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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Securities registered pursuant to Section 12(b) of the Act:
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 (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-commencement 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:
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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
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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. |
Merger Agreement
As previously disclosed, on June 7, 2024, Bayview Acquisition Corp, a Cayman Islands exempted company (“SPAC” or the “Company”) entered into an Agreement and Plan of Merger (the “Merger Agreement”) by and among the Company, Oabay Holding Company, a Cayman Islands exempted company limited by shares (“PubCo”), Oabay Inc., a Cayman Islands exempted company limited by shares (“Oabay”), Bayview Merger Sub I Limited, a Cayman Islands exempted company limited by shares and a wholly-owned subsidiary of PubCo (“Merger Sub 1”), Bayview Merger Sub 2, a Cayman Islands exempted company limited by shares and a wholly-owned subsidiary of PubCo (“Merger Sub 2”), Oabay Merger Sub Limited, a Cayman Islands exempted company limited by shares and a wholly-owned subsidiary of PubCo (“Merger Sub 3”), BLAFC Limited, a business company limited by shares in the British Virgin Islands, Bayview Holding LP, a Delaware limited partnership, and Peace Investment Holdings Limited, a Delaware limited partnership.
Upon consummation of the transactions contemplated by the Merger Agreement, subject to the satisfaction or waiver of certain conditions set forth therein, (i) SPAC will merge with and into Merger Sub 1, with SPAC surviving the merger in accordance with the Companies Act (As Revised) of the Cayman Islands (the “Act”) (the “First SPAC Merger”), (ii) immediately following the First SPAC Merger, SPAC will merge with and into Merger Sub 2, with Merger Sub 2 surviving the merger in accordance with the Act (the “Second SPAC Merger,” and together with the First SPAC Merger, the “Initial Mergers”), and (iii) following the Initial Mergers, Merger Sub 3 will merge with and into Oabay, with Oabay being the surviving entity and becoming a wholly-owned subsidiary of PubCo in accordance with the Act (the “Acquisition Merger,” and together with the Initial Mergers, the “Mergers”). The transactions contemplated by the Merger Agreement, including, but not limited to the Mergers, are hereinafter referred to as the “Business Combination.”
On June 26, 2024, the parties to the Merger Agreement entered into Amendment No. 1 to the Merger Agreement (the “Amendment”) pursuant to which the parties agreed to revise the earnout milestones to reflect new consolidated revenue metrics. Among other things, the Amendment revises the Merger Agreement to provide that, if the PubCo 2024 Audited Financials (as defined in the Merger Agreement) do not reflect consolidated revenue in excess of RMB 436,000,000.00 during fiscal year 2024 or the PubCo 2025 Audited Financials (as defined in the Merger Agreement) do not reflect consolidated revenues in excess of RMB 583,000,000.00 during fiscal year 2025, but the total consolidated revenue reflected by the PubCo 2024 Audited Financials and the PubCo 2025 Audited Financials is in excess of RMB 1,019,000,00.00, the Pro Rata Portion (as defined in the Merger Agreement) of 6,000,000 Earnout Shares (as defined in the Merger Agreement) will be issued and delivered by PubCo to each Earnout Shareholder (as defined in the Merger Agreement) within five (5) business days following the date of filing of the PubCo 2025 Audited Financials. Previously, the Pro Rata Portion of 6,000,000 Earnout Shares was to be delivered only if the PubCo 2024 Audited Financials do not reflect consolidated revenue in excess of RMB 436,000,000.00 during fiscal year 2024 but the total consolidated revenue reflected by the PubCo 2024 Audited Financials and the PubCo 2025 Audited Financials is in excess of RMB 1,019,000,00.00 during fiscal year 2025.
All terms used in this Item 1.01 and not defined herein shall have the meanings set forth in the Merger Agreement. The foregoing summary of the Amendment does not purport to be complete and is qualified in its entirety by reference to the Amendment, a copy of which is filed as Exhibit 2.1 and is incorporated by reference herein.
Additional Information about the Business Combination and Where to Find It
In connection with the proposed Business Combination, the Company intends to file a preliminary proxy statement and a definitive proxy statement with the SEC. The Company’s shareholders and other interested persons are advised to read, when available, the preliminary proxy statements and the amendments thereto and the definitive proxy statements and documents incorporated by reference therein filed in connection the Business Combination, as these materials will contain important information about Oabay, the Company and the Business Combination. When available, the definitive proxy statement and other relevant materials for the Business Combination will be mailed to shareholders of the Company as of a record date to be established for voting on the Business Combination. Shareholders will also be able to obtain copies of the preliminary proxy statements, the definitive proxy statements and other documents filed with the SEC that will be incorporated by reference therein, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to the Company at 420 Lexington Ave, Suite 2446, New York, NY 10170, Attention: Xin Wang, Chief Executive Officer, (347) 6270-0058.
