UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934
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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
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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.
On November 10, 2023, Distoken Acquisition Corporation (the “Company”) issued a promissory note (the “Note”) in the aggregate principal amount of up to $360,000 (the “Extension Funds”) to Xiaosen Sponsor LLC, a Cayman Islands limited liability company, the Company’s sponsor, pursuant to which the Extension Funds will be deposited into the Company’s trust account (the “Trust Account”) for the benefit of each outstanding ordinary share of the Company (“Public Share”) that was not redeemed in connection with the extension of the Company’s termination date from November 17, 2023 to November 18, 2024.
The Company will deposit $30,000 per month into the Trust Account, which equates to approximately $0.01 per remaining Public Share, for each calendar month (commencing on November 18, 2023 and on the 18th day of each subsequent month) until November 18, 2024, or portion thereof, that is needed to complete an initial business combination, for up to an aggregate of $360,000. The first installment of the Extension Funds will be deposited into the Trust Account on or about November 16, 2023. After such funding, the Trust Account will contain approximately $10.58 per remaining Public Share outstanding.
The Note bears no interest and is repayable in full upon the earlier of (a) the date of the consummation of the Business Combination, and (b) the date of the liquidation of the Company.
The foregoing description is qualified in its entirety by reference to the Note, a copy of which is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-balance Sheet Arrangement of a Registrant.
The disclosure contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The disclosure contained in Item 5.07 of this Current Report on Form 8-K is incorporated by reference in this Item 5.03.
Item 5.07 Submission of Matters to a Vote of Security Holders.
On November 10, 2023, the Company held an extraordinary general meeting of shareholders (the “Meeting”). At the Meeting, the following proposals were considered and acted upon by the shareholders of the Company:
(a) a proposal to amend the Company’s amended and restated memorandum and articles of association (the “Charter Amendment”) to extend the date by which the Company has to consummate an initial business combination from November 17, 2023 to November 18, 2024, or such earlier date as determined by the board of directors (the “Extension Amendment Proposal”); and
(b) a proposal to approve the adjournment of the Meeting to a later date or dates or indefinitely, if necessary, (i) to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of any of the foregoing proposals or (ii) if the board of directors determines before the Meeting that it is not necessary or no longer desirable to proceed with the proposals (the “Adjournment Proposal”).
The number of votes cast for or against, as well as the number of abstentions as to the Extension Amendment Proposal, are set forth below.
| For | Against | Abstain | ||
| 7,270,057 | 247,751 | 99,772 |
Accordingly, the Extension Amendment Proposal was approved.
As there were sufficient votes at the time of the Meeting to approve the Extension Amendment Proposal, the Adjournment Proposal, which had been previously voted on by proxy, was not presented to shareholders at the Meeting.
Shareholders holding 3,018,308 of the Company’s Public Shares exercised their right to redeem such shares for a pro rata portion of the funds in the Trust Account. As a result, $31,907,588.28 (approximately $10.57 per share) will be removed from the Trust Account to pay such holders. Following redemptions, the Company has 3,881,692 Public Shares outstanding.
The Company filed the Charter Amendment with the Cayman Islands Registrar of Companies on November 14, 2023. A copy of the Charter Amendment is attached hereto as Exhibit 3.1, and is incorporated by reference.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits |
| Exhibit No. | Description | |
| 3.1 | Amendment to the Amended and Restated Memorandum and Articles of Association of the Company | |
| 10.1 | Promissory Note Issued to Xiaosen Sponsor LLC, dated November 10, 2023 | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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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.
| Distoken Acquisition Corporation | |||
| Date: November 16, 2023 | By: | /s/ Jian Zhang | |
| Name: | Jian Zhang | ||
| Title: | Chief Executive Officer | ||
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Exhibit 3.1
AMENDMENT TO THE AMENDED AND RESTATED
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF
DISTOKEN ACQUISITION CORPORATION
(the “Company”)
RESOLVED, as a special resolution, that Article 48.7 of the Amended and Restated Memorandum of Association of the Company is hereby amended and restated to read in its entirety as follows:
| 48.7 In the event that the Company does not consummate a Business Combination by November 18, 2024 (as further set out in this Article) (or, if the Registrar of Companies of the Cayman Islands shall not be open for business (including filing of corporate documents) on such date the next date upon which the Registrar of Companies of the Cayman Islands shall be open (the "Deadline Date"), or such later time as the Members may approve in accordance with the Articles, the Company shall: |
| (a) | cease all operations except for the purpose of winding up; |
| (b) | as promptly as reasonably possible but not more than ten business days thereafter, redeem the Public Shares, at a per-Share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company (less up to US$50,000 of interest to pay dissolution expenses, and which interest shall be net of taxes payable), divided by the number of then Public Shares in issue, which redemption will completely extinguish public Members' rights as Members (including the right to receive further liquidation distributions, if any); and |
| (c) | as promptly as reasonably possible following such redemption, subject to the approval of the Company's remaining Members and the Directors, liquidate and dissolve, |
subject in each case to its obligations under Cayman Islands law to provide for claims of creditors and other requirements of Applicable Law.
