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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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 Symbols | 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 (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.
Following the approval by the Board of Directors of Cetus Capital Acquisition Corp. (“Cetus” or the “Company”) of an extension of the date by which the Company has to consummate a business combination for an additional three (3) months, from November 2, 2023 to February 2, 2024 (the “Extension”), as permitted under the Company’s Amended and Restated Certificate of Incorporation, on October 31, 2023, Cetus Sponsor LLC (the “Sponsor”) deposited an aggregate of $575,000 (representing $0.10 per public share) into the Company’s trust account maintained at Continental Stock Transfer & Trust Company (“CST”) pursuant to that certain Investment Management Trust Agreement dated as of January 31, 2023 by and between the Company and CST. This deposit was made in respect of a loan to the Company (the “Extension Loan”), which Extension Loan is evidenced by an unsecured promissory note issued by the Company to the Sponsor (the “Extension Note”). The funds that were used by the Sponsor to make the Extension Loan were provided by MKDWELL Limited, a British Virgin Islands company (“MKD BVI”), which entity is a party to that certain Business Combination Agreement dated as of June 20, 2023 by and among the Company, MKD Technology Inc. (“MKD Taiwan”), MKD BVI and the other parties thereto (the loan made by MKD BVI to the Sponsor being referred to herein as the “MKD Loan”; and such agreement, as amended to date, being referred to herein as the “Business Combination Agreement”). The MKD Loan is evidenced by a note issued by the Sponsor to MKD BVI containing substantially the same terms as the Extension Note. As a condition for MKD BVI to make the MKD Loan to the Sponsor, the Sponsor granted to MKD BVI a security interest in 575,000 of the shares of the common stock of the Company held by the Sponsor, and it agreed to file any and all documents necessary to perfect the security interest in such pledged shares.
A copy of the form of Extension Note is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under an Off-balance Sheet Arrangement of a Registrant.
The disclosure contained in Item 1.01 of this Current Report on Form 8-K is incorporated by reference in this Item 2.03.
Additional Information and Where to Find It
In connection with the Business Combination, Cetus and MKDWELL Tech Inc., a British Virgin Islands business company (“Pubco”), will file relevant materials with the Securities and Exchange Commission (the “SEC”), including a joint prospectus / proxy statement as part of a registration statement on Form F-4 (the “Registration Statement”). The definitive proxy statement / final prospectus contained in the Registration Statement (and related proxy card and other relevant documents) will be mailed to the stockholders as of a record date to be established for voting at the stockholders’ meeting relating to the business combination contemplated by the Business Combination Agreement (the “Business Combination”). Stockholders will also be able to obtain copies of the Registration Statement and of the proxy statement / prospectus, without charge, once available, at the SEC’s website at www.sec.gov or by directing a request to: Cetus Capital Acquisition Corp., Attention: Chung-Yi Sun, Chief Executive Officer, Floor 3, No. 6, Lane 99, Zhengda Second Street, Wenshan District, Taipei, Taiwan, R.O.C. 11602. This communication is not a substitute for the Registration Statement, the definitive proxy statement / final prospectus or any other document that Cetus will send to its stockholders in connection with the Business Combination.
Investors and security holders of Cetus are urged to read, when available, these materials (including any amendments or supplements thereto) and any other relevant documents in connection with the Business Combination that Cetus may file with the SEC when they become available because they will contain important information about the Business Combination and the parties to the Business Combination Agreement.
Participants in the Solicitation
Cetus, MKD Taiwan, MKD BVI and each of the other parties to the Business Combination Agreement, and each of their respective directors, executive officers, other members of management and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of the stockholders of Cetus in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of the directors and officers of Cetus in Cetus’ filings with the SEC, including the Registration Statement to be filed with the SEC by Cetus, which will include the proxy statement of Cetus for the Business Combination, and such information and names of the directors and executive officers of Pubco following the Business Combination, as well as other pertinent information relating to MKD Taiwan will also be in the Registration Statement to be filed with the SEC by Cetus, which will include the proxy statement of Cetus for the Business Combination.
