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): August 25 (August 24, 2023)
Everest Consolidator Acquisition Corporation
(Exact name of registrant as specified in its
charter)
| Delaware |
|
001-41100 |
|
86-2485792 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(I.R.S. Employer Identification No.) |
| |
|
4041 MacArthur Blvd
Newport Beach, California |
|
|
|
92660 |
| (Address of Principal Executive Offices) |
|
|
|
(Zip Code) |
(949) 610-0835
(Registrant’s telephone number, including
area code)
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:
x Written communication 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-commencements 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 warrant |
|
MNTN.U |
|
New
York Stock Exchange |
| Class
A common stock, par value $0.0001 per share |
|
MNTN |
|
New
York Stock Exchange |
| Warrants,
each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share |
|
MNTN.WS |
|
New
York Stock Exchange |
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.
IMPORTANT NOTICES
Additional Information and Where to Find It
This communication relates to the proposed Business
Combination (as defined in the Current Report on Form 8-K filed with the SEC on May 22, 2023) between Everest Consolidator Acquisition
Corporation (the “Company”) and Unifund Financial Technologies, Inc., a Delaware corporation (“New PubCo”), Unifund
Merger Sub Inc., a Delaware corporation and a direct, wholly owned subsidiary of New PubCo, Unifund Holdings, LLC, a Delaware limited
liability company (“Holdings”), Credit Card Receivables Fund Incorporated, an Ohio corporation (“CCRF”), USV,
LLC, an Ohio limited liability company (“USV” and, together with Holdings and CCRF, the “Target Companies”), and
Everest Consolidator Sponsor, LLC, a Delaware limited liability company.
In connection with the Business Combination, New
PubCo has filed a registration statement on Form S-4 (File No. 333-273362) relating to the Business Combination with the SEC (as may be
amended or supplemented from time to time, the “Registration Statement”), which includes a proxy statement/prospectus that
will be sent to all of the Company’s stockholders in connection with the Company’s solicitation of proxies for the vote by
the Company’s stockholders regarding the proposed Business Combination and related matters, as is described in the Registration
Statement, and including a prospectus relating to, among other things, the securities to be issued by New PubCo in connection with the
proposed Business Combination. Each of New PubCo and the Company will file other documents regarding the Business Combination with the
SEC. BEFORE MAKING ANY VOTING DECISION, INVESTORS AND SECURITY HOLDERS OF THE COMPANY ARE URGED TO READ THE REGISTRATION STATEMENT, THE
PROXY STATEMENT/PROSPECTUS CONTAINED THEREIN AND ALL OTHER RELEVANT DOCUMENTS FILED OR THAT WILL BE FILED WITH THE SEC BY THE COMPANY
OR NEW PUBCO IN CONNECTION WITH THE BUSINESS COMBINATION AS THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT
THE BUSINESS COMBINATION.
Investors and security holders will be able to
obtain free copies of the Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be
filed with the SEC by the Company or New PubCo through the website maintained by the SEC at www.sec.gov. In addition, the documents filed
by the Company may be obtained free of charge from the Company’s website at www.belayoneverest.com or by written request to the
Company at Everest Consolidator Acquisition Corporation, 4041 MacArthur Boulevard, 4th Floor, Newport Beach, California 92660.
Participants in the Solicitation
The Company and its directors and executive officers
may be deemed to be participants in the solicitation of proxies from the Company’s stockholders in connection with the Business
Combination. A list of the names of such directors and executive officers and information regarding their interests in the Business Combination
is included in the Registration Statement. For information regarding the Company’s directors and executive officers, please see
the Company’s Annual Report on Form 10-K, its subsequent Quarterly Reports on Form 10-Q, and the other documents filed (or to be
filed) by the Company and New PubCo from time to time with the SEC. Free copies of these documents may be obtained as described in the
preceding paragraph.
