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
October 20, 2022
Date of Report (Date of earliest event reported)
Digital Health Acquisition Corp.
(Exact Name of Registrant as Specified in its Charter)
| Delaware | 001-41015 | 86-2970927 | ||||
|
(State or other jurisdiction of incorporation)
|
(Commission File Number) | (I.R.S. Employer Identification No.) | ||||
|
980 N Federal Hwy #304 Boca Raton, FL |
33432 | |||||
| (Address of Principal Executive Offices) | (Zip Code) | |||||
Registrant’s telephone number, including area code: (561) 672-7068
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 | ||
| Common Stock, par value $0.0001 per share | DHAC | The Nasdaq Global 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 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 |
As approved by its stockholders at the Special Meeting of Stockholders (the “Meeting”) held on October 20, 2022, 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, with Continental Stock Transfer & Trust Company on October 26, 2022. Pursuant to the Trust Amendment, the Company has until February 8, 2023 to complete a business combination and has the right to extend the time to complete a business combination up to an additional three times for three (3) months each time with the payment of a $350,000 extension fee, if applicable, as described under Item 5.03. A copy of the Trust Amendment is attached to this Form 8-K as Exhibit 10.1 and is incorporated by reference herein.
| Item 2.03 | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant. |
On October 26, 2022, the Company issued an unsecured promissory note in the aggregate principal amount of $350,000 to Digital Health Sponsor LLC, the Company’s “sponsor.” The Company deposited to the trust account all of the loan amount and extended the amount of time it has available to complete a business combination from November 8, 2022 to February 8, 2023. The promissory note does not bear interest and will be repaid only upon closing of a business combination by the Company. The promissory note evidencing the extension loan is attached to this Form 8-K as Exhibit 10.2, 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 has to consummate a business combination for an additional three (3) months, from November 8, 2022 to February 8, 2023, (b) provide the Company’s board of directors the ability to further extend the date by which the Company has to consummate a business combination up to three (3) additional times for three (3) months each time, for a maximum of nine (9) additional months if Digital Health Sponsor LLC, the Company’s “sponsor”, pays an amount equal to $350,000 for each three-month extension, which amount shall be deposited in the trust account of the Company (the “Trust Account”); provided, that if as of the time of an extension the Company has filed a Form S-4 or F-4 registration statement under the Securities Act or a proxy, information or tender offer statement with the Securities and Exchange Commission in connection with such initial business combination, then no extension fee would be required in connection with such extension; provided further, that for each three-month extension (if any) following such extension where no deposit into the Trust Account or other payment has been made, the Company’s sponsor or its affiliates or designees would be required to deposit an extension fee into the Trust Account, and (c) allow for the Company to provide redemption rights to the Company’s public stockholders in accordance with the requirements of the amended and restated certificate of incorporation without complying with the tender offer rules. As with potential redemptions in connection with an initial Business Combination, the Charter Amendment would restrict redemption rights in connection with any further amendment of the charter with respect to 20% or more of our public shares. The amendment to the Certificate of Incorporation became effective upon filing with, and acceptance for record by, the Secretary of State of Delaware on October 26, 2022.
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 a Special Meeting of Stockholders on October 20, 2022. On September 30, 2022, the record date for the Meeting, there were 14,932,000 shares of common stock of the Company entitled to be voted at the Special Meeting, 13,310,132 of which were represented via live webcast or by proxy.
