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): December 14, 2022
26 Capital Acquisition Corp.
(Exact name of registrant as specified in its charter)
| Delaware | 001-39900 | 85-2695910 | ||
| (State or other jurisdiction of incorporation) |
(Commission File Number) | (IRS Employer Identification No.) |
OfficeEdge Miami
701 Brickell Avenue
Suite 1550
Miami, Florida
(Address of principal executive offices)
33131
(Zip Code)
Registrant’s telephone number, including area code: (305) 709-6664
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 | ||
| The Stock Market LLC | ||||
| The Stock Market LLC | ||||
| Redeemable Warrants, included as part of the Units | ADERW | 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 ☒
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 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year.
On December 14, 2022, 26 Capital Acquisition Corp., a Delaware corporation (the “Company”) held a special meeting in lieu of annual meeting of stockholders (the “Meeting”). At the Meeting, the Company’s stockholders approved an amendment to the Company’s Amended and Restated Certificate of Incorporation (the “Charter Amendment”) to extend the date by which the Company must consummate its initial business combination from January 20, 2023 to October 20, 2023 (or such earlier date as determined by the board of directors of the Company (the “Board”)). The Company filed the Charter Amendment with the Secretary of State of the State of Delaware on December 19, 2022.
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.
At the Meeting, an aggregate of at least 17,187,501 shares of the Company’s common stock, which represents a quorum of the outstanding common stock entitled to vote as of the record date of October 25, 2022, were represented in person or by proxy at the Meeting
At the Meeting, the Company’s stockholders voted on the following proposals, each of which was approved:
(1) The Extension Amendment Proposal — a proposal to amend the Company’s Amended and Restated Certificate of Incorporation to extend the date by which the Company must consummate its initial business combination from January 20, 2023 to October 20, 2023 (or such earlier date as determined by the Board). The following is a tabulation of the votes with respect to this proposal, which was approved by the Company’s stockholders:
| For | Against | Abstain | Broker Non-Votes | |||||||||||
| 23,558,650 | 91,051 | 26,144 | 0 | |||||||||||
(2) The Director Election Proposal — a proposal to elect two persons as Class I directors (to serve until the annual meeting to be held in 2025 or until a successor is elected and qualified or their earlier resignation or removal). The following is a tabulation of the votes with respect to the election of directors, each of whom was elected by the Company’s stockholders:
| Name | For | Withhold | Broker Non-Votes | |||||||||
| Rafi Ashkenazi | 20,333,983 | 3,341,860 | 0 | |||||||||
| J. Randall Waterfield | 21,359,729 | 2,316,115 | 0 | |||||||||
In connection with the Meeting, stockholders holding 24,069,772 shares of the Company’s Class A common stock (the “Public Shares”) exercised their right to redeem their shares for a pro rata portion of the funds in the Company’s trust account. The trustee of the Company’s trust account is calculating the final amount of the funds to be removed from the Company’s trust account in connection with such redemptions, but the current preliminary calculations are that approximately $242.7 million (approximately $10.08 per Public Share) will be removed from the Company’s trust account to pay such holders and approximately $34.5 million will remain in the Company’s trust account. The Company will amend this Form 8-K (or file a new Form 8-K) should the actual amounts materially differ from the foregoing estimated amounts. Following redemptions, the Company will have 3,430,228 Public Shares outstanding.
Item 9.01 Financial Statements and Exhibits.
| (d) | Exhibits. The following exhibits are filed with this Form 8-K: |
| Exhibit No. | Description of Exhibits | |
| 3.1 | Amendment to Amended and Restated Certificate of Incorporation. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
1
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.
| 26 CAPITAL ACQUISITION CORP. | |||
| By: | /s/ Jason Ader | ||
| Name: | Jason Ader | ||
| Title: | Chief Executive Officer | ||
Dated: December 20, 2022
2
Exhibit 3.1
AMENDMENT
TO THE
AMENDED AND RESTATED
OF
26 CAPITAL ACQUISITION CORP.
Pursuant to Section 242 of the
Delaware General Corporation Law
26 Capital 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 26 Capital Acquisition Corp. The Corporation’s Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on August 24, 2020 (the “Original Certificate”). An Amended and Restated Certificate of Incorporation was filed in the office of the Secretary of State of the State of Delaware on January 20, 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. |
| 4) | The text of Section 9.1(b) of Article IX is hereby amended and restated to read in full as follows: |
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 December 23, 2020, 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 (less up to $100,000 of 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 33 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 full business day on which the Office of the Delaware Division of Corporations shall be open (the “Deadline Date”) and (iii) the redemption of shares in connection with a vote seeking 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 or 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 material provisions 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.”
IN WITNESS WHEREOF, 26 Capital Acquisition Corp. 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 this 19 th day of December, 2022.
| 26 CAPITAL ACQUISITION CORP. | ||
| By: | /s/ Jason Ader | |
| Name: | Jason Ader | |
| Title: | Chief Executive Officer | |