Participants in the Solicitation
The Company and its directors and executive officers may be deemed participants in the solicitation of proxies from the Company’s shareholders with respect to the Business Combination. A list of the names of those directors and executive officers and a description of their interests in the Company is contained in the Company’s annual report on Form 10-K for the fiscal year ended December 31, 2024, which was filed with the SEC and is available free of charge at the SEC’s web site at www.sec.gov, or by directing a request to the Company at 420 Lexington Ave, Suite 2446, New York, NY 10170, Attention: Xin Wang, Chief Executive Officer, (347) 6270-0058. Additional information regarding the interests of such participants will be contained in the proxy statement for the Business Combination when available.
Oabay and its directors and executive officers may also be deemed to be participants in the solicitation of proxies from the shareholders of the Company in connection with the Business Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business Combination will be included in the proxy statement for the Business Combination when available.
Forward-Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities Litigation Reform Act of 1995. The Company’s and Oabay’s actual results may differ from their expectations, estimates and projections and consequently, you should not rely on these forward looking statements as predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,” “forecast,” “anticipate,” “intend,” “plan,” “may,” “will,” “could,” “should,” “believes,” “predicts,” “potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These forward-looking statements include, without limitation, the Company’s and Oabay’s expectations with respect to future performance and anticipated financial impacts of the Business Combination, the satisfaction of the closing conditions to the Business Combination and the timing of the completion of the Business Combination. These forward-looking statements involve significant risks and uncertainties that could cause the actual results to differ materially from the expected results. Most of these factors are outside the Company’s and Oabay’s control and are difficult to predict. Factors that may cause such differences include, but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination of the Merger Agreement, (2) the outcome of any legal proceedings that may be instituted against the Company and/or Oabay following the announcement of the Merger Agreement and the transactions contemplated therein; (3) the inability to complete the Business Combination, including due to failure to obtain approval of the shareholders of the Company or other conditions to closing in the Merger Agreement; (4) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger Agreement or could otherwise cause the transaction to fail to close; (5) the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere with the proposed Business Combination; (6) the inability to obtain or maintain the listing of the post-acquisition company’s ordinary shares on Nasdaq following the Business Combination; (7) the risk that the Business Combination disrupts current plans and operations as a result of the announcement and consummation of the Business Combination; (8) the ability to recognize the anticipated benefits of the Business Combination, which may be affected by, among other things, competition, the ability of the combined company to grow and manage growth profitably and retain its key employees; (9) costs related to the Business Combination; (10) changes in applicable laws or regulations; (11) the possibility that Oabay or the combined company may be adversely affected by other economic, business, and/or competitive factors; and (12) other risks and uncertainties indicated from time to time in the proxy statement relating to the Business Combination, including those under “Risk Factors” therein, and in the Company’s other filings with the SEC. The Company cautions that the foregoing list of factors is not exclusive. The Company cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. The Company does not undertake or accept any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect any change in its expectations or any change in events, conditions or circumstances on which any such statement is based.
No Offer or Solicitation
This Current Report on Form 8-K shall not constitute a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the Business Combination. This Current Report on Form 8-K shall also not constitute an offer to sell or the solicitation of an offer to buy any securities, nor shall there be any sale of securities in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering 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. |
The Exhibit Index is incorporated by reference herein.
EXHIBIT INDEX
| Exhibit No. | Description | |
| 2.1 | Amendment No. 1 to Merger Agreement, dated June 26, 2024. | |
| 104 | Cover Page Interactive Data File (embedded with 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: June 27, 2024
| BAYVIEW ACQUISITION CORP | ||
| By: | /s/ Xin Wang | |
| Name: | Xin Wang | |
| Title: | Chief Executive Officer | |
Exhibit 2.1
AMENDMENT NO. 1
AGREEMENT AND PLAN OF MERGER
dated
June 26, 2024
by and among
OABAY Holding Company,
BAYVIEW Acquisition Corp,
OABAY INC,
BAYVIEW Merger Sub 1 Limited,
BAYVIEW Merger Sub 2 Limited,
OABAY Merger Sub Limited,
BLAFC Limited
Bayview Holding LP,
and
Peace Investment Holdings Limited
AMENDMENT NO. 1
AGREEMENT AND PLAN OF MERGER
This AMENDMENT NO. 1 (this “Amendment”) dated as of June 26, 2024, is the first amendment to that certain AGREEMENT AND PLAN OF MERGER (the “Agreement”), dated as of June 7, 2024, by and among (i) Bayview Acquisition Corp, a Cayman Islands exempted company (“SPAC”), (ii) Oabay Inc, a Cayman Islands exempted company (the “Company”), (iii) Oabay Holding Company, a Cayman Islands exempted company (“PubCo”), (iv) Bayview Merger Sub 1 Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub 1”), (v) Bayview Merger Sub 2 Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub 2”), (vi) Oabay Merger Sub Limited, a Cayman Islands exempted company and a wholly-owned subsidiary of PubCo (“Merger Sub 3”), (vii) Bayview Holding LP and Peace Investment Holdings Limited, each a Delaware limited partnership (collectively, “Sponsor”), and (viii) BLAFC Limited, a business company limited by shares in the British Virgin Islands (“Principal Shareholder”) (collectively, the “Parties”).
