UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): March 28, 2023 (March 24, 2023)
Direct Selling Acquisition Corp.
(Exact name of registrant as specified in its charter)
Delaware | 001-40831 | 86-3676785 | ||
(State or other jurisdiction of incorporation) |
(Commission File Number) |
(I.R.S. Employer Identification No.) |
5800 Democracy Drive Plano, TX |
75024 | |
(Address of principal executive offices) | (Zip Code) |
(214) 380-6020
(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 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:
Title of each class |
Trading Symbol(s) |
Name of each exchange on which registered | ||
Units, each consisting of one share of Class A Common Stock, and one-half of one Redeemable Warrant | DSAQ.U | New York Stock Exchange | ||
Class A Common Stock, par value $0.0001 per share, | DSAQ | New York Stock Exchange | ||
Redeemable warrants, each warrant exercisable for one share of Class A Common Stock at an exercise price of $11.50 per share | DSAQW |
Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 or Rule 12b-2 of the Securities Exchange Act of 1934.
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 2.03. | Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement or a Registrant. |
As disclosed in the definitive proxy statement filed by Direct Selling Acquisition Corp, a Delaware corporation (“DSAQ”) with the Securities and Exchange Commission (the “SEC”) on March 2, 2023, as supplemented by the additional definitive proxy materials filed on March 10, 2023 and March 17, 2023 (the “Extension Proxy Statement”), relating to the special meeting of stockholders (the “Extension Meeting”), DSAQ Partners LLC, a Delaware limited liability company (the “Sponsor”), agreed that if the Extension Amendment Proposal (as defined below) was approved, it or one or more of its affiliates, members or third-party designees (the “Lender”) will contribute to DSAQ as a loan $480,000 to be deposited into the trust account established in connection with the DSAQ’s initial public offering (the “Trust Account”). In addition, in the event DSAQ does not consummate an initial business combination by the Charter Extension Date (as defined below), the Lender will contribute to the Company as a loan up to $1,440,000 in nine equal installments to be deposited into the Trust Account for each of the nine one-month extensions following the Charter Extension Date.
On March 24, 2023, the stockholders of DSAQ approved the Extension Amendment Proposal (as defined below) at the Extension Meeting (as described in Item 5.07 of this Current Report on Form 8-K). Accordingly, on March 24, 2023, DSAQ issued an unsecured promissory note in the principal amount of $1,920,000 (the “Note”) to the Sponsor. The Note does not bear interest and matures upon closing of DSAQ’s initial business combination (a “Business Combination”). In the event that DSAQ does not consummate a Business Combination, the Note will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven. The proceeds of the Note will be deposited in the Trust Account in connection with the Charter Amendment (as defined below).
The foregoing description of the Note is qualified in its entirety by reference to the full text of the Note, which is incorporated by reference herein and filed herewith as Exhibit 10.1.
Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
On March 24, 2023, DSAQ held the Extension Meeting to approve an amendment to DSAQ’s amended and restated certificate of incorporation (the “Charter Amendment”) to extend the date (the “Termination Date”) by which DSAQ has to consummate a business combination from March 28, 2023 (the “Original Termination Date”) to June 28, 2023 (the “Charter Extension Date”) and to allow DSAQ, without another stockholder vote, to elect to extend the Termination Date to consummate a Business Combination on a monthly basis up to nine times by an additional one month each time after the Charter Extension Date, by resolution of DSAQ’s board of directors, if requested by the Sponsor, and upon five days’ advance notice prior to the applicable Termination Date, until March 28, 2024, or a total of up to twelve months after the Original Termination Date, unless the closing of a Business Combination shall have occurred prior thereto (the “Extension Amendment Proposal”). The stockholders of DSAQ approved the Extension Amendment Proposal at the Extension Meeting and on March 27, 2023, DSAQ filed the Charter Amendment with the Delaware Secretary of State.
The foregoing description is qualified in its entirety by reference to the Charter Amendment, a copy of which is attached as Exhibit 3.1 hereto and is incorporated by reference herein.
Item 5.07 | Submission of Matters to a Vote of Security Holders. |
On March 24, 2023, DSAQ held the Extension Meeting to approve the Extension Amendment Proposal and the Adjournment Proposal, each as more fully described in the Extension Proxy Statement. As there were sufficient votes to approve the Extension Amendment Proposal, the Adjournment Proposal was not presented to stockholders.
As of the close of business on February 21, 2023, the record date for the Special Meeting, there were 23,000,000 shares of Class A common stock, par value $0.0001 per share (“Class A Common Stock”) and 5,750,000 shares of Class B common stock, par value $0.0001 per share (“Class B Common Stock”, together with the Class A Common Stock, the “Common Stock”), outstanding. Each share of Common Stock was entitled to one vote on the Extension Proxy Statement. The Shares of Class A Common Stock and Class B Common Stock were voted together as a single class. Holders of 24,086,181 shares of Common Stock of DSAQ held of record as of February 21, 2023, the record date for the Extension Meeting, were present in person or by proxy, representing approximately 83.78% of the voting power of DSAQ’s shares of Common Stock as of the record date for the Extension Meeting, and constituting a quorum for the transaction of business.
