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
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| Item 1.01. | Entry into a Material Definitive Agreement. |
The information disclosed in Item 5.07 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01 to the extent required herein. On December 29, 2022, MDH Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (“Continental”) entered into an amendment (the “Trust Amendment”) to the Investment Management Trust Agreement, effective as of February 1, 2021, by and between Continental and the Company (the “Trust Agreement”) to change the date by which Continental must commence the liquidation of the trust account established in connection with the Company’s initial public offering (“IPO”). The Trust Amendment was previously approved by the board of directors of the Company (the “Board”), subject to stockholder approval, and approved by the Company’s stockholders at the Special Meeting, as further described in Item 5.07 below. A copy of the Trust Amendment is attached to this Current Report on Form 8-K as Exhibit 10.1 and 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 29, 2022, the Company issued a press release as required by the New York Stock Exchange listing rules regarding the decision by the Company’s Board of Directors to delist the Company’s common stock from the New York Stock Exchange. The press release is attached to this Current Report on Form 8-K as Exhibit 99.1 and is incorporated herein by reference.
| Item 5.03. | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information disclosed in Item 5.07 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03 to the extent required herein. On December 29, 2022, the Company amended the second amendment to the second amended and restated certificate of incorporation of Company with the Secretary of the State of Delaware (the “Amendment”) to change the date by which the Company must cease all operations except for the purpose of winding up if it fails to complete a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses from February 4, 2023 to the later of (i) December 29, 2022, and (ii) the date and time of the effectiveness of the Amendment (the “Amended Termination Time”). The Amendment was previously approved by the Board, subject to stockholder approval, and approved by the Company’s stockholders at the Special Meeting, as further described in Item 5.07 below. The foregoing description of the Amendment is not intended to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit 3.1 to this Current Report on Form 8-K and incorporated herein by reference.
| Item 5.07. | Submission of Matters to a Vote of Security Holders. |
On December 29, 2022, the Company convened its special meeting in lieu of an annual meeting of stockholders (the “Special Meeting”) virtually, solely with respect to the voting on proposals to: (i) amend the second amended and restated certificate of incorporation of Company to change the date by which the Company must cease all operations except for the purpose of winding up if it fails to complete a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses from February 4, 2023 to the Amended Termination Time (the “Charter Amendment Proposal”); and (ii) amend the Trust Agreement, by and between the Company and Continental to change the date by which Continental must commence the liquidation of the trust account established in connection with the IPO to the Amended Termination Time (the “Trust Amendment Proposal”).
The following is a brief description of the final voting results for each of the proposals submitted to a vote of the stockholders at the Special Meeting on November 23, 2022.
The Charter Amendment Proposal
To consider and vote upon the Charter Amendment Proposal to amend the Company’s second amended and restated certificate of incorporation to change the date by which the Company must cease all operations except for the purpose of winding up if it fails to complete a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses from February 4, 2023 to the later of (x) December 29, 2022, and (y) the date and time of the effectiveness of the Amendment.
The Charter Amendment Proposal was approved. The voting results of the shares of the Common Stock were as follows:
| For | Against | Abstentions | ||
| 27,405,483 | 8,352 | 0 |
The Trust Amendment Proposal
To consider and vote upon the Trust Amendment Proposal to amend the Trust Agreement, by and between the Company and Continental, pursuant to an amendment to the Trust Agreement in the form set forth in Annex B of the accompanying proxy statement to change the date on which Continental must commence the liquidation of the Trust Account established in connection with the Company’s IPO to the Amended Termination Time.
The Trust Amendment Proposal was approved. The voting results of the shares of the Common Stock were as follows:
| For | Against | Abstentions | ||
| 27,405,483 | 8,352 | 0 |
The Adjournment Proposal
To consider and vote upon a proposal to adjourn the Special Meeting to a later date or dates, if necessary (i) to ensure that any supplement or amendment to the accompanying proxy statement that the Board has determined in good faith is required by applicable law to be disclosed to the Company stockholders and for such supplement or amendment to be promptly disseminated to Company stockholders prior to the Special Meeting, (ii) if, as of the time for which the Special Meeting is originally scheduled, there are insufficient shares of Common Stock represented (either in person or by proxy) to constitute a quorum necessary to conduct business at the Special Meeting or (iii) to permit further solicitation and vote of proxies if there are insufficient votes for, or otherwise in connection with, the approval of the Charter Amendment Proposal and the Trust Amendment Proposal.