W I T N E S S E T H :
The Parties desire to amend and restate Section 4.6(b) of the Merger Agreement, so that it reads in its entirety as set forth herein;
For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
| 1. | Amendment of Section 4.6(b). Section 4.6(b) of the Merger Agreement is hereby amended and restated so that it reads in its entirety as follows: |
(b) Subject to adjustment pursuant to Section 4.6(d) below, the Earnout Shareholders shall have the right to receive their Pro Rata Portion of the Escrowed Earnout Shares after the Closing Date as follows:
(i) the Pro Rata Portion of 3,000,000 Earnout Shares (collectively, the “2024 Earnout Shares”) will be issued and delivered by PubCo to each Earnout Shareholder within five (5) Business Days following the date of filing of an annual report on Form 20-F or 10-K, whichever is applicable, by PubCo with the SEC containing an audited report issued by the independent auditor of PubCo for PubCo’s audited consolidated annual financial statements for the fiscal year ending September 30, 2024 prepared in accordance with U.S. GAAP (the “PubCo 2024 Audited Financials”), if and only if, such PubCo 2024 Audited Financials reflect consolidated revenue in excess of RMB 436,000,000.00 during fiscal year 2024;
(ii) subject to clause (iii) below, the Pro Rata Portion of 3,000,000 Earnout Shares (collectively, the “2025 Earnout Shares”) will be issued and delivered by PubCo to each Earnout Shareholder within five (5) Business Days following the date of filing of an annual report on Form 20-F or 10-K, whichever is applicable, by PubCo with the SEC containing an audited report issued by the independent auditor of PubCo for the PubCo’s audited consolidated annual financial statements for the fiscal year ending September 30, 2025 prepared in accordance with U.S. GAAP (the “PubCo 2025 Audited Financials”), if and only if, such PubCo 2025 Audited Financials reflect consolidated revenue in excess of RMB 583,000,000.00 during fiscal year 2025; and
(iii) if the PubCo 2024 Audited Financials do not reflect consolidated revenue in excess of RMB 436,000,000.00 during fiscal year 2024 or the PubCo 2025 Audited Financials do not reflect consolidated revenue in excess of RMB 583,000,000.00 during fiscal year 2025, but the total consolidated revenue reflected by the PubCo 2024 Audited Financials and the PubCo 2025 Audited Financials is in excess of RMB 1,019,000,000.00 , the Pro Rata Portion of 6,000,000 Earnout Shares will be issued and delivered by PubCo to each Earnout Shareholder within five (5) Business Days following the date of filing of the PubCo 2025 Audited Financials. For the avoidance of doubt, and subject to adjustment pursuant to Section 4.6(d) below, the maximum aggregate number of Earnout Shares available to Company Shareholders pursuant to this Section 4.6 shall not exceed 6,000,000
| 2. | Merger Agreement Remains in Effect. Except as amended by this Amendment, the Merger Agreement shall remain in full force and effect, in accordance with the terms and conditions thereof. | |
| 3. | Miscellaneous. Articles XII and XV of the Merger Agreement are hereby incorporated by reference, mutatis mutandis. |
[The remainder of this page intentionally left blank; signature pages to follow]
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the day and year first above written.
| SPAC: | ||
| BAYVIEW ACQUISITION CORP | ||
| By: | /s/ Xin Wang | |
| Name: | Xin Wang | |
| Title: | CEO | |
| SPONSOR: | ||
| BAYVIEW HOLDING LP | ||
| By: | /s/ Taylor Zhang | |
| Name: | Taylor Zhang | |
| Title: | General Partner | |
| PEACE INVESTMENT HOLDINGS LIMITED | ||
| By: | /s/ Pengfei Zheng | |
| Name: | Pengfei Zheng | |
| Title: | Manager | |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| PubCo: | ||
| OABAY HOLDING COMPANY | ||
| By: | /s/ Yuk Man Lau | |
| Name: | Yuk Man Lau | |
| Title: | Director | |
| Merger Sub 1: | ||
| BAYVIEW MERGER SUB 1 LIMITED | ||
| By: | /s/ Yuk Man Lau | |
| Name: | Yuk Man Lau | |
| Title: | Director | |
| Merger Sub 2: | ||
| BAYVIEW MERGER SUB 2 LIMITED | ||
| By: | /s/ Yuk Man Lau | |
| Name: | Yuk Man Lau | |
| Title: | Director | |
| Merger Sub 3: | ||
| OABAY MERGER SUB LIMITED | ||
| By: | /s/ Yuk Man Lau | |
| Name: | Yuk Man Lau | |
| Title: | Director | |
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed as of the day and year first above written.
| Company: | ||
| OABAY INC | ||
| By: | /s/ Xiaoling Li | |
| Name: | Xiaoling Li | |
| Title: | Director | |
| Principal Shareholder: | ||
| BLAFC LIMITED | ||
| By: | /s/ Xiaoling Li | |
| Name: | Xiaoling Li | |
| Title: | Director | |