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Section 1: 8-K (FORM 8-K)

 

 

 

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): April 16, 2020

 

GRAF INDUSTRIAL CORP.

(Exact name of registrant as specified in its charter)

 

Delaware 001-38703 83-1138508
(State or other jurisdiction
of incorporation)
(Commission
File Number)
(IRS Employer
Identification No.)

 

118 Vintage Park Blvd., Suite W-22

Houston, Texas 77070

(Address of principal executive offices, including zip code)

 

Registrant’s telephone number, including area code: (281) 515-3517

 

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 common stock and one redeemable warrant   GRAF.U   The New York Stock Exchange
Common stock, $0.0001 par value per share   GRAF   The New York Stock Exchange
Warrants, each exercisable for three-quarters of one share of common stock   GRAF WS   The 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. ¨

 

 

 

 

 

 

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

 

On April 16, 2020, Graf Industrial Corp. (the “Company”) filed with the Secretary of State of the State of Delaware, an amendment (the “Extension Amendment”) to the Company’s second amended and restated certificate of incorporation to extend the date by which the Company has to consummate a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses from April 18, 2020 to July 31, 2020 (the “Extension”). The Company’s stockholders approved the Extension Amendment at a special meeting in lieu of the 2020 annual meeting of stockholders of the Company (the “Special Meeting”) on April 16, 2020. The foregoing description of the Extension Amendment is qualified in its entirety by the full text of the Extension Amendment, filed as Exhibit 3.1 hereto and incorporated herein by reference.

 

Item 5.07Submission of Matters to a Vote of Security Holders.

 

On April 16, 2020, at the Special Meeting, a total of 24,965,099 (81.93%) of the Company’s issued and outstanding shares of common stock held of record as of March 19, 2020, the record date for the Special Meeting, were present either in person or by proxy, which constituted a quorum. The Company’s stockholders voted on the following proposals at the Special Meeting, each of which were approved. The final vote tabulation for each proposal is set forth below.

 

1.To approve and adopt the Extension Amendment.

 

Votes For   Votes Against   Abstentions   Broker Non-Votes
24,946,199   18,900   0   0

 

2.To elect Julie J. Levenson and Sabrina McKee to serve as Class I directors on the Company’s board of directors until the 2023 annual meeting of stockholders or until their respective successors are elected and qualified.

 

 

Nominee

  Votes For   Votes Withheld   Broker Non-Votes
Julie J. Levenson   24,918,683   46,416   0
Sabrina McKee   24,243,499   721,600   0

 

3.To approve the adjournment of the Special Meeting to a later date or dates, if necessary or appropriate, 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 Extension Amendment proposal.

 

Votes For   Votes Against   Abstentions   Broker Non-Votes
24,918,683   46,416   0   0

  

Although this proposal would have received sufficient votes to be approved, no motion to adjourn was made because the adjournment of the Special Meeting was determined not to be necessary or appropriate.

 

After giving effect to the redemption of 12,921,275 shares of the Company’s common stock in connection with the Extension, there is approximately $117.1 million remaining in the Company’s trust account to consummate a business combination.

 

Item 9.01Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit
No.
  Description
3.1   Amendment to Second Amended and Restated Certificate of Incorporation of Graf Industrial Corp.

 

 

 

 

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.

 

  GRAF INDUSTRIAL CORP.  
       
  By: /s/ James A. Graf  
    Name: James A. Graf  
    Title: Chief Executive Officer  
       
Dated: April 16, 2020      

 

 

 

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Section 2: EX-3.1 (EXHIBIT 3.1)

 

Exhibit 3.1

 

AMENDMENT TO THE SECOND
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF GRAF INDUSTRIAL CORP.

 

April 16, 2020

 

The undersigned, being a duly authorized officer of Graf Industrial Corp. (the “Corporation”), a corporation existing under the laws of the State of Delaware, does hereby certify as follows:

 

1.The name of the Corporation is “Graf Industrial Corp.”.

 

2.The Corporation’s original certificate of incorporation was filed with the Secretary of State of the State of Delaware on June 26, 2018. An amended and restated certificate of incorporation was filed with the Secretary of State of the State of Delaware on July 18, 2018. A second amended and restated certificate of incorporation (the “Second Amended and Restated Certificate”) was filed with the State of Delaware on October 15, 2018.

 

3.This Amendment to the Second Amended and Restated Certificate (this “Amendment”) amends the Second Amended and Restated Certificate.

 

4.This Amendment 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.

 

5.This Amendment shall become effective on the date of filing with the Secretary of State of the State of Delaware.

 

6.The text of Section 9.1(b) of Article IX of the Second Amended and Restated Certificate is hereby 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, as initially filed with the U.S. Securities and Exchange Commission on September 18, 2018, 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, 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 31, 2020 and (iii) the redemption of shares in connection with a vote seeking to amend any provisions of the Second Amended and Restated Certificate relating to stockholders’ rights or 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 affiliates of any of the foregoing) are referred to herein as “Public Stockholders.

 

 

 

 

7.The text of Section 9.2(c) of Article IX of the Second Amended and Restated Certificate is hereby amended and restated to read in full as follows:

 

“(d) In the event that the Corporation has not consummated an initial Business Combination by July 31, 2020, 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 such net 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.”

 

8.The text of Section 9.7 of Article IX of the Second Amended and Restated Certificate is hereby amended and restated to read in full as follows:

 

“Section 9.7. Additional Redemption Rights. If, in accordance with Section 9.1(a), any amendment is made to Section 9.2(c) 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 July 31, 2020 or to provide for redemption in connection with an initial Business Combination, 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, Graf Industrial Corp. has caused this Amendment to be duly executed and acknowledged in its name and on its behalf by an authorized officer as of the date first set forth above.

 

  GRAF INDUSTRIAL CORP.  
       
       
  By: /s/ James A. Graf  
    Name:  James A. Graf  
    Title:    Chief Executive Officer  

 

 

 

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