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)
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(Commission File Number) | (I.R.S. Employer Identification No.) | ||||
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| (Address of Principal Executive Offices) | (Zip Code) | |||||
Registrant’s telephone number, including
area code: (
N/A
(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 |
| Soliciting material pursuant to Rule 14a-12 under the Exchange Act |
| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act |
| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act |
Securities registered pursuant to Section 12(b) of the Act:
| Title of each class | Trading Symbol | Name of each exchange on which registered | ||
| The Capital Market | ||||
| The | ||||
| The Capital Market |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (17 CFR §230.405) or Rule 12b-2 of the Securities Exchange Act of 1934 (17 CFR §240.12b-2).
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 |
As approved by its stockholders at the Annual Meeting of Stockholders (the “Meeting”) held on November 6, 2023, Digital Health Acquisition Corp. (the “Company”) entered into an amendment (the “Trust Amendment”) to the investment management trust agreement, dated as of November 3, 2021, as amended on October 26, 2022, with Continental Stock Transfer & Trust Company on November 6, 2023. Pursuant to the Trust Amendment, the date by which the Company must complete a business combination is extended from November 8, 2023 up to four times, each by an additional three months, for an aggregate of an additional twelve months up to November 8, 2024, or such earlier date as determined by the board of directors (the “Board”).
A copy of the Trust Amendment is attached to this Form 8-K as Exhibit 10.1 and is incorporated by reference herein.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
At the Meeting, the stockholders of the Company approved an amendment to the Company’s Amended and Restated Certificate of Incorporation (the “Certificate of Incorporation”) to (a) extend the date by which the Company must consummate a Business Combination (as defined in the Certificate of Incorporation) up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months (i.e., from November 8, 2023 up to November 8, 2024) or such earlier date as determined by the Board; and (b) permit stockholders to act by written consent in compliance with Section 228 of the Delaware General Corporation Law in lieu of a meeting.
The amendment to the Certificate of Incorporation became effective upon filing with, and acceptance for record by, the Secretary of State of Delaware on November 6, 2023. A copy of the amendment to our Certificate of Incorporation is attached hereto as Exhibit 3.1 and is incorporated by reference herein.
| Item 5.07 | Submission of Matters to a Vote of Security Holders. |
The Company held its Annual Meeting of Stockholders on November 6, 2023. On September 29, 2023, the record date for the Meeting, there were 4,183,123 shares of common stock of the Company entitled to be voted at the Meeting, of which 3,696,123 shares were represented via live webcast or by proxy, which constituted quorum for the transaction of business. Proxies for the Meeting were solicited by the Board pursuant to Section 14(a) of the Securities Exchange Act of 1934, as amended, and there was no solicitation in opposition to the Board’s solicitation.
For more information about the proposals set forth below, please see the Company’s definitive proxy statement filed with the SEC on October 17, 2023. The final results for each of the matters submitted to a vote of the Company’s stockholders at the Meeting are as follows:
Proposal 1: Charter Amendment Proposal
Amendment of the Company’s Certificate of Incorporation to extend the business combination period from November 8, 2023 up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months up to November 8, 2024, or such earlier date as determined by the Board. Adoption of the amendment required approval by the affirmative vote of at least 65% of the Company’s outstanding common stock. The Charter Amendment Proposal was approved by a vote of stockholders as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 3,694,592 | 1,531 | 0 | - |
Proposal 2: Trust Amendment Proposal
Amendment of the Company’s investment management trust agreement, dated as of November 3, 2021, and as amended on October 26, 2022, by and between the Company and Continental Stock Transfer & Trust Company to (i) allow the Company to extend the business combination period from November 8, 2023 to up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months up to November 8, 2024, and (ii) update certain defined terms in the Trust Agreement. Adoption of the amendment required approval by the affirmative vote of at least 65% of the Company’s outstanding common stock. The Trust Amendment Proposal was approved by a vote of stockholders as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 3,694,592 | 1,531 | 0 | - |
Proposal 3: Written Consent Proposal
Amendment of the Company’s Certificate of Incorporation to allow stockholders to act by written consent. Adoption of the amendment required approval by the affirmative vote of at least a majority of the Company’s outstanding common stock. The Written Consent Proposal was approved by a vote of stockholders as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 3,694,592 | 1,531 | 0 | - |
Proposal 4: Directors Proposal
Election of five directors to serve for a one-year term ending as of the annual meeting in 2024 or until his successor is duly elected and qualified. Directors are elected by the affirmative vote of a plurality of the shares of the common stock present by virtual attendance or represented by proxy and entitled to vote at the Meeting. The Directors Proposal was approved by a vote of stockholders as follows:
| FOR | WITHHOLD | ||||
| Scott Wolf | 3,696,023 | 100 | |||
| Kevin Loudermilk | 3,696,023 | 100 | |||
