UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
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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).
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Item 1.01. Entry into a Material Definitive Agreement.
The information included in Item 5.07 of this Current Report on Form 8-K is incorporated by reference in this Item 1.01 to the extent required herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information included in Item 5.07 of this Current Report on Form 8-K is incorporated by reference in this Item 5.03 to the extent required herein.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On December 19, 2022, D and Z Media Acquisition Corp. (the “Company”) held the special meeting in lieu of the 2022 annual meeting of stockholders of the Company (the “Special Meeting”). On November 3, 2022, the record date for the Special Meeting (the “Record Date”), there were 28,750,000 shares of Class A common stock, par value $0.0001 per share, of the Company (“Class A Common Stock”) and 7,187,500 shares of Class B common stock, par value $0.0001 per share, of the Company (“Class B Common Stock”, and collectively with the Class A Common Stock, “Common Stock”) issued and outstanding. At the Special Meeting, 30,551,866 shares of Common Stock, representing approximately 85.014% of the issued and outstanding shares of Common Stock as of the Record Date, were present in person (by virtual attendance) or by proxy.
At the Special Meeting, the Company’s stockholders approved the following items: (i) a proposal to amend the Company’s amended and restated certificate of incorporation, in the form set forth as Annex A to the Proxy Statement (as defined below) for the Special Meeting (the “Charter Amendment”), to extend the date by which the Company must consummate an initial business combination (the “Extension”) from January 28, 2023 to October 31, 2023 or such earlier date as determined by the Company’s board of directors (the “Board”) (such later date, the “Extended Date”, and such proposal, the “Charter Amendment Proposal”); (ii) a proposal to amend the Investment Management Trust Agreement, dated as of January 25, 2021, by and between the Company and Continental Stock Transfer & Trust Company, in the form set forth as Annex B to the Proxy Statement for the Special Meeting (the “Trust Amendment”), to provide for the Extension to the Extended Date pursuant to the Charter Amendment (the “Trust Amendment Proposal”); (iii) a proposal to re-elect two directors to the Board, with each such director to serve until the third annual meeting of stockholders following the Special Meeting or until his successor is elected and qualified (the “Director Election Proposal”); and (iv) a proposal to ratify the selection by the Company’s audit committee of Marcum LLP to serve as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022 (the “Auditor Ratification Proposal”). The final proposal, set forth as the “Adjournment Proposal” in the definitive proxy statement related to the Special Meeting filed by the Company with the Securities and Exchange Commission on November 15, 2022 (the “Proxy Statement”), was not presented to the Company’s stockholders.
The affirmative vote of at least sixty-five percent (65%) of the outstanding shares of Common Stock entitled to vote thereon at the Special Meeting was required to approve each of the Charter Amendment Proposal and the Trust Amendment Proposal, a plurality of the shares of Common Stock entitled to vote thereon and voted in person (by virtual attendance) or by proxy at the Special Meeting was required for the re-election of the directors in the Director Election Proposal, and the affirmative vote of at least a majority of the shares of Common Stock entitled to vote thereon and voted in person (by virtual attendance) or by proxy at the Special Meeting was required to approve the Auditor Ratification Proposal. The Charter Amendment Proposal and the Trust Amendment Proposal were cross-conditioned on the approval of each other.
Set forth below are the final voting results for each of the proposals presented at the Special Meeting:
Charter Amendment Proposal
The Charter Amendment Proposal was approved. The voting results of the shares of Common Stock were as follows:
| For | Against | Abstain | Broker Non-Votes | |||||||||||
| 23,699,450 | 3,677,362 | 2,500 | 3,172,544 | |||||||||||
1
Trust Amendment Proposal
The Trust Amendment Proposal was approved. The voting results of the shares of Common Stock were as follows:
| For | Against | Abstain | Broker Non-Votes | |||||||||||
| 23,699,571 | 3,677,241 | 2,500 | 3,172,544 | |||||||||||
Director Election Proposal
The Director Election Proposal was approved, and each of Messrs. Scott Kurnit and David Panton was re-elected to the Board. The voting results of the shares of Common Stock were as follows:
| Director | For | Withheld | Broker Non-Votes | |||||||||
| Scott Kurnit | 27,343,522 | 35,790 | 3,172,544 | |||||||||
| David Panton | 26,908,548 | 470,764 | 3,172,544 | |||||||||
Auditor Ratification Proposal
The Auditor Ratification Proposal was approved. The voting results of the shares of Common Stock were as follows:
| For | Against | Abstain | Broker Non-Votes | |||||||||||
| 30,370,261 | 167,364 | 14,241 | 0 | |||||||||||
Following the Special Meeting, on December 20, 2022, the Company filed the Charter Amendment with the Secretary of State of the State of Delaware. A copy of the Charter Amendment is attached to this Current Report on Form 8-K as Exhibit 3.1 and incorporated herein by reference.
