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):
May 10, 2024 (
(Exact name of registrant as specified in its charter)
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) | ||
| (Address of Principal Executive Offices) | (Zip Code) | |||
(
(Registrant’s telephone number, including area code)
Check the appropriate box below if the Form 8-K is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:
| Written communication 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-commencements 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 | ||
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.
IMPORTANT NOTICES
Additional Information and Where to Find It
This communication relates to the proposed Business Combination (as defined in the Current Report on Form 8-K filed with the SEC on May 22, 2023) between Everest Consolidator Acquisition Corporation (the “Company”) and Unifund Financial Technologies, Inc., a Delaware corporation (“New PubCo”), Unifund Merger Sub Inc., a Delaware corporation and a direct, wholly owned subsidiary of New PubCo, Unifund Holdings, LLC, a Delaware limited liability company (“Holdings”), Credit Card Receivables Fund Incorporated, an Ohio corporation (“CCRF”), USV, LLC, an Ohio limited liability company (“USV” and, together with Holdings and CCRF, the “Target Companies”), and Everest Consolidator Sponsor, LLC, a Delaware limited liability company.
In connection with the Business Combination, New PubCo has filed a registration statement on Form S-4 (File No. 333-273362) relating to the Business Combination with the SEC (as may be amended or supplemented from time to time, the “Registration Statement”), which includes a proxy statement/prospectus that will be sent to all of the Company’s stockholders in connection with the Company’s solicitation of proxies for the vote by the Company’s stockholders regarding the proposed Business Combination and related matters, as is described in the Registration Statement, and including a prospectus relating to, among other things, the securities to be issued by New PubCo in connection with the proposed Business Combination. Each of New PubCo and the Company will file other documents regarding the Business Combination with the SEC. BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE REGISTRATION STATEMENT, THE PROXY STATEMENT/PROSPECTUS CONTAINED THEREIN AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC BY THE COMPANY OR NEW PUBCO IN CONNECTION WITH THE BUSINESS COMBINATION AS THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE BUSINESS COMBINATION.
Investors and security holders will be able to obtain free copies of the Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by the Company or New PubCo through the website maintained by the SEC at www.sec.gov. In addition, the documents filed by the Company may be obtained free of charge from the Company’s website at www.belayoneverest.com or by written request to the Company at Everest Consolidator Acquisition Corporation, 4041 MacArthur Boulevard, 4th Floor, Newport Beach, California 92660.
| Item 1.01. | Entry into a Material Definitive Agreement. |
The disclosure contained in Item 2.03 is incorporated by reference in this Item 1.01.
Sponsor Commitment Letter
On May 8, 2024, Everest Consolidator Sponsor, LLC (the “Sponsor”) executed a written commitment (the “Commitment Letter”) to the Company to pay any amount that the Company is unable to pay that is owed by the Company to the Internal Revenue Service with respect to federal income tax obligations or to the Division of Corporations of the State of Delaware with respect to franchise tax obligations, including upon and following a liquidation of the Trust Account, as a result of the Company’s use of the Withdrawn Trust Funds (as defined in the Company’s Form 10-Q/A for the quarter ended September 30, 2023), restricted for payment of such tax liabilities, for general corporate purposes.
The Commitment Letter is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The disclosure set forth in this Item 1.01 is intended to be a summary only and is qualified in its entirety by reference to the Commitment Letter.
| Item 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
Third A&R Promissory Note
On May 10, 2024, the Company and the Sponsor amended and restated the unsecured promissory note issued by the Company to the Sponsor, dated May 7, 2023, as amended by that certain Amended and Restated Promissory Note dated as of December 7, 2023 and as further amended by that certain Second Amended and Restated Promissory Note dated as of March 26, 2024 (the “Third A&R Promissory Note”), to (i) increase the principal amount of the Third A&R Promissory Note that may be drawn upon by the Company up to $4,500,000 and (ii) amend the maturity date to the earlier of (x) the closing of the Company’s business combination pursuant to that certain Business Combination Agreement, dated May 19, 2023, by and among the Company and the parties thereto or (y) August 28, 2024.
