Form 425 - Prospectuses and communications, business combinations

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): July 7, 2023

PHOENIX BIOTECH ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

Delaware		001-40877		87-1088814
(State or other jurisdiction of incorporation or organization)		(Commission File Number)		(I.R.S. Employer Identification Number)

2201 Broadway, Suite 705, Oakland, CA		94612
(Address of principal executive offices)		(Zip Code)

(215) 731-9450

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	PBAXU	NASDAQ Global Market
Class A common stock, par value $0.0001 per share	PBAX	NASDAQ Global Market
Warrants, each whole warrant exercisable for one share of Class A common stock	PBAXW	NASDAQ Global Market

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 1.01. Entry into a Material Definitive Agreement.

On July 7, 2023, 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 June 15, 2023 (the “Proxy Statement”).

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, as amended by the Amendment No. 1 dated December 20, 2022, by and between the Company and Continental Stock Transfer and Trust Company (“Continental”), to extend the business combination period up to six times for one month each time from July 8, 2023 to August 8, 2023, September 8, 2023, October 8, 2023, November 8, 2023, December 8, 2023 or January 8, 2024. On July 7, 2023, the Company and Continental entered into the Trust Agreement Amendment.

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 5.03. Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

On July 7, 2023, the Company’s stockholders approved an amendment (the “Charter Amendment”) to the Company’s amended and restated certificate of incorporation, as amended by the First Amendment dated December 20, 2022 (the “Charter”), to provide its board of directors the ability to extend the date by which the Company has to consummate a business combination up to six times for one month each time, for a maximum of six additional months. On July 7, 2023, 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 July 7, 2023, 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 June 13, 2023, there were a total of 6,769,548 shares of the Company’s common stock, par value $0.0001 per share (the “Common Stock”), issued and outstanding and entitled to vote at the Special Meeting. Proxies were received for 6,157,548 shares of Common Stock, or approximately 90.96% 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) provide its board of directors the ability to extend the date by which the Company has to consummate a business combination up to six times for one month each time from July 8, 2023 to August 8, 2023, September 8, 2023, October 8, 2023, November 8, 2023, December 8, 2023 or January 8, 2024 and (b) 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
	5,941,375				216,173				0

Proposal 2 — The Trust Amendment Proposal — a proposal to amend the Trust Agreement to extend the business combination period up to six times for one month each time from July 8, 2023 to August 8, 2023, September 8, 2023, October 8, 2023, November 8, 2023, December 8, 2023 or January 8, 2024.

For				Against				Abstain
	5,941,355				216,213				0

Proposal 3 — The Adjournment Proposal — a 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 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.

Item 8.01. Other Events.

In connection with the approval of the Charter Amendment, holders of 523,341 shares of the Company’s Class A common stock, par value $0.0001 per share (“Class A Shares”), exercised redemption rights. As a result, following satisfaction of such redemptions, as of the date of this Current Report on Form 8-K, the Company has 6,246,207 Class A Shares outstanding, of which (i) 1,235,061 are Class A Shares issued to the public in the Company’s initial public offering, which Class A Shares are entitled to receive a pro rata portion of the remaining funds in the Company’s trust account in connection with its initial business combination, a liquidation or certain other events, (ii) 4,596,250 are Class A Shares issued upon the conversion of an equal number of shares of the Company’s Class B common stock, par value $0.0001 per share, acquired by Phoenix Biotech Sponsor, LLC (“Sponsor”) prior to the Company’s initial public offering, which Class A Shares do not have redemption rights, and (iii) 885,000 are Class A Shares included in the private placement units acquired in the private placement by the Sponsor and other investors concurrent with the Company’s initial public offering, which Class A Shares do not have redemption rights.

On July 7, 2023, the Sponsor deposited $37,051.83 in the trust account in connection with the extension of the business combination deadline. On July 10, 2023, the Company made a series of payments of an aggregate of $5,620,682 to holders of redeemed Class A Shares (an aggregate of $10.74 per redeemed Class A Share). As a result of the deposit described above, such payments and accrual of interest, the balance in the trust account as of the date of this Current Report on Form 8-K is approximately $8.3 million.

Item 9.01. Financial Statements and Exhibits

(d) Exhibits

Exhibit No.		Description
3.1		Second Amendment to the Amended and Restated Certificate of Incorporation of Phoenix Biotech Acquisition Corp.
10.1		Amendment No. 2 to the Investment Management Trust Agreement, dated July 7, 2023, 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).

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.

	PHOENIX BIOTECH ACQUISITION CORP.