The final results for each of the matters submitted to a vote of the Company’s stockholders at the Meeting are as follows:
| 1. | Charter Amendment |
Stockholders approved the proposal to amend the Company’s amended and restated certificate of incorporation to (a) extend the date by which the Company has to consummate a business combination for an additional three (3) months, from November 8, 2022 to February 8, 2023, (b) provide the Company’s board of directors the ability to further extend the date by which the Company has to consummate a business combination up to three (3) additional times for three (3) months each time, for a maximum of nine (9) additional months if Digital Health Acquisition Group, LLC, the Company’s “sponsor”, pays an amount equal to $350,000 for each three-month extension (the “Extension Fee”), which amount shall be deposited in the trust account of the Company (the “Trust Account”); provided, that if as of the time of an extension the Company has filed a Form S-4 or F-4 registration statement under the Securities Act or a proxy, information or tender offer statement with the Securities and Exchange Commission in connection with such initial business combination, then no Extension Fee would be required in connection with such extension; provided further, that for each three-month extension (if any) following such extension where no deposit into the Trust Account or other payment has been made, the Company’s sponsor or its affiliates or designees would be required to deposit an Extension Fee into the Trust Account, and (c) allow for the Company to provide redemption rights to the Company’s public stockholders in accordance with the requirements of the amended and restated certificate of incorporation without complying with the tender offer rules. As with potential redemptions in connection with an initial Business Combination, the Charter Amendment would restrict redemption rights in connection with any further amendment of the charter with respect to 20% or more of our public shares. Adoption of the amendment required approval by the affirmative vote of at least 65% of the Company’s outstanding common stock. The voting results were as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 12,519,218 | 790,914 | 0 | 0 |
| 2. | Trust Amendment |
Stockholders approved the proposal to amend the Company’s investment management trust agreement, dated as of November 3, 2021, by and between the Company and Continental Stock Transfer & Trust Company to allow the Company to (i) extend the business combination period from November 8, 2022 to February 8, 2023 and up to three (3) times for an additional three (3) month each time from February 8, 2023 to November 8, 2023, 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 voting results were as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 12,519,218 | 790,914 | 0 | 0 |
| 3. | Adjournment Proposal |
Stockholders approved the proposal to approve the adjournment of the special meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies in the event that there are insufficient votes for, or otherwise in connection with, the approval of the Charter Amendment Proposal and Trust Amendment Proposal. Adoption of the amendment required approval by the affirmative vote of the majority of the votes cast by stockholders represented via the remote platform or by proxy at the Meeting. The voting results were as follows:
| FOR | AGAINST | ABSTAIN | BROKER NON-VOTES | |||
| 12,819,975 | 490,157 | 0 | 0 |
| Item 8.01 | Other Events |
In connection with the shareholders’ vote at the Meeting, 10,805,877 shares of Common Stock were tendered for redemption. On October 26, 2022, the Company made a deposit of $350,000 to the trust account and extended the business combination period from November 8, 2022 to February 8, 2023.
| 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 October 26, 2022 | |
| 10.1 | First Amendment to Investment Management Trust Agreement dated October 26, 2022 | |
| 10.2 | Form of Promissory Note issued by Digital Health Acquisition Corp. | |
| 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: October 26, 2022 | ||
| DIGITAL HEALTH ACQUISITION CORP. | ||
| By: | /s/ Scott Wolf | |
| Name: | Scott Wolf | |
| Title: | Chief Executive Officer and Chairman | |
Exhibit 3.1
STATE OF DELAWARE
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DIGITAL HEALTH ACQUISITION CORP.
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 (the "Amended and Restated Certificate") was filed with the Secretary of State of the State of Delaware on November 3, 2021.
2. This Amendment of the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate.
3. This Amendment of the Amended and Restated Certificate 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 shall be amended as follows:
a. 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 15 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 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."
b. The following text is hereby added to Section 9.1 as a new paragraph (c):
"(c) The Board may extend the date by which the Corporation has to consummate an initial Business Combination up to three (3) additional times for three (3) months each time, for a maximum of nine (9) additional months if the Sponsor pays $350,000 for each three-month extension (the "Extension Fee"), which amount shall be deposited in the Trust Account; provided, that if as of the time of an extension in accordance with this Section 9.1(c) the Corporation has filed a Form S-4 or F-4 registration statement under the Securities Act of 1933, as amended, or a proxy, information or tender offer statement with the SEC in connection with the initial Business Combination, then no deposit into the Trust Account or other payment would be required in connection with such extension; provided further that for each three-month extension (if any) following such extension where no deposit into the Trust Account or other payment has been made, the Sponsor or its affiliates or designees would be required to deposit an Extension Fee into the Trust Account."
