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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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 stockholders of Gores Holdings VIII, Inc. (the “Company”) held on December 29, 2022 (the “Special Meeting”) stockholders of the Company approved (i) an amendment to the Company’s Amended and Restated Certificate of Incorporation (the “Charter Amendment”) and (ii) an amendment to the Investment Management Trust Agreement, dated March 1, 2021, by and between the Company and Computershare Trust Company, N.A., as trustee (the “Trust Agreement”), to allow the Company to redeem all of its outstanding shares of Class A common stock, par value $0.0001 per share (the “Class A Common Stock”) and units comprised of one share of Class A Common Stock and one-eighth of one warrant (the “Units” and together with the Class A Common Stock, the “Public Shares”) in advance of the Company’s contractual expiration date of March 1, 2023 by accelerating 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 (a “Business Combination”) from March 1, 2023 to the later of (x) December 29, 2022 or (y) the date of effectiveness of the Charter Amendment (the “Amended Termination Date”).
The Company filed the Charter Amendment with the Secretary of State of the State of Delaware on December 29, 2022. The foregoing descriptions of the Charter Amendment 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 33,517,300 (77.72%) of the Company’s issued and outstanding shares of common stock held of record at the close of business on December 13, 2022, the record date for the Special Meeting, were present either in person or by proxy, which constituted a quorum. The Company’s 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 on December 15, 2022 (as supplemented from time to time, the “Proxy Statement”).
Proposal No. 1 – The Charter Amendment Proposal – to adopt the Charter Amendment to amend 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 March 1, 2023 to the Amended Termination Date.
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 33,513,787 |
3,513 |
0 |
0 |
Proposal No. 2 – The Trust Amendment Proposal – to amend the Trust Agreement to change the date on which the trustee must commence liquidation of the trust account established in connection with the Company’s initial public offering to the Amended Termination Date.
| For |
Against |
Abstain |
Broker Non-Votes | |||
| 33,513,787 |
3,513 |
0 |
0 |
As there were sufficient votes to approve the Proposals, the “Adjournment Proposal” described in the Proxy Statement was not presented to 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 Public Shares as promptly as reasonably possible but not 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 30, 2022 at a per-share redemption price of approximately $10.08.
On December 29, 2022, the Company filed a certificate of dissolution with the Secretary of State of the State of Delaware.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit No. | Description | |
| 3.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation | |
| 10.1 | Amendment to the Trust Agreement | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) | |
SIGNATURES
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.
| Date: December 29, 2022 | GORES HOLDINGS VIII, INC. | |||||
| By: | /s/ Andrew McBride | |||||
| Name: | Andrew McBride | |||||
| Title: | Chief Financial Officer and Secretary | |||||
Exhibit 3.1
CERTIFICATE OF AMENDMENT
TO THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
GORES HOLDINGS VIII, INC.
GORES HOLDINGS VIII, INC., a corporation organized and existing under the laws of the State of Delaware, hereby certifies as follows:
1. The name of the Corporation is Gores Holdings VIII, Inc. The original Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on September 14, 2020. An Amended and Restated Certificate of Incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on February 24, 2021 (the “Amended and Restated Certificate”).
2. This Amendment to the Amended and Restated Certificate (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. The approval of the Amendment is intended to constitute the adoption of a plan of complete liquidation of the Corporation for U.S. federal income tax purposes.
3. This Amendment further amends the provisions of the Amended and Restated Certificate.
4. The Amended and Restated Certificate is hereby amended by deleting 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 initially filed with the Securities and Exchange Commission on January 27, 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 with respect to up to $900,000 per year of interest earned on the funds held in the Trust Account that may be released to fund regulatory compliance requirements and other costs related thereto (a “Regulatory Withdrawal”), plus additional amounts necessary to pay the Corporation’s franchise and income tax obligations, if any, the proceeds from the Offering and the sale of the private placement warrants will not be released from the Trust Account until the earlier 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 (A) December 29, 2022 or (B) the date of the effectiveness of this Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Corporation pursuant to the DGCL (the “End Date”), and (iii) the redemption of shares in connection with a vote seeking to amend any provisions of the Amended and Restated Certificate relating to stockholders’ rights or pre-initial Business Combination activity (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 affiliates of Gores Sponsor VIII LLC (the “Sponsor”) or officers or directors of the Corporation) are referred to herein as “Public Stockholders.”