Forward Looking Statements
Certain statements made herein that are not historical facts are forward-looking statements within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. These forward-looking statements include, without limitation, the expectations of Cetus and the other parties to the Business Combination Agreement with respect to the proposed business combination involving Cetus and the other parties to the Business Combination Agreement, including statements regarding the benefits of the transaction, the anticipated timing of the transaction, the implied valuation of MKD Taiwan, the products and services offered by MKD Taiwan and the markets in which it operates, and the projected future results of the combined company. Words such as “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions are intended to identify such forward-looking statements. 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 significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside the control of Cetus and MKD Taiwan and are difficult to predict. Factors that may cause actual future events to differ materially from the expected results, include, but are not limited to: (i) the risk that the business combination transaction involving Cetus and MKD Taiwan may not be completed in a timely manner or at all, which may adversely affect the price of the securities of Cetus, (ii) the risk that the transaction may not be completed by Cetus’ business combination deadline, even if such deadline is extended by its sponsor, (iii) the failure to satisfy the conditions to the consummation of the transaction, including the adoption of the Business Combination Agreement by the stockholders of Cetus, (iv) the occurrence of any event, change or other circumstance that could give rise to the termination of the Business Combination Agreement, (v) the receipt of an unsolicited offer from another party for an alternative transaction that could interfere with the proposed business combination, (vi) the effect of the announcement or pendency of the transaction on MKD Taiwan’s business relationships, performance and business generally, (vii) the inability to recognize the anticipated benefits of the proposed business combination, which may be affected by, among other things, competition and the ability of the post-combination company to grow and manage growth profitability and retain its key employees, (viii) costs related to the proposed business combination, (ix) the outcome of any legal proceedings that may be instituted against any party to the Business Combination Agreement following the announcement of the proposed business combination, (x) the ability to maintain the listing of the securities of Cetus on Nasdaq, (xi) the ability to implement business plans, forecasts, and other expectations after the completion of the proposed business combination, and identify and realize additional opportunities, (xii) the risk of downturns and the possibility of rapid change in the highly competitive industry in which MKD Taiwan operates, (xiii) the risk that MKD Taiwan and its current and future collaborators are unable to successfully develop and commercialize the products or services of MKD Taiwan, or experience significant delays in doing so, including failure to achieve approval of its products or services by applicable regulatory authorities, (xiv) the risk that MKD Taiwan may never achieve or sustain profitability, (xv) the risk that the combined company may need to raise additional capital to execute its business plan, which many not be available on acceptable terms or at all, (xvi) the risk that third-party suppliers and manufacturers are not able to fully and timely meet their obligations, (xvii) the risk of product liability or regulatory lawsuits or proceedings relating to the products and services of MKD Taiwan, (xviii) the risk that MKD Taiwan is unable to secure or protect its intellectual property, (xix) the risk that the securities of the post-combination company will not be approved for listing on Nasdaq or if approved, maintain the listing, and (xx) other risks and uncertainties indicated in the filings that are made from time to time with the SEC by Cetus (including those under the “Risk Factors” sections therein). 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 neither Cetus nor any other party to the Business Combination Agreement assumes any obligation, and nor does Cetus or any other party to the Business Combination Agreement intend, to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise.
Disclaimer
This communication is for informational purposes only and is neither an offer to purchase, nor a solicitation of an offer to sell, subscribe for or buy any securities or the solicitation of any vote in any jurisdiction pursuant to the Business Combination or otherwise, nor shall there be any sale, issuance or transfer of securities in any jurisdiction in contravention of applicable law. No offer of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act.
Item 9.01. Financial Statements and Exhibits
(d) Exhibits.
Exhibit No. |
Description | |
| 10.1 | Form of Extension Note issued by Cetus Capital Acquisition Corp. to Cetus 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, as amended, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: November 3, 2023 | CETUS CAPITAL ACQUISITION CORP. | |
| By: | /s/ Chung-Yi Sun | |
| Name: | Chung-Yi Sun | |
| Title: | President & CEO | |
Exhibit 10.1
THIS 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.
PROMISSORY NOTE
| Principal Amount: $575,000.00 | Issuance Date: October 31, 2023 |
Cetus Sponsor LLC, a Delaware limited liability company (the “Payee”), shall have lent the principal amount (the “Principal Amount”) as set forth above to Cetus Capital Acquisition Corp., a Delaware corporation (the “Maker”), pursuant to the wire instructions of the Maker’s trust account set forth in Appendix A hereto on the date hereof. Maker promises to pay to the order of the Payee the Principal Amount, all accrued and unpaid interest, and all other amounts payable under this Note in lawful money of the United States of America, on the terms and conditions described below. All payments on this Promissory Note (this “Note”) shall be made by check or wire transfer of immediately available funds in the legal currency of the United States or as otherwise determined by the Payee to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.
