UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):
(Exact name of registrant as specified in its charter)
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(State or other jurisdiction of incorporation) |
(Commission File Number) |
(IRS Employer Identification No.) |
(Address of principal executive offices, including zip code)
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area code:
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(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) | |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) | |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) | |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| The Stock Market LLC | ||||
| The Stock Market LLC | ||||
| The Stock Market LLC |
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.
On December 19, 2022, upon the stockholders’ approval of the Trust Amendment Proposal (as defined below) at the special meeting in lieu of 2022 annual meeting of stockholders (the “Special Meeting”) of AF Acquisition Corp. (the “Company”), the Company entered into an amendment (the “Trust Amendment”) to the Investment Management Trust Agreement, dated March 18, 2021 (the “Trust Agreement”), by and between the Company and Continental Stock Transfer & Trust Company, as trustee (“Continental”), to extend the date by which the Company would be required to consummate a business combination from March 23, 2023 to August 23, 2023, or such earlier date as determined by the Company’s Board of Directors in its sole discretion.
A copy of the Trust Amendment is attached as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On December 19, 2022, following the stockholders’ approval of the Charter Amendments (as defined below) at the Special Meeting, the Board of Directors resolved, in accordance with the Charter Amendments, that the Company wind up its operations and commence liquidation as soon as practicable before December 31, 2022. The Company has (i) notified the Nasdaq Stock Market LLC (“Nasdaq”) of the anticipated redemption (the “Redemption”) of 100% of the shares of Class A common stock, par value $0.0001 per share, of the Company (the “Class A Common Stock”), included as part of the units sold in the IPO, whether such shares were purchased in the IPO or in the secondary market following the IPO (including shares sold pursuant to the underwriters’ overallotment option, collectively, the “Public Shares”) in connection with the Company’s implementation of the Charter Amendments (as defined below) and the Trust Amendment and the Board’s election to commence liquidation and dissolution of the Company; and (ii) requested that Nasdaq (A) suspend trading of the Company’s shares of Class A Common Stock, warrants to purchase shares of Class A Common Stock (the “Warrants”) and units, each consisting of one Public Share and one-third of one Redeemable Warrant (the units, together with the Class A Common Stock and the Redeemable Warrants, the “Securities”) effective after the closing of trading on December 22, 2022, and (B) file with the Securities and Exchange Commission (the “SEC”) a Form 25 Notification of Removal from Listing and/or Registration (“Form 25”) to delist and deregister the Securities under Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”). As a result, the Securities were suspended from trading on Nasdaq on December 22, 2022.
Nasdaq filed a Form 25 with the SEC on December 22, 2022. On or about the tenth day after such filing, the Company intends to file a Form 15 Certification and Notice of Termination of Registration with the SEC, requesting that the Company’s reporting obligations under Sections 13 and 15(d) of the Exchange Act be terminated with respect to the Securities.
Item 3.03 Material Modification to Rights of Security Holders.
The information set forth in Items 1.01 and 5.03 of this Current Report on Form 8-K is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year
On December 19, 2022, stockholders of the Company approved at the Special Meeting (i) an amendment (the “Extension Amendment”) to the Amended and Restated Certificate of Incorporation of the Company (the “Charter”) to extend the date by which the Company would be required to consummate a business combination from March 23, 2023 to August 23, 2023 and (ii) an amendment to the Charter to permit the Board, in its sole discretion, to elect to wind up the Company’s operations on an earlier date (the “Liquidation Amendment” and, together with the “Extension Amendment, the “Charter Amendments”). The Company filed the Charter Amendments with the Secretary of State of the State of Delaware on December 19, 2022.
A copy of the Charter Amendments is filed herewith as Exhibit 3.1 and is incorporated herein by reference.
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Item 5.07 Submission of Matters to a Vote of Security Holders.