Forward-Looking Statements
This Current Report on Form 8-K (this “Report”)
contains certain forward-looking statements within the meaning of the federal securities laws with respect to the proposed Business Combination
between the Target Company group (referred to herein, collectively, as “Unifund”) and the Company, including statements regarding
the anticipated benefits of the Business Combination, the anticipated timing of the Business Combination, the future financial condition
and performance of Unifund and the expected financial impacts of the Business Combination (including future revenue and pro forma enterprise
value) on Unifund and its platforms, markets, expected future growth and market opportunities. Unifund’s actual results may differ
from its expectations, estimates and projections (which, in part, are based on certain assumptions) and consequently, you should not rely
on these forward-looking statements as predictions of future events. When used in this Report, the words “estimate,” “project,”
“budget,” “expect,” “anticipate,” “forecast,” “plan,” “intend,”
“believe,” “seeks,” “may,” “will,” “could,” “predicts,” “potential,”
“should,” “future,” “propose,” “continue,” and variations of these words or similar expressions
(or the negative versions of such words or expressions) are intended to identify forward-looking statements. Although these forward-looking
statements are based on assumptions that Unifund and the Company believe are reasonable, these assumptions may be incorrect and are not
guarantees of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and
other important factors, many of which are beyond Unifund’s or the Company’s control, that could cause actual results or outcomes
to differ materially from those discussed in the forward-looking statements. Important factors, among others, that may affect actual results
or outcomes include (i) the inability to complete the Business Combination in a timely manner or at all (including due to the failure
to receive required stockholder approvals, failure to receive governmental or regulatory approvals or the failure of other closing conditions);
(ii) the risk that the Business Combination may not be completed by the Company’s business combination deadline and the potential
failure to obtain an extension of the business combination deadline if sought by the Company; (iii) the inability to recognize the anticipated
benefits of the Business Combination or the failure or to realize estimated pro forma results and underlying assumptions, including with
respect to estimated stockholder redemptions; (iv) the inability to obtain or maintain the listing of the Company’s securities on
a national securities exchange; (v) costs related to the Business Combination; (vi) the effect of the announcement or pendency of the
Business Combination on Unifund’s business or employee relationships, operating results and business generally; (vii) the risk of
difficulties in retaining employees of Unifund as a result of the Business Combination; (viii) the risk that the Business Combination
disrupts current plans and operations of Unifund; (ix) the occurrence of any event, change or other circumstance that could give rise
to the termination of the business combination agreement relating to the Business Combination; (x) the potential inability of Unifund
to manage growth effectively and execute business plans and meet projections; (xi) the ability to implement business plans, forecasts,
and other expectations after the completion of the transaction, and the ability to identify and realize additional opportunities; (xii)
potential litigation involving the Company or Unifund, including the outcome of any legal proceedings that may be instituted against Unifund
or the Company related to the business combination agreement or the Business Combination; (xiii) changes in applicable laws or regulations
affecting Unifund’s business, particularly with respect to regulations enacted by the Federal Trade Commission and Consumer Financial
Protection Bureau; (xiv) risks related to the uncertainty of Unifund’s projected financial information; (xv) general economic and
market conditions impacting demand for Unifund’s services, and in particular economic and market conditions in the financial services
industry in the markets in which Unifund operates; and (xvi) other risks and uncertainties indicated from time to time in the proxy statement/prospectus
relating to the Business Combination, including those under “Risk Factors” therein, and in the Company’s other filings
with the SEC. Neither the Company nor Unifund gives any assurance that any of the Company, Unifund or the combined company will achieve
expectations. The foregoing list of factors is not exhaustive. These forward-looking statements are provided for illustrative purposes
only and are not intended to serve as, and must not be relied on by investors as, a guarantee, an assurance, a prediction or a definitive
statement of fact or probability. You should carefully consider the foregoing factors and the other risks and uncertainties described
in the “Risk Factors” section of the Company’s Annual Report on Form 10-K, its subsequent Quarterly Reports on Form
10-Q, the proxy statement/prospectus related to the transaction, when it becomes available, and other documents filed (or to be filed)
by the Company from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause
actual events and results to differ materially from those contained in the forward-looking statements. These risks and uncertainties may
be amplified by the conflict between Russia and Ukraine, rising levels of inflation and interest rates and the ongoing COVID-19 pandemic,
which have caused significant economic uncertainty. Forward-looking statements speak only as of the date they are made. Investors are
cautioned not to put undue reliance on forward-looking statements, and Unifund and the Company assume no obligation and do not intend
to update or revise these forward-looking statements, whether as a result of new information, future events or otherwise, except as required
by securities and other applicable laws.
