Item 1.01 Entry into a Material Definitive Agreement.
Non-Redemption Agreement
FirstMark Horizon Acquisition Corp. ("FirstMark") is a blank check company
incorporated in Delaware and formed for the purpose of effecting a merger,
capital stock exchange, asset acquisition, stock purchase, reorganization or
similar business combination with one or more businesses. On October 6, 2021,
FirstMark entered into an Agreement and Plan of Merger (the "Merger Agreement")
with Sirius Merger Sub, Inc., a Delaware corporation and a wholly owned direct
subsidiary of FirstMark ("Merger Sub"), Starry, Inc., a Delaware corporation
("Starry"), and Starry Group Holdings, Inc. (formerly Starry Holdings, Inc.), a
Delaware corporation and wholly owned direct subsidiary of Starry ("Starry Group
Holdings"). Pursuant to the Merger Agreement, and subject to the terms and
conditions contained therein, the business combination will be effected in two
steps: (a) FirstMark will merge with and into Starry Group Holdings (the "SPAC
Merger" and, the closing of the SPAC Merger, the "SPAC Merger Closing," and, the
time at which the SPAC Merger becomes effective, the "SPAC Merger Effective
Time"), with Starry Group Holdings surviving the SPAC Merger as a publicly
traded entity (such surviving entity, "New Starry") and becoming the sole owner
of Merger Sub; and (b) at least twenty-four (24) hours, but no more than
forty-eight (48) hours, after the SPAC Merger Effective Time, Merger Sub will
merge with and into Starry (the "Acquisition Merger" and, together with the SPAC
Merger and all other transactions contemplated by the Merger Agreement, the
"Business Combination"), with Starry surviving the Acquisition Merger as a
wholly owned subsidiary of New Starry.
In connection with FirstMark's entry into the Merger Agreement, FirstMark,
Starry Group Holdings and certain accredited investors (each, an "Investor", and
collectively, the "Investors") entered into a Non-Redemption Agreement
("Non-Redemption Agreement") in substantially the same form as filed with this
Current Report on Form 8-K (this "Current Report") as Exhibit 10.1, dated March
9, 2022 and March 9, 2022, respectively.
Pursuant to the Non-Redemption Agreements, each Investor agreed for the benefit
of FirstMark to not redeem a certain number of shares of Class A common stock of
FirstMark, par value $0.0001 per share ("FirstMark Class A Common Stock"),
beneficially owned by it which it holds on the date of the Non-Redemption
Agreement representing 2,398,613 shares of FirstMark Class A Common Stock, in
the aggregate (the "Investor Shares"). In connection with these commitments from
the Investors, Starry Group Holdings has agreed to issue to each Investor a
number of shares of Starry Group Holdings Class A common stock, par value
$0.0001 per share ("Starry Group Holdings Class A Common Stock"), equal to (i)
the number of Investor Shares beneficially owned by such Investor multiplied by
(ii) (a) 1.33 less (b) the Class A Exchange Ratio (as defined in the Merger
Agreement) in each case, at or promptly following the consummation of the
Acquisition Merger (such shares of Starry Group Holdings Class A Common Stock,
the "New Investor Shares"); provided that, in no event will the New Investor
Shares be less than 422,108, in the aggregate (as adjusted for stock splits,
stock dividends, stock combinations, recapitalizations and similar events).
FirstMark, Starry Group Holdings and the Investors are not to be considered a
"group", either by the terms of the Non-Redemption Agreements or at any time in
the future, within the meaning of the Securities Exchange Act of 1934, as
amended.
FirstMark may enter into additional arrangements similar to the Non-Redemption
Agreements described above.
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The foregoing description of the Non-Redemption Agreements is subject to and
qualified in its entirety by reference to the full text of the form of
Non-Redemption Agreement, a copy of which is attached as Exhibit 10.1 hereto,
and the terms of which are incorporated herein by reference.
Item 3.02 Unregistered Sales of Equity Securities.
The disclosure set forth above in Item 1.01 of this Current Report with respect
to the Non-Redemption Agreements is incorporated by reference in this Item 3.02.