Concurrently with the filing of the Charter Amendment with the Secretary of State of the State of Delaware, the Company entered into the Trust Amendment with Continental Stock Transfer & Trust Company, as trustee. A copy of the Trust Amendment is attached to this Current Report on Form 8-K as Exhibit 10.1 and incorporated herein by reference.
Upon such implementation of the Extension, 27,928,906 shares of Class A Common Stock submitted for redemption by public stockholders in connection with the Special Meeting were redeemed and 8,008,594 shares of Common Stock remain issued and outstanding, including 821,094 shares of Class A Common Stock.
Item 9.01. Financial Statements and Exhibits.
| (d) | Exhibits. |
|
Exhibit No. |
Description | |
| 3.1 | Amendment to the Amended and Restated Certificate of Incorporation of the Company, dated December 20, 2022 | |
| 10.1 | Amendment to Investment Management Trust Agreement, dated December 20, 2022, between the Company and Continental Stock Transfer & Trust Company | |
| 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.
| D AND Z MEDIA ACQUISITION CORP. | ||
| By: | /s/ Mark Wiltamuth | |
| Name: | Mark Wiltamuth | |
| Title: | Chief Financial Officer | |
Date: December 20, 2022
3
Exhibit 3.1
AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
D AND Z MEDIA Acquisition Corp.
December 20, 2022
D and Z Media Acquisition Corp., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:
1. The name of the Corporation is “D and Z Media Acquisition Corp.” The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on October 7, 2020. The Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on January 25, 2021 (the “Amended and Restated Certificate”).
2. This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate.
3. This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation and the holders of at least sixty-five percent (65%) of the outstanding shares of the common stock of the Corporation in accordance with Section 242 of the General Corporation Law of the State of Delaware.
4. The text of Section 9.1(b) is hereby amended and restated to read in full as follows:
(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on January 8, 2021, as amended (the “Registration Statement”), shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay taxes, none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination by October 31, 2023 or such earlier date as determined by the Board (the “Termination Date”) and (iii) the redemption of shares in connection with a vote seeking to amend such provisions of this Amended and Restated Certificate as described in Section 9.7. Holders of shares of Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
5. The text of Section 9.2(d) is hereby amended and restated to read in full as follows:
(d) In the event that the Corporation has not consummated an initial Business Combination by the Termination Date, the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation (less taxes payable and up to $100,000 of interest to pay dissolution expenses), by (B) the total number of then outstanding Offering Shares, which redemption will completely extinguish rights of the Public Stockholders (including the right to receive further liquidating distributions, if any), subject to applicable law, and (iii) as promptly as reasonably possible following such redemption, subject to the approval of the remaining stockholders and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.
6. The text of Section 9.7 is hereby amended and restated to read in full as follows:
9.7 Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to this Amended and Restated Certificate (a) to modify the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by the Termination Date or (b) with respect to any other material provisions of this Amended and Restated Certificate relating to stockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon the approval of any such amendment, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay taxes, divided by the number of then outstanding Offering Shares; provided, however, that any such amendment will be voided, and this Article IX will remain unchanged, if any stockholders who wish to redeem are unable to redeem due to the Redemption Limitation.
[Signature Page Follows]
IN WITNESS WHEREOF, D and Z Media Acquisition Corp. has caused this Amendment to the Amended and Restated Certificate of Incorporation to be duly executed in its name and on its behalf by an authorized officer as of the date first set above.
| D AND Z MEDIA Acquisition Corp. | |||
| By: | /s/ Betty Liu | ||
| Name: | Betty Liu | ||
| Title: | President and Chief Executive Officer | ||
Exhibit 10.1
AMENDMENT TO
INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment”) is made effective as of December 20, 2022, by and between D and Z Media Acquisition Corp., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company (the “Trustee”), and amends that certain Investment Management Trust Agreement, effective as of January 25, 2021 (the “Trust Agreement”), by and between the parties hereto. Capitalized terms contained in this Amendment, but not specifically defined in this Amendment, shall have the meanings ascribed to such terms in the Trust Agreement.