The voting results for the Extension Amendment Proposal were as follows:
The Extension Amendment Proposal
For |
Against |
Abstain | ||
21,085,468 | 2,124,913 | 875,800 |
The Adjournment Proposal
DSAQ had solicited proxies in favor of an Adjournment Proposal which would have given DSAQ authority to adjourn the Extension Meeting to solicit additional proxies. As sufficient shares were voted in favor of the Extension Amendment Proposal, this proposal was not voted upon at the Extension Meeting.
In connection with the vote to approve the Charter Amendment, the holders of 17,404,506 public shares of Common Stock of DSAQ properly exercised their right to redeem their shares (and did not withdraw their redemption) for cash at a redemption price of approximately $182,460,109.76 per share, for an aggregate redemption amount of approximately $10.48.
Item 8.01 | Other Events. |
Following the deadline by which DSAQ public stockholders had to complete the procedures for electing to redeem their shares of Class A Common Stock, affiliates of Antara Capital LP purchased an aggregate of 955,100 shares from public stockholders who indicated an intention to redeem such shares of Class A Common Stock in connection with the Charter Amendment.
Item 9.01. | Financial Statements and Exhibits |
(d) Exhibits
Exhibit |
Description | |
3.1 | Amendment to Amended and Restated Certificate of Incorporation. | |
10.1 | Promissory Note, dated March 24, 2023, between DSAQ and the Sponsor. | |
104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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.
Dated: March 28, 2023
DIRECT SELLING ACQUISITION CORP. | ||
By: | /s/ Dave Wentz | |
Name: | Dave Wentz | |
Title: | Chairman and Chief Executive Officer |
Exhibit 3.1
AMENDMENT
TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
DIRECT SELLING ACQUISITION CORP.
Pursuant to Section 242 of the
Delaware General Corporation Law
DIRECT SELLING ACQUISITION CORP. (the Corporation), a corporation organized and existing under the laws of the State of Delaware, does hereby certify as follows:
1. | The name of the Corporation is Direct Selling Acquisition Corp. The original certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on March 9, 2021 (the Original Certificate). An amended and restated certificate of incorporation of the Corporation was filed with the Secretary of State of the State of Delaware on September 23, 2021 (the Amended and Restated Certificate of Incorporation). |
2. | This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation of the Corporation. |
3. | This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the affirmative vote of the holders of 65% of the stock entitled to vote at a meeting of stockholders in accordance with the provisions of Section 242 of the General Corporation Law of the State of Delaware (the DGCL). |
4. | The text of Section 9.1(b) of Article IX 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 Corporations registration statement on Form S-1, initially filed with the U.S. Securities and Exchange Commission (the SEC) on July 16, 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 to pay taxes, 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 by June 28, 2023 (the Termination Date, or up to March 28, 2024, if applicable under the provisions of this Section 9.1(b) below) and (iii) the redemption of Offering Shares in connection with a vote seeking to amend such provisions of this Amended and Restated Certificate (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. In the event that the Corporation has not consummated an initial Business Combination by the Termination Date, the Board of Directors may, without another stockholder vote, elect to extend the period of time to consummate a Business Combination on a monthly basis up to nine times by an additional one month each time after June 28, 2023, by resolution of the Board of Directors if requested by DSAC Partners LLC (the Sponsor), and upon five days advance notice prior to the applicable Termination Date, until March 28, 2024, provided that the Sponsor (or one or more of its affiliates or permitted designees) (the Lender) will deposit $160,000 into the Trust Account for each such monthly extension for an aggregate deposit of up to $1,440,000 (if all nine additional monthly extensions are exercised), in exchange for a non-interest bearing, unsecured promissory note issued by the Corporation to the Lender. If the Corporation completes its initial Business Combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note or convert a portion or all of the amounts loaned under such promissory note into warrants at a price of $1.00 per warrant, which warrants will be identical to the private placement warrants issued to the Sponsor. If the Corporation does not complete a Business Combination by the Termination Date, the loans will be repaid only from funds held outside of the Trust Account or will be forfeited, eliminated or otherwise forgiven. |
5. | The text of Section 9.2(d) of Article IX is hereby amended and restated to read in full as follows: |
(d) In the event that the Corporation has not consummated an initial Business Combination by the Termination Date (or up to March 28, 2024, if applicable under the provisions of Section 9.1(b)), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten business days thereafter subject to lawfully available funds therefor, redeem 100% of the Offering Shares in consideration of a per-share price, payable in cash, equal to the quotient obtained by dividing (A) the aggregate amount then on deposit in the Trust Account, including interest not previously released to the Corporation to pay its taxes (less up to $100,000 of such net interest to pay dissolution expenses), by (B) the total number of 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 each case to the Corporations obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.