c. The first sentence of Section 9.2(b) is hereby amended and restated in its entirety as follows:
"If the Corporation offers to redeem the Offering Shares other than in conjunction with a stockholder vote on an initial Business Combination with a proxy solicitation pursuant to Regulation 14A of the Exchange Act (or any successor rules or regulations) and filing proxy materials with the SEC or on an amendment to Section 9.1 hereof with a proxy solicitation, in either case, the Corporation shall offer to redeem the Offering Shares upon the consummation of the initial Business Combination, subject to lawfully available funds therefor, in accordance with the provisions of Section 9.2(a) hereof pursuant to a tender offer in accordance with Rule 13e-4 and Regulation 14E of the Exchange Act (or any successor rule or regulation) (such rules and regulations hereinafter called the "Tender Offer Rules") which it shall commence prior to the consummation of the initial Business Combination and shall file tender offer documents with the SEC prior to the consummation of the initial Business Combination that contain substantially the same financial and other information about the initial Business Combination and the Redemption Rights as is required under Regulation 14A of the Exchange Act (or any successor rule or regulation) (such rules and regulations hereinafter called the "Proxy Solicitation Rules"), even if such information is not required under the Tender Offer Rules; provided, however, that if a stockholder vote is required by law to approve the proposed initial Business Combination, or the Corporation decides to submit the proposed initial Business Combination to the stockholders for their approval for business or other legal reasons, the Corporation shall offer to redeem the Offering Shares, subject to lawfully available funds therefor, in accordance with the provisions of Section 9.2(a) hereof in conjunction with a proxy solicitation pursuant to the Proxy Solicitation Rules (and not the Tender Offer Rules) at a price per share equal to the Redemption Price calculated in accordance with the following provisions of this Section 9.2(b)."
d. Section 9.2(c) is hereby amended and restated in its entirety as follows:
"(c) If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an (i) initial Business Combination with a proxy solicitation or (ii) amendment to Section 9.1(c) hereof with a proxy solicitation, a Public Stockholder, together with any affiliate of such stockholder or any other person with whom such stockholder is acting in concert or as a "group" (as defined under Section 13 (d)(3) of the Exchange Act), shall be restricted from seeking Redemption Rights with respect to more than the aggregate of 20% or more of the Offering Shares without the prior consent of the Corporation."
[Signature page follows.]
IN WITNESS WHEREOF, Digital Health Acquisition Corp. has caused this Amendment of the Amended and Restated Certificate to be duly executed in its name and on its behalf by an authorized officer as of this 26th day of October, 2022.
| DIGITAL HEALTH ACQUISITION CORP. | ||
| By: | /s/ Scott Wolf | |
| Scott Wolf | ||
| Chief Executive Officer | ||
Exhibit 10.1
PROPOSED AMENDMENT
TO THE
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Amendment No. 1 (this “Amendment”), dated as of October 26, 2022, 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 (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;
WHEREAS, at an special meeting of the Company held on October 20, 2022, the Company’s stockholders approved (i) a proposal to amend the Company’s amended and restated certificate of incorporation (the “A&R COI”) extending the date by which the Company has to consummate a business combination from November 8, 2022 to February 8, 2023 and giving the Company the right to further extend such date by which it has to consummate a business combination three (3) times for additional three (3) months each time, from February 8, 2023 to November 8, 2023 (i.e., for a period of time ending 24 months from the consummation of its initial public offering); and (ii) a proposal to amend the Trust Agreement requiring the Company to, if applicable, deposit $350,000 for each three-month extension from November 8, 2022, subject to the terms and conditions of the A&R COI, as amended, and the Trust Agreement, and updating related defined terms; and
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) 15 months after the closing of the Offering, or up to 24 months after the closing of the Offering if the Company were to exercise the 3 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. | A new Section 1(m) shall be added as follows: |
“(m) Upon receipt of an extension letter (“Extension Letter”) substantially similar to Exhibit E hereto at least five business days 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, and receipt of the dollar amount specified in the Extension Letter on or prior to such termination date (if and as applicable), 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: |
“Deferred Discount” shall mean pursuant to the Underwriting Agreement, up to $3,800,000, or $4,370,000 if the Underwriter’s over-allotment option is exercised in full, attributable to a business combination fee that will be payable by the Company in accordance with the Underwriting Agreement to the Underwriter upon and concurrently with the consummation of the Business Combination (as defined below).