The Adjournment Proposal was not acted upon at the Special Meeting.
| Item 8.01. | Other Events. |
Liquidation of Trust Account
The Company notified Continental that it was winding up its business operations on December 29, 2022. Furthermore, in accordance with the Trust Agreement between Company and Continental, Company authorized Continental to liquidate all of the assets in the trust account and to transfer the total proceeds (less $100,000 of previously unreleased interest to pay dissolution expenses) into the trust operating account at Bank of America, N.A., to be distributed to the public stockholders of the Company on or about December 29, 2022. The Company estimates that the total amount in the trust account available for the redemption, after accounting for the account withdrawals for taxes and dissolution expenses, will be approximately $274,788,542, and the per-share redemption amount will be approximately $10.08.
Disclaimer
Forward-Looking Statements
This Current Report on Form 8-K includes certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are not historical facts and involve risks and uncertainties that could cause actual results to differ materially from those expected and projected. All statements, other than statements of historical fact included in this press release, including, without limitation, regarding the early liquidation, de-listing of the Company’s Securities and Redemption Amount, are forward-looking statements. Words such as “expect” and “intend” and variations and similar words and expressions are intended to identify such forward-looking statements. Such forward-looking statements relate to future events or future performance, but reflect management’s current beliefs, based on information currently available. A number of factors could cause actual events, performance or results to differ materially from the events, performance and results discussed in the forward-looking statements. For information identifying important factors that could cause actual results to differ materially from those anticipated in the forward-looking statements, please refer to the publicly filed documents of the Company, including its most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. The Company’s securities filings can be accessed on the SEC’s website at www.sec.gov. Except as expressly required by applicable securities law, the Company disclaims any intention or obligation to update or revise any forward-looking statements whether as a result of new information, future events or otherwise.
| Item 9.01. | Financial Statement and Exhibits. |
| (d) | Exhibits |
| Exhibit No. | Description | |
| 3.1 | Second Amendment to Second Amended and Restated Certificate of Incorporation of the Company | |
| 10.1 | Amendment to the Investment Management Trust Agreement, dated February 1, 2021, by and between MDH Acquisition Corp. and Continental Stock Transfer & Trust Company | |
| 99.1 | MDH Acquisition Corp., Press Release dated December 29, 2022. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
| MDH ACQUISITION CORP. | ||
| By: | /s/ Beau Blair | |
| Name: Beau Blair | ||
| Title: Chief Executive Officer | ||
| Dated: December 29, 2022 | ||
Exhibit 3.1
CERTIFICATE OF AMENDMENT TO
THE SECOND AMENDED AND
RESTATED CERTIFICATE OF
INCORPORATION
OF
MDH ACQUISITION CORP.
MDH Acquisition Corp. (the “Corporation”), a corporation organized and existing under the virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:
1. The name of the Corporation is MDH Acquisition Corp.
2. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on July 9, 2020. The Corporation’s Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on August 17, 2020. The Corporation’s Second Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on February 1, 2021 (as amended, the “Second Amended and Restated Certificate of Incorporation”).
3. This Certificate of Amendment to the Second Amended and Restated Certificate of Incorporation (this “Amendment”) amends the Second Amended and Restated Certificate of Incorporation of the Corporation.
4. This Amendment was duly adopted by the affirmative vote of the holders of at least 65% of the outstanding shares of common stock at a meeting of stockholders in accordance with ARTICLE IX of the Amended and Restated Certificate of Incorporation and the provisions of Section 242 the DGCL. The approval of this Amendment is intended to constitute the adoption of a plan of complete liquidation of the Corporation for U.S. federal income tax purposes unless otherwise required by applicable law.
5. The text of Section 9.1(b) of Article IX of the Amended and Restated Certificate of Incorporation is hereby amended and restated to read in its entirety 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 14, 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 the later of (x) December 29, 2022, and (y) the date and time of the effectiveness of this Amendment (such date and time, the “Amended Termination Time”), and (iii) the redemption of shares in connection with a vote seeking to amend such provisions of this Second 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.”
6. The phrase “within 24 months from the closing of the Offering” in Section 9.2(d) of Article IX is hereby deleted in its entirety and replaced with the phrase “by the Amended Termination Time”.