At the Company’s Special Meeting, the following proposals were considered and acted upon by the stockholders of the Company: (a) a proposal to approve the Extension Amendment (the “Extension Amendment Proposal”); (b) a proposal to amend the Charter to permit the Board, in its sole discretion, to elect to wind up the Company’s operations on an earlier date (the “Liquidation Amendment Proposal”); (c) a proposal to approve the Trust Amendment to extend the date by which the Company would be required to consummate a business combination from March 23, 2023 to August 23, 2023, or such earlier date as determined by the Board in its sole discretion (the “Trust Amendment Proposal”); (d) a proposal to ratify the selection by the audit committee of the Board of Marcum LLP to serve as the Company’s independent registered public accounting firm for the year ending December 31, 2022 (the “Auditor Ratification Proposal”); and (e) a proposal to approve the adjournment of the Special Meeting to a later date or dates, if necessary, 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 (the “Adjournment Proposal”). The number of votes cast for or against, as well as the number of abstentions as to each proposal, are set forth below.
| 1. | Extension Amendment Proposal |
| Votes For | Votes Against | Abstentions | ||
| 21,169,970 | 152,877 | 0 |
Accordingly, the Extension Amendment Proposal was approved.
| 2. | Liquidation Amendment Proposal |
| Votes For | Votes Against | Abstentions | ||
| 21,246,431 | 76,416 | 0 |
Accordingly, the Liquidation Amendment Proposal was approved.
| 3. | Trust Amendment Proposal |
| Votes For | Votes Against | Abstentions | ||
| 21,169,970 | 152,877 | 0 |
Accordingly, the Trust Amendment Proposal was approved.
| 4. | Auditor Ratification Proposal |
| Votes For | Votes Against | Abstentions | ||
| 21,241,691 | 76,116 | 0 |
Accordingly, the Auditor Ratification Proposal was approved.
As there were sufficient votes at the time of the Special Meeting to approve each of the above proposals, the Adjournment Proposal, which had been previously voted on by proxy, was not presented to stockholders at the Special Meeting.
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Item 8.01 Other Events.
In connection with the Company’s implementation of the Charter Amendments and the Board’s decision to liquidate and dissolve the Company, the Public Shares will be redeemed 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 Trust Account deposits (which interest shall be net of taxes payable and up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding Public Shares. The Redemption will completely extinguish rights of the holders of Public Shares (including the right to receive further liquidating distributions, if any). The per share Redemption amount is currently being calculated. The Company has estimated it to be approximately $10.10 per share and will file an amended Current Report on Form 8-K to disclose the final amount if it is materially different from the estimated amount. There will be no redemption rights or liquidating distributions with respect to the Redeemable Warrants, which will expire worthless upon the liquidation of the Company.
In connection with the foregoing matters described in this Current Report on Form 8-K, on December 22, 2022, the Company issued a press release, a copy of which is attached as Exhibit 99.1 to this Current Report on Form 8-K, which is incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 3.1 | Certificate of Amendment of Amended and Restated Certificate of Incorporation | |
| 10.1 | Amendment to the Investment Management Trust Agreement, dated as of December 19, 2022 | |
| 99.1 | Press Release dated December 22, 2022 | |
| 104 | Cover Page Interactive Data File (formatted as Inline XBRL and contained in Exhibit 101) |
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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.
| AF ACQUISITION CORP. | |||
| By: | /s/ Christopher Bradley | ||
| Name: | Christopher Bradley | ||
| Title: | Chief Financial Officer | ||
| Dated: December 23, 2022 | |||
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Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
AF ACQUISITION CORP.
AF Acquisition Corp. (the “Corporation”),
a corporation organized and existing under the laws of the State of
Delaware, does hereby certify as follows:
| 1. | The text of Section 9.1(b) of Article IX of the Amended and Restated Certificate of Incorporation of the Corporation is hereby amended and restated to read in its entirety as follows: |
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 initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on February 25, 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 August 23, 2023 (or such earlier date as determined by the Board, in its sole discretion, and included in a public announcement) (or, if the Office of the Delaware Division of Corporations shall not be open for business (including filing of corporate documents) on such date, the next date upon which the Office of the Delaware Division of Corporations shall be open) (the “Completion Window”) or (iii) the redemption of shares in connection with a vote seeking to amend any provisions of this Amended and Restated Certificate as described in Section 9.7. Holders of shares of the 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 affiliates or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
| 2. | The foregoing amendment to the Amended and Restated Certificate of Incorporation of the Corporation was duly adopted by the Board of Directors of the Corporation and by the requisite vote of the stockholders entitled to vote thereon in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware. |
IN WITNESS WHEREOF, AF Acquisition Corp. has caused this Certificate of Amendment to the Amended and Restated Certificate of Incorporation to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of this 19th day of December, 2022.
| AF ACQUISITION CORP. | ||
| BY: | /s/ Christopher Bradley | |
| NAME: | Christopher Bradley | |
| TITLE: | Chief Financial Officer and Secretary | |
Exhibit 10.1
AMENDMENT TO INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT TO INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment Agreement”), dated as of December 19, 2022, is made by and between AF Acquisition Corp., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York limited purpose trust company (the “Trustee”).