Item 1.01 Entry into a Material Definitive
Agreement
As approved by its stockholders at the
special meeting of stockholders held on August 24, 2023 (the “Special Meeting”), the Company entered into an amendment
to the Investment Management Trust Agreement, dated as of November 23, 2021 (the “Trust Agreement”), with Equiniti Trust
LLC (f/k/a American Stock Transfer & Trust Company, LLC) on August 25, 2023 (the “Trust Amendment”). The Trust Amendment allows the Company to extend the date by which the
Company has to consummate a business combination (the “Combination Period”) up to an additional six (6) times for one
(1) month each time from August 28, 2023 to February 28, 2024 by depositing into the trust account, for each one-month extension,
the lesser of (a) $280,000 and (b) $0.035 per share (the “Extension Payment”) for each then-outstanding share of the
Company’s Class A common stock, par value $0.0001 per share, issued in the IPO (the “Public Shares”) after giving
effect to the redemption of the Public Shares for the redemption price. The foregoing description is qualified in its entirety by
reference to the Trust Amendment, a copy of which is attached as Exhibit 10.1 hereto and is incorporated by reference herein.
Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year
The information disclosed in Item 5.07 of this
Report under the headings “The Extension Amendment Proposal” and “The Redemption Limitation Proposal” is incorporated
by reference into this Item 5.03 to the extent required. On August 24, 2023, to effectuate the Extension and the Redemption Limitation
Amendment, the Company filed an amendment (the “Extension Amendment”) to the Company’s Amended and Restated Certificate
of Incorporation (as amended, the “Charter”) with the Secretary of State of the State of Delaware. The foregoing description
of the Extension Amendment does not purport to be complete and is qualified in its entirety by the terms of the Extension Amendment, a
copy of which is attached hereto as Exhibit 3.1 and incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders
On August 24, 2023, the Company convened the Special
Meeting. As of the close of business on August 7, 2023, the record date for the Special Meeting, there was an aggregate of 21,562,500
shares of the Company’s common stock outstanding (consisting of 17,250,000 Public Shares and 4,312,500 shares of the Company’s
Class B common stock, par value $0.0001 per share (“Class B Common Stock” and, together with the Public Shares, the “Common
Stock”)), each of which was entitled to one vote with respect to the proposals presented at the Special Meeting. A total of 18,373,023
shares of Common Stock, representing approximately 85.21% of the outstanding shares of Common Stock entitled to vote at the Special Meeting,
were present in person or by proxy, constituting a quorum. The proposals listed below are described in more detail in the Company’s
definitive proxy statement, which was filed with the Securities and Exchange Commission on August 14, 2023. A summary of the proposals
presented to and considered by the stockholders of the Company and the voting results at the Special Meeting is set forth below:
The Extension Amendment Proposal –
To amend the Company’s Charter to provide the Company’s board of directors with the right to extend (the “Extension”)
the Combination Period up to an additional six (6) times for one (1) month each time, from August 28, 2023 to February 28, 2024 (as extended,
the “Extended Date”) (i.e., for a period of time ending 27 months after the consummation of its initial public offering (the
“IPO”)) (the “Extension Amendment Proposal”).
| For |
Against |
Abstain |
| 18,097,816 |
257,815 |
112 |
The Trust Amendment Proposal –
To approve the adoption of the Trust Amendment to the Trust Agreement, to allow the Company to extend the Combination Period up to an
additional six (6) times for one (1) month each time from August 28, 2023 to February 28, 2024, the Extended Date, by depositing into
the Company’s trust account, for each one-month extension, the Extension Payment for each then-outstanding share of the Company’s
Public Shares after giving effect to the redemption of the Public Shares for the redemption price (the “Trust Amendment Proposal”).
| For |
Against |
Abstain |
| 18,097,828 |
257,815 |
100 |
The Redemption Limitation Amendment Proposal –
To amend (the “Redemption Limitation Amendment”) the Company’s Charter to eliminate from the Charter the limitation
that the Company shall not redeem public shares to the extent that such redemption would cause the Company’s net tangible assets
to be less than $5,000,001 (the “Redemption Limitation”). The Redemption Limitation Amendment would allow the Company to redeem
public shares irrespective of whether such redemption would exceed the Redemption Limitation (the “Redemption Limitation Amendment
Proposal” and together with Extension Amendment Proposal, the “Extension Proposals”).
| For |
Against |
Abstain |
| 18,115,107 |
257,816 |
100 |
The Adjournment Proposal – The
proposal to adjourn 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 to approve the Extension Proposals or if we determine that additional time is necessary to
effectuate the Extension, was not presented at the Special Meeting, as the Extension Proposals received a sufficient number of votes for
approval.
