Item 1.01 Entry into a Material Definitive Agreement.
Merger Agreement
As previously disclosed in a Current Report on Form 8-K, on December 13, 2022,
Fifth Wall Acquisition Corp. III, a Cayman Islands exempted company (together
with its successors, including after the Domestication (as defined below),
"FWAC"), entered into an agreement and plan of merger (as it may be amended,
supplemented, or otherwise modified from time to time, the "Merger Agreement"),
by and among Queen Merger Corp. I, a Maryland corporation and a wholly-owned
subsidiary of FWAC ("Merger Sub"), and Mobile Infrastructure Corporation, a
Maryland corporation ("MIC"). The Merger Agreement provides for, among other
things, the following transactions: (i) FWAC will transfer by way of
continuation from the Cayman Islands to the State of Maryland and will
domesticate by means of a corporate conversion (the "Domestication") to a
Maryland corporation ("Surviving Pubco") in accordance with Title 3, Section 9
of the Maryland General Corporation Law, as amended (the "MGCL"), and Part XII
of the Cayman Islands Companies Act (as revised), and, in connection with the
Domestication, (A) each then issued and outstanding Class A ordinary share, par
value $0.0001 per share, of FWAC will convert automatically, on a one-for-one
basis, into one share of common stock, par value $0.0001, of Surviving Pubco
(the "Surviving Pubco Shares"); and (B) each then issued and outstanding Class B
ordinary share, par value $0.0001 per share, of FWAC will convert automatically,
on a one-for-one basis, into one Surviving Pubco Share; and (ii) following the
Domestication, (A) Merger Sub will merge with and into MIC in accordance with
the MGCL (the "First Merger"), with MIC continuing as the surviving entity (the
"First-Step Surviving Company") and (B) immediately following the effectiveness
of the First Merger, the First-Step Surviving Company will merge with and into
Surviving Pubco in accordance with the MGCL, with Surviving Pubco continuing as
the surviving entity (collectively, the "Merger").
On March 23, 2023, MIC, FWAC and Merger Sub entered into the First Amendment to
the Agreement and Plan of Merger (the "First Amendment"). The First Amendment
amends the Merger Agreement to, among other things, (i) provide for, immediately
prior to the consummation of the Mergers, the conversion (the "Conversion") of
Mobile Infra Operating Partnership L.P., a Maryland limited partnership and a
subsidiary of MIC (the "Operating Partnership"), to a Delaware limited liability
company and (ii) expand the size of the board of directors of the Surviving
Pubco from seven to eight, with seven director nominees designated by MIC and
one director nominee designated by FWAC.
The foregoing description of the First Amendment does not purport to be complete
and is qualified in its entirety by reference to the full text of the First
Amendment, a copy of which is attached to this Current Report on Form 8-K as
Exhibit 2.1 and is incorporated herein by reference.
HS3 Amended and Restated Support Agreement
As previously disclosed in a Current Report on Form 8-K on December 13, 2022,
FWAC and HSCP Strategic III, L.P., a Delaware limited partnership ("HS3"),
entered into an agreement (the "Prior HS3 Support Agreement") pursuant to which
HS3 agreed, among other things, to enter into the Fourth Amended and Restated
Limited Partnership Agreement of the Operating Partnership at the time of the
Merger.
On March 23, 2023, FWAC and HS3 entered into the Amended and Restated Support
Agreement (the "HS3 Amended and Restated Support Agreement"). The HS3 Amended
and Restated Support Agreement amends and restates the Prior HS3 Support
Agreement to, among other things, confirm HS3's consent to the Conversion. HS3
also agreed not to modify such consent or take any action in contravention of
such consent or the Conversion.
HS3 is a limited partner of the Operating Partnership and owns approximately 10%
of the outstanding common units of the Operating Partnership. HS3 is controlled
by Jeffrey B. Osher, a director of MIC.
The foregoing description of the HS3 Amended and Restated Support Agreement does
not purport to be complete and is qualified in its entirety by reference to the
full text of the HS3 Amended and Restated Support Agreement, a copy of which is
attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated
herein by reference.