WHEREAS, the parties hereto are parties to that certain Investment Management Trust Agreement dated as of March 18, 2021 (the “Trust Agreement”);
WHEREAS, Section 1(i) of the Trust Agreement sets forth the terms that govern the liquidation of the Trust Account established for the benefit of the Company and the Public Stockholders under the circumstances described therein;
WHEREAS, Section 6(c) of the Trust Agreement provides that Section 1(i) of the Trust Agreement may only be changed, amended or modified with the affirmative vote of at least sixty five percent (65%) of the then outstanding shares of Common Stock and Class B common stock, voting together as a single class;
WHEREAS, pursuant to a special meeting of the stockholders of the Company held on the date hereof, at least sixty five percent (65%) of the then outstanding shares of Common Stock and Class B common stock, voting together as a single class, voted affirmatively to approve (i) this Amendment Agreement and (ii) a corresponding amendment to the Company’s amended and restated certificate of incorporation (the “Charter Amendment”); and
WHEREAS, each of the Company and the Trustee desires to amend the Trust Agreement as provided herein concurrently with the effectiveness of the Charter Amendment.
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. Definitions. Capitalized terms contained in this Amendment Agreement, but not specifically defined herein, shall have the meanings ascribed to such terms in the Trust Agreement.
2. Amendments to the Trust Agreement.
| (a) | 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, President, Chief Financial Officer, Secretary or Chairman of the board of directors of the Company (the “Board”) or other authorized officer of the Company, 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 (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein; or (y) upon (i) August 23, 2023 (or such earlier date as determined by the Board, in its sole discretion, and included in a public announcement) (the “Liquidation Date”) 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, 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 (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses) shall be distributed to the Public Stockholders of record as of such date; provided, however, that in the event the Trustee receives a Termination Letter in a form substantially similar to Exhibit B hereto, or if the Trustee begins to liquidate the Property because it has received no such Termination Letter by the Liquidation Date, the Trustee shall keep the Trust Account open until twelve (12) months following the date the Property has been distributed to the Public Stockholders;”
(b) Effective as of the execution hereof, Exhibit B of the Trust Agreement is hereby amended and restated, in the form attached hereto, to implement a corresponding change to the foregoing amendment to Section 1(i) of the Trust Agreement.
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 the parties thereto in accordance with its terms. This Amendment Agreement forms an integral and inseparable part of the Trust Agreement. This Amendment Agreement is intended to be in full compliance with the requirements for an amendment to the Trust Agreement as required by Section 6(c) and Section 6(d) of the Trust Agreement, and any defect in fulfilling such requirements for an effective amendment to the Trust Agreement is hereby ratified, intentionally waived and relinquished by all parties hereto.
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; and
(b) All references to the “amended and restated certificate of incorporation” in the Trust Agreement shall mean the Company’s amended and restated certificate of incorporation as amended by the Charter Amendment.
5. Governing Law. 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.
6. Counterparts. This Amendment Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, but all such counterparts shall together constitute one and the same instrument. Delivery of a signed counterpart of this Amendment Agreement by electronic transmission shall constitute valid and sufficient delivery thereof.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have duly executed this Amendment Agreement as of the date first written above.
