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): January
18, 2022 (January 17, 2022)
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YELLOWSTONE ACQUISITION COMPANY
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(Exact name of registrant as specified in its Charter)
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Delaware
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001-39648
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85-2732947
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(State or other jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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1601 Dodge Street, Suite 3300
Omaha, Nebraska 68102
(Address and telephone number of principal executive offices,
including zip code)
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(402) 225-6511
(Registrant's telephone number, including area code)
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Not Applicable
(Former name or address, if changed since last report)
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Securities registered under Section 12(b) of the Exchange Act:
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Title of Class
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Trading Symbol
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Name of Exchange on Which Registered
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Units, each consisting of one share of Class A common stock,
$0.0001 par value, and one-half of one redeemable warrant
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YSACU
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The New York Stock Exchange
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Class A common stock, $0.0001 par value included as part of the
units
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YSAC
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The New York Stock Exchange
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Warrants, each whole warrant exercisable for one share of Class A
common stock at an exercise price of $11.50 per share
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YSACW
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The New York Stock Exchange
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Check the appropriate box below if the Form 8-K filing is intended
to simultaneously satisfy the filing obligation of Registrant under
any of the following provisions (see General Instruction A.2.
below):
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☐
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Written communications pursuant to Rule 425 under the Securities
Act (17 CFR 230.425)
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☒
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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))
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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 or
Rule 12b-2 of the Securities Exchange Act of 1934.
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. ☐
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Item 1.01.
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Entry into a Material Definitive Agreement
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On August 1, 2021, Yellowstone Acquisition Company (the
“Company” or "Yellowstone") announced that it had entered
into an Equity Purchase Agreement with Sky Harbour LLC
(“Sky”), a developer of private aviation
infrastructure focused on building, leasing and managing business
aviation hangars by which Sky would exchange its securities for
securities of the Company (the "Business Combination"). On
January 7, 2022, the Company filed a
definitive proxy statement (the “Definitive Proxy
Statement”) with the U.S. Securities and Exchange Commission
(the “SEC”) in connection with the proposed Business
Combination and has mailed the Definitive Proxy Statement
and other relevant documents to its stockholders in connection with
a meeting of stockholders to be held on January 25, 2022 at 9:00
a.m. Eastern Time.
On January 17, 2022, the Company and ACM ARRT VII E LLC, a Delaware
limited liability company (“Seller”), entered into an
agreement (the “Forward Purchase Agreement”) for an
OTC Equity Prepaid Forward Transaction (the “Forward Purchase
Transaction”). Pursuant to the terms of the Forward Purchase
Agreement, (a) Seller intends, but is not obligated, to purchase
shares (the “Subject Shares”) of Class A common stock, par
value $0.0001 per share, of the Company (the “Shares”) after
the date of the Forward Purchase Agreement from holders of Shares
(other than the Company, Boston Omaha Corporation or their
affiliates) who have redeemed Shares or indicated an interest in
redeeming Shares pursuant to the redemption rights set forth in the
Company’s Certificate of Incorporation (as defined below) in
connection with the Business Combination (such holders,
“Redeeming Holders”) and (b) Seller has agreed to waive all
redemption rights with respect to any Subject Shares in connection
with the Business Combination so long as the Forward Purchase
Agreement and the Equity Purchase Agreement are not terminated
prior to the closing of the Business Combination and the closing of
the Business Combination occurs prior to the Outside Closing Date
(as defined in the Equity Purchase Agreement). The number of
Subject Shares shall be no more than the lesser of (i) 7,000,000
and (ii) the maximum number of Shares such that Seller does not
beneficially own greater than 9.9% of the Shares on a
post-combination pro forma basis. If the Seller acquires less than
2,500,000 Subject Shares, it has agreed to acquire additional
Shares (“Additional Shares”) from the Company in a private
placement which will be subject to the Forward Purchase Agreement
such that the sum of the number of Additional Shares and the number
of Subject Shares will be equal to 2,500,000.
