consumer Financing Services Agreement, datedMay 31, 2017 , betweenCitizens Bank, N.A. andAPX Group, Inc. (Portions of this exhibit have been omitted pursuant to a request for confidential treatment) (incorporated by reference to Exhibit 10.24 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2017 (File Number 333-191132-02)) 10.24 Incentive Compensation Plan adopted onMarch 4, 2019 (incorporated by reference to Exhibit 10.31 to the Annual Report on Form 10-K ofAPX Group Holdings, Inc. for the fiscal year endedDecember 31, 2018 ) (File Number 333-191132-02)) 10.25 Indenture, dated as ofNovember 16, 2012 , amongAPX Group, Inc. , the guarantors named therein andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.5 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 14
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Exhibit No. Description 10.36 First Supplemental Indenture, dated as ofDecember 20, 2012 , among 313Aviation, LLC andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.6 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.37 Second Supplemental Indenture, dated as ofMay 14, 2013 , amongVivint Wireless, Inc. andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.7 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.38 Third Supplemental Indenture, dated as ofMay 31, 2013 , amongAPX Group, Inc. , the guarantors named therein andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.8 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.39 Fourth Supplemental Indenture, dated as ofDecember 13, 2013 , amongAPX Group, Inc. , the guarantors named therein andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onDecember 13, 2013 (File Number: 333-191132-02)) 10.40 Fifth Supplemental Indenture, dated as ofJuly 1, 2014 , amongAPX Group, Inc. , the guarantors named therein andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onJuly 1, 2014 (File Number: 333-191132-02)) 10.41 Sixth Supplemental Indenture, dated as ofDecember 18, 2014 , amongAPX Group, Inc. , the guarantors named therein andWilmington Trust, National Association , as trustee, relating to the Company's 8.75% Senior Notes due 2020 (incorporated by reference to Exhibit 4.12 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.42 Form of Note relating to Company's 8.75% Senior Notes due 2020 (attached as exhibit to Exhibit 10.39) (incorporated by reference to Exhibit 4.9 to the Registration Statement on Form S-4 ofAPX Group Holdings, Inc. and the other registrants listed therein (File Number: 333-191132-02)) 10.43 Indenture, dated as ofMay 26, 2016 , amongAPX Group, Inc. , the guarantors party thereto andWilmington Trust, National Association , as trustee and collateral agent, relating to the Company's 7.875% Senior Secured Notes due 2022 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onMay 26, 2016 (File Number: 333-191132-02)) 10.44 First Supplemental Indenture, dated as ofAugust 17, 2016 , amongAPX Group, Inc. , the guarantors party thereto andWilmington Trust, National Association , as trustee and collateral agent, relating to the Company's 7.875% Senior Secured Notes due 2022 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onAugust 17, 2016 (File Number: 333-191132-02)) 10.45 Second Supplemental Indenture, dated as ofFebruary 1, 2017 , amongAPX Group, Inc. , the guarantors party thereto andWilmington Trust, National Association , as trustee and collateral agent, relating to the Company's 7.875% Senior Secured Notes due 2022 (incorporated by reference to Exhibit 4.1 to the Current Report on Form 8-K ofAPX Group Holdings, Inc. filed onFebruary 1, 2017 (File Number: 333-191132-01)) 15
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Exhibit No. Description 10.46 Indenture, dated as ofAugust 10, 2017 , amongAPX Group, Inc. , the guarantors party thereto andWilmington Trust, National Association , as . . .
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