UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of report (Date of earliest event reported): September 29, 2022
Monterey Bio Acquisition Corporation
(Exact name of registrant as specified in its charter)
| Delaware (State or other jurisdiction of incorporation) |
001-40861 (Commission File Number) |
85-2204842 (I.R.S. Employer Identification No.) |
|
17 State Street 21st Floor New York, NY (Address of principal executive offices) |
10004 (Zip Code) |
(917) 267-0216
(Registrant’s telephone number, including area code)
Not Applicable
(Former name or former address, if changed since last report)
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 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:
| Title of each class | Trading Symbol(s) | Name of each exchange on which registered | ||
| Units, each consisting of one share of Common Stock and one redeemable Warrant | MTRYU | The Nasdaq Stock Market LLC | ||
| Common Stock, par value $0.0001 per share | MTRY | The Nasdaq Stock Market LLC | ||
| Redeemable Warrants, each Warrant exercisable for one share of Common Stock at an exercise price of $11.50 per share | MTYRW | The Nasdaq Stock Market LLC |
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 x
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 disclosed in Item 5.07 of this Current Report on Form 8-K is incorporated by reference into this Item 1.01 to the extent required herein. As approved by its stockholders at the special meeting (defined below), on September 29, 2022, Monterey Bio Acquisition Corporation (the “Company”) and Continental Stock Transfer & Trust Company entered into an amendment to the Investment Management Trust Agreement, dated September 30, 2021, by and between Continental Stock Transfer & Trust Company and the Company (the “Trust Agreement”). A copy of the amendment to the Trust Agreement is attached to this Current Report on Form 8-K as Exhibit 10.1 and is incorporated herein by reference.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
The information disclosed in Item 5.07 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03 to the extent required herein. As approved by its stockholders at the special meeting, on September 29, 2022, the Company filed a certificate of amendment to its amended and restated certificate of incorporation (the “Charter”) which became effective upon filing. A copy of the certificate of amendment to the Charter is attached to this Current Report on Form 8-K as Exhibit 3.1 and is incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
On September 29, 2022, the Company held a special meeting in lieu of its 2022 annual meeting of stockholders (the “special meeting”). On September 6, 2022, the record date for the special meeting, there were 14,375,000 shares of common stock of the Company entitled to be voted at the special meeting, approximately 94% of which were represented in person or by proxy at the special meeting.
The final results for each of the matters submitted to a vote of the Company’s stockholders at the special meeting are as follows:
1. Charter Amendment Proposal
The stockholders approved the proposal to amend (the “Charter Amendment”) the Company’s Charter by allowing the Company to extend (the “Extension”) the date by which it has to consummate a business combination (the “Combination Period”) for an additional three (3) months, from October 5, 2022 to January 5, 2023, by depositing into the trust account (the “trust account”) $350,000 (the “Extension Payment”) for the three-month extension, and thereafter to extend the Combination Period up to six (6) times by an additional month each time (or up to July 5, 2023) by depositing into the trust account $120,000 for each additional month extension. The voting results were as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 10,223,393 | 1,315,522 | 752,889 | 1,225,022 |
2. Trust Amendment Proposal
The stockholders approved the proposal to amend (the “Trust Amendment” and together with the Charter Amendment, the “Extensions”) the Trust Agreement, allowing the Company to extend the Combination Period for an additional three (3) months, from October 5, 2022 to January 5, 2023 (the “Trust Amendment”), by depositing into the trust account the Extension Payment for the three-month extension, and thereafter to extend the Combination Period up to six (6) times by an additional month each time (or up to July 5, 2023) by depositing into the trust account $120,000 for each additional month extension. The voting results were as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 10,223,393 | 1,315,522 | 752,889 | 1,225,022 |
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3. Director Proposal
The stockholders re-elected five directors to the Company’s board of directors, with each such director to serve until the second annual meeting of stockholders following the special meeting or until his or her successor is elected and qualified. The voting results were as follows:
| FOR | WITHHELD | BROKER NON-VOTES | ||||||||
| Jonas Grossman | 9,936,371 | 2,355,433 | 1,225,022 | |||||||
| Frances Heller | 11,057,270 | 1,234,534 | 1,225,022 | |||||||
| William McKeever | 9,936,371 | 2,355,433 | 1,225,022 | |||||||
| James R. Neal | 10,982,771 | 1,309,033 | 1,225,022 | |||||||
| Sandip Patel | 11,057,270 | 1,234,534 | 1,225,022 | |||||||
4. Auditor Proposal
The stockholders ratified the selection by the Company’s audit committee of Marcum, LLP to serve as the Company’s independent registered public accounting firm for the fiscal year ending December 31, 2022. The voting results were as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 12,201,308 | 1,034,534 | 280,984 | — |
Item 8.01. Other Events.