| Frank Ciufo | 3,696,023 | 100 | |||
| George McNellage | 3,696,023 | 100 | |||
| Scott Metzger | 3,694,592 | 1,531 |
Proposal 5: Auditor Proposal
Ratification of the appointment of WithumSmith+Brown, PC as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2023. Ratification required the affirmative vote of holders of the majority of the outstanding shares represented by virtual attendance or by proxy and entitled to vote thereon at the Meeting. The ratification was approved a vote of stockholders as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 3,696,023 | 100 | 0 | - |
Proposal 6: Adjournment Proposal
Adjournment of the special meeting to a later date or dates, if necessary to solicit additional votes for any proposal(s) or to establish a quorum. The Adjournment Proposal was approved by a vote of stockholders as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 3,694,592 | 1,531 | 0 | - |
| Item 8.01 | Other Events |
In connection with the shareholders’ vote at the Meeting, 579,157 shares of Common Stock were tendered for redemption. Furthermore, pursuant to the amended charter, on November 6, 2023, the Company extended the period of time it has to consummate its business combination by three months from November 8, 2023 to February 8, 2024 (the “Extension”). The Extension is the first of up to four three-month extensions permitted under the amended charter.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits:
| Exhibit | Description |
| 3.1 | Certificate of Amendment of Certificate of Incorporation of Digital Health Acquisition Corp. dated November 6, 2023 |
| 10.1 | Second Amendment to Investment Management Trust Agreement dated November 6, 2023 |
| 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.
Dated: November 13, 2023
| DIGITAL HEALTH ACQUISITION CORP. | ||
| By: | /s/ Scott Wolf | |
| Name: | Scott Wolf | |
| Title: | Chief Executive Officer and Chairman | |
Exhibit 3.1
AMENDMENT TO THE AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DIGITAL HEALTH ACQUISITION CORP.
(a Delaware Corporation)
Digital Health Acquisition 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 “Digital Health Acquisition Corp.” The original certificate of incorporation was filed with the Secretary of State of the State of Delaware on March 30, 2021. The Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on November 3, 2021, and amended on October 26, 2022 and September 8, 2023 (as amended, the “Amended and Restated Certificate”). |
| 2. | This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate. |
| 3. | This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation and the stockholders of the Corporation in accordance with Section 242 of the General Corporation Law of the State of Delaware. |
| 4. | The Amended and Restated Certificate of Incorporation shall be amended as follows: |
| a. | Section7.3 is hereby amended and restated in its entirety as follows: |
Section 7.3 Action by Written Consent. Except as may be otherwise provided for or fixed pursuant to this Amended and Restated Certificate (including any Preferred Stock Designation) relating to the rights of the holders of any outstanding series of Preferred Stock, subsequent to the consummation of the Offering, any action required or permitted to be taken by the stockholders of the Corporation must be effected by a duly called annual or special meeting of such stockholders or may be effected by written consent of the stockholders in compliance with Section 228 of the Delaware General Corporation Law in lieu of a meeting.
| b. | Section 9.1(b) is hereby amended and restated 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, as initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on October 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 (the “Trust Agreement”). Except for the withdrawal of interest to pay taxes (less up to $100,000 interest to pay dissolution expenses), 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 within 24 months from the closing of the Offering (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 (or such a later date up to 36 months from the closing of the Offering pursuant to the extension set forth under Section 9.1 (c) the “Deadline Date”); and (iii) the redemption of shares in connection with a stockholder vote to amend any provisions of this Amended and Restated Certificate (a) to modify the substance or timing of the Corporation’s obligation to provide for the redemption of the Offering Shares in connection with an initial Business Combination to redeem 100% of such shares if the Corporation has not consummated an initial Business Combination by the Deadline Date or (b) with respect to any other provision 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 the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
| c. | Section 9.1(c) is hereby amended and restated in its entirety as follows: |
“(c) The Board may extend the date by which the Corporation has to consummate an initial Business Combination up to four (4) additional times for three (3) months each time, for a maximum of twelve (12) additional months.”
IN WITNESS WHEREOF, Digital Health Acquisition Corp. has caused this Amendment to the Amended and Restated Certificate to be duly executed in its name and on its behalf by an authorized officer this 6th day of November 2023, and the foregoing facts stated herein are true and correct.
| Digital Health Acquisition Corp. | ||
| By: | /s/ Scott Wolf | |
| Name: | Scott Wolf | |
| Title: | Chief Executive Officer | |
Exhibit 10.1
SECOND AMENDMENT TO THE
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Amendment No. 2 (this “Second Amendment”), dated as of November 6, 2023, to the Investment Management Trust Agreement (as defined below) is made by and between Digital Health Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company, as trustee (“Trustee”). All terms used but not defined herein shall have the meanings assigned to them in the Trust Agreement.