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee | |||
| By: | /s/ Francis Wolf | ||
| Name: | Francis Wolf | ||
| Title: | Vice President | ||
| AF ACQUISITION CORP. | |||
| By: | /s/ Christopher Bradley | ||
| Name: | Christopher Bradley | ||
| Title: | CFO | ||
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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 and Celeste Gonzalez
Re: Trust Account - Termination Letter
Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between AF Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of March 18, 2021 (as amended, the “Trust Agreement”), this is to advise you that the Company did not effect a Business Combination with a Target Business 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 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 [__]1 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 amended and restated Certificate of Incorporation of the Company. 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, | ||
| AF Acquisition Corp. | ||
| By: | ||
| Name: | ||
| Title: | ||
| 1 | August 23, 2023 or at a later date, if extended, unless an earlier date is determined by the Company’s Board of Directors. |
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Exhibit 99.1
AF Acquisition Corp. Amends Charter and Announces Decision to Liquidate
Palm Beach, FL, Dec. 22, 2022 (GLOBE NEWSWIRE) -- On December 19, 2022, the stockholders of AF Acquisition Corp. (the “Company”) approved (i) an amendment to the Company’s amended and restated certificate of incorporation (the “Charter”) to extend the date by which the Company would be required to consummate a business combination from March 23, 2023 to August 23, 2023 (the “Extension Amendment”), (ii) an amendment to the Charter to permit the Company’s Board, in its sole discretion, to elect to wind up the Company’s operations on an earlier date (the “Liquidation Amendment” and, together with the Extension Amendment, the “Charter Amendments”), (iii) an amendment to the Company’s investment management trust agreement, dated as of March 18, 2021, by and between the Company and Continental Stock Transfer & Trust Company, to extend the date by which the Company would be required to consummate a business combination from March 23, 2023 to August 23, 2023, or such earlier date as determined by the Board in its sole discretion, and (iv) a proposal to ratify the selection by the audit committee of the Board of Marcum LLP to serve as the Company’s independent registered public accounting firm for the year ending December 31, 2022. The Company filed the Extension Amendment and the Liquidation Amendment with the Secretary of State of the State of Delaware and executed the Trust Agreement on December 19, 2022.
Following the stockholders’ meeting, the Company’s board of directors has determined to liquidate and dissolve the Company as soon as practicable before December 31, 2022. In connection therewith, the Company has (i) notified the Nasdaq Stock Market LLC (“Nasdaq”) of its anticipated redemption (the “Redemption”) of 100% of its shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”), included as part of the units sold in the IPO, whether such shares were purchased in the IPO or in the secondary market following the IPO (including shares sold pursuant to the underwriters’ overallotment option, collectively, the “Public Shares”) and (ii) requested that Nasdaq suspend trading of the Company’s shares of Class A Common Stock, warrants to purchase shares of Class A Common Stock (the “Warrants”) and units, each consisting of one Public Share and one-third of one Redeemable Warrant (the units, together with the Class A Common Stock and the Redeemable Warrants, the “Securities”) effective after the closing of trading on December 22, 2022. As a result, the Securities will be suspended from trading on Nasdaq on December 22, 2022.
The Public Shares will be redeemed 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 Trust Account deposits (which interest shall be net of taxes payable and up to $100,000 of interest to pay dissolution expenses), divided by the number of then outstanding public shares. The Redemption will completely extinguish rights of the holders of public shares (including the right to receive further liquidating distributions, if any). The per share Redemption amount is currently being calculated. When the final amount is determined, the Company will disclose it in a Current Report on Form 8-K to be filed with the Securities and Exchange Commission.
There will be no redemption rights or liquidating distributions with respect to the Redeemable Warrants, which will expire worthless upon the liquidation of the Company.
If stockholders hold Units, such stockholders do not need to separate the Units into their component parts in order to have their public shares of Class A Common Stock redeemed.
About AF Acquisition Corp.
AF Acquisition Corp. is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses.
Forward-Looking Statements
This press release includes forward-looking statements that involve risks and uncertainties. Forward-looking statements are statements that are not historical facts. Such forward-looking statements are subject to risks and uncertainties, which could cause actual results to differ from the forward-looking statements. These forward-looking statements and factors that may cause such differences include, without limitation, uncertainties relating to the Company’s stockholder approval of the above-referenced proposals, its inability to complete an initial business combination within the required time period and other risks and uncertainties indicated from time to time in filings with the SEC, including the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2021 under the heading “Risk Factors” and other documents the Company has filed, or to be filed, with the SEC. Readers are cautioned not to place undue reliance upon any forward-looking statements, which speak only as of the date made. The Company expressly disclaims any obligations or undertaking to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in the Company’s expectations with respect thereto or any change in events, conditions or circumstances on which any statement is based.
Company Contact:
Christopher Bradley
CFO
241 Bradley Place, Suite C
Palm Beach, FL 33480
Telephone: (212) 616-9600