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): January 8, 2024
Broad
Capital Acquisition Corp.
(Exact
name of registrant as specified in its charter)
Delaware
(State
or other jurisdiction of incorporation)
| 001-41212 |
|
86-3382967 |
(Commission
File
Number) |
|
(IRS
Employer
Identification
No.) |
6208
Sandpebble Ct.,
Dallas,
TX 75254
(Address
of principal executive offices) (Zip Code)
Registrant’s
telephone number, including area code (469) 951-3088
(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:
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☒ |
Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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☐ |
Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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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 Common Stock, par value $0.000001 per share, and one Right to acquire 1/10 of one share of Common
Stock |
|
BRACU |
|
The
Nasdaq Stock Market LLC |
| |
|
|
|
|
| Common
Stock included as part of the Units |
|
BRAC |
|
The
Nasdaq Stock Market LLC |
| |
|
|
|
|
| Rights
included as part of the Units |
|
BRACR |
|
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
2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
Broad
Capital Acquisition Corp., a Delaware corporation (the “Company”), will deposit no later than January 13, 2024,
the amount of $60,000 into the trust account of the Company (the “Trust Account”), which enables the Company
to further extend the period of time it has to consummate its initial business combination by one month from January 13, 2024, to February
13, 2024, (the “February Extension”). The February Extension is the first of up to twelve monthly extensions
permitted under the Company’s amended and restated certificate of incorporation, as amended (the “Charter”)
filed with the Office of the Secretary of State of Delaware following stockholder approval of the Extension Amendment, as defined below,
at the Company’s Special Meeting of Stockholders held on January 8, 2024, discussed in Items 5.03 and 5.07 of this report. As amended,
the required payment for each monthly extension period shall constitute the deposit by Broad Capital LLC (or its affiliates or permitted
designees) into the Trust Account of $60,000 for each such one-month extension beginning on January 13, 2024 until January 13, 2025,
unless the closing of the Company’s initial business combination shall have occurred (the “Adjusted Monthly Extension
Loan”) in exchange for a non-interest bearing, unsecured promissory note payable upon consummation of a business combination.
Item
5.03. Amendments to Articles of Incorporation or Bylaws.
On
January 8, 2024, the Company held a Special Meeting of Stockholders (the “Meeting”). At the Meeting, the Company’s
stockholders approved an amendment to the Company’s Charter, as further amended on January 11, 2023 and June 12, 2023 (the “Extension
Amendment Proposal”), (a) to extend the date by which we have to consummate a business combination from January 13, 2024
(the “ Termination Date”) by up to twelve (12) one-month extensions to January 13, 2025 (the “Extended
Date”) and (b) to decrease the monthly extension fee from $150,000 (the “Monthly Extension Loan”)
to the Adjusted Monthly Extension Loan commencing on January 13, 2024. The Company filed the amendment to the Company’s Charter
with the Office of the Secretary of State of Delaware on January 9, 2024, a copy of which is attached as Exhibit 3.1 to this report and
is incorporated by reference herein.
The
Company also amended the Company’s investment management trust agreement (the “Trust Agreement”), dated
as of January 10, 2022, as amended on January 10, 2023 and June 12, 2023, by and between the Company and Continental Stock Transfer &
Trust Company, allowing the Company to reduce the amount of the Monthly Extension Loan to $60,000 for each one-month extension beginning
on January 13, 2024 until January 13, 2025, to extend the Termination Date for an additional twelve (12) one-month extensions until January
13, 2025, to require Continental Stock Transfer & Trust Company to invest funds in an interest-bearing demand deposit account, and
to update certain defined terms in the Trust Agreement (the “Trust Amendment Proposal”), a copy of which Amendment
No. 3 to the Investment Management Trust Agreement is attached as Exhibit 10.1 to this report and is incorporated by reference herein.
Item
5.07. Submission of Matters to a Vote of Security Holders.
At
the Meeting, the Company’s stockholders approved the Extension Amendment Proposal to (i) reduce the monthly extension fee to $60,000
for each such one-month extension commencing on January 13, 2024, and (ii) extend the Termination Date by up to twelve (12) one-month
extensions to January 13, 2025 (or such earlier date as determined by the Company’s Board of Directors).
The
final voting results for the Extension Amendment Proposal were as follows:
| For |
|
Against |
|
Abstain |
| 5,368,430 |
|
793,757 |
|
0 |
Also
at the Meeting, the Company’s stockholders approved the Trust Amendment Proposal to amend the Company’s Trust Agreement,
allowing the Company to extend the business combination period from January 13, 2024 to January 13, 2025, reduce the monthly extension
fee, require Continental Stock Transfer & Trust Company to invest funds in an interest-bearing demand deposit account, and update
certain defined terms in the Trust Agreement.
