8-K
ESH Acquisition Corp. (ESHA)
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported):December 3, 2024
ESH
ACQUISITION CORP.
(Exact name of registrant as specified in itscharter)
| Delaware | 001-41718 | 87-4000684 |
|---|---|---|
| (State or other jurisdictionof incorporation) | (Commission File Number) | (IRS EmployerIdentification No.) |
228 Park Ave S, Suite 89898
New York, NY 10003
(Address of principal executive offices, includingzip code)
Registrant’s telephone number, including
area code: 212-287-5022
Not Applicable
(Former name or former address, if changed sincelast 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<br>to Rule 425 under the Securities Act (17 CFR 230.425) |
|---|---|
| ☐ | Soliciting material pursuant<br>to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
| --- | --- |
| ☐ | Pre-commencement communications<br>pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
| --- | --- |
| ☐ | Pre-commencement communications<br>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 | ESHAU | The Nasdaq Global Market |
| Class A shares | ESHA | The Nasdaq Global Market |
| Rights | ESHAR | The 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 (§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 1.01.
Entry into a Material Definitive Agreement.
The information set forth in Item 5.03 below with respect to the Trust Amendment (as defined below) is incorporated by reference into this Item 1.01.
Item 3.03 Material
Modifications to Rights of Security Holders.
The disclosure set forth below in Items 5.03 and 5.07 of this Current Report on Form 8-K is incorporated by reference herein.
Item 5.03. Amendmentsto Articles of Incorporation or Bylaws; Change in Fiscal Year.
On December 3, 2024, ESH Acquisition Corp. (the “Company”) held a special meeting of stockholders (the “Special Meeting”). At the Special Meeting, holders of 13,588,442 of the Company’s shares of common stock were represented in person or by proxy, which represented approximately 92.68% of the shares of common stock issued and outstanding and entitled to vote as of the record date of October 31, 2024.
At the Special Meeting, the Company’s stockholders approved a proposal to amend the Company’s Amended and Restated Certificate of Incorporation to provide the Company with the right to extend the date by which the Company must consummate its initial business combination (the “Business Combination”), for up to 12 additional one-month periods after December 16, 2024 (and ultimately no later than December 16, 2025) (the “Extension Amendment” and, such proposal, the “Extension Amendment Proposal”). The Company’s shareholders also approved a proposal to amend the Investment Management Trust Agreement, dated June 13, 2023, by and between the Company and Continental Stock Transfer & Trust Company, as trustee (“Continental”), to give the Company the right to extend the date on which Continental must liquidate the Trust Account established in connection with the Company’s initial public offering if the Company has not completed its initial business combination, for up to 12 additional one-month periods after December 16, 2024 (and ultimately no later than December 16, 2025) (the “Trust Amendment” and, such proposal, the “Trust Amendment Proposal”).
The Company filed the Extension Amendment with the Secretary of State of the State of Delaware on December 4, 2024.
The foregoing description of the Extension Amendment and the Trust Amendment is qualified in its entirety by the full texts of the Extension Amendment and the Trust Amendment, which are filed as Exhibit 3.1 and Exhibit 10.1 hereto, respectively, and incorporated herein by reference.
Item 5.07. Submission of Matters to a Vote of Security Holders.
The vote tabulation for the Extension Amendment Proposal and the Trust Amendment Proposal is set forth below.
Approval of Proposal 1-Extension Amendment Proposal
| Votes For | Votes Against | Abstentions |
|---|---|---|
| 10,154,418 | 3,434,024 | 0 |
Approval of Proposal 2-Trust Amendment Proposal
| Votes For | Votes Against | Abstentions |
|---|---|---|
| 10,154,418 | 3,434,024 | 0 |
A proposal to adjourn the Special Meeting to a later date was not presented because there were sufficient votes to approve the Extension Amendment Proposal and the Trust Amendment Proposal.
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Item 8.01. Other Events.