5. The Amended and Restated Certificate is hereby amended by deleting 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 End 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 fund Regulatory Withdrawals, and/or to pay its franchise and income 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 (if required by the DGCL) and the Board in accordance with applicable law, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.
6. The Amended and Restated Certificate is hereby amended by deleting 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 (i) to Section 9.2(d) that would modify the substance or timing of the Corporation’s obligation to allow redemptions in connection with the Corporation’s initial Business Combination or to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by the End Date, or (ii) with respect to any other provision herein relating to stockholder’s 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 fund Regulatory Withdrawals and/or to pay its franchise and income taxes, divided by the number of then outstanding Offering Shares.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Certificate of Amendment on this 29th day of December, 2022.
| GORES HOLDINGS VIII, INC. | ||
| By: | /s/ Mark Stone | |
| Name: Mark Stone | ||
| 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 Gores Holdings VIII, Inc., a Delaware corporation (the “Company”), and Computershare Trust Company, N.A., a federally chartered trust company (the “Trustee”), and amends that certain Investment Management Trust Agreement, effective as of March 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 34,500,000 units (the “Offering”) and as of March 1, 2021, a total of $345,000,000.00 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 regulatory compliance costs and 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 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 F common stock of the Company, par value $0.0001 per share (the “Class F Common Stock”), 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 65% of the voting power of all then outstanding shares of the Common Stock and the Company’s Class F Common Stock have voted to approve this Amendment Agreement;
WHEREAS, at the Special Meeting, the stockholders of the Company also voted to approve an amendment of the Company’s amended and restated certificate of incorporation (such amendment, the “Second Amendment to the Charter”); 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 by deleting Section 1(i) in its entirety and inserting the following in lieu thereof:
(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 up to $900,000 per year of interest not previously released to the Company to fund its regulatory compliance requirements and other costs related thereto (a “Regulatory Withdrawal”), plus additional amounts that may be released to us to pay our franchise and income tax obligations, if any (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 End Date (as such term is defined in 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;
2. Amendment to Exhibit B. Effective as of the execution hereof, Exhibit B of the Trust Agreement is hereby deleted and replaced 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 March 1, 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 Amended and Restated Certificate as amended by the Second Amendment to the Charter.
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(g) and 6(h) of the Trust Agreement shall apply mutatis mutandis to this Amendment Agreement, as if set forth in full herein.
[Signature Pages Follow]
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.
| COMPUTERSHARE TRUST COMPANY, N.A., as Trustee | ||
| By: | /s/ Jaddiel Ramos | |
| Name: Jaddiel Ramos | ||
| Title: Vice President | ||
| GORES HOLDINGS VIII, INC. | ||
| By: | /s/ Andrew McBride | |
| Name: Andrew McBride | ||
| Title: Chief Financial Officer and Secretary | ||
EXHIBIT B
[Letterhead of Company]
[Insert date]
Computershare Trust Company, N.A.
6200 S. Quebec St.
Greenwood Village, CO 80111
Attn: Rose Stroud and/or Jay Ramos
Facsimile No. (303) 262-0608
Email: corporate.trust@computershare.com
rose.stroud@computershare.com, and
jay.ramos@computershare.com
| Re: | Trust Account No. Termination Letter |
Dear [ ]:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Gores Holdings VIII, Inc. (the “Company”) and Computershare Trust Company, N.A. (the “Trustee”), dated as of March 1, 2021 (as amended, the “Trust Agreement”), this is to advise you that the Company has been unable to effect a business combination with a Target Business (the “Business Combination”) within the time frame specified in the Company’s amended and restated certificate of incorporation. 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 on [•] and to transfer the total proceeds into the trust operating account at [Deutsche Bank Trust Company Americas] to await distribution to the Public Stockholders. The Company has selected [•] as the effective date for the purpose of determining when the Public Stockholders will be entitled to receive their share of the liquidation proceeds. You agree to be the Paying Agent of record and, in your separate capacity as Paying Agent, agree to distribute said funds directly to the Company’s Public Stockholders in accordance with the terms of the Trust Agreement and the 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(j) of the Trust Agreement.
| Very truly yours, | ||
| Gores Holdings VIII, Inc. | ||
| By: | ||
| Name: | ||
| Title: | ||
cc: [Deutsche Bank Trust Company Americas]
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