The
final voting results for the Trust Agreement Proposal were as follows:
| For |
|
Against |
|
Abstain |
| 5,368,430 |
|
793,757 |
|
0 |
Stockholders
holding 2,804,919 shares of common stock exercised their right to redeem their shares for cash at an approximate price of $11.23 per
share of the funds in the Trust Account. As a result, approximately $31.5 million will be removed from the Trust Account to pay such
holders.
Following
the redemption, the Company’s remaining shares of common stock outstanding were 1,717,663. The Company must deposit into the Trust
Account $60,000 for each monthly extension period (commencing on January 13, 2024 and ending on January 13, 2025, unless the closing
of the Company’s initial business combination shall have occurred).
Item
9.01. Financial Statements and Exhibits.
(d)
Exhibits.
SIGNATURES
Pursuant
to the requirements of the Securities Exchange Act of 1934, as amended, the Company has duly caused this report to be signed on its behalf
by the undersigned hereunto duly authorized.
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BROAD
CAPITAL ACQUISITION CORP. |
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|
|
| Date:
January 12, 2024 |
By: |
/s/
Johann Tse |
| |
|
Johann
Tse
Chief
Executive Officer |
Exhibit
3.1
THIRD
AMENDMENT TO THE
AMENDED
AND RESTATED CERTIFICATE OF INCORPORATION OF
BROAD
CAPITAL ACQUISITION CORPORATION
Pursuant
to Section 242 of the Delaware General Corporation Law
BROAD
CAPITAL ACQUISITION CORPORATION (the “Corporation”), a corporation organized and existing under the laws of the State
of Delaware, does hereby certify as follows:
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1. |
The
name of the Corporation is Broad Capital Acquisition Corporation. The Corporation’s Certificate of Incorporation was filed
in the office of the Secretary of State of the State of Delaware on April 16, 2021 (the “Original Certificate”), as amended
and restated on January 10, 2022. As further amended by the First Amendment to the Amended and Restated Certificate of Incorporation
filed in the office of the Secretary of State of the State of Delaware on January 11, 2023 and the Second Amendment to the Amended
and Restated Certificate of Incorporation filed in the office of the Secretary of State of the State of Delaware on June 12, 2023
(the “Amended and Restated Certificate of Incorporation”). |
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2. |
This
Third Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation
of the Corporation. |
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3. |
This
Third 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”). |
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4. |
Section
9.1(c) is hereby amended and restated as follows: |
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(c) |
In
the event that the Corporation has not consummated an initial Business Combination within 24 months from the date of the closing
of the Offering, upon the Sponsor’s request, the Corporation may extend the period of time to consummate a Business Combination
by an additional twelve months, from January 13, 2024 until January 13, 2025, provided that (i) the Sponsor (or its affiliates or
permitted designees) will deposit into the Trust Account $60,000 for each such one-month extension beginning on January 13, 2024,
unless the closing of the Company’s initial business combination shall have occurred, in exchange for a non-interest bearing,
unsecured promissory note payable upon consummation of a Business Combination and (ii) the procedures relating to any such extension,
as set forth in the Trust Agreement, shall have been complied with. The gross proceeds from the issuance of such promissory note(s)
shall be held in the Trust Account and used to fund the redemption of the Offering Shares in accordance with Section 9.2. |
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5. |
Section
9.1(d) is hereby amended and restated as follows: |
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(d) |
References
herein to “Business Combination” means any businesses or entity with whom the Corporation desires to undertake a Business
Combination in accordance with the provisions of this Amended and Restated Certificate and the Corporation’s Registration Statement,
which shall not include a target business (either directly or through any subsidiaries) located in China, Hong Kong or Macau. |
IN
WITNESS WHEREOF, Broad Capital Acquisition Corporation has caused this Third 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 8th day of January 2024.
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BROAD
CAPITAL ACQUISITION CORPORATION |
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|
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By: |
/s/
Johann Tse |
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Name: |
Johann
Tse |
| |
Title: |
Chief
Executive Officer |
Exhibit
10.1
AMENDMENT
NO. 3 TO THE
INVESTMENT
MANAGEMENT TRUST AGREEMENT
This
Amendment No. 3 (this “Amendment”), dated as of January 8, 2024, to the Investment Management Trust Agreement (as defined
below) is made by and between Broad Capital 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 January 10, 2022, as amended on January
10, 2023 and June 12, 2023 (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 the Company held on January 8, 2024, the Company’s stockholders approved (i) a proposal to amend the Company’s
charter to reduce the payment required and extend the date by which the Company must consummate a business combination from January 13,
2024 to January 13, 2025 via up to twelve (12) one-month extensions; and to decrease the monthly extension fee commencing on January
13, 2024 from $150,000 for each such one-month extension (the “Monthly Extension Loan”) to the Adjusted Monthly Extension
Loan described below; and (ii) a proposal to amend the Trust Agreement requiring the Company to, deposit into the Trust Account $60,000
for each such one-month extension beginning on January 13, 2024, unless the closing of the Company’s initial business combination
shall have occurred (the “Adjusted Monthly Extension Loan”) subject to the terms and conditions of the Amended and Restated
Certificate of Incorporation, and the Trust Agreement, and updating related defined terms; and
NOW
THEREFORE, IT IS AGREED:
1.