	By:	/s/ Chris Ehrlich
	Name:	Chris Ehrlich
	Title:	Chief Executive Officer

Dated: July 10, 2023

Exhibit 3.1

SECOND AMENDMENT

TO THE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

PHOENIX BIOTECH ACQUISITION CORP.

July 7, 2023

Phoenix Biotech Acquisition Corp., a corporation organized and existing under the laws of the State of Delaware (the “Corporation”), DOES HEREBY CERTIFY AS FOLLOWS:

1. The name of the Corporation is “Phoenix Biotech Acquisition Corp.”. The original certificate of incorporation was filed with the Secretary of State of the State of Delaware on June 8, 2021 (the “Original Certificate”). The Amended and Restated Certificate of Incorporation (the “Amended and Restated Certificate”) was filed with the Secretary of State of the State of Delaware on October 5, 2021, which was further amended by the filing of a First Amendment to the Amended and Restated Certificate with the Secretary of State of the State of Delaware on December 20, 2022 (the “First Amendment”).

2. This Second Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate, as amended by the First Amendment.

3. This Second Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the Board of Directors of the Corporation (the “Board”) and the stockholders of the Corporation in accordance with Section 242 of the General Corporation Law of the State of Delaware.

4. This Second Amendment to the Amended and Restated Certificate shall become effective on the date of filing with the Secretary of State of Delaware.

5. Certain capitalized terms used in this Amended and Restated Certificate, as amended hereby, are defined where appropriate herein.

6. The text of the Amended and Restated Certificate of Incorporation shall be amended as follows:

a. Section 9.01(b) is hereby amended and restated in its entirety 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 Corporation’s registration statement on Form S-1, as initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on September 13, 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 (less up to $100,000 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 by July 8, 2023 (or, if the Board extends the date for up to six additional one-month periods in accordance with the requirements below, the date to which such deadline is extended, which shall be no later than January 8, 2024) (the “Termination Date”), and (iii) the redemption of shares in connection with a vote seeking to amend any provisions of the Amended and Restated Certificate relating to stockholders’ rights or pre-initial Business Combination activity (as described in Section 9.07). 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 Phoenix Biotech 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.””

b. Section 9.02(d) is hereby amended and restated in its entirety as follows:

“In the event that the Corporation has not consummated an initial Business Combination within the time period required by Section 9.01(b), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible, but in any event no later than ten (10) 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 any amounts representing interest earned on the Trust Account, less interest previously released to, or reserved for use by, the Corporation in an amount up to $100,000 to pay dissolution expenses and less any other interest released to, or reserved for use by, the Corporation to pay franchise and income taxes, 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 liquidation 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 Corporation’s obligations under the DGCL to provide for claims of creditors and other requirements of applicable law.

Notwithstanding the foregoing or any other provisions of the Articles, in the event that the Corporation has not consummated an initial Business Combination by July 8, 2023, the Corporation may, without another stockholder vote, elect to extend the Termination Date up to six times, each by an additional one month, by resolution of the Board if requested by the Sponsor, and upon five business days’ advance notice prior to the applicable Termination Date (or such shorter notice period as the Board may permit in its sole discretion), provided that the Sponsor (or one or more of its affiliates, members or third-party designees) (the “Lender”) will deposit into the Trust Account for each monthly extension $0.03 for each then-outstanding Offering Share, in exchange for one or more non-interest bearing, unsecured promissory notes issued by the Corporation to the Lender. If the Corporation completes the Business Combination, it will, at the option of the Lender, repay the amounts loaned under the promissory note(s) or convert a portion or all of the amounts loaned under such promissory note(s) into units at a price of $10.00 per unit, which units will be identical to the private placement units issued to the Sponsor at the time of the Offering. If the Corporation does not complete the Business Combination by the applicable Termination Date, such promissory notes will be repaid only from funds held outside of the Trust Account.”

[signature page follows]

IN WITNESS WHEREOF, Phoenix Biotech Acquisition Corp. has caused this Second Amendment to the Amended and Restated Certificate to be duly executed in its name and on its behalf by an authorized officer as of the date first set above.

	Phoenix Biotech Acquisition Corp.