The Forward Purchase Agreement provides that (a) one local business
day following the closing of the Business Combination, the Company
will pay to Seller, out of the funds held in the Company’s trust
account, an amount (the “Prepayment Amount”) equal to the
Redemption Price (as defined in Section 9.2 of the Amended and
Restated Certificate of Incorporation of the Company including any
changes reflected in the Certificate of Correction (the “
Certificate of Incorporation”) per Share (the
“Initial Price”) multiplied by the aggregate number of
Subject Shares and Additional Shares, if any, (together, the
“Number of Shares”) on the date of such prepayment, (b) on
the first local business day of each calendar quarter after the
closing of the Business Combination, the Company will pay to
Midtown Madison Management LLC a structuring fee in the amount of
$2,500 per quarter and (c) on the date occurring one settlement
cycle following the valuation date (which shall occur on the
earlier of (i) 18 months after the closing of the Business
Combination and (ii) the date specified by Seller in a written
notice (not earlier than the day such notice is effective) that,
during any 30 consecutive scheduled trading day-period following
the closing of the Business Combination, the volume weighted
average trading price per Share for 20 scheduled trading days
during such period shall have been equal to or less than $5.00 per
Share), the Seller shall deliver to the Company the Number of
Shares less any Terminated Shares, as described below.
From time to time and on any scheduled trading day after the
closing of the Business Combination, Seller may sell Subject Shares
or Additional Shares (or any other shares of common stock or other
securities of the Company) at its absolute discretion in one or
more transactions, publicly or privately, and, in connection with
such sales, terminate the Forward Purchase Transaction in whole or
in part in an amount corresponding to the number of Subject Shares
or Additional Shares sold (the “Terminated Shares”). At the
end of each calendar month during which any such early termination
occurs, Seller will pay to the Company an amount equal to the
product of (x) the number of shares terminated during such calendar
month and (y) the Reset Price, where “Reset Price” refers
to, initially, the Initial Price, provided that upon the closing of
any follow-on offering of Shares registered under the Securities
Act of 1933, as amended, at a price per Share that is lower than
the then current Reset Price, the Reset Price will be reduced to
equal such price per Share.
Seller’s obligations to the Company under the Forward Purchase
Agreement are secured by perfected liens on (i) the cash proceeds
of any sale, transfer or other disposition of the Subject Shares,
(ii) the deposit account (the “Deposit Account”) into which
such cash proceeds (subject to certain carve-outs) are required to
be deposited and (iii) proceeds and products of the foregoing. The
Deposit Account will be subject to a customary deposit account
control agreement in favor of the Company.
Disclosure On Redemptions Relating to the
Agreement.
Seller has agreed to waive all redemption rights under the
Company’s Certificate of Incorporation that would require
redemption by the Company of the Subject Shares. Such waiver may
reduce the number of shares of common stock redeemed in connection
with the Business Combination, which reduction could alter the
perception of the potential strength of the Business
Combination.
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Item 3.02.
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Unregistered Sales of Equity Securities.
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The disclosure set forth above in Item 1.01 of this Current Report
on Form 8-K is incorporated by reference herein. The
Company's securities that may be issued in connection with the
Subscription Agreements will not be registered under the Securities
Act of 1933, as amended (the “Securities Act”), in reliance on the
exemption from registration provided by Section 4(a)(2) of the
Securities Act.
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Item 7.01.
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Regulation FD Disclosure.
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On January 18, 2022, the Company issued a press release entitled
"Sky Harbour Group LLC and Yellowstone Acquisition Company
Announce Up to $70 Million Forward-Purchase Agreement in Connection
with Proposed Business Combination." The information
under this Item 7.01 and the press release attached to
this Current Report on Form 8-K as Exhibit 99.1 shall be deemed to
be “furnished” and shall not be deemed “filed” for purposes of
Section 18 of the Securities Exchange Act of 1934, as amended
(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 of 1933, as amended, or the
Exchange Act. The furnishing of the information in this report is
not intended to, and does not, constitute a determination or
admission by Yellowstone that the information in this press
release is material or complete, or that investors should
consider this information before making an investment decision with
respect to any security of Yellowstone.
The following disclosures supplement the disclosures contained in
the Definitive Proxy Statement, which was filed by Yellowstone
Acquisition Company with the SEC and mailed on or about
January 7, 2022 to Yellowstone stockholders of record as of the
close business on December 22, 2021 in connection with the
previously announced proposed business combination between
Yellowstone and Sky.
The following disclosures should be read in conjunction with the
disclosures contained in the Definitive Proxy Statement, which
should be read in its entirety. To the extent that
information set forth herein differs from or updates information
contained in the Definitive Proxy Statement, the information
contained herein supersedes the information contained in the
Definitive Proxy Statement. All page references are to pages
in the Definitive Proxy Statement, and any defined terms used but
not defined herein shall have the meanings set forth in the
Definitive Proxy Statement.