| 1. | Repayment. The principal amount, all accrued and unpaid interest, and all other amounts payable under this Note shall be due and payable on the earlier of i) the date on which the Maker consummates an initial business combination (a “Business Combination”) with a target business (as described in the Maker’s initial public offering prospectus dated January 31, 2023 (the “Prospectus”)), and ii) May 2, 2024. The principal amount, all accrued and unpaid interest, and all other amounts payable under this Note may be prepaid at any time. Notwithstanding the foregoing, this Note shall become due and payable immediately upon the termination of the Business Combination Agreement dated as of June 20, 2023 by and among the Maker, MKD Technology Inc. and the other parties thereto. |
| 2. | Interest. |
| (a) | Interest Rate. The principal amount outstanding under this Note from time to time shall bear interest at a rate per annum of 6.50 percent (6.50%). | |
| (b) | Computation of Interest. All computations of interest hereunder shall be made on the basis of a year of 365/366 days, as the case may be, and the actual number of days elapsed. Interest shall accrue daily and begin to accrue on the principal amount outstanding on the date of this Note. For any portion of the principal amount that is repaid, interest shall not accrue on the date on which such payment is made. | |
| (c) | Interest Rate Limitation. If at any time the interest rate payable on the Note shall exceed the maximum rate of interest permitted under applicable law, such interest rate shall be reduced automatically to the maximum rate permitted. |
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| 3. | Non-Convertible; Non-Recourse. This Note shall not be convertible into any securities of Maker, and Payee shall have no recourse with respect to the Payee’s ability to convert this Note into any securities of Maker. |
| 4. | Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including (without limitation) reasonable attorney’s fees, second to any accrued and unpaid interest, third to the payment in full of any late charges, and finally to the reduction of the unpaid principal balance of this Note. The funds that were used by the Payee to make the loan to the Maker evidenced by this Note were obtained by the Payee from MKD Technology Inc., and the obligations of the Payee to repay such loan are evidenced by that certain promissory note dated October 31, 2023 issued by the Payee to MKD Technology Inc. (the “MKD Note”), and the Payee hereby acknowledges and agrees that it shall use the payments that it receives from the repayment of this Note to repay any amounts owed to MKD Technology Inc. under the MKD Note. |
| 5. | Representations and Warranties. The Maker represents and warrants to the Payee as follows: |
| (a) | Existence. The Maker is a corporation duly incorporated, validly existing, and in good standing under the laws of the state of its organization. The Maker has the requisite power and authority to own, lease, and operate its property, and to carry on its business. | |
| (b) | Compliance with Law. The Maker is in compliance with all laws, statutes, ordinances, rules, and regulations applicable to or binding on the Maker, its property, and business. | |
| (c) | Power and Authority. The Maker has the requisite power and authority to execute, deliver, and perform its obligations under this Note. | |
| (d) | Authorization; Execution and Delivery. The execution and delivery of this Note by the Maker and the performance of its obligations hereunder have been duly authorized by all necessary corporate action in accordance with applicable law. The Maker has duly executed and delivered this Note. |
| 6. | Events of Default. The following shall constitute an event of default (“Event of Default”): |
| (a) | Failure to Make Required Payments. Failure by Maker to pay any sums due under this Note within five (5) business days following the date when due. |
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| (b) | Voluntary Liquidation, Etc. The commencement by Maker of a proceeding relating to its bankruptcy, insolvency, reorganization, rehabilitation or other similar action, or the consent by it to the appointment of, or taking possession by, a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) for Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of Maker generally to pay its debts as such debts become due, or the taking of corporate action by Maker in furtherance of any of the foregoing. | |
| (c) | Involuntary Bankruptcy, Etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of Maker in an involuntary case under any applicable bankruptcy, insolvency or similar law, for the appointing of a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) for Maker or for any substantial part of its property, or ordering the winding-up or liquidation of the affairs of Maker, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days. | |
| (d) | Breach of Representations and Warranties. Any representation or warranty made by the Maker herein contains an untrue or misleading statement of a material fact as of the date made. | |
| (e) | Failure to Give Notice. The Maker fails to give the notice of Event of Default specified in Section 7. | |
| (f) | Purpose of Loan. The Maker fails to use the proceeds of the Principal Amount of this Note for the purpose of obtaining an extension to extend the date by which the Maker has to consummate a business combination. |