On December 2, 2024, ESH Acquisition Sponsor LLC (the “Sponsor”) elected to convert 2,865,000 of the 2,875,000 shares of Class B common stock held by the Sponsor into 2,865,000 shares of Class A common stock pursuant to Section 4.3(b)(i) of Article IV of the Company’s existing Amended and Restated Certificate of Incorporation (such shares the “Converted Shares” and such conversion the “Conversion”). The Conversion is effective as of December 2, 2024.
The Converted Shares are subject to the same restrictions as applied to the Class B founder shares before the Conversion, including, among other things, certain transfer restrictions, waiver of redemption rights and the obligation to vote in favor of an initial business combination as described in the prospectus for the Company’s initial public offering. The Sponsor, with respect to itself, acknowledged that it has no right, title, interest or claim of any kind in or to any monies held in the trust account or any other asset of the Company as a result of any liquidation of the Company with respect to the Converted Shares held by it.
In connection with the votes to approve the Extension Amendment Proposal and the Trust Amendment Proposal, the holders of 10,760,119 shares of Class A common stock properly exercised their right to redeem their shares for cash.
After giving effect to the redemptions and Conversion described above, there will be (i) an aggregate of 3,892,381 shares of Class A common stock outstanding, comprised of 1,027,381 shares of Class A common stock held by public shareholders and 2,865,000 shares of Class A common stock that were converted from the Class B founder shares, and (ii) 10,000 remaining Class B founder shares.
Forward-Looking Statements
This Current Report on Form 8-K contains certain forward-looking statements within the meaning of the federal securities laws. These forward-looking statements generally are identified by the words “believe,” “project,” “expect,” “anticipate,” “estimate,” “intend,” “strategy,” “future,” “opportunity,” “plan,” “may,” “should,” “will,” “would,” “will be,” “will continue,” “will likely result,” and similar expressions. Forward-looking statements are predictions, projections and other statements about future events that are based on current expectations and assumptions and, as a result, are subject to risks and uncertainties. Forward-looking statements speak only as of the date they are made. Readers are cautioned not to put undue reliance on forward-looking statements, and the Company assumes no obligation and does not intend to update or revise these forward-looking statements, whether as a result of new information, future events, or otherwise.
The Company cautions that the foregoing list of factors is not exclusive. The Company cautions readers not to place undue reliance upon any forward-looking statements, which speak only as of the date made. For information identifying important factors that could cause actual results to differ materially from those anticipated in the forward-looking statements, please refer to the Risk Factors section of the Company’s Annual Report on Form 10-K filed with the SEC. The Company’s securities filings can be accessed on the EDGAR section of the SEC’s website at www.sec.gov. Except as expressly required by applicable securities law, the Company disclaims any intention or obligation to update or revise any forward-looking statements whether as a result of new information, future events or otherwise.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits
| ExhibitNo. | Description |
|---|---|
| 3.1 | Amendment to the Amended and Restated Certificate of Incorporation of ESH Acquisition Corp., dated December 4, 2024 |
| 10.1 | Amendment No. 1 to Investment Management Trust Agreement, dated December 4, 2024 |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Date: December 6, 2024 | ESH ACQUISITION CORP. | |
|---|---|---|
| By: | /s/ James<br> Francis | |
| Name: | James Francis | |
| Title: | Chief Executive Officer |
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Exhibit 3.1
**AMENDMENT TO THEAMENDED AND RESTATEDCERTIFICATE OF INCORPORATION OFESH ACQUISITION CORP.**December 4, 2024
ESH 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 “ESH Acquisition Corp.”<br>The original certificate of incorporation was filed with the Secretary of State of the State of Delaware on November 17, 2021. The<br>Amended and Restated Certificate of Incorporation was filed with the Secretary of State of Delaware on June 13, 2023 (the “Amended<br>and Restated Certificate”). |
|---|---|
| 2. | This Amendment to the Amended and Restated Certificate amends<br>the Amended and Restated Certificate. |
| --- | --- |
| 3. | This Amendment to the Amended and Restated Certificate was duly<br>approved by the Board of Directors of the Corporation and the stockholders of the Corporation in accordance with Section 242 of<br>the General Corporation Law of the State of Delaware. |
| --- | --- |
| 4. | The text of Section 9.1(b) of Article IX is hereby<br>amended and restated to read in full 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, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on May 26, 2022, 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 (the “Trust Agreement”). Except for the withdrawal of interest to pay franchise and income taxes (less up to $100,000 of interest to pay dissolution expenses), none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination by December 16, 2024, as may be extended by the Corporation for up to 12 additional one-month periods after December 16, 2024 (ultimately no later than December 16, 2025) under the provisions of Section 9.2(d), if applicable, and (iii) the redemption of Offering Shares in connection with a vote seeking to amend any provisions of this Amended and Restated Certificate relating to stockholders’ rights or any pre-initial Business Combination activity (as described in Section 9.7). Holders of shares of Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are the Sponsor or officers or directors of the Corporation, or any affiliates of any of the foregoing) are referred to herein as “Public Stockholders.”
