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).
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.
| Item 1.01 | Entry into a Material Definitive Agreement. |
The information set forth in Item 3.03 of this Current Report on Form 8-K related to the amendment of the Trust Agreement (as defined below) is incorporated herein by reference.
| Item 3.03 | Material Modification to Rights of Security Holders. |
The information set forth in Item 8.01 of this Current Report on Form 8-K is incorporated herein by reference.
At the special meeting of the stockholders of Tishman Speyer Innovation Corp. II (the “Company”) held on November 29, 2022 (the “Special Meeting”), stockholders of the Company (the “Stockholders”) approved (i) the amendment to the Company’s amended and restated certificate of incorporation (the “Charter”) to change the date by which the Company must consummate a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination from February 17, 2023 (the “Original Termination Date”) to November 30, 2022 (the “Amended Termination Date”); (ii) the amendment to the Charter to eliminate from the Charter the limitation that the Company may not redeem shares of its Class A common stock (the “Class A Common Stock”) sold in the Company’s initial public offering (the “IPO”) to the extent that such redemption would result in the Company having net tangible assets of less than $5,000,001 (the “Redemption Limitation”), in order to allow the Company to redeem such shares irrespective of the Redemption Limitation; and (iii) the amendment to the Investment Management Trust Agreement, dated February 11, 2021, by and between the Company and Continental Stock Transfer & Trust Company (“Continental”) (the “Trust Agreement”), to change the date on which Continental must commence liquidation of the trust account established in connection with the IPO to the Amended Termination Date.
The Company filed the amendment to the Charter with the Secretary of State of the State of Delaware on November 29, 2022. The foregoing descriptions of the amendment to the Charter and the amendment to the Trust Agreement do not purport to be complete and are qualified in their entirety by reference to Exhibits 3.1 and 10.1, respectively, which are incorporated herein by reference.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
At the Special Meeting, a total of 28,419,890 (75.79%) of the Company’s issued and outstanding common stock (the “Common Stock”) held of record at the close of business on November 7, 2022, the record date for the Special Meeting, were represented by proxy, which constituted a quorum. The Stockholders voted on the following proposals (collectively, the “Proposals”) at the Special Meeting, which are described in more detail in the definitive proxy statement of the Company filed with the Securities and Exchange Commission (the “SEC”) on November 8, 2022 (as supplemented from time to time, the “Proxy Statement”).
Proposal No. 1 - to adopt an amendment to the Charter as set forth in paragraphs 4 and 6 of Annex A attached to the Proxy Statement to change the date by which the Company must consummate a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination from the Original Termination Date to the Amended Termination Date.
| For | Against | Abstain | Broker Non-Votes | |||
| 28,318,873 |
100,313 | 704 | N/A |
Proposal No. 2 - to adopt an amendment to the Charter as set forth in paragraphs 5, 7, 8 and 9 of Annex A attached to the Proxy Statement to eliminate from the Charter the limitation that the Company may not redeem shares of its Class A Common Stock sold in the IPO to the extent that such redemption would result in the Company having net tangible assets (as defined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934) of less than $5,000,001 in order to allow the Company to redeem such shares irrespective of the Redemption Limitation.
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| For | Against | Abstain | Broker Non-Votes | |||
| 28,318,772 |
100,364 | 754 | N/A |
Proposal No. 3 - to amend the Trust Agreement in the form set forth in Annex B attached to the Proxy Statement to change the date on which Continental must commence liquidation of the trust account established in connection with the IPO to the Amended Termination Date.
| For | Against | Abstain | Broker Non-Votes | |||
| 28,318,822 |
101,066 | 2 | N/A |
As there were sufficient votes to approve the Proposals, the “Adjournment Proposal” described in the Proxy Statement was not presented to the Stockholders.
| Item 8.01 | Other Events. |
Since the Proposals were approved, and because the Company will not be able to complete an initial business combination by the Amended Termination Date, the Company will be obligated to redeem all issued and outstanding Class A Common Stock issued in the IPO as promptly as reasonably possible but no more than ten business days after the Amended Termination Date (the “Mandatory Redemption”) and the Company’s warrants will expire worthless. The Company expects to complete the Mandatory Redemption on or around December 2, 2022, at a per-share redemption price of approximately $10.00.