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Additional Information
This document relates to the proposed transactions (the "Proposed Transactions")
contemplated by the Merger Agreement. On January 13, 2023, FWAC filed a
registration statement on Form S-4 (the "Form S-4") with the Securities and
Exchange Commission (the "SEC"), which, when finally amended, will include a
joint proxy statement of FWAC and MIC and that will constitute a prospectus of
FWAC (including any amendments and supplements thereto, the "Joint Proxy
Statement/Prospectus"). Both MIC and FWAC intend to file other documents with
the SEC regarding the proposed transaction. A definitive Joint Proxy
Statement/Prospectus will also be sent to the shareholders of FWAC and the
stockholders of MIC, in each case seeking any required approvals, when
available. Investors and security holders of FWAC and MIC are urged to carefully
read the entire Joint Proxy Statement/Prospectus, when it becomes available, and
any other relevant documents filed with the SEC because they will contain
important information about the Proposed Transactions. The documents filed by
FWAC and MIC with the SEC may be obtained free of charge at the SEC's website at
www.sec.gov. Alternatively, the documents filed by FWAC can be obtained free of
charge from FWAC upon written request to Fifth Wall Acquisition Corp. III, 6060
Center Drive, 10th Floor, Los Angeles, California 90045, and the documents filed
by MIC can be obtained free of charge from MIC upon written request to MIC, 30 W
4th Street, Cincinnati, Ohio 45202.
No Offer or Solicitation
This document does not constitute a solicitation of a proxy, consent, or
authorization with respect to any securities or in respect of the Proposed
Transactions. This document also does not constitute an offer to sell or the
solicitation of an offer to buy any securities or a solicitation of any vote or
approval, nor will there be any sale of any 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 other
jurisdiction. No offering of securities will be made except by means of a
prospectus meeting the requirements of Section 10 of the Securities Act of 1933,
as amended, or an exemption therefrom.
Participants in the Solicitation
FWAC, MIC and certain of their respective directors and executive officers may
be deemed to be participants in the solicitation of proxies, in favor of the
approval of the Proposed Transactions and related matters. Information regarding
FWAC's and MIC's directors and executive officers is contained in the Form S-4.
Additional information regarding the interests of those participants and other
persons who may be deemed participants in the transaction may be obtained by
reading the Joint Proxy Statement/Prospectus, when it becomes available, and
other relevant documents filed with the SEC. Free copies of these documents may
be obtained as described in the paragraph titled "Additional Information."
Forward-Looking Statements
This document contains forward-looking statements within the meaning of the
Private Securities Litigation Reform Act of 1995 including, but not limited to,
MIC's expected composition of the management team and board of directors
following the transaction. Any forward-looking statements herein are based
solely on the expectations or predictions of MIC or FWAC and do not express the
expectations, predictions or opinions of Fifth Wall Asset Management, LLC, and
Fifth Wall Ventures Management, LLC, their affiliates and any investment funds,
investment vehicles or accounts managed or advised by any of the foregoing
(collectively, "Fifth Wall") in any way. Forward-looking statements are
inherently subject to risks, uncertainties, and assumptions and any
forward-looking statements contained in this document are provided for
illustrative purposes and are not forecasts and may not reflect actual results.
Such forward-looking statements are not intended to serve as, and must not be
relied on by any investor as, a guarantee, an assurance, a prediction or a
definitive statement of fact or probability. Generally, statements that are not
historical facts, including statements concerning possible or assumed future
actions, business strategies, events, or results of operations, are
forward-looking statements. These statements may be preceded by, followed by, or
include the words "believes," "estimates," "expects," "projects," "predicts,"
"forecasts," "may," "will," "could," "should," "seeks," "plans," "scheduled,"
"anticipates," "potential," "intends" or "continue" or similar expressions. Such
forward-looking statements involve risks and uncertainties that may cause actual
events, results, or performance to differ materially from those indicated by
such statements. Certain of these risks are identified and discussed in the
section of the Form S-4 titled "Risk Factors". These risk factors will be
important to consider in determining future results and should be
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reviewed in their entirety. These forward-looking statements are based on MIC's
or FWAC's management's current expectations and beliefs, as well as a number of
assumptions concerning future events. However, there can be no assurance that
the events, results, or trends identified in these forward-looking statements
will occur or be achieved. Forward-looking statements speak only as of the date
they are made, and neither MIC nor FWAC is under any obligation and expressly
disclaim any obligation, to update, alter or otherwise revise any
forward-looking statement, whether as a result of new information, future
events, or otherwise, except as required by law. Readers should carefully review
the statements set forth in the reports, which MIC and FWAC have filed or will
file from time to time with the SEC.