Supplements to the Definitive Proxy
Statement
The Definitive Proxy Statement is amended and
supplemented on page 65 by adding the following at the end of
the risk factor entitled "We may not be able to complete the BOC
PIPE or any Subsequent PIPE in connection with the Business
Combination" with the following:
On January 28, 2022, YAC entered into the Forward
Purchase Transaction. To the extent the counterparty to the Forward
Purchase Transaction purchases shares of YAC's Class A common
stock pursuant to the Forward Purchase Transaction, one business
day following the closing of the Business Combination,
YAC will pay to the counterparty, out of funds held in
YAC's trust account, the Prepayment Amount. We will not have
access to the Prepayment Amount immediately following the Closing,
and depending on the manner in which the Forward Purchase
Transaction is settled may never have access to the Prepayment
Amount, which may adversely affect our liquidity and our capital
needs following the Business Combination.
The Definitive Proxy Statement is amended and supplemented
on page 115 by adding the following:
Forward Purchase Agreement
On January 17, 2022, Yellowstone and ACM ARRT VII E LLC
(“Seller”), entered into an agreement (the “FPA”) for
an Equity Prepaid Forward Transaction (the “FP
Transaction”). Pursuant to the terms of the FPA, (a) Seller
intends, but is not obligated, to purchase shares (the “Subject
Shares”) of Class A common stock of Sky (the “Shares”)
after the date of the FPA from holders of Shares (other than the
Company, Boston Omaha Corporation or their affiliates) who have
redeemed Shares or indicated an interest in redeeming Shares
pursuant to the redemption rights set forth in the Company’s
charter in connection with the Business Combination and (b) Seller
has agreed to waive all redemption rights with respect to any
Subject Shares in connection with the Business Combination so long
as the FPA and the Equity Purchase Agreement are not terminated
prior to the closing of the Business Combination and the closing of
the Business Combination occurs prior to the Outside Closing Date
(as defined in the Equity Purchase Agreement). The number of
Subject Shares shall be no more than the lesser of (i) 7,000,000
and (ii) the maximum number of Shares such that Seller does not
beneficially own greater than 9.9% of the Shares on a
post-combination pro forma basis. If the Seller acquires less than
2,500,000 Subject Shares, it has agreed to acquire additional
Shares (“Additional Shares”) from the Company in a private
placement which will be subject to the FPA such that the sum of the
number of Additional Shares and the number of Subject Shares will
be equal to 2,500,000.
The FPA provides that (a) one local business day following the
closing of the Business Combination, the Company will pay to
Seller, out of the funds held in the Company’s trust account, an
amount (the “Prepayment Amount”) equal to the Redemption
Price (as defined in Yellowstone’s Amended and Restated Certificate
of Incorporation of the Company (the “ Certificate of
Incorporation”) per Share (the “Initial Price”)
multiplied by the aggregate number of Subject Shares and Additional
Shares, if any, (together, the “Number of Shares”) on the
date of such prepayment, (b) on the first local business day of
each calendar quarter after the closing of the Business
Combination, the Company will pay to Midtown Madison Management LLC
a structuring fee in the amount of $2,500 per quarter and (c) on
the date occurring one settlement cycle following the valuation
date (which shall occur on the earlier of (i) 18 months after the
closing of the Business Combination and (ii) the date specified by
Seller in a written notice (not earlier than the day such notice is
effective) that, during any 30 consecutive scheduled trading
day-period following the closing of the Business Combination, the
volume weighted average trading price per Share for 20 scheduled
trading days during such period shall have been equal to or less
than $5.00 per Share), the Seller shall deliver to the Company the
Number of Shares less any Terminated Shares, as described
below.
From time to time and on any scheduled trading day after the
closing of the Business Combination, Seller may sell Subject Shares
or Additional Shares (or any other shares of common stock or other
securities of the Company) at its absolute discretion in one or
more transactions, publicly or privately, and, in connection with
such sales, terminate the FP Transaction in whole or in part in an
amount corresponding to the number of Subject Shares or Additional
Shares sold (the “Terminated Shares”). At the end of each
calendar month during which any such early termination occurs,
Seller will pay to the Company an amount equal to the product of
(x) the number of shares terminated during such calendar month and
(y) the Reset Price, where “Reset Price” refers to,
initially, the Initial Price, provided that upon the closing of any
follow-on offering of Shares registered under the Securities Act of
1933, as amended, at a price per Share that is lower than the then
current Reset Price, the Reset Price will be reduced to equal such
price per Share. Seller’s obligations to the Company under
the FPA are secured by perfected liens on (i) the cash proceeds of
any sale, transfer or other disposition of the Subject Shares, (ii)
the deposit account (the “Deposit Account”) into which such
cash proceeds (subject to certain carve-outs) are required to be
deposited and (iii) proceeds and products of the foregoing. The
Deposit Account will be subject to a customary deposit account
control agreement in favor of the Company.