The Third A&R Promissory Note is attached as Exhibit 10.2 to this Current Report on Form 8-K and is incorporated herein by reference. The disclosure set forth in this Item 2.03 is intended to be a summary only and is qualified in its entirety by reference to the Third A&R Promissory Note.
| Item 9.01 | Financial Statements and Exhibits |
(d) Exhibits
|
Exhibit No. |
Description of Exhibits | |
| 10.1 | Commitment Letter, dated May 8, 2024, by Everest Consolidator Sponsor LLC to Everest Consolidator Acquisition Corporation. | |
| 10.2 | Third Amended and Restated Promissory Note, dated May 10, 2024, issued by Everest Consolidator Acquisition Corporation to Everest Consolidator Sponsor, LLC. | |
| 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.
| Everest Consolidator Acquisition Corporation | |||
| Date: May 10, 2024 | By: |
/s/ Adam Dooley | |
| Name: | Adam Dooley | ||
| Title: | Chief Executive Officer | ||
Exhibit 10.1
EVEREST CONSOLIDATOR SPONSOR LLC
May 8, 2024
Board of Directors
Everest Consolidator Acquisition Corporation
4041 MacArthur Boulevard
Newport Beach, CA, 92660
Subject: Commitment to Fund Certain Payment Obligations
Dear Board Members,
In connection with the events disclosed by Everest Consolidator Acquisition Corporation (the “Company”) in its Quarterly Report on Form 10-Q for the third quarter of 2023, as filed with the SEC on December 19, 2023 (the “10-Q”), and its Current Report on Form 8-K dated February 8, 2024, as filed with the SEC on February 14, 2024 (the “8-K”), in each case relating to the disbursement of funds withdrawn from the Company’s trust account in the third quarter of 2023, Everest Consolidator Sponsor LLC (the “Sponsor”), will pay any amount that the Company is unable to pay that is owed to the Internal Revenue Service for federal income tax or to the Division of Corporations of the State of Delaware for franchise tax, including upon and following a liquidation of the Company’s trust account pursuant to the Company’s Amended and Restated Certificate of Incorporation, dated November 23, 2021, as amended, and that certain Investment Management Trust Agreement, dated November 23, 2021, by and between the Company and American Stock Transfer & Trust Company, LLC, as amended, upon a written demand made by the respective foregoing taxing authority, provided that such amount owed and unpaid is the result of the events disclosed in the 10-Q and 8-K.
This commitment by the Sponsor will terminate automatically without further action by any party immediately upon the earliest to occur of (i) the closing of a deSPAC transaction involving the Company or (ii) the merger of the Company with, or the sale of all or substantially all of the Company’s assets to, a party not affiliated with the Company or its Sponsor.
Everest Consolidator Sponsor, LLC
| By: | /s/ Adam Dooley | |
| Adam Dooley, its Managing Member |
Exhibit 10.2
THIS THIRD AMENDED AND RESTATED PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
THIRD AMENDED AND RESTATED PROMISSORY NOTE
Dated as of May 10, 2024
WHEREAS, on May 7, 2023, Everest Consolidator Acquisition Corporation, a Delaware corporation (“Maker”), issued that certain Promissory Note as amended by that certain Amended and Restated Promissory Note dated as of December 7, 2023 and as further amended by that certain Second Amended and Restated Promissory Note dated as of March 26, 2024 (the “Second A&R Note”) to Everest Consolidator Sponsor, LLC, a Delaware limited liability company, or its registered assigns or successors in interest (“Payee”); and
WHEREAS, Maker and Payee desire to amend and restate in its entirety the Second A&R Note on the terms and conditions provided in this Note.
NOW THEREFORE, in consideration of the mutual covenants contained herein and other good and valuable consideration, the existence and sufficiency of which is expressly recognized by each of the parties hereto, the parties agree as follows:
Maker promises to pay to the order of Payee, or order, up to the principal sum of Four Million Five Hundred Thousand Dollars ($4,500,000) (the “Maximum Principal Amount”) or such lesser amount as shall have been advanced from Payee to Maker in any number of disbursements (such advanced amounts the “Outstanding Principal”) and shall remain unpaid under this Note on the Maturity Date (as defined below) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by Maker to such account as Payee may from time to time designate by written notice in accordance with the provisions of this Note.