6. | The text of Section 9.7 of Article IX is hereby amended and restated to read in full as follows: |
Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to this Amended and Restated Certificate (a) to modify the substance or timing of the Corporations obligation to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by the Termination Date (or up to March 28, 2024, if applicable under the provisions of Section 9.1(b)) or (b) with respect to any other material provision of this Amended and Restated Certificate 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 the 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 not previously released to the Corporation to pay its taxes, divided by the number of 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.
2
IN WITNESS WHEREOF, Direct Selling Acquisition Corp. has caused this Amendment to the Amended and Restated Certificate of Incorporation to be duly executed in its name and on its behalf by an authorized officer as of this 27th day of March, 2023.
DIRECT SELLING ACQUISITION CORP. | ||
By: | /s/ Dave Wentz | |
Name: | Dave Wentz | |
Title: | Chairman and Chief Executive Officer |
3
Exhibit 10.1
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 MAKER THAT SUCH REGISTRATION IS NOT REQUIRED.
PROMISSORY NOTE
Total Principal Amount: up to $1,920,000 | Dated as of March 24, 2023 |
(as set forth on the Schedule of Borrowings attached hereto)
Direct Selling Acquisition Corp., a Delaware corporation and blank check company (the Maker), promises to pay to the order of DSAC Partners LLC, a Delaware limited liability company, or its registered assigns or successors in interest (the Payee), the Total Principal Amount (as defined below) 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 initial principal balance of this Note of $480,000, funded within five (5) business days of the date hereof by the Payee (the Initial Principal Amount), together with any funds drawn down by the Maker following the date hereof pursuant to Section 3 below (together with the Initial Principal Amount, the Total Principal Amount) shall be due and payable on the consummation of the Makers initial merger, stock exchange, asset acquisition, stock purchase, recapitalization, reorganization or similar business combination with one or more businesses or entities (a Business Combination). The Payee understands that if a Business Combination is not consummated, this Note will be repaid solely to the extent that the Maker has funds available to it outside of its trust account established in connection with its initial public offering of its securities (the Trust Account and such offering, the IPO), and that all other amounts will be contributed to capital, forfeited, eliminated or otherwise forgiven or eliminated.
2. Interest. No interest shall accrue on the unpaid principal balance of this Note.
3. Drawdown Requests. Maker and Payee agree that Maker may request an additional aggregate amount of up to $1,440,000 (the Maximum Drawdown Amount), which may be drawn down in nine equal tranches (each a Drawdown Request). Each Drawdown Request must be for $160,000 unless agreed upon by Maker and Payee. Payee shall fund each Drawdown Request no later than three (3) business days after receipt of a Drawdown Request. Once an amount is drawn down under this Note, it shall not be available for future Drawdown Requests even if prepaid. No fees, payments or other amounts shall be due to Payee in connection with, or as a result of, any Drawdown Request by the 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 attorneys 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 the Maker to pay the principal amount due pursuant to this Note within five (5) business days following the date when due.
(b) Voluntary Bankruptcy, Etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the 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 the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the 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 the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of sixty (60) consecutive days.
6. Remedies.
(a) Upon the occurrence of an Event of Default specified in Section 5(a) hereof, the Payee may, by written notice to the Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount 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 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 the Payee.
7. Waivers. The 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 the 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 the 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.
8. Unconditional Liability. The 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 the Maker or affecting the Makers liability hereunder.
9. Notices. All notices, statements or other documents which are required or contemplated by this Note shall be: (i) in writing and delivered 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 and (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 NEW YORK, 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 monies in, or any distribution of or from, the Trust Account, and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim against the Trust Account for any reason whatsoever. The Payee hereby agrees not to make any Claim against the Trust Account (including any distributions therefrom), regardless of whether such Claim arises as a result of, in connection with or relating in any way to, this Note, or any other matter, and regardless of whether such Claim arises based on contract, tort, equity or any other theory of legal liability. To the extent the Payee commences any action or proceeding based upon, in connection with, relating to or arising out of any matter relating to the Maker (including this Note), which proceeding seeks, in whole or in part, monetary relief against the Maker, the Payee hereby acknowledges and agrees that its sole remedy shall be against funds held outside of the Trust Account and that such Claim shall not permit the Maker (or any person claiming on its behalf or in lieu of it) to have any claim against the Trust Account (including any distributions therefrom) or any amounts contained therein.
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.
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.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the Maker, intending to be legally bound hereby, has caused this Note to be duly executed by the undersigned as of the day and year first above written.
Direct Selling Acquisition Corp. | ||
By: | /s/ Mike Lohner | |
Name: | Mike Lohner | |
Title: | President and Chief Financial Officer |
Agreed and Acknowledged: | ||
DSAC Partners LLC | ||
a Delaware limited liability company | ||
By: | /s/ Dave Wentz | |
Name: | Dave Wentz | |
Title: | Member |
[Signature Page to Promissory Note]
SCHEDULE OF BORROWINGS
The following increases or decreases in this Promissory Note have been made:
Date of Increase or |
Amount of decrease in Principal Amount of this Promissory Note |
Amount of increase in Principal Amount of this Promissory Note |
Principal Amount of this Promissory Note following such decrease or increase |
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[], 2023 |
$ | [ | ] | $ | [ | ] |