“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 by the First Amendment to Investment Management Trust Agreement dated October 26, 2022.”
“Underwriting Agreement” shall mean that certain Underwriting Agreement dated November 3, 2021 between Digital Health Acquisition Corp. and A.G.P./Alliance Global Partners, as amended from time to time.”
| 4. | The term “Property” shall be deemed to include any Extension Fee paid to the Trust Account in accordance with the terms of the Amended and Restated Certificate of Incorporation and the Trust Agreement. |
| 5. | A new Exhibit E of the Trust Agreement is hereby added as follows: |
[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 by the First Amendment dated [ ], 2022 (“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.
[IF APPLICABLE: In accordance with the terms of the Trust Agreement, we hereby authorize you to deposit the Extension Fee, which will be wired to you, into the Trust Account investments upon receipt.]
| Very truly yours, | |
| DIGITAL HEALTH ACQUISITION CORP. | |
| By: | |
| Name: | |
| Title: |
cc: A.G.P./Alliance Global Partners
| 6. | All other provisions of the Trust Agreement shall remain unaffected by the terms hereof. |
| 7. | This 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 Amendment. |
| 8. | This Amendment is intended to be in full compliance with the requirements for an 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. |
| 9. | This 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 First 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 | ||
Exhibit 10.2
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
| Principal Amount: $350,000.00 | Dated as of October [__], 2022 |
Digital Health Acquisition Corporation, a Delaware corporation (the “Maker”), promises to pay to the order of Digital Health Sponsor LLC, a Delaware limited liability company (the “Payee”), the principal sum of Three Hundred Fifty Thousand Dollars ($350,000.00) in lawful money of the United States of America, on the terms and conditions described below. All payments on this Note shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Maker to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this Note.
| 1. | Principal. The principal balance of this Note shall be payable promptly after the date on which the Maker consummates its initial business combination. The principal balance may be prepaid at any time. |
| 2. | Interest. No interest shall accrue on the unpaid principal balance of this Note. |
| 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 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, then to the payment in full of any late charges and finally to the reduction of the unpaid principal balance of this Note. |
| 5. | 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 the principal of 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. |
| 6. | Remedies. |
| (a) | Upon the occurrence of an Event of Default specified in Section 5(a) hereof, Payee may, by written notice to Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable thereunder, 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 5(b) and 5(c), the unpaid principal balance 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 Payee. |
| 7. | 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 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 Payee. |
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| 8. | 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 Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by 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. |
| 9. | Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (i) personally or sent by first class registered or certified mail, overnight courier service or facsimile or electronic transmission to the address designated in writing, (ii) by facsimile to the number most recently provided to such party or such other address or fax number as may be designated in writing by such party or (iii) by electronic mail, to the electronic mail address most recently provided to such party or such other electronic mail address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on the day of delivery, if delivered personally, on the business day following receipt of written confirmation, if sent by facsimile or electronic transmission, one (1) business day after delivery to an overnight courier service or five (5) days after mailing if sent by mail. |
| 10. | Construction. THIS NOTE SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH THE LAWS OF DELAWARE, WITHOUT REGARD TO CONFLICT OF LAW PROVISIONS THEREOF. |
| 11. | 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. |
| 12. | Trust Waiver. 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 and the proceeds of the sale of securities in a private placement in connection with the IPO, as described in greater detail in the registration statement and prospectus filed with the Securities and Exchange Commission in connection with the IPO, were placed, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim from the trust account or any distribution therefrom for any reason whatsoever. |
| 13. | 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. |
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| 14. | 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. |
| 15. | 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 Promissory Note. |
[Signature Page Follows]
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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.
| Digital Health Acquisition Corporation | ||
| By: | ||
| Name: | Scott Wolf | |
| Title: | Chief Executive Officer | |
[Signature Page to Promissory Note]