| 7. | Notice of Event of Default. As soon as possible after it becomes aware that an Event of Default has occurred, and in any event within five (5) business days, the Maker shall notify the Payee in writing of the nature and extent of such Event of Default and the action, if any, it has taken or proposes to take with respect to such Event of Default. However, the Maker’s failure to provide such notice of an Event of Default shall not affect the status of a Default in any manner nor constitute a waiver of the default. Nor shall the Maker be obligated to declare the occurrence of an Event of Default to trigger such. |
| 8. | Remedies. |
| (a) | Upon the occurrence of an Event of Default, the Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount and accrued interest of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, anything contained herein or in the documents evidencing the same to the contrary notwithstanding. | |
| (b) | Upon the occurrence of an Event of Default specified in Sections 6(b) and 6(c), the unpaid principal balance and accrued interest of this Note, and all other sums payable with regard to this Note, shall automatically and immediately become due and payable, in all cases without any action on the part of the Payee. |
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| 9. | Waivers. Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Note, and all benefits that might accrue to Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof, on any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee. |
| 10. | Unconditional Liability. Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to Maker or affecting Maker’s liability hereunder. |
| 11. | Notices. Any notice called for hereunder shall be deemed properly given if (i) sent by certified mail, return receipt requested, (ii) personally delivered, (iii) dispatched by any form of private or governmental express mail or delivery service providing receipted delivery, (iv) sent by facsimile, or (v) to the following email addresses or to such other email address as either party may designate by notice in accordance with this Section: |
| If to the Maker: | ||
| Cetus Capital Acquisition Corp. | ||
| Floor 3, No. 6, Lane 99 | ||
| Zhengda Second Street, Wenshan District | ||
| Taipei, Taiwan, R.O.C. 11602 | ||
| Attn: Chung-Yi Sun, CEO | ||
| Email: jack.cy.sun@cetuscorp.com | ||
| If to Payee: | ||
| Cetus Sponsor LLC | ||
| Floor 3, No. 6, Lane 99 | ||
| Zhengda Second Street, Wenshan District | ||
| Taipei, Taiwan, R.O.C. 11602 | ||
| Attn: Chung-Yi Sun, CEO | ||
| Email: jack.cy.sun@cetuscorp.com |
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Notice shall be deemed given on the earlier of (i) actual receipt by the receiving party, (ii) the date shown on a facsimile transmission confirmation, (iii) the date reflected on a signed delivery receipt, (iv) two (2) Business Days following tender of delivery or dispatch by express mail or delivery service, or (v) immediately upon sending if delivered digitally via email.
| 12. | Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. |
| 13. | Jurisdiction. The courts of the State of New York have nonexclusive jurisdiction to settle any dispute arising out of or in connection with this agreement (including a dispute relating to any non-contractual obligations arising out of or in connection with this agreement) and the parties submit to the nonexclusive jurisdiction of the courts of New York. |
| 14. | 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. |
| 15. | Trust Waiver. The Payee has been provided a copy of the Prospectus. Notwithstanding anything herein to the contrary, the Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any amounts contained in the trust account in which the proceeds of the initial public offering (the “IPO”) conducted by the Maker, as described in greater detail in the Prospectus, were placed, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim from the trust account of the Maker or any distribution therefrom for any reason whatsoever. |
| 16. | Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee. |
| 17. | Assignment. No assignment or transfer of this Note or any rights or obligations hereunder may be made by any party hereto (by operation of law or otherwise) without the prior written consent of the other party hereto and any attempted assignment without the required consent shall be void. |
| 18. | Further Assurance. The Maker shall, at its own cost and expense, execute and do (or procure to be executed and done by any other necessary party) all such deeds, documents, acts and things as the Payee may from time to time require as may be necessary to give full effect to this Note. |
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IN WITNESS WHEREOF, Maker, intending to be legally bound hereby, has caused this Note to be duly executed on the day and year first above written.
| CETUS CAPITAL ACQUISITION CORP. | |||
| By: | /s/ Chung-Yi Sun | ||
| Name: | Chung-Yi Sun | ||
| Title: | Chief Executive Officer | ||
| Accepted and Agreed: | |||
| CETUS SPONSOR LLC | |||
| By: | A Winner Limited, its Manager | ||
| By: | /s/ Chung-Yi Sun | ||
| Name: | Chung-Yi Sun | ||
| Title: | Director | ||
[Signature Page to Promissory Note]
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Appendix A
Wiring Instructions
| Bank: | |
| Address: | |
| Account Name: | |
| Account #: | |
| ABA #: | |
| SWIFT Code: | |
| Reference: |
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