In connection with the votes to approve the Extensions, the holders of 9,480,616 shares of common stock of the Company properly exercised their right to redeem their shares for cash at a redemption price of approximately $10.13 per share, for an aggregate redemption amount of approximately $96.1 million, leaving approximately $20.5 million in the trust account.
Item 9.01. Financial Statements and Exhibits
(c) Exhibits:
| Exhibit No. | Description | |
| 3.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of Monterey Bio Acquisition Corporation, dated September 29, 2022. | |
| 10.1 | Amendment to the Investment Management Trust Agreement, dated September 29, 2022, by and between Monterey Bio Acquisition Corporation and Continental Stock Transfer & Trust Company. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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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.
| Monterey Bio Acquisition CorpORaTION | ||
| By: | /s/ Sanjeev Satyal | |
| Name: Sanjeev Satyal | ||
| Title: Chief Executive Officer | ||
| Date: September 30, 2022 | ||
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Exhibit 3.1
CERTIFICATE
OF AMENDMENT
TO THE
AMENDED AND RESTATED
OF
MONTEREY BIO ACQUISITION CORPORATION
September 29, 2022
Monterey Bio Acquisition Corporation, 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 “Monterey Bio Acquisition Corporation” The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on July 23, 2020 (the “Original Certificate”). A Certificate of Amendment to the Original Certificate was filed with the Secretary of State of the State of Delaware on April 9, 2021. The Amended and Restated Certificate of Incorporation of the Corporation (the “Amended and Restated Certificate”) was filed with the Secretary of State of the State of Delaware on September 30, 2021.
2. This Amendment to the Amended and Restated Certificate of Incorporation (“Amendment”) amends the Amended and Restated Certificate.
3. This Amendment 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 text of Section 9.1(b) is hereby amended and restated to read in full 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 Securities and Exchange Commission (the “SEC”) on September 7, 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 for the withdrawal of interest income (if any) to pay the Corporation’s taxes, if any, 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 does not complete its initial Business Combination by January 5, 2023 (or up to July 5, 2023, as applicable) subject to applicable law, and (iii) the redemption of Offering Shares in connection with a stockholder vote to approve an amendment to this Amended and Restated Certificate (A) to modify the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not completed an initial Business Combination by January 5, 2023 (or up to July 5, 2023, as applicable) or (B) with respect to any other provisions relating to stockholders’ rights or pre-initial Business Combination activity (as described in Section 9.7). Holders of shares of the 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 NorthStar Bio Ventures, LLC, Chardan Monterey Investments LLC (collectively the “Co-Sponsors”) or the officers or directors of the Corporation, or any affiliates of any of the foregoing) are referred to herein as “Public Stockholders.” On September 29, 2022, the Corporation’s Stockholders approved an extension of the deadline to consummate an initial Business Combination from October 5, 2022 to January 5, 2023. In the event that the Corporation has not consummated an initial Business Combination by January 5, 2023, the Corporation may, by resolution of the Board if requested by the Corporation’s insiders or their affiliates, extend the period of time to consummate a Business Combination up to six (6) times by an additional month each time (or up to July 5, 2023); provided that, pursuant to the trust agreement entered into between the Corporation and Continental Stock Transfer & Trust Company on September 30, 2021, as amended, the only way to extend the time available for the Corporation to consummate its initial Business Combination is for the Corporation’s insiders or their affiliates or designees, upon five days’ advance notice prior to each applicable deadline, to deposit into the Trust Account $120,000 (or an aggregate of $720,000 if the time to consummate a Business Combination is extended to July 5, 2023), on or prior to the date of the applicable deadline.
5. The text of Section 9.2(d) is hereby amended and restated to read in full as follows:
(d) In the event that the Corporation has not completed an initial Business Combination by January 5, 2023 (or up to July 5, 2023, as applicable), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but no more than ten business days thereafter subject to lawfully available funds therefor, redeem the Offering Shares, at a per-share price, payable in cash, equal to the aggregate amount then on deposit in the Trust Account, including interest earned on the funds held in the Trust Account not previously released to the Corporation to pay its taxes, if any (less up to $100,000 of interest to pay dissolution expenses), divided by the number of the 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 and the Board in accordance with applicable law, dissolve and liquidate, subject in the case of clauses (ii) and (iii) to the Corporation’s obligations under the DGCL to provide for claims of creditors and the requirements of other applicable law.