Stockholders holding 3,825,869 Public Shares, representing 22.18% of the Public Shares outstanding, exercised their right to redeem such
shares for a pro rata portion of the funds in the Company's trust account.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
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.
| |
Everest Consolidator Acquisition Corporation |
| |
|
|
| Date: August 25, 2023 |
By: |
/s/ Adam Dooley |
| |
Name: |
Adam Dooley |
| |
Title: |
President and Chief Executive Officer |
Exhibit 3.1
CERTIFICATE OF AMENDMENT TO
THE
AMENDED AND RESTATED CERTIFICATE OF
INCORPORATION OF
EVEREST CONSOLIDATOR ACQUISITION
CORPORATION
Everest Consolidator
Acquisition Corporation, a corporation organized and existing under the by virtue of the General Corporation Law of the State of Delaware
(the “DGCL”), does hereby certify:
1. The
name of the corporation is Everest Consolidator Acquisition Corporation. The corporation was originally incorporated pursuant to the DGCL
on March 8, 2021, under the name of Everest Consolidator Acquisition Corporation.
2. The
date of filing of the corporation’s original Certificate of Incorporation with the Secretary of State of the State of Delaware was
March 8, 2021, and the date of filing the corporation’s Amended and Restated Certificate of Incorporation with the Secretary
of State of the State of Delaware was November 23, 2021.
3. The
Board of Directors of the corporation has duly adopted resolutions setting forth proposed amendments to the Certificate of Incorporation
of the corporation (as amended and restated prior to the date hereof), declaring said amendment to be advisable and in the best interests
of the corporation and its stockholders and authorizing the appropriate officers of the corporation to solicit the consent of the stockholders
therefor, which resolutions setting forth the proposed amendment are substantially as follows:
RESOLVED,
that Section 9.1(b) of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended
and restated to read in its entirety 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, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on
October 18, 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 franchise and income taxes, as well as
expenses relating to the administration of the trust account, 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 a Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to
complete a Business Combination on or before the Termination Date (as defined below), subject to applicable law and (iii) the redemption
of Offering Shares properly tendered in connection with a stockholder vote to approve an amendment to this Amended and Restated Certificate
(A) that would modify the substance or timing of the Corporation’s obligation to allow redemption in connection with a Business
Combination or to redeem 100% of the Offering Shares if the Corporation has not completed a Business Combination on or before the Termination
Date or (B) with respect 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 Everest Consolidator Sponsor, LLC (the “Sponsor”) or officers or directors of the Corporation, or
affiliates of any of the foregoing) are referred to herein as “Public Stockholders.””
RESOLVED,
that Section 9.2(a) of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended
and restated to read in its entirety as follows:
“Prior
to the consummation of the initial Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity
to have their Offering Shares redeemed, out of the funds legally available therefor, upon the consummation of the initial Business Combination
pursuant to, and subject to the limitations of, Section 9.2(b) and Section 9.2(c) (such rights of such holders to
have their Offering Shares redeemed pursuant to such Sections, the “Redemption Rights”) for cash equal to the
applicable redemption price per share determined in accordance with Section 9.2(b) (the “Redemption Price”).”
RESOLVED,
that Section 9.2(b) of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended
and restated to read 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 Securities Exchange Act of 1934, as amended (the “Exchange Act”)
(or any successor rules or regulations) and filing proxy materials with the SEC, 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) 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) 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). In the event that the Corporation offers to redeem the Offering
Shares pursuant to a tender offer in accordance with the Tender Offer Rules, the Redemption Price per share of the Common Stock payable
to holders of the Offering Shares tendering their Offering Shares pursuant to such tender offer shall be equal to the quotient obtained
by dividing: (i) the aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the completion
of the initial Business Combination, including interest earned on the funds held in the Trust Account and not previously released to the
Corporation to pay its franchise and income taxes as well as expenses relating to the administration of the Trust Account, by (ii) the
number of then outstanding Offering Shares. If the Corporation offers to redeem the Offering Shares in conjunction with a stockholder
vote on the proposed initial Business Combination pursuant to a proxy solicitation, the Redemption Price per share of the Common Stock
payable to holders of the Offering Shares exercising their Redemption Rights shall be equal to the quotient obtained by dividing (A) the
aggregate amount then on deposit in the Trust Account calculated as of two business days prior to the completion of the initial Business
Combination, including interest earned on the funds held in the Trust Account and not previously released to the Corporation to pay its
taxes, by (B) the number of then outstanding Offering Shares.”