The New Investor Shares to be issued in connection with the Non-Redemption
Agreements will not be registered under the Securities Act, and will be issued
in reliance on the exemption from registration requirements thereof provided
under the Securities Act.
Important Information About the Merger and Where to Find It
In connection with the proposed business combination, Starry Group Holdings, a
newly formed subsidiary of Starry, has filed a registration statement on
Form S-4 (the "Form S-4") with the Securities and Exchange Commission (the
"SEC") on November 5, 2021 (as amended on December 20, 2021, January 14, 2022,
February 4, 2022 and February 9, 2022). The Form S-4 includes a proxy statement
of FirstMark and a prospectus of Starry Group Holdings, referred to as a proxy
statement/prospectus. The Form S-4 has been declared effective by the SEC and
the definitive proxy statement/prospectus has been sent to all FirstMark
stockholders. Additionally, Starry Group Holdings and FirstMark have also filed
and may continue to file other relevant materials with the SEC in connection
with the proposed business combination, including a supplement to the definitive
proxy statement/prospectus filed on March 7, 2022 and mailed to all FirstMark
stockholders. Copies of the Form S-4, the definitive proxy statement/prospectus
and all other relevant materials filed or that will be filed with the SEC by
FirstMark or Starry Group Holdings may be obtained free of charge at the SEC's
website at www.sec.gov. Before making any voting or investment decision,
investors and security holders of FirstMark are urged to read the Form S-4, the
definitive proxy statement/prospectus and all other relevant materials filed or
that will be filed with the SEC in connection with the proposed business
combination because they will contain important information about the proposed
business combination and the parties to the proposed business combination.
Participants in the Solicitation
FirstMark, Starry Group Holdings and Starry and their respective directors and
executive officers, under SEC rules, may be deemed to be participants in the
solicitation of proxies of FirstMark's stockholders in connection with the
proposed business combination. Investors and security holders may obtain more
detailed information regarding the names and interests in the proposed business
combination of FirstMark's directors and officers in FirstMark's filings with
the SEC, including FirstMark's registration statement on Form S-1, which was
originally filed with the SEC on September 18, 2020. To the extent that holdings
of FirstMark's securities have changed from the amounts reported in FirstMark's
registration statement on Form S-1, such changes have been or will be reflected
on Statements of Change in Ownership on Form 4 filed with the SEC. Information
regarding the persons who may, under SEC rules, be deemed participants in the
solicitation of proxies to FirstMark's stockholders in connection with the
business combination is included in the definitive proxy statement/prospectus
relating to the proposed business combination. You may obtain free copies of
these documents as described in the preceding paragraph.
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No Offer or Solicitation
This Current Report shall not constitute a proxy statement or solicitation of a
proxy, consent or authorization with respect to any securities or in respect of
the proposed business combination. This Current Report shall also not constitute
an offer to sell or a solicitation of an offer to buy any securities of
FirstMark, Starry Group Holdings or Starry, nor shall there be any sale of
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 any such state or jurisdiction. No offering of securities
shall be made except by means of a prospectus meeting the requirements of
Section 10 of the Securities Act of 1933, as amended.