WHEREAS, the Company and the Trustee entered into an Investment Management Trust Agreement dated as of November 3, 2021 and as amended on October 26, 2022 (as amended, the “Trust Agreement”);
WHEREAS, Section 1(i) of the Trust Agreement sets forth the terms that govern the liquidation of the Trust Account under the circumstances described therein; and
WHEREAS, at the 2023 annual stockholder meeting of the Company held on November 6, 2023, the Company’s stockholders approved (i) a proposal to amend the Company’s amended and restated certificate of incorporation, as amended on October 26, 2022 and September 8, 2023 (as amended, the “A&R COI”) extending the date by which the Company has to consummate a business combination from November 8, 2023 up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months to November 8, 2024 or such earlier date as determined by the Company’s board of directors (the “Extended Date”); and (ii) a proposal to amend the Trust Agreement to extend the business combination period from November 8, 2023 to up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months to November 8, 2024 and to update related defined terms
NOW THEREFORE, IT IS AGREED:
| 1. | 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, Chief Financial Officer, President, Vice President, 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 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 in the case of a Termination Letter in the form of Exhibit B hereto), only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is, the later of (1) 24 months after the closing of the Offering, or up to 36 months after the closing of the Offering if the Company were to exercise the four (4) three-month extensions described in the Company’s amended and restated certificate of incorporation (as amended, the “Amended and Restated Certificate of Incorporation”), and (2) 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 form of letter attached hereto as Exhibit B and the Property in the Trust Account, including interest 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 date specified in clause (y) of this Section 1(i), the Trustee shall keep the Trust Account open until twelve (12) months following the date the Property has been distributed to the Public Stockholders;”
| 2. | Section 1(m) of the Trust Agreement is hereby amended and restated in its entirety as follows: |
“(m) Upon receipt of an extension letter (“Extension Letter”) substantially similar to Exhibit E hereto at least one business day prior to the application termination date (as may be extended in accordance with Section 1(i), signed on behalf of the Company by an executive officer, to follow the instructions set forth in the Extension Letter.”
| 3. | The following defined terms in the Trust Agreement shall be amended and restated in their entirety: |
“Trust Agreement” shall mean that certain Investment Management Trust Agreement dated November 3, 2021, between Digital Health Acquisition Corp. and Continental Stock Transfer & Trust Company, as amended on October 26, 2022 and November 6, 2023, and as may be further amended from time to time.
| 4. | Exhibit E to the Trust Agreement is hereby amended and restated in its entirety as below: |
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, N.Y. 10004
Attn: Francis Wolf and Celeste Gonzalez
Re: Trust Account — Extension Letter
Gentlemen:
Pursuant to paragraphs 1(j) and 1(m) of the Investment Management Trust Agreement between Digital Health Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of November 3, 2021, as amended on October 26, 2022 and November 6, 2023 (“Trust Agreement”), this is to advise you that the Company is extending the time available in order to consummate a Business Combination with the Target Businesses for an additional [three (3)] months, from to (the “Extension”). Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
This Extension Letter shall serve as the notice required with respect to Extension prior to the Applicable Deadline
| Very truly yours, | ||
| DIGITAL HEALTH ACQUISITION CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
cc: A.G.P./Alliance Global Partners
| 5. | All other provisions of the Trust Agreement shall remain unaffected by the terms hereof. |
| 6. | This Second Amendment may be signed in any number of counterparts, each of which shall be an original and all of which shall be deemed to be one and the same instrument, with the same effect as if the signatures thereto and hereto were upon the same instrument. A facsimile signature or electronic signature shall be deemed to be an original signature for purposes of this Second Amendment. |
| 7. | This Second Amendment is intended to be in full compliance with the requirements for a Second Amendment to the Trust Agreement as required by Section 6(c) and Section 6(d) of the Trust Agreement, and every defect in fulfilling such requirements for an effective amendment to the Trust Agreement is hereby ratified, intentionally waived and relinquished by all parties hereto. |
| 8. | This Second Amendment 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. |
[signature page follows]
IN WITNESS WHEREOF, the parties have duly executed this Second Amendment to the Investment Management Trust 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 |
DIGITAL HEALTH ACQUISITION CORP.
| By: | /s/ Scott Wolf | |
| Name: | Scott Wolf | |
| Title: | Chief Executive Officer |