RESOLVED,
that Section 9.2(d) of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended
and restated to read in its entirety as follows:
“In
the event that the Corporation has not completed an initial Business Combination by August 28, 2023, the Board may extend the period
of time to consummate an initial Business Combination by six additional one month periods, up to February 28, 2024 (the latest such
date being referred to as the “Termination Date”); provided that, in each case, the Corporation (or its affiliates
or designees), after providing five business days advance notice prior to the date that the period of time would otherwise expire, has
deposited into the Trust Account the lesser of (a) $280,000 and (b) $0.035 per share (the “Extension Payment”)
for each then-outstanding share of the Corporation’s Class A Common Stock. The gross proceeds from such Extension Payments
will be added to the proceeds from the Offering held in the Trust Account and shall be used to fund the redemption of the Offering Shares
in accordance with this clause (d). In the event that the Corporation has not consummated an initial Business Combination by or before
the Termination Date, 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 100% of the
Offering Shares, at 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 earned on the funds held in the Trust Account and not previously released to the Corporation
to pay its taxes, if any, and expenses related to the administration of the Trust Account (less up to $100,000 of such net interest to
pay dissolution expenses), by (B) the number of then outstanding Offering Shares, which redemption will completely extinguish the
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, dissolve and liquidate, subject in each case to the Corporation’s obligations under the DGCL to provide for claims of
creditors and the requirements of other applicable law.”
RESOLVED,
that Section 9.2(e) of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended
and restated to read in its entirety as follows:
“If
the Corporation offers to redeem the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation
shall consummate the proposed initial Business Combination only if such initial Business Combination is approved by the affirmative vote
of the holders of a majority of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business
Combination.”
RESOLVED,
that Section 9.2(f) of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended
and restated to read in its entirety as follows:
“Reserved.”
RESOLVED,
that Section 9.7 of Article IX of the Amended and Restated Certificate of Incorporation of the corporation is amended and
restated to read in its entirety as follows:
“If,
in accordance with Section 9.1(a), any amendment is made to this Amended and Restated Certificate of Incorporation (a) to modify
the substance or timing of the Corporation’s obligation to allow redemption in connection with the Corporation’s initial Business
Combination or to redeem 100% of the Offering Shares if the Corporation does not complete an initial Business Combination on or before
the Termination Date, or (b) with respect to any other provisions of this Amended and Restated Certificate of Incorporation 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 earned on the funds held in the Trust Account and not previously released
to the Corporation to pay its taxes and expenses related to the administration of the Trust Account, divided by the number of then outstanding
Offering Shares.”
4. That
thereafter, said amendment was duly adopted in accordance with the provisions of Section 242 of the DGCL by written consent of stockholders
holding the requisite number of shares required by statute given in accordance with and pursuant to Section 228 of the DGCL.
IN WITNESS
WHEREOF, the corporation has caused this Certificate of Amendment to be signed this 24th day of August, 2023.
| |
/s/ Adam Dooley |
| |
Adam Dooley |
| |
Chief Executive Officer |
Exhibit 10.1
Execution Version
AMENDMENT
TO THE
INVESTMENT MANAGEMENT TRUST
AGREEMENT
This
Amendment No. 1 (this “Amendment”), dated as of August 25, 2023, to the Investment Management Trust
Agreement (as defined below) is made by and between Everest Consolidator Acquisition Corporation (the
“Company”) and Equiniti Trust LLC, as trustee (f/k/a American Stock Transfer & Trust Company, LLC,
“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 23, 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 a Special Meeting of stockholders of the Company held on August 24, 2023, the Company stockholders approved a proposal to amend
(the “Extension Amendment”) the Company’s Amended and Restated Certificate of Incorporation to provide
the Company’s Board of Directors with the right to extend the date by which the Company has to consummate a business combination
up to an additional six (6) times for one (1) month each time, from August 28, 2023 to February 28, 2024; and
WHEREAS,
on the date hereof, the Company is filing the Extension Amendment with the Secretary of State of the State of Delaware.
