Item 1.01. Entry into a Material Definitive Agreement.
On December 16, 2022, Phoenix Biotech Acquisition Corp. (the "Company") held a
special meeting of stockholders (the "Special Meeting") at 11:00 a.m. Eastern
Time for the purposes of considering and voting upon the Charter Amendment
Proposal, the Trust Amendment Proposal and, if presented, the Adjournment
Proposal (each as defined below). For more information on these proposals,
please refer to the Company's definitive proxy statement filed with the
Securities and Exchange Commission (the "SEC") dated November 21, 2022 (the
"Proxy Statement").
Promissory Note
As previously disclosed in the Proxy Statement, Phoenix Biotech Sponsor, LLC
(the "Sponsor") agreed that if the Charter Amendment Proposal and the Trust
Amendment Proposal (each as defined below) were approved at the Special Meeting,
the Sponsor, or one or more of its affiliates, members or third-party designees
(in such capacity, the "Lender"), would lend to the Company up to $1,500,000 to
be deposited into the trust account (the "Trust Account") established in
connection with the Company's initial public offering (the "IPO").
On December 16, 2022, the stockholders of the Company approved the Charter
Amendment Proposal and the Trust Amendment Proposal at the Special Meeting (as
described in Item 5.07 of this Current Report on Form 8-K). Accordingly, on
December 20, 2022, the Company issued an unsecured promissory note in the
principal amount of $1,500,000 (the "Promissory Note") to the Lender, pursuant
to which the Lender agreed to loan to the Company up to $1,500,000 in connection
with the extension of the date by which the Company has to consummate an initial
business combination (the "business combination period"). The Promissory Note
does not bear interest and matures upon the earlier of (a) the closing of an
initial business combination and (b) the Company's liquidation. In the event
that the Company does not consummate an initial business combination, the
Promissory Note will be repaid only from amounts remaining outside of the Trust
Account, if any. Upon the consummation of an initial business combination, the
Lender may elect to convert any portion or all of the amount outstanding under
the Promissory Note into private placement units of the Company (each, a
"Private Placement Unit"), each Private Placement Unit consisting of one share
of the Company's Class A common stock, par value $0.0001 per share ("Common
Stock"), and one-half of one warrant to purchase one share of Common Stock. Such
Private Placement Units will be identical to the private placement units issued
to the Sponsor at the time of the IPO.
The Company has deposited $325,000 into the Trust Account in connection with the
first drawdown under the Promissory Note in order to effect the extension of the
business combination period to April 8, 2023 (the "Charter Extension Date"), and
will deposit additional funds into the Trust Account for any subsequent
extensions that are needed by the Company to complete an initial business
combination. Such amounts will be distributed either to: (i) the holders of
shares of Common Stock issued as part of the units sold in the IPO (the "Public
Shares") outstanding as of immediately prior to the Company's liquidation or
(ii) holders of Public Shares who elect to have their shares redeemed in
connection with the consummation of an initial business combination.
The issuance of the Promissory Note was made pursuant to the exemption from
registration contained in Section 4(a)(2) of the Securities Act of 1933, as
amended.
The foregoing description is qualified in its entirety by reference to the
Promissory Note, a copy of which is attached as Exhibit 10.1 hereto and is
incorporated herein by reference.
Trust Agreement Amendment
At the Special Meeting, the Company's stockholders approved a proposal to amend
(the "Trust Agreement Amendment") the Investment Management Trust Agreement (the
"Trust Agreement"), dated as of October 5, 2021, by and between the Company and
Continental Stock Transfer and Trust Company ("Continental"), to extend the
business combination period from January 8, 2023 to April 8, 2023 and up to
three times for an additional one month each time from April 8, 2023 to May 8,
2023, June 8, 2023 or July 8, 2023. On December 20, 2022, the Company and
Continental entered into the Trust Agreement Amendment.
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The foregoing description of the Trust Agreement Amendment is a summary only and
is qualified in its entirety by reference to the full text of the Trust
Agreement Amendment, a copy of which is attached as Exhibit 10.2 hereto and is
incorporated by reference herein.
Item 2.03. Creation of a Direct Financial Obligation or an Obligation under
an Off-Balance Sheet Arrangement or a Registrant
The disclosure contained under the subheading "Promissory Note" in Item 1.01 of
this Current Report on Form 8-K is incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal
Year
On December 16, 2022, the Company's stockholders approved an amendment (the
"Charter Amendment") to the Company's amended and restated certificate of
incorporation (the "Charter") to extend the business combination period for an
additional three months, from January 8, 2023 to April 8, 2023, and provide its
board of directors the ability to further extend the date by which the Company
has to consummate a business combination up to three additional times for one
month each time, for a maximum of six additional months. On December 20, 2022,
the Company filed the Charter Amendment with the Secretary of State of the State
of Delaware.
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 December 16, 2022, the Company held the Special Meeting at 11:00 a.m. Eastern
Time for the purposes of considering and voting upon the Charter Amendment
Proposal, the Trust Amendment Proposal and, if presented, the Adjournment
Proposal. As of the record date of November 10, 2022, there were a total of
22,981,250 shares of Common Stock issued and outstanding and entitled to vote at
the Special Meeting. Proxies were received for 20,363,775 shares of Common
Stock, or approximately 88.6% of the shares issued and outstanding and entitled
to vote at the Special Meeting, representing a quorum.
Proposal 1 - The Charter Amendment Proposal - a proposal to amend the Charter to
(a) extend the business combination period for an additional three months, from
January 8, 2023 to April 8, 2023, (b) provide its board of directors the ability
to further extend the date by which the Company has to consummate a business
combination up to three additional times for one month each time, for a maximum
of six additional months, and (c) allow for the Company to provide redemption
rights to the Company's public stockholders in accordance with the requirements
of the charter without complying with the tender offer rules.
For Against Abstain
20,111,798 251,977 0
Proposal 2 - The Trust Amendment Proposal - A proposal to amend the Trust
Agreement to extend the business combination period from January 8, 2023 to
April 8, 2023 and up to three times for an additional one month each time from
April 8, 2023 to May 8, 2023, June 8, 2023 or July 8, 2023.
For Against Abstain
20,111,798 251,977 0
Proposal 3 - The Adjournment Proposal - A 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.
The Adjournment Proposal was not presented to the stockholders because there
were sufficient votes to approve the Charter Amendment Proposal and the Trust
Amendment Proposal.
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Item 9.01. Financial Statements and Exhibits
(d) Exhibits
Exhibit
No. Description
3.1 Amendment to the Amended and Restated Certificate of Incorporation
of Phoenix Biotech Acquisition Corp.
10.1 Promissory Note, dated December 20, 2022, issued to Phoenix Biotech
Sponsor, LLC.
10.2 Amendment No. 1 to the Investment Management Trust Agreement, dated
December 20, 2022, by and between the Company and Continental Stock
Transfer & Trust Company, as trustee.
104 Cover Page Interactive Data File (embedded within the Inline XBRL
document).
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