Forward-Looking Statements
Certain statements made in this Current Report are "forward-looking statements"
within the meaning of the "safe harbor" provisions of the Private Securities
Litigation Reform Act of 1995 with respect to the proposed business combination
between FirstMark and Starry. Words such as "expect," "estimate," "project,"
"budget," "forecast," "anticipate," "intend," "plan," "may," "will," "could,"
"should," "believe," "predict," "potential," "continue," "strategy," "future,"
"opportunity," "would," "seem," "seek," "outlook" and similar expressions are
intended to identify such forward-looking statements. 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 that could cause the actual results to differ materially
from the expected results. These statements are based on various assumptions,
whether or not identified in this Current Report. These forward-looking
statements are provided for illustrative purposes only and are not intended to
serve as, and must not be relied on by an investor as, a guarantee, an
assurance, a prediction or a definitive statement of fact or probability. Actual
events and circumstances are difficult or impossible to predict and will differ
from assumptions. These forward-looking statements include, without limitation,
Starry's and FirstMark's expectations with respect to the anticipated financial
impacts of the proposed business combination, the satisfaction of closing
conditions to the proposed business combination, and the timing of the
completion of the proposed business combination. You should carefully consider
the risks and uncertainties described in the "Risk Factors" section of
FirstMark's registration statement on Form S-1 (File No. 333-248916), its Annual
Report on Form 10-K, as amended from time to time, for the fiscal year ended
December 31, 2020, and its subsequent Quarterly Reports on Form 10-Q. In
addition, there are risks and uncertainties described in the definitive proxy
statement/prospectus filed by Starry Group Holdings and other documents filed by
FirstMark or Starry Group Holdings 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. Most of these factors are outside Starry's, Starry
Group Holdings' and FirstMark's control and are difficult to predict. Many
factors could cause actual future events to differ from the forward-looking
statements in this Current Report, including but not limited to: (1) the outcome
of any legal proceedings that may be instituted against FirstMark, Starry or
Starry Group Holdings following the announcement of the proposed business
combination; (2) the inability to complete the proposed business combination,
including due to the inability to concurrently close the business combination
and related transactions, including the private placements of common stock and
convertible notes or due to failure to obtain approval of the stockholders of
FirstMark; (3) the risk that the proposed business combination may not be
completed by FirstMark's business combination deadline and the potential failure
to obtain an extension of the business combination deadline if sought by
FirstMark; (4) the failure to satisfy the conditions to the consummation of the
proposed business combination, including the approval by the stockholders of
FirstMark, the satisfaction of the minimum trust account amount following any
redemptions by FirstMark's public stockholders and the receipt of certain
governmental and regulatory approvals; (5) delays in obtaining, adverse
conditions contained in, or the inability to obtain necessary regulatory
approvals or complete regulatory reviews required to complete the proposed
business combination; (6) the occurrence of any event, change or other
circumstance that could give rise to the termination of the merger agreement;
(7) volatility in the price of FirstMark's, Starry's or Starry Group Holdings'
securities; (8) the risk that the proposed business combination disrupts current
plans and operations as a result of the announcement and consummation of the
business combination; (9) the inability to recognize the anticipated benefits of
the proposed business combination, which may be affected by, among other things,
competition, the ability of the combined company to grow and manage growth
profitably, maintain relationships with customers and suppliers and retain key
employees; (10) costs related to the proposed business combination; (11) changes
in the applicable laws or regulations; (12) the possibility that the combined
company may be adversely affected by other economic, business, and/or
competitive factors; (13) the risk of downturns and a changing regulatory
landscape in the highly competitive industry in which Starry operates; (14) the
impact of the global COVID-19 pandemic; (15) Starry's ability to obtain or
maintain rights to use licensed spectrum in any market in which Starry operates
and potential declines in the value of Starry's FCC licenses; (16) the potential
inability of Starry to raise additional capital needed to pursue its business
objectives or to achieve efficiencies regarding other costs; (17) the
enforceability of Starry's intellectual property, including its patents, and the
potential infringement on the intellectual property rights of others, cyber
security risks or potential breaches of data security; and (18) other risks and
uncertainties described in FirstMark's registration statement on Form S-1 and
Annual Report on Form 10-K, as amended from time to time, for the fiscal year
ended December 31, 2020 and its subsequent Quarterly Reports on Form 10-Q, and
in the definitive proxy statement/prospectus filed by Starry Group Holdings.
These risks and uncertainties may be amplified by the COVID-19 pandemic, which
has caused significant economic uncertainty. Starry, Starry Group Holdings and
FirstMark caution that the foregoing list of factors is not exclusive or
exhaustive and not to place undue reliance upon any forward-looking statements,
including projections, which speak only as of the date made. None of Starry,
Starry Group Holdings or FirstMark gives any assurance that Starry, Starry Group
Holdings or FirstMark will achieve its expectations. None of Starry, Starry
Group Holdings or FirstMark undertakes or accepts any obligation to publicly
provide revisions or updates to any forward-looking statements, whether as a
result of new information, future developments or otherwise, or should
circumstances change, except as otherwise required by securities and other
applicable laws.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit No. Description
10.1 Form of Non-Redemption Agreement
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