Section 1(c) of the Trust Agreement is hereby amended and restated in its entirety as follows:
“In
a timely manner, upon the written instruction of the Company, (i) hold funds uninvested, (ii) invest funds in an interest-bearing demand
deposit account, or (iii) invest and reinvest the Property solely in United States government securities within the meaning of Section
2(a)(16) of the Investment Company Act of 1940, as amended, having a maturity of 185 days or less, or in money market funds meeting the
conditions of paragraphs (d)(1), (d)(2), (d)(3) and (d)(4) of Rule 2a-7 promulgated under the Investment Company Act of 1940, as amended
(or any successor rule), which invest only in direct U.S. government treasury obligations, as determined by the Company; provided, however,
starting on January 12, 2024, the Trustee must hold or invest funds pursuant to (i) or (ii) above, as the case may be, as directed by
the Company, and may no longer invest the Property pursuant to (iii) above; it being understood that the Trust Account will earn no interest
while account funds are uninvested awaiting the Company’s instructions hereunder; and while account funds are invested or uninvested
the Trustee may earn bank credits or other consideration;”
2.
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 at least two of its Chief Executive Officer, Chief Financial Officer, President,
Executive Vice President, Vice President, Secretary or Chairman of the board of directors of the Company (the “Board”) or
other authorized officer of the Company, and, in the case of a Termination Letter in a form substantially similar to the attached hereto
as Exhibit A, acknowledged and agreed to by the Representative, 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 $20,200 of interest
that may be released to the Company to pay dissolution expenses), only as directed in the Termination Letter and the other documents
referred to therein, or (y) the date which is the later of (1) 12 months after the closing of the Offering or up to 36 months after the
closing of the Offering if the Company exercises the one-month extensions described in the Company’s Amended and Restated Certificate
of Incorporation, as it may be further amended, 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 (“Charter”) 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 Termination Letter attached 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 $20,200 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;”
3.
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 applicable 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.”
4.
The following defined term in the Trust Agreement shall be amended and restated in their entirety:
“Trust
Agreement” shall mean that certain Investment Management Trust Agreement dated January 10, 2022, as amended on January 10, 2023
and on June 12, 2023 between Broad Capital Acquisition Corp. and Continental Stock Transfer & Trust Company, as amended by this Amendment
No. 3 to Investment Management Trust Agreement dated January 8, 2024.”
5.
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.
6.
A new Exhibit E of the Trust Agreement is hereby added as follows:
Broad
Capital Acquisition Corp.
January
8, 2024
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 Broad Capital Acquisition Corp. (“Company”)
and Continental Stock Transfer & Trust Company (“Trustee”), dated as of January 10, 2022, as amended on January 10, 2023
and on June 12, 2023, and as further amended by the Amendment No. 3 dated January 8, 2024 (“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 up to an additional twelve (12) one-month extensions, from January 13, 2024 to January 13, 2025 (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 the Extension Fee in the amount equal to $60,000 for each such one-month extension beginning on January
13, 2024, unless the closing of the Company’s initial business combination shall have occurred, which will be wired to you, into
the Trust Account investments upon receipt.
Very
truly yours,
| BROAD
CAPITAL ACQUISITION CORP. |
|
| |
|
|
| By: |
/s/
Johann Tse |
|
| Name: |
Johann
Tse |
|
| Title: |
Chief
Executive Officer |
|
7.
All other provisions of the Trust Agreement shall remain unaffected by the terms hereof.
8.
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.
9.
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.
10.
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.
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 |
|
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|
|
| By: |
/s/
Francis Wolf |
|
| Name: |
Francis
Wolf |
|
| Title: |
Senior
Vice President and Director of Shareholder Services |
|
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|
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| BROAD
CAPITAL ACQUISITION CORP. |
|
| |
|
|
| By: |
/s/
Johann Tse |
|
| Name: |
Johann
Tse |
|
| Title: |
Chief
Executive Officer |
|
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