The Company expects that the last day of trading of the Company’s Class A Common Stock on the Nasdaq Capital Market (“Nasdaq”) will be November 30, 2022, following which the Company expects that Nasdaq will file a Form 25 with the SEC to delist its securities on or about December 1, 2022. The Company thereafter expects to file a Form 15 with the SEC to terminate the registration of its securities under the Securities and Exchange Act of 1934, as amended.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits.
| Exhibit No. |
Description of Exhibit | |
| 3.1 | Amendment to the Company’s Amended and Restated Certificate of Incorporation | |
| 10.1 | Amendment to the Investment Management Trust Agreement, dated February 11, 2021, by and 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, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| TISHMAN SPEYER INNOVATION CORP. II | ||||||
| By: | /s/ Paul A. Galiano | |||||
| Date: November 29, 2022 | Paul A. Galiano | |||||
| Chief Operating Officer, Chief Financial Officer and Director | ||||||
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Exhibit 3.1
CERTIFICATE OF AMENDMENT
OF AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TISHMAN SPEYER INNOVATION CORP. II
Tishman Speyer Innovation Corp. II, a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
| 1. | The name of the Corporation is “Tishman Speyer Innovation Corp. II”. The original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 12, 2020. An Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on February 11, 2021. |
| 2. | This Amendment to the Amended and Restated Certificate of Incorporation (this “Amendment”) has been duly adopted by the Board of Directors of the Corporation and approved by the Corporation’s stockholders in accordance with the provisions of the Amended and Restated Certificate and Section 242 of the General Corporation Law of the State of Delaware. |
| 3. | This Amendment further amends the provisions of the Amended and Restated Certificate. |
| 4. | The Amended and Restated Certificate is hereby amended by deleting Article IX, Section 9.1(b) in its entirety and inserting the following in lieu thereof: |
(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, 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 an initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete an initial Business Combination by November 30, 2022 (the “Amended 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 Amended and Restated Certificate is hereby amended by deleting Article IX, Section 9.2(a) in its entirety and inserting the following in lieu thereof: |
(a) Prior to the consummation of the initial Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares redeemed upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, Sections 9.2(b) and 9.2(c) (such rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the “Redemption Rights”) hereof for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof (the “Redemption Price”). Notwithstanding anything to the contrary contained in this Amended and Restated Certificate, there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the Offering.
| 6. | The Amended and Restated Certificate is hereby amended by deleting Article IX, Section 9.2(d) in its entirety and inserting the following in lieu thereof: |
(d) In the event that the Corporation has not consummated an initial Business Combination by the Amended 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 to pay its taxes 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.
| 7. | The Amended and Restated Certificate is hereby amended by deleting Article IX, Section 9.2(e) in its entirety and inserting the following in lieu thereof: |
(e) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed initial Business Combination only if such initial Business Combination is approved by the affirmative vote of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination.
| 8. | The Amended and Restated Certificate is hereby amended by deleting Article IX, Section 9.2(f) in its entirety. |
| 9. | The Amended and Restated Certificate is hereby amended by deleting Article IX, Section 9.7 in its entirety and inserting the following in lieu thereof: |
Section 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 Amended 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 its taxes, divided by the number of then outstanding Offering Shares.
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment on this day of November 29, 2022.
| TISHMAN SPEYER INNOVATION CORP. II | ||
| By: | /s/ Robert J. Speyer | |
| Name: Robert J. Speyer | ||
| Title: Chief Executive Officer | ||
Exhibit 10.1
Amendment to Investment Management Trust Agreement
THIS AMENDMENT TO INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment Agreement”), dated as of November 29, 2022, is made by and between Tishman Speyer Innovation Corp. II, a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”), and amends that certain Investment Management Trust Company, effective as of February 11, 2021 (the “Trust Agreement”), by and between the Company and the Trustee. Capitalized terms used but not defined in this Amendment Agreement have the meanings assigned to such terms in the Trust Agreement.