WHEREAS, a total of $287,500,000 of the gross proceeds of the Offering and sale of the Private Placement Warrants was placed in the Trust Account;
WHEREAS, Section 1(i) of the Trust Agreement provides that the Trustee is to commence liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company (less taxes payable and up to $100,000 of interest to pay dissolution expenses), only after and promptly after (x) receipt of, and only in accordance with, the terms of a Termination Letter in a form substantially similar to that attached to the Trust Agreement as Exhibit A or Exhibit B, as applicable, or (y) upon the date which is the later of (i) 24 months after the closing of the Offering and (ii) such later date as may be approved by the Company’s stockholders in accordance with the Company’s amended and restated certificate of incorporation (the “Charter”) if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached to the Trust Agreement as Exhibit B and the Property in the Trust Account shall be distributed to the Public Stockholders of record as of such date;
WHEREAS, Section 6(d) of the Trust Agreement provides that the Trust Agreement may only be changed, amended or modified if the Trustee has received a certificate (the “Certificate”) from the inspector of elections of the stockholder meeting certifying that the Company’s stockholders of record as of a record date established in accordance with Section 213(a) of the DGCL (or any successor rule) who hold sixty-five percent (65%) or more of all then outstanding shares of the Common Stock and Class B common stock, par value $0.0001 per share, of the Company voting together as a single class, have voted in favor of such change, amendment or modification (the “Consent of the Stockholders”);
WHEREAS, at a special meeting of stockholders held on or prior to the date hereof (the “Special Meeting”), the Company obtained the Consent of the Stockholders to approve this Amendment and has subsequently caused the Certificate to be delivered to the Trustee;
WHEREAS, at the Special Meeting, the stockholders of the Company also voted to approve an amendment to the Charter in accordance with the terms of the Charter (as amended and as may be further amended from time to time, the “Amended Charter”); and
WHEREAS, each of the Company and Trustee desires to amend the Trust Agreement as provided herein.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
1. Amendments to the Trust Agreement.
(a) Section 1(i) of the Trust Agreement is hereby amended and restated in its entirety as follows:
“(i) Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by its Chief Executive Officer, Chief Financial Officer, President, Executive Vice President, Vice President, Secretary or Chairperson of the board of directors of the Company (the “Board”) or other authorized officer of the Company, and, in the case of Exhibit A, acknowledged and agreed to by the Representative, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company (less taxes payable and up to $100,000 of interest to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) the Termination Date (as defined in the Company’s amended and restated certificate of incorporation, as amended) if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company (less taxes payable and up to $100,000 of interest to pay dissolution expenses), shall be distributed to the Public Stockholders of record as of such date;”
(b) Exhibit B of the Trust Agreement is hereby amended and restated in its entirety as set forth in Exhibit B to this Amendment.
2. References.
(a) All references to the “Trust Agreement” (including “hereof,” “herein,” “hereunder,” “hereby” and “this Agreement”) in the Trust Agreement shall refer to the Trust Agreement as amended by this Amendment. Notwithstanding the foregoing, references to the effective date of the Trust Agreement (as amended hereby) and terms of similar import shall in all instances continue to refer to January 25, 2021.
(b) All references to the “amended and restated certificate of incorporation” in the Trust Agreement and terms of similar import shall mean the Amended Charter.
3. Miscellaneous Provisions.
3.1. Successors. All the covenants and provisions of this Amendment by or for the benefit of the Company or the Trustee shall bind and inure to the benefit of their permitted respective successors and assigns.
3.2. Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
3.3. Applicable Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York.
3.4. Counterparts. This Amendment may be executed in several original or facsimile counterparts, each of which shall constitute an original, and together shall constitute but one instrument.
3.5. Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
3.6 Entire Agreement. The Trust Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Signature Page Follows]
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first set forth above.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee | ||
| By: | /s/ Francis Wolf | |
| Name: | Francis Wolf | |
| Title: | Vice President | |
| D AND Z MEDIA ACQUISITION CORP. | ||
| By: | /s/ Betty Liu | |
| Name: | Betty Liu | |
| Title: | President and Chief Executive Officer | |
[Signature Page to Amendment to Investment Management Trust Agreement]
EXHIBIT B
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Francis Wolf & Celeste Gonzalez
| Re: | Trust Account Termination Letter |
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between D and Z Media Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of January 25, 2021 (as amended, the “Trust Agreement”), this is to advise you that the Company has been unable to effect a business combination with a target business (the “Business Combination”) within the time frame specified in the Company’s amended and restated certificate of incorporation (as amended and as may be further amended from time to time, the “Charter”). Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all of the assets in the Trust Account and to transfer the total proceeds into a segregated account held by you on behalf of the Beneficiaries to await distribution to the Public Stockholders. The Company has selected __________ as the effective date for the purpose of determining when the Public Stockholders will be entitled to receive their share of the liquidation proceeds. You agree to be the Paying Agent of record and, in your separate capacity as Paying Agent, agree to distribute said funds directly to the Company’s Public Stockholders in accordance with the terms of the Trust Agreement and the Charter. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated, except to the extent otherwise provided in Section 1(i) of the Trust Agreement.
Very truly yours,
| D and Z Media Acquisition Corp. | ||
| By: | ||
| Name: | ||
| Title: | ||
| cc: Goldman Sachs & Co. LLC | ||