UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM
__________________
CURRENT REPORT
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Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On June 9, 2023, Power & Digital Infrastructure Acquisition II Corp., a Delaware corporation (the “Company”), filed with the Secretary of the State of Delaware an amendment (the “Charter Amendment”) to the Company’s amended and restated certificate of incorporation (the “Certificate”) comprised of the Extension Amendment and the Redemption Limitation Amendment (each, as defined below). The Company’s stockholders approved the Charter Amendment at a special meeting in lieu of annual meeting of stockholders (the “Special Meeting”) on June 9, 2023. The information set forth in Item 5.07 regarding the Extension Amendment and the Redemption Limitation Amendment is incorporated by reference into this Item 5.03.
The foregoing description of the Charter Amendment does not purport to be complete and is qualified in its entirety by reference to the Charter Amendment filed as Exhibit 3.1 hereto and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders.
At the Special Meeting, the Company’s stockholders approved the following proposals:
(i) To amend the Certificate (such amendment the “Extension Amendment” and, such proposal, the “Extension Amendment Proposal”) to extend the date by which the Company must consummate an initial merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses (a “business combination”), from June 14, 2023 (which is 18 months from the closing date of the IPO (the “Current Outside Date”)) to December 14, 2023 (such date, the “Extended Date”), and to allow the Company, without another stockholder vote, by resolution of the Company’s board of directors (our “board”), to elect to further extend the Extended Date in one-month increments up to three additional times, or a total of up to nine months after the Current Outside Date, until March 14, 2024, unless the closing of a business combination shall have occurred prior thereto or such earlier date as determined by our board to be in the best interests of the Company (the “Extension”), and that if the Company has not consummated a business combination by the applicable Extended Date, the Company will (i) cease its operations except for the purpose of winding up if it fails to complete such business combination, and (ii) redeem all shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A common stock”), included as part of the units sold in the Company’s initial public offering (such shares of Class A common stock, the “public shares”) that was consummated on December 14, 2021 (the “IPO”);
(ii) to amend the Certificate to eliminate from the Certificate the limitation that the Company may not redeem public shares to the extent that such redemption would result in the Company having net tangible assets (as determined in accordance with Rule 3a51-1(g)(1) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) (or any successor rule)) of less than $5,000,001 (the “Redemption Limitation”) in order to allow the Company to redeem public shares irrespective of whether such redemption would exceed the Redemption Limitation (the “Redemption Limitation Amendment”);
(iii) to re-elect Paul Gaynor as a Class I director of our board, to serve for a term of three years until 2026 or until his successor is elected and qualified (the “Director Election Proposal”);
(iv) to approve and ratify the appointment of Marcum LLP as the Company’s independent accountants for the fiscal year ending December 31, 2023 (the “Auditor Ratification Proposal”); and
(v) 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 the Proposals (the “Adjournment Proposal” and, together with the Extension Amendment Proposal, the Redemption Limitation Amendment Proposal, the Director Election Proposal and the Auditor Ratification Proposal, the “Proposals”).
A total of 30,907,948 (or 86%) of the Company’s issued and outstanding shares of Class A common stock and Class B common stock, par value $0.0001 per share (“Class B common stock”), held of record as of May 12, 2023, the record date for the Special Meeting, were present either in person, virtually or by proxy, which constituted a quorum. The Company’s stockholders voted on the following Proposals at the Special Meeting, each of which were approved. The final vote tabulation for each Proposal is set forth below.
1. | The Extension Amendment Proposal - to approve and adopt the Extension Amendment. |
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
28,706,884 | 2,201,064 | 0 | N/A |
2. | The Redemption Limitation Amendment Proposal - to approve and adopt the Redemption Limitation Amendment. |
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
28,706,884 | 2,201,064 | 0 | N/A |
3. | The Director Election Proposal - to re-elect Paul Gaynor as a Class I director of our board, to serve for a term of three years until 2026 or until his successor is elected and qualified. |
Class B Votes For | Class B Votes Withheld | Class B Common Stock Abstentions | Class B Broker Non-Votes | |||
7,157,500 | 0 | 0 | N/A |
4. | The Auditor Ratification Proposal - to approve and ratify the appointment of Marcum LLP as the Company’s independent accountants for the fiscal year ended December 31, 2023. |
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
30,302,334 | 352,022 | 253,592 | N/A |
5. | The Adjournment 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 the Proposals). |
Votes For | Votes Against | Abstentions | Broker Non-Votes | |||
28,831,063 | 2,076,885 | 0 | N/A |
Although the Adjournment Proposal would have received sufficient votes to be approved, no motion to adjourn was made because the adjournment of the Special Meeting was determined not to be necessary or appropriate.
Item 8.01 Other Events.
Additionally, in connection with the implementation of the Extension, the Company’s public stockholders elected to redeem 18,141,822 shares of Class A common stock at a redemption price of approximately $10.37 per share, for an aggregate redemption amount of approximately $188,132,132 (the “Redemption”). After the satisfaction of the Redemption, the balance in the trust account established in connection with the Company’s IPO (the “Trust Account”) will be approximately $110,007,647.