| 5. | The text of Section 9.2(d) of Article IX is hereby<br>amended and restated to read in full as follows: |
|---|
(d) In the event that the Corporation has not consummated an initial Business Combination by December 16, 2024 (as may be extended by the Corporation as set forth below), the Corporation shall (i) cease all operations except for the purpose of winding up, (ii) as promptly as reasonably possible but not more than ten 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 interest not previously released to the Corporation to pay its franchise and income taxes (less up to $100,000 of interest to pay dissolution expenses), 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 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 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 of this Amended and Restated Certificate, in the event that the Corporation has not consummated an initial Business Combination by December 16, 2024, the Corporation may, without another stockholder vote, elect to extend the date to consummate the Business Combination for up to 12 additional one-month periods (ultimately no later than December 16, 2025).
| 6. | The text of Section 9.7 of Article IX is hereby amended<br>and restated to read in full as follows: |
|---|
Additional Redemption Rights. If, in accordance with Section 9.l(a), any amendment is made to this Amended and Restated Certificate (a) to modify the substance or timing of the Corporation’s obligation to redeem 100% of the Offering Shares if the Corporation has not consummated an initial Business Combination by December 16, 2024 (which date may be extended by the Corporation for up to 12 additional one-month periods (ultimately no later than December 16, 2025) under the provisions of Section 9.2(d), if applicable) or (b) with respect to any other material provisions of this Amended and Restated Certificate 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 not previously released to the Corporation to pay its franchise and income taxes, divided by the number of then outstanding Offering Shares; provided, however, that any such amendment will be voided, and this Article IX will remain unchanged, if any stockholders who wish to redeem are unable to redeem due to the Redemption Limitation.
IN WITNESS WHEREOF, ESH Acquisition Corp. has caused this Amendment to the Amended and Restated Certificate to be duly executed in its name and on its behalf by an authorized officer as of the date first set above.
| ESH ACQUISITION CORP. | |
|---|---|
| By: | /s/ James Francis |
| Name: | James Francis |
| Title: | Chief Executive Officer |
Exhibit 10.1
AMENDMENT NO. 1 TO INVESTMENT MANAGEMENT
TRUST AGREEMENT
THIS AMENDMENT NO. 1 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment”) is made as of December 4, 2024, by and between ESH Acquisition Corp., a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”). Capitalized terms contained in this Amendment, but not specifically defined in this Amendment, shall have the meanings ascribed to such terms in the Investment Management Trust Agreement made effective as of June 13, 2023, by and between the Company and the Trustee (the “Original Agreement”).