Notwithstanding this Article or any other provision of the Articles, without approval of the Members, the Directors may, at their option, extend the period of time to consummate a Business Combination on a monthly basis for up to twelve times by an additional one month each time after November 17, 2023 up to the Deadline Date, subject to the Sponsor, or its Affiliates, contributing to the Company as a loan the lesser of (x) US$30,000 or (y) US$0.03 per month for each Public Share that remains issued and outstanding and is not redeemed in connection with the Extension Amendment Proposal as set out in the Company's proxy statement dated October 24, 2023 for each calendar month (commencing on November 18, 2023 and on the 18th day of each subsequent month) until the Deadline Date, or portion thereof, that is needed to complete a Business Combination (such loans, the “Contribution”), which amount will be deposited into the Trust Account.
Each monthly Contribution will be deposited into the Trust Account within seven calendar days from the 18th day of such calendar month. The amount of the Contributions, which are loans, will not bear interest and will be repayable by the Company to the Sponsor, or its Affiliates, upon consummation of a Business Combination.
Exhibit 10.1
THIS PROMISSORY NOTE ("NOTE") HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Dated as of November 10, 2023
| Principal Amount: Up to $360,000 | Kunming, Yunnan, China |
Distoken Acquisition Corporation, a special purpose acquisition company incorporated as a Cayman Islands exempted company (the "Maker"), promises to pay to the order of Xiaosen Sponsor LLC, a Cayman Islands limited liability company, or its registered assigns or successors in interest (the "Payee"), or order, the principal sum of up to Three Hundred Sixty Thousand U.S. Dollars ($360,000) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Principal. The principal balance of this Note shall be due and payable by the Maker on the earlier of (such date, the "Maturity Date"), subject to Section 12 below, (a) the date that Maker consummates the Maker's initial business combination and (b) the date of the liquidation of the Maker. Under no circumstances shall any individual, including, but not limited to, any officer, director, employee or shareholder of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Drawdown Requests. The Payee will fund up to Three Hundred Sixty Thousand U.S. Dollars ($360,000) into the trust account (the “Trust Account”) of the Maker established in connection with its initial public offering (the “IPO”), such amounts to be for the benefit of eligible holders of the Maker’s unredeemed ordinary shares upon redemption or liquidation of the Maker, all in accordance with the Maker’s amended and restated memorandum and articles of association. The principal of this Note may be drawn down in up to twelve monthly installments of up to $30,000 per withdrawal until the earlier of (i) November 18, 2024 and (ii) the date on which the Maker consummates its initial business combination, upon written request from the Maker to the Payee (each, a “Drawdown Request”). Each Drawdown Request must be made before the 17th of each applicable month, and state the amount to be drawn down. The precise amount of each Drawdown Request may vary as needed, in Maker’s discretion, to satisfy the monthly portion of funds to be deposited in the Trust Account. The Payee, in its sole discretion, shall fund each Drawdown Request via a wire transfer directly to the Trust Account no later than seven (7) calendar days from the 18th of each applicable month; provided, however, that the maximum amount of drawdowns collectively under this Note shall not exceed Three Hundred Sixty Thousand U.S. Dollars ($360,000). Once an amount is drawn down under this Note, it shall not be available for future Drawdown Requests. Except as set forth herein, no fees, payments or other amounts shall be due to the Payee in connection with, or as a result of, any Drawdown Request by the Maker.
4. Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including, without limitation, reasonable attorneys' fees, and then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note.
5. Events of Default. The following shall constitute an event of default ("Event of Default"):
(a) Failure to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Note within one (1) business day of the Maturity Date.
(b) Voluntary Bankruptcy, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing.
(c) Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
6. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 5(a) hereof, the Payee may, by written notice to the Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding.
(b) Upon the occurrence of an Event of Default specified in Sections 5(b) and 5(c), the unpaid principal balance of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of the Payee.
7. Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to this Note, all errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment, and the Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee.
8. Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker's liability hereunder.
9. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (a) personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (b) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party or (c) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail.
10. Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF.
11. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
12. Trust Waiver. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind ("Claim") in or to any distribution of or from the trust account (the "Trust Account") established in which the proceeds of the initial public offering ("the "IPO") conducted by the Maker (including the deferred underwriters' discounts and commissions) and the proceeds of the sale of the units issued in a private placement that occurred concurrently the closing of the IPO were deposited, as described in greater detail in Maker's Registration Statement on Form S-1 (333—248822) filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever.
13. Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.
14. Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by the Maker (by operation of law or otherwise) without the prior written consent of the Payee and any attempted assignment without the required consent shall be void.
[Remainder of page intentionally left blank. Signature page follows.]
IN WITNESS WHEREOF, the Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
| Distoken Acquisition Corporation | ||
| By: | /s/ Jian Zhang | |
| Name: | Jian Zhang | |
| Title: | Chief Executive Officer | |
IN WITNESS WHEREOF, the Payee, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
| Xiaosen Sponsor LLC | ||
| By: | /s/ Jian Zhang | |
| Name: | Jian Zhang | |
| Title: | Manager | |
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