NOW THEREFORE, IT
IS AGREED:
The Trust Agreement
is hereby amended as follows:
1. Preamble.
The text below is hereby added as the fifth WHEREAS clause in the preamble of the Trust Agreement:
“WHEREAS,
if a Business Combination (as defined below) is not consummated by August 28, 2023, 21 months following the closing of the Offering,
the board of directors of the Company (the “Board”) may extend such period by six (6) one-month periods,
up to a maximum of 27 months in the aggregate following the closing of the Offering, by depositing the lesser of (a) $280,000 and
(b) $0.035 per share issued at the Offering that have not been redeemed into the Trust Account no later than August 28, 2023
(the 21-month anniversary of the Offering, and each succeeding one-month anniversary through and up to February 24, 2024 (each, an
“Applicable Deadline”); and”
2. Section 1(i).
Section 1(i) of the Trust Agreement is hereby amended and restated to read in full as follows:
“(i)
Commence liquidation of the Trust Account only after and promptly after receipt of, and only in accordance with, the terms of a letter
(“Termination Letter”), in a form substantially similar to that attached hereto as either Exhibit A or
Exhibit B, signed on behalf of the Company by its President, Chief Executive Officer or Chairman of the board of directors of the
Company or other authorized officer of the Company and complete the liquidation of the Trust Account and distribute the Property in the
Trust Account only as directed in the Termination Letter and the other documents referred to therein; provided, however, that in the event
that a Termination Letter has not been received by the Trustee by the 21-month anniversary of the closing of the Offering or, in the event
that the Company extended the time to complete the Business Combination for up to 27-months from the closing of the Offering but has not
completed the Business Combination within the applicable monthly anniversary of the Closing, (“Last Date”),
the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B
hereto and distributed to the Public Stockholders as of the Last Date.”
3. Section 1(m). Section 1(m) is hereby added to the Trust Agreement 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 Applicable Deadline, 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 the Applicable Deadline, to follow the instructions set forth in the Extension
Letter.
4. Exhibit E. Exhibit E is hereby added to the Trust Agreement as follows:
[Letterhead of Company]
[Insert date]
Equiniti Trust LLC
6201 15th Avenue
Brooklyn, NY 11219
Attn: Relationship Management
Re: Trust Account — Extension
Letter Gentlemen:
Pursuant
to paragraph 1(m) of the Investment Management Trust Agreement between Everest Consolidator Acquisition Corporation
(“Company”) and Equiniti Trust LLC (f/k/a American Stock Transfer & Trust Company, LLC, “Trustee”),
dated as of November 23, 2021, (as amended, the “Trust Agreement”), this is to advise you that the Company is
extending the time available in order to consummate a Business Combination with a target business for an additional one
(1) month,
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.
In accordance
with the terms of the Trust Agreement, we hereby authorize you to deposit
$ or
$ per public share, which will be wired to you, into the Trust Account investments upon
receipt.
This is the of
up to Extension Letters.
Very truly yours,
Everest Consolidator Acquisition
Corporation
Everest Consolidator Acquisition
Corporation
3. All other provisions of the Trust Agreement shall remain unaffected by the terms hereof.
4. 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
shall be deemed to be an original signature for purposes of this Amendment.
5. This
Amendment is intended to be in full compliance with the requirements for an Amendment to the Trust Agreement as required by 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.
6. 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 Amendment to the Investment Management Trust Agreement as of the date first written above.
| EQUINITI TRUST LLC, AS TRUSTEE |
|
| |
|
| By: |
/s/ Felix Orihuela |
|
| |
Name: Felix Orihuela |
|
| |
Title: Vice President |
|
| |
|
| EVEREST CONSOLIDATOR ACQUISITION CORPORATION |
|
| |
|
| By: |
/s/ Adam Dooley |
|
| |
Name: Adam Dooley |
|
| |
Title: Chief Executive Officer |
|
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