	By:	/s/ Chris Ehrlich
	Name:	Chris Ehrlich
	Title:	Chief Executive Officer

[Signature Page to Second Amendment to the Amended and Restated Certificate]

Exhibit 10.1

AMENDMENT NO. 2

TO THE

INVESTMENT MANAGEMENT TRUST AGREEMENT

This Amendment No. 2 (this “Amendment”), dated as of July 7, 2023, to the Investment Management Trust Agreement (as defined below) is made by and between Phoenix Biotech 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 October 5, 2021, as amended by Amendment No. 1 dated December 20, 2022 (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; and

WHEREAS, at an special meeting of the Company held on July 7, 2023, the Company’s stockholders approved (i) a proposal to amend the Company’s amended and restated certificate of incorporation, as amended by the First Amendment dated December 20, 2022 (the “A&R COI”) to (a) provide the board of directors of the Company (the “Board”) the right to extend such date by which the Company has to consummate an initial business combination up to six times for one month each time, from July 8, 2023 to August 8, 2023, September 8, 2023, October 8, 2023, November 8, 2023, December 8, 2023 or January 8, 2024 (the latest date to which such deadline is extended, the “Later Expiration Date”); and (ii) a proposal to amend the Trust Agreement to (a) extend the date by which the Company has to consummate a business combination from July 8, 2023 to the Later Expiration Date, subject to the terms and conditions of the A&R COI, as amended, and (b) allow the Company to withdraw from the trust account and distribute to the Company the amount of interest earned on the Property to be used for the payment of any applicable taxes.

NOW THEREFORE, IT IS AGREED:

1. 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 its Chief Executive Officer, President, Chief Financial Officer or Chairman of the board of directors (the “Board”) or other authorized officer of the Company (and in the case of Exhibit A, signed by the Representative), and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including any amounts representing interest earned on the Trust Account, less interest previously released to, or reserved for use by, the Company in an amount up to $100,000 to pay dissolution expenses (as applicable) and less any other interest released to, or reserved for use by, the Company to pay franchise and income taxes as provided in this Agreement only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is the later of July 8, 2023 or, if the Board elects to extend such date in accordance with the terms and conditions of the Company’s Amended and Restated Certificate of Incorporation for additional one month periods, to the date to which such deadline is extended, which shall not be later than January 8, 2024, as applicable; provided that upon each one-month extension of the period of time to consummate an initial Business Combination, Phoenix Biotech Sponsor, LLC (the “Sponsor”) (or one or more of its affiliates, members or third-party designees) (the “Lender”) will deposit into the Trust Account for each monthly extension $0.03 for each then-outstanding share of Common Stock issued in the Offering (each, an “Offering Share”), in exchange for one or more non-interest bearing, unsecured promissory notes issued by the Corporation to the Lender; and (2) such later date as may be approved by the Company’s stockholders in accordance with any further amendment of the Company’s Amended and Restated Certificate of Incorporation (“Termination Date”), 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 any amounts representing interest earned on the Trust Account, less interest previously released to, or reserved for use by, the Company in an amount up to $100,000 to pay dissolution expenses (as applicable) and less any other interest released to, or reserved for use by, the Company to pay franchise and income taxes, shall be distributed to the Public Stockholders of record as of such date. If the Company completes the Business Combination (as defined below), it will, at the option of the Lender, repay the amounts loaned under the promissory note(s) or convert a portion or all of the amounts loaned under such promissory note(s) into units at a price of $10.00 per unit, which units will be identical to the private placement units issued to the Sponsor at the time of the Offering. If the Company does not complete the Business Combination by the applicable Termination Date, such promissory notes will be repaid only from funds held outside of the Trust Account. The Trustee agrees to serve as the paying agent of record (“Paying Agent”) with respect to any distribution of Property that is to be made to the Public Stockholders and, in its separate capacity as Paying Agent, agrees to distribute such Property directly to the Company’s Public Stockholders in accordance with the terms of this Agreement and the Company’s Certificate of Incorporation in effect at the time of such distribution;”

2. Exhibit E of the Trust Agreement is hereby amended and restated in its entirety as follows:

[Letterhead of Company]

[Insert date]

Continental Stock Transfer & Trust Company
1 State Street, 30th Floor
New York, New York 10004
Attn: Francis Wolf and Celeste Gonzalez

Re: Trust Account — Extension Letter

Dear Mr. Wolf and Ms. Gonzalez:

Pursuant to paragraphs 1(j) and 1(m) of the Investment Management Trust Agreement between Phoenix Biotech Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of October 5, 2021, as amended by Amendment No. 1 dated December 20, 2022 and Amendment No. 2 dated [●], 2023 (“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 Business for an additional one 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.

[IF APPLICABLE: In accordance with the terms of the Trust Agreement, we hereby authorize you to deposit the Extension Fee, which will be wired to you, into the Trust Account investments upon receipt.]

	Very truly yours,

	Phoenix Biotech Acquisition Corp.

	By:
		Name:
		Title:

cc:	Cantor Fitzgerald & Co.

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 or electronic 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(c) 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 No. 2 to the Investment Management Trust Agreement as of the date first written above.