7. The phrase “within 24 months from the closing of the Offering” in Section 9.7 of Article IX is hereby deleted in its entirety and replaced with the phrase “by the Amended Termination Time”.
IN WITNESS WHEREOF, the Corporation has caused this Amendment to the Amended and Restated Certificate of Amendment to be duty executed in its name and on its behalf by an authorized officer as of this 29 day of December, 2022.
| /s/ Beau Blair | ||
| Name: | Beau Blair | |
| 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 December 29, 2022, is made by and between MDH Acquisition Corp., 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 1, 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 27,600,000 units (the “Offering”) and as of February 4, 2021, a total of $276,000,000.00 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 (less up to $100,000 of interest that may be released to the Company 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(c) of the Trust Agreement provides that Section 1(i) of the Trust Agreement may not be modified, amended or deleted 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 Company’s 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 of the Company’s second amended and restated certificate of incorporation (the certificate of incorporation, as so amended, the “Amendment to 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, 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) 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 (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;”
| 1 |
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 1, 2021.
(b) All references to the “amended 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(f), 6(h) and 6(j) of the Trust Agreement shall apply mutatis mutandis to this Amendment Agreement, as if set forth in full herein.
[Signature Pages Follow]
| 2 |
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 | ||
| MDH ACQUISITION CORP. | |||
| By: | /s/ Beau Blair | ||
| Name: | Beau Blair | ||
| Title: | Chief Executive Officer | ||
| 3 |
Exhibit 99.1
December 29, 2022
MDH Acquisition Corp. Announces Key Dates in Connection with December 29, 2022 Termination Date and Liquidation
December 29, 2022 — On December 29, 2022, MDH Acquisition Corp. (“we”, “us”, “our”, or the “Company”) (NYSE: MDH) announced that in accordance with the announced December 29, 2022 termination date set by its Board of Directors pursuant to a second amendment (the “Charter Amendment”) to the second amended and restated certificate of incorporation of Company (the “Charter”), which was filed with the Secretary of State of the State of Delaware on December 29, 2022, the Company expects to redeem all outstanding public shares of the Company by December 29, 2022, following which the Company will be dissolved, liquidated and wound up.
The Company has also requested the New York Stock Exchange to suspend trading of its Class A Common Stock, par value $0.0001 per share (“Class A Common Stock”) effective before the open of trading on December 30, 2022 and file with the U.S. Securities and Exchange Commission (the “SEC”) the forms necessary to delist the Company’s Class A Common Stock.
Pursuant to the Charter, the public shares of Class A Common Stock will be redeemed at 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 (less $100,000 of previously unreleased interest to pay dissolution expenses) (the “Redemption Amount”), by (B) the total number of then outstanding public shares of Class A Common Stock. The redemption will completely extinguish rights of holders of public shares of Class A Common Stock.
Following the redemptions in connection with the approval and implementation of the Charter Amendment and after taking into account withdrawals for taxes and dissolution expenses, the Company estimates that the total Redemption Amount will be approximately $274,788,542, and the per-share Redemption Amount will be approximately $10.08. The redemption date is expected to be on or around December 30, 2022.
Forward-Looking Statements
This press release includes certain forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995, Section 27A of the Securities Act of 1933, as amended (the “Securities Act”) and Section 21E of the Securities Exchange Act of 1934, as amended (the “Exchange Act”) that are not historical facts and involve risks and uncertainties that could cause actual results to differ materially from those expected and projected. All statements, other than statements of historical fact included in this press release, including, without limitation, regarding the early liquidation, de-listing of the Company’s Securities and Redemption Amount, are forward-looking statements. Words such as “expect” and “intend” and variations and similar words and expressions are intended to identify such forward-looking statements. Such forward-looking statements relate to future events or future performance, but reflect management’s current beliefs, based on information currently available. A number of factors could cause actual events, performance or results to differ materially from the events, performance and results discussed in the forward-looking statements. For information identifying important factors that could cause actual results to differ materially from those anticipated in the forward-looking statements, please refer to the publicly filed documents of the Company, including its most recent Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. The Company’s securities filings can be accessed on the SEC’s website at www.sec.gov. Except as expressly required by applicable securities law, the Company disclaims any intention or obligation to update or revise any forward-looking statements whether as a result of new information, future events or otherwise.
About MDH Acquisition Corp.
MDH 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.