WHEREAS, following the closing of the Company’s initial public offering of 30,000,000 units (the “Offering”) and as of February 17, 2021, a total of $300,000,000.00 of the net proceeds from the Offering was placed in the Trust Account;
WHEREAS, Section 1(i) of the Trust Agreement provides that the Trustee is to liquidate 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 to pay its taxes payable and up to $100,000 of such net interest to pay dissolution expenses, (x) upon 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) the date which is 24 months after the closing of the Offering, 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, 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 not be changed, amended or modified without the affirmative vote of sixty-five percent (65%) of the then outstanding shares of the Company’s Class A common stock, par value $0.0001 per share (the “Common Stock”) and Class B common stock, par value $0.0001 per share (the “Class B Common Stock”), of the Company, voting together as a single class; and
WHEREAS, at a meeting of the stockholders of the Company held on or about the date hereof (the “Special Meeting”), at least sixty five percent (65%) of the voting power of all then outstanding shares of the Common Stock and the Class B Common Stock have voted to approve this Amendment Agreement;
WHEREAS, at the Special Meeting, the stockholders of the Company also voted to approve the amendment and restatement of the Company’s amended and restated certificate of incorporation (the certificate of incorporation, as so amended and restated, the “Second Amended and Restated Certificate”); and
WHEREAS, each of the Company and the 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. Amendment to the Trust Agreement. Effective as of the execution hereof, 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, Chief Operating Officer, Chief Investment Officer or Chairman of the board of directors of the Company (the “Board”) or other authorized officer of the Company, to the extent that the Chief Executive Officer, Chief Financial
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Officer, Chief Operating Officer, Chief Investment Officer and/or Chairman of the Board certifies pursuant to an incumbency certificate that such officer has signing authority (collectively, the “Authorized Officers”), and, in the case of Exhibit A, acknowledged and agreed to by the underwriters, 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 to pay its taxes payable and up to $100,000 of such net interest to pay dissolution expenses, only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the Amended Termination Date (as such term is defined in the Company’s second amended and restated certificate of incorporation), 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 to pay its taxes payable and up to $100,000 of such net interest to pay dissolution expenses, shall be distributed to the Public Stockholders of record as of such date;’
2. Amendment to Exhibit B. Effective as of the execution hereof, Exhibit B of the Trust Agreement is hereby amended and restated in its entirety with Exhibit B attached hereto.
3. No Further Amendment. The parties hereto agree that except as provided in this Amendment Agreement, the Trust Agreement shall continue unmodified, in full force and effect and constitute legal and binding obligations of all parties thereto in accordance with its terms. This Amendment Agreement forms an integral and inseparable part of the Trust Agreement.
4. 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 Agreement. Notwithstanding the foregoing, references to the date of the Trust Agreement (as amended hereby) and references in the Trust Agreement to “the date hereof,” “the date of this Trust Agreement” and terms of similar import shall in all instances continue to refer to February 11, 2021.
(b) All references to the “amended and restated certificate of incorporation” in the Trust Agreement (as amended by this Amendment Agreement) and terms of similar import shall mean the Second Amended and Restated Certificate.
5. Governing Law; Jurisdiction. This Amendment Agreement shall be governed by and construed and enforced in accordance with the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction. The parties hereto consent to the jurisdiction and venue of any state or federal court located in the City of New York, State of New York, for purposes of resolving any disputes hereunder. AS TO ANY CLAIM, CROSS-CLAIM OR COUNTERCLAIM IN ANY WAY RELATING TO THIS AGREEMENT, EACH PARTY WAIVES THE RIGHT TO TRIAL BY JURY.
6. Counterparts. This Amendment Agreement may be executed in several original or facsimile counterparts, each one of which shall constitute an original, and together shall constitute but one instrument
7. Other Miscellaneous Terms. The provisions of Sections 6(i), 6(j) and 6(k) of the Trust Agreement shall apply mutatis mutandis to this Amendment Agreement, as if set forth in full herein.
[Signature Pages Follow]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment Agreement to be duly executed by their duly authorized representatives, all as of the day and year first above written.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee | ||
| By: | /s/ Francis Wolf | |
| Name: Francis Wolf | ||
| Title: Vice President | ||
| TISHMAN SPEYER INNOVATION CORP. II | ||
| By: | /s/ Paul A. Galiano | |
| Name: Paul A. Galiano | ||
| Title: Chief Operating Officer and | ||
| Chief Financial Officer and Director | ||
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EXHIBIT B
Tishman Speyer Innovation Corp. II
November 29, 2022
Continental Stock Transfer & Trust Company 1 State Street, 30th Floor New York, New York 10004 Attn: Francis Wolf and 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 Tishman Speyer Innovation Corp. II (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of February 11, 2021 (the “Trust Agreement”), this is to advise you that the Company has been unable to effect a business combination with a Target Business or Target Businesses (the “Business Combination”) within the time frame specified in the Company’s amended and restated certificate of incorporation. 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 November 30, 2022 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 Company’s amended and restated certificate of incorporation. 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(j) of the Trust Agreement.
| Very truly yours, | ||
| Tishman Speyer Innovation Corp. II | ||
| By: | ||
| Name: Paul A. Galiano | ||
| Title: Chief Operating Officer and | ||
| Chief Financial Officer and Director | ||
cc: BofA Securities, Inc.
Allen & Company LLC