In addition to factors previously disclosed in MIC's and FWAC's reports filed
with the SEC, including MIC's and FWAC's most recent reports on Form 8-K and all
attachments thereto and most recent annual reports on Form 10-K and all
attachments thereto, which are available, free of charge, at the SEC's website
at www.sec.gov, and those identified elsewhere in this document, the following
factors, among others, could cause actual results to differ materially from
forward-looking statements or historical performance: risks and uncertainties
related to the inability of the parties to successfully or timely consummate the
Proposed Transactions, including the risk that any required regulatory approvals
or securityholder approvals of MIC or FWAC are not obtained, are delayed or are
subject to unanticipated conditions that could adversely affect the combined
company or the expected benefits of the Proposed Transactions are not obtained,
failure to realize the anticipated benefits of the Proposed Transactions, risks
related to MIC's ability to execute on its business strategy, attain its
investment strategy or increase the value of its portfolio, act on its pipeline
of acquisitions, attract and retain users, develop new offerings, enhance
existing offerings, compete effectively, and manage growth and costs, the
duration and global impact of COVID-19, the possibility that MIC or FWAC may be
adversely affected by other economic, business and/or competitive factors, the
number of redemption requests made by FWAC's public shareholders, the ability of
MIC and the combined company to leverage Fifth Wall's affiliates and other
commercial relationships to grow MIC's customer base (which is not the subject
of any legally binding obligation on the part of Fifth Wall or any of its
partners or representatives), the ability of MIC and the combined company to
leverage its relationship with any other Company investor (including investors
in the proposed PIPE transaction) to grow MIC's customer base, the ability of
the combined company to meet NYSE's listing standards (or the standards of any
other securities exchange on which securities of the public entity are listed)
following the Proposed Transactions, the inability to complete the private
placement of FWAC common stock to certain institutional accredited investors,
the risk that the announcement and consummation of the transaction disrupts
MIC's current plans and operations, costs related to the transaction, changes in
applicable laws or regulations, the outcome of any legal proceedings that may be
instituted against MIC, FWAC, or any of their respective directors or officers,
following the announcement of the transaction, the ability of FWAC or the
combined company to issue equity or equity-linked securities in connection with
the Proposed Transactions or in the future, the failure to realize anticipated
pro forma results and underlying assumptions, including with respect to
estimated shareholder redemptions and purchase price and other adjustments; and
those factors discussed in documents of MIC and FWAC filed, or to be filed, with
the SEC. Additional factors that could cause actual results to differ materially
from those expressed or implied in forward-looking statements are also provided
in the Form S-4 and will be provided in the Joint Proxy Statement/Prospectus,
when available.
This document is not intended to be all-inclusive or to contain all the
information that a person may desire in considering an investment in MIC and is
not intended to form the basis of an investment decision in MIC. All subsequent
written and oral forward-looking statements concerning MIC and FWAC, the
Proposed Transactions, or other matters and attributable to MIC and FWAC or any
person acting on their behalf are expressly qualified in their entirety by the
cautionary statements above.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits.
Exhibit Description
2.1 First Amendment to Agreement and Plan of Merger, dated as of March
23, 2023, by and among Fifth Wall Acquisition Corp. III, Queen Merger
Corp. I and Mobile Infrastructure Corporation
10.1 Amended and Restated Support Agreement, dated as of March 23, 2023,
by and between Fifth Wall Acquisition Corp. III and HSCP Strategic
III, L.P
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document)
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