WHEREAS, the Company and the Trustee entered into the Original Agreement on June 13, 2023;
WHEREAS, Section 1(i) of the Original 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 December 3, 2024, the Company’s stockholders approved (i) a proposal to give the Company the right to extend the date before which the Company must complete an initial Business Combination from December 16, 2024 for up to 12 additional one-month periods (ultimately no later than December 16, 2025) and (ii) give the Company the right to extend the date on which the Trustee must liquidate the Trust Account if the Company has not completed its initial Business Combination by December 16, 2024, for up to 12 additional one-month periods (and ultimately no later than December 16, 2025) (collectively, the “Extension”);
WHEREAS, holders of at least sixty-five percent (65%) of the issued and outstanding shares of Common Stock and Class B Common Stock, voting as a single class, approved the Extension Amendment and the Trust Amendment; and
WHEREAS, the parties desire to amend the Original Agreement to, among other things, reflect amendments to the Original Agreement contemplated by the Trust Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
- Amendment to Trust Agreement. Section 1(i) of the Original 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, 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 Exhibit A, acknowledged and agreed to by the Representative and the Co-Manager, 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, only as directed in the Termination Letter and the other documents referred to therein, or (y) upon the date which is the later of (1) December 16, 2024, as may be extended by the Company for up to 12 additional one-month periods (ultimately no later than December 16, 2025) (any such extended date, the “Extended Date”) upon the deposit into the Trust Account of the lesser of (x) $30,000 or (y) $0.05 per month for each public share that remains outstanding (and was not redeemed in connection with the Extension), for each calendar month (commencing on December 16, 2024 and on the 16^th^ day of each subsequent month) until the Extended Date, or portion thereof, that is needed to complete an initial Business Combination, such deposit(s) to be made within seven calendar days of December 16, 2024 or within seven calendar days of the 16^th^ day of such subsequent month, as applicable, 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 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 $100,000 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. It is acknowledged and agreed that there should be no reduction in the principal amount per share initially deposited in the Trust Account;”
- Exhibit B of the Trust Agreement is hereby amended and restated in its entirety as follows:
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company
One State Street, 30^th^ Floor
New York, NY 10004
Attn: Francis Wolf and Celeste Gonzalez
Re: Trust Account Termination Letter
Dear Mr. Wolf and Ms. Gonzalez:
Pursuant to Section 1(i) of the Investment Management Trust Agreement between ESH Acquisition Corp. (the “Company”) and Continental Stock Transfer & Trust Company (the “Trustee”), dated as of June 13, 2023 (the “Trust Agreement”), this is to advise you that the Company has been unable to effect a business combination with a Target Business within the time frame specified in the Company’s amended and restated certificate of incorporation, as described in the Company’s Prospectus relating to the Offering. Capitalized terms used but not defined herein shall have the meanings set forth in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to liquidate all of the assets in the Trust Account and to transfer the total proceeds into a segregated account held by you on behalf of the Beneficiaries to await distribution to the Public Stockholders. The Company has selected [ ] (1) as the effective date for the purpose of determining when the Public Stockholders will be entitled to receive their share of the liquidation proceeds. You agree to be the Paying Agent of effective and, in your separate capacity as Paying Agent, agree to distribute said funds directly to the Company’s Public Stockholders in accordance with the terms of the Trust Agreement and the amended and restated certificate of incorporation of the Company. Upon the distribution of all the funds, net of any payments necessary for reasonable unreimbursed expenses related to liquidating the Trust Account, your obligations under the Trust Agreement shall be terminated, except to the extent otherwise provided in Section 1(i) of the Trust Agreement.
| (1) | December 16, 2024, which may be extended by the Company for<br>up to 12 additional one-month periods (ultimately no later than December 16, 2025) |
|---|---|
| Very truly yours, | |
| --- | |
| ESH Acquisition Corp. | |
| By: | |
| Name: | |
| Title: | |
| cc: | I-Bankers Securities, Inc. and Dawson James Securities, Inc. |
| --- | --- |
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- MiscellaneousProvisions.
3.1. Successors. All the covenants and provisions of this Amendment by or for the benefit of the Company or the Trustee shall bind and inure to the benefit of their permitted respective successors and assigns.
3.2. Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
3.3. Applicable Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York.
3.4. Counterparts. This Amendment may be executed in several original or facsimile counterparts, each of which shall constitute an original, and together shall constitute but one instrument.
3.5. Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
3.6. Entire Agreement. The Original Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
Continental Stock Transfer & Trust Company, as Trustee
| By: | /s/<br>Francis Wolf | |
|---|---|---|
| Name: | Francis Wolf | |
| Title: | Vice President | |
| ESH Acquisition Corp. | ||
| --- | --- | --- |
| By: | /s/<br>James Francis | |
| Name: | James Francis | |
| Title: | Chief Executive Officer |
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