Seller has agreed to waive all redemption rights under the
Company’s Certificate of Incorporation that would require
redemption by the Company of the Subject Shares. Such waiver may
reduce the number of shares of common stock redeemed in connection
with the Business Combination, which reduction could alter the
perception of the potential strength of the Business
Combination.
The Definitive Proxy Statement is amended by adding the
following at page 180:
Forward Purchase Agreement
However, to the extent the counterparty to the Forward
Purchase Transaction purchases shares of YAC's Class A common
stock pursuant to the Forward Purchase Transaction, one business
day following the closing of the Business Combination,
YAC will pay to the counterparty, out of funds held in
YAC's trust account, the Prepayment Amount. We will not have
access to the Prepayment Amount immediately following the Closing,
and depending on the manner in which the Forward Purchase
Transaction is settled may never have access to the Prepayment
Amount, which may adversely affect our liquidity and our capital
needs following the Business Combination.
A new final paragraph on page 130 under the
heading “Background of the Business Combination” is
inserted as follows:
In November, 2021, representatives of Yellowstone and Sky had
preliminary discussions with representatives of Atalaya
Capital Management LP regarding a potential Forward Purchase
Transaction. Representatives of Atalaya sent a term sheet to
Yellowstone and Sky management detailing the terms of a
potential Forward Purchase Transaction. On December 16, 2021,
management of Yellowstone discussed a potential Forward
Purchase Transaction with the Yellowstone board and the
Yellowstone board authorized management of Yellowstone to
negotiate and execute definitive agreements with respect to the
Forward Purchase Transaction. On January 7, 2022, Sky management
held discussions with Atalaya regarding the terms of the potential
Forward Purchase Transaction and on January 10, 2022,
representatives of Atalaya sent Yellowstone and Sky an updated term
sheet. On January 11, 2022, Pillsbury Winthrop, counsel to
Atalaya sent a draft Forward Purchase Agreement to Morrison &
Foerster, counsel to Sky and subsequently to Yellowstone and
its counsel. On January 17, 2022, Yellowstone and Atalaya
executed the Forward Purchase Agreement.
The Definitive Proxy Statement is hereby amended and
supplemented on page 129 by replacing the furth full paragraph with
the following:
The Board considered whether it would be advisable to obtain a
fairness opinion with respect to the proposed Business Combination.
The Board had discussions with several potential financial advisors
regarding obtaining a fairness opinion. Ultimately, after
preliminary discussions with several advisory firms, and primarily
due to potential conflicts at such firms or differences on
valuation methodologies (e.g., appropriateness of real estate
valuation methodology treating Sky as a real estate business or a
discounted cash flow analysis treating Sky as an FBO), the Board,
after consultation with its Delaware counsel, elected to proceed
without obtaining a fairness opinion, and did not retain a
financial advisor in connection with this Business Combination. The
Board’s decision was based on a number of factors, including (i)
the officers’ and directors’ substantial experience in evaluating
the operating and financial merits of companies from a wide range
of industries, including general aviation (e.g. management of
investments in the aviation industry and executive management
oversight over several decades of an S&P 500 global business
with the world’s largest cargo aviation operations) and commercial
real estate, (ii) the extensive materials and analysis presented in
both the proposed Sky Bond Financing prospectus and the CBRE
feasibility study, (iii) other industry information regarding
customer demand and anticipated growth in the aviation industry,
(iv) available valuation metrics from other recently announced
acquisitions in the industry, (v) the proposed investment and
Back-Stop financing to be provided by Boston Omaha on terms
providing for a purchase price of $10.00 per share of Class A
Common Stock, (vi) the requirement that Sky successfully complete
the Sky Bond Financing as a condition to consummating the Business
Combination, and (vii) the due diligence conducted by Yellowstone
on Sky’s operations and prospects and projected operating results.
In addition to these factors supporting the pre-combination
valuation of Sky, the Board believed that traditional valuation
methodologies for FBOs were inappropriate in valuing Sky,
considering the early stage of Sky’s operations, the funding
available to grow Sky’s business through the non-dilutive Sky Bond
Financing, and Sky’s business and revenue model as contrasted to
the business and revenue models of FBOs.