6. The text of Section 9.7 is hereby amended and restated to read in full as follows:
Section 9.7 Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to Section 9.2(d) that would affect the substance or timing of the Corporation’s obligation to allow redemption in connection with the Corporation’s initial Business Combination or amendments to this Amended and Restated Certificate prior thereto or to redeem 100% of the Offering Shares if the Corporation does not complete an initial Business Combination by January 5, 2023 (or up to July 5, 2023, as applicable) or with respect to any other provision relating to stockholders’ rights or pre-initial Business Combination activity, the Public Stockholders shall be provided with the opportunity to redeem their Offering Shares upon 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 earned on the funds held in the Trust Account and not previously released to the Corporation to pay its taxes, divided by the number of the then outstanding Offering Shares; provided, however, that any such amendment will be voided, and this Article IX will remain unchanged, if any stockholders who wish to redeem are unable to redeem due to the Redemption Limitation.
IN WITNESS WHEREOF, Monterey Bio Acquisition Corporation 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 as of the date first set forth above.
| MONTEREY BIO ACQUISITION CORPORATION | ||
| By: | /s/ Sanjeev Satyal | |
| Name: Sanjeev Satyal | ||
| Title: Chief Executive Officer | ||
Exhibit 10.1
AMENDMENT TO
INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment”) is made as of September 29, 2022, by and between Monterey Bio Acquisition Corporation, a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”). Capitalized terms contained in this Amendment, but not specifically defined in this Amendment, shall have the meanings ascribed to such terms in that certain Investment Management Trust Agreement, dated September 30, 2021, by and between the parties hereto (the “Trust Agreement”).
WHEREAS, a total of $116,150,000 was placed in the Trust Account from the IPO and sale of private warrants;
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 after (x) receipt of, and only in accordance with, a Termination Letter; or (y) upon the date which is the later of (i) 12 months (or up to 21 months, as applicable) after the closing of the IPO and (ii) 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;
WHEREAS, Section 7(c) of the Trust Agreement provides that Section 1(i) of the Trust Agreement may only be amended with the approval of the holders of a majority of all of the outstanding shares of Common Stock (the “Consent of the Stockholders”);
WHEREAS, the Company obtained the Consent of the Stockholders to approve this Amendment; and
WHEREAS, each of the Company and Trustee desire 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. | Amendments to Trust Agreement. |
| (a) | The fourth recital to the Trust Agreement is hereby amended and restated as follows: |
WHEREAS, on September 29, 2022, the Company’s stockholders approved an extension of the deadline to consummate an initial Business Combination from October 5, 2022 to January 5, 2023. In the event that the Company has not consummated an initial Business Combination by January 5, 2023, the Company may, by resolution of the Board if requested by the Company’s insiders or their affiliates, extend the period of time to consummate a Business Combination up to six (6) times by an additional month each time (or up to July 5, 2023); provided that, pursuant to the Company’s Amended and Restated Certificate of Incorporation, as amended, the only way to extend the time available for the Company to consummate its initial Business Combination is for the Company’s insiders or their affiliates or designees, upon five days’ advance notice prior to each applicable deadline, to deposit into the Trust Account $120,000 (or an aggregate of $720,000 if the time to consummate a Business Combination is extended to July 5, 2023), on or prior to the date of the applicable deadline; and
(b) 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 President, Chief Executive Officer, Chief Financial Officer, Chairman of the Board, Secretary 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, if any (less up to $100,000 of interest to pay dissolution expenses), 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) January 5, 2023 (or up to July 5, 2023, as applicable) 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 Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest not previously released to the Company to pay its taxes, if any (less up to $100,000 of interest to pay dissolution expenses) shall be distributed to the Public Stockholders of record as of such date;
2. Miscellaneous Provisions.
2.1. Successors. All the covenants and provisions of this Amendment by or for the benefit of the Company or the Trustee shall bind and inure to the benefit of their permitted respective successors and assigns.
2.2. Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
2.3. Applicable Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York.
2.4. Counterparts. This Amendment may be executed in several original or facsimile counterparts, each of which shall constitute an original, and together shall constitute but one instrument.
2.5. Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
2.6. Entire Agreement. The Trust Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Signature Page to Follow]
IN WITNESS WHEREOF, the parties have duly executed this Amendment as of the date first set forth above.
| MONTEREY BIO ACQUISITION CORPORATION | ||
| By: | /s/ Sanjeev Satyal | |
| Name: | Sanjeev Satyal | |
| Title: | Chief Executive Officer | |
| CONTINENTAL STOCK TRANSFER & TRUST COMPANY, AS TRUSTEE | ||
| By: | /s/ Francis Wolf | |
| Name: | Francis Wolf | |
| Title: | Vice President | |