Upon completion of the Redemption, 10,608,178 shares of Class A common stock and 7,187,500 shares of Class B common stock will remain issued and outstanding.
Cautionary Note Regarding Forward-Looking Statements
Certain statements in this Current Report on Form 8-K (this “Report”) may be considered “forward-looking statements” as defined in the Private Securities Litigation Reform Act of 1995 and within the meaning of the federal securities laws. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties such as those set forth in the section entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in the Company’s Annual Reports on Form 10-K, Quarterly Reports on Form 10-Q, Current Reports on Form 8-K that are available on the website of the SEC at www.sec.gov and other documents filed, or to be filed with the SEC by the Company. The foregoing list of factors is not exhaustive. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and the Company assumes no obligation and, except as required by law, does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
Exhibit |
Description | |
3.1 | Amendment to Amended and Restated Certificate of Incorporation of Power & Digital Infrastructure Acquisition II Corp. | |
104 | Cover Page Interactive Data File (formatted as Inline XBRL) |
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.
Dated: June 13, 2023
POWER & DIGITAL INFRASTRUCTURE ACQUISITION II CORP. | ||
By: | /s/ Patrick C. Eilers | |
Name: Patrick C. Eilers Title: Chief Executive Officer |
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
POWER & DIGITAL INFRASTRUCTURE ACQUISITION II CORP.
POWER & DIGITAL INFRASTRUCTURE ACQUISITION II 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 Power & Digital Infrastructure Acquisition II Corp. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 23, 2021 (the “Original Certificate”). An Amended and Restated Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on December 9, 2021 (the “Amended and Restated Certificate of Incorporation”). |
2. | This First Amendment to the Amended and Restated Certificate of Incorporation (the “First Amendment”), which amends the provisions of the Original Certificate and the Amended and Restated Certificate of Incorporation, was duly adopted in accordance with Section 242 of the General Corporation Law of the State of Delaware, as amended from time to time. |
3. | The text of clause (b) of Paragraph TWENTY-FOURTH of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read 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-l, as initially filed with the Securities and Exchange Commission (the “SEC”) on November 18, 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 the Corporation’s 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 shares in connection with a vote seeking to amend any provisions of this Amended and Restated Certificate as described in Paragraph THIRTIETH, or (iii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination by December 14, 2023, which may be extended pursuant to clause (c) below (such date, as it may be extended, the “Deadline Date”) or such earlier date as determined by the Board to be in the best interests of the Company and subject to applicable law. 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 holder is XPDI Sponsor II LLC (the “Sponsor”) or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
4. | The following clause (c) is added to Paragraph TWENTY-FOURTH of the Amended and Restated Certificate of Incorporation: |
Notwithstanding the foregoing or any other provisions of this Amended and Restated Certificate, in the event that the Corporation has not consummated an initial Business Combination by the Deadline Date, without approval of the Corporation’s stockholders, by resolution of the Board, the Corporation may extend the Deadline Date in one-month increments up to three times, unless the closing of an initial Business Combination shall have occurred prior to any such extension.
5. | The text of clause (a) of Paragraph TWENTY-FIFTH of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read as follows: |
(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 this Paragraph TWENTY-FIFTH (such rights of such holders to have their Offering Shares redeemed pursuant to this Paragraph TWENTY-FIFTH, the “Redemption Rights”) hereof for cash equal to the applicable redemption price per share determined in accordance with this Paragraph TWENTY-FIFTH (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 text of sub-paragraph (d) of Paragraph TWENTY-FIFTH of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read as follows: |
(d) 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 Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination.
7. | Sub-paragraph (e) of Paragraph TWENTY-FIFTH of the Amended and Restated Certificate of Incorporation is hereby deleted in its entirety. |
8. | The text of clause (f) of Paragraph TWENTY-FIFTH of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read as follows: |
(f) In the event that the Corporation has not consummated an initial Business Combination the Deadline Date (as provided in clauses (b) and (c) of Paragraph TWENTY-FOURTH), 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 taxes (less up to $100,000 of such net 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.
9. | The first sentence of Paragraph THIRTIETH of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read as follows: |
THIRTIETH. If, in accordance with Paragraph TWENTY-FOURTH, any amendment is made to this Amended and Restated Certificate of Incorporation (a) to modify the substance or timing of the Corporation’s obligation to allow redemption in connection with its initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by the Deadline Date, or (b) with respect to any other provisions of this Amended and Restated Certificate of Incorporation 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.
10. | The last sentence of Paragraph THIRTIETH of the Amended and Restated Certificate of Incorporation is hereby deleted. |
IN WITNESS WHEREOF, Power & Digital Infrastructure Acquisition II Corp, has caused this First Amendment to the Amended and Restated Certificate to be duly executed in its name and on its behalf by an authorized officer as of this 12th day of June, 2023.
POWER & DIGITAL INFRASTRUCTURE ACQUISITION II CORP. | ||
By: | /s/ Patrick Eilers | |
Name: | Patrick Eilers | |
Title: | Chief Executive Officer |
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