Forward-Looking Statements
The information contained in Items 7.01 and 8.01 of this
Report on Form 8-K include “forward-looking statements” within
the meaning of Section 27A of the Securities Act of 1933 and
Section 21E of the Exchange Act that are not historical facts and
involve risks and uncertainties that could cause actual results to
differ materially from those expected and projected. All
statements, other than statements of historical fact contained in
this communication including, without limitation, statements
regarding Yellowstone’s or Sky’s financial position, business
strategy and the plans and objectives of management for future
operations; anticipated financial impacts of the Business
Combination; the satisfaction of the closing conditions to the
Business Combination; and the timing of the completion of the
Business Combination, are forward-looking statements. Also,
forward-looking statements relate to future events or future
performance of Sky and include statements about Sky’s expectations
or forecasts for future periods and events which are based on Sky
management’s assumptions and beliefs in light of the information
currently available to it. Words such as “may,” “will,” “should,”
“expect,” “plan,” “believe,” “anticipate,” “intend,” “estimate,”
“predict,” “potential,” “seek” and variations and similar words and
expressions and the negative of such terms or other
comparable terminology are intended to identify such
forward-looking statements. Yellowstone disclaims any obligation to
update those statements, except as applicable law may require it to
do so, and cautions you not to rely unduly on them. While
Yellowstone’s management considers those expectations and
assumptions to be reasonable, they are inherently subject to
significant business, economic, competitive, regulatory and other
risks, contingencies and uncertainties, most of which are difficult
to predict and many of which are beyond Yellowstone and Sky’s
control. Therefore, actual results may differ materially and
adversely from those expressed in any forward-looking
statements.
These forward-looking statements involve significant risks and
uncertainties that could cause the actual results to differ
materially from the expected results. Most of these factors are
outside Yellowstone’s and Sky’s control and are difficult to
predict. Factors that may cause such differences include, but are
not limited to: (i) the occurrence of any event, change or other
circumstances that could give rise to the termination of the Equity
Purchase Agreement or could otherwise cause the Business
Combination to fail to close; (ii) the outcome of any legal
proceedings that may be instituted against Yellowstone and Sky
following the execution of the Equity Purchase Agreement and the
Business Combination; (iii) any inability to complete the Business
Combination, including due to failure to obtain approval of the
stockholders of Yellowstone or other conditions to closing in the
Equity Purchase Agreement; (iv) the inability to maintain the
listing of the shares of common stock of the post-acquisition
company on The New York Stock Exchange following the Business
Combination; (v) the risk that the Business Combination disrupts
current plans and operations as a result of the announcement and
consummation of the Business Combination; (vi) the ability to
recognize the anticipated benefits of the Business Combination,
which may be affected by, among other things, competition, the
ability of the combined company to grow and manage growth
profitably and retain its key employees; (vii) costs related to the
Business Combination; (viii) changes in applicable laws or
regulations; (ix) the possibility that Sky or the combined company
may be adversely affected by other economic, business, and/or
competitive factors; and (x) other risks and uncertainties
indicated in the Definitive Proxy Statement, including those under
the section entitled “Risk Factors”, and in Yellowstone’s other
filings with the SEC.
Yellowstone cautions that the foregoing list of factors is not
exclusive. Yellowstone cautions readers not to place undue reliance
upon any forward-looking statements, which speak only as of the
date made. For information identifying important factors that could
cause actual results to differ materially from those anticipated in
the forward-looking statements, please refer to the Risk Factors
section of Yellowstone’s Annual Report on Form 10-K and the
Definitive Proxy Statement as filed with the SEC. Yellowstone’s
securities filings can be accessed on the EDGAR section of the
SEC’s website at www.sec.gov. Except as expressly required by
applicable securities law, Yellowstone disclaims any intention or
obligation to update or revise any forward-looking statements
whether as a result of new information, future events or
otherwise.
No Offer or Solicitation
This communication is for informational purposes only and is
neither an offer to purchase, nor a solicitation of an offer to
sell, subscribe for or buy any securities or the solicitation of
any vote in any jurisdiction pursuant to the Business Combination
or otherwise, nor shall there be any sale, issuance or transfer or
securities in any jurisdiction in contravention of applicable law.
No offer 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, and otherwise in accordance with
applicable law.
ITEM
9.01 Financial
Statements and Exhibits.
(d) Exhibits.
The Exhibit Index set forth below is incorporated herein by
reference.
EXHIBIT INDEX
SIGNATURES
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.
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YELLOWSTONE ACQUISITION COMPANY
(Registrant)
By: /s/ Joshua P.
Weisenburger
Joshua P. Weisenburger,
Chief Financial Officer
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Date: January 18, 2022
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