1. Principal. The entire unpaid principal balance of any Outstanding Principal plus accrued Interest (as defined below) shall be payable on the earlier of: (i) the date on which Maker consummates the Business Combination (as defined below) or (ii) August 28, 2024 (such earlier date, the “Maturity Date”). The Outstanding Principal balance and any accrued Interest (together, the “Outstanding Balance”) may be prepaid at any time. Under no circumstances shall any individual, including but not limited to any officer, director, employee or shareholder of Maker, be obligated personally for any obligations or liabilities of Maker hereunder.
2. Drawdown Requests. Maker and Payee agree that Maker may request, from time to time, up to the Maximum Principal Amount in drawdowns under this Note to be used for costs and expenses related to Maker’s diligence and completion of the business combination contemplated by that certain Business Combination Agreement, dated May 19, 2023, by and among Payee and the parties thereto (the “Business Combination”). Principal of this Note may be drawn down from time to time prior to the Maturity Date upon written request from Maker to Payee (each, a “Drawdown Request”). Each Drawdown Request must state the amount to be drawn down, and must not be an amount less than One Thousand Dollars ($1,000). Payee shall fund each Drawdown Request no later than three (3) business days after receipt of a Drawdown Request; provided, however, that the maximum amount of drawdowns outstanding under this Note at any time may not exceed the Maximum Principal Amount. Notwithstanding the foregoing, Payee shall have the right, in its sole discretion, to deny any Drawdown Request received from Maker. Payee shall provide written notice to Maker of its determination not to fund a Drawdown Request no later than one (1) business day after receipt of a Drawdown Request; provided, however, that failure to provide such notice shall not constitute a waiver of Payee’s right to deny funding such Drawdown Request. No fees, payments or other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by Maker, other than any Interest accrued pursuant to Section 3 hereof.
3. Interest. Any Outstanding Principal shall accrue interest (i) at the flat rate of 6.0% for any Outstanding Principal up to $1,500,000 (the “Initial Interest”) and (ii) at the flat rate of 18.0% for any further Outstanding Principal drawn down by Maker thereafter (the “Additional Interest” and, together with the Initial Interest, the “Interest”). The entire unpaid principal balance of any Outstanding Balances shall be payable on the Maturity Date. The total repayment amount shall not exceed the Maximum Principal Amount, plus any accrued Interest.
For example, if $1,000,000 is drawn down by Maker, the total amount of Outstanding Balance to be repaid on the Maturity Date shall be $1,060,000, and if $2,000,000 is drawn down by Maker, the total amount of Outstanding Balance to be repaid on the Maturity Date shall be $2,180,000, irrespective of the duration of borrowing, provided that it is repaid by the Maturity Date.
4. Trust Waiver. Notwithstanding anything herein to the contrary, Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any distribution of or from the trust account in which the proceeds of the initial public offering conducted by Maker (the “IPO”) (including the deferred underwriters discounts and commissions) and the proceeds of the sale of warrants redeemable for shares of Class A common stock, $0.0001 par value, of Maker in connection with the IPO were deposited, as described in greater detail in the registration statement and prospectus filed with the Securities and Exchange Commission in connection with the IPO, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the trust account for any reason whatsoever.
5. Outstanding Drawdowns. Any Outstanding Principal drawn down by Maker prior to the date hereof shall not constitute an event of default under the Note so long as such drawdowns do not conflict with the terms hereof.
4. Governing Law. This Note shall be governed by and construed in accordance with the laws of the state of Delaware, without regard to conflict of law provisions thereof.
5. Entire Agreement. This Note contains the entire agreement of the parties and there are no other promises or conditions in any other agreement whether oral or written. This Note supersedes any prior written or oral agreements between the parties.
6. Counterparts. This Note may be executed in one or more counterparts, which, when taken together, shall be deemed to be one and the same instrument.
7. Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction.
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IN WITNESS WHEREOF, the parties have caused this Note to be signed by their respective duly authorized officers as of the date first above written.
| PAYEE: | ||
| EVEREST CONSOLIDATOR SPONSOR, LLC | ||
| By: | /s/ Adam Dooley | |
| Name: | Adam Dooley | |
| Title: | Managing Member | |
| MAKER: | ||
| EVEREST CONSOLIDATOR ACQUISITION CORPORATION | ||
| By: | /s/ Adam Dooley | |
| Name: | Adam Dooley | |
| Title: | Chief Executive Officer | |