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): February 10,
2023
Aesther
Healthcare Acquisition Corp.
(Exact
name of registrant as specified in its charter)
| Delaware |
|
001-40793 |
|
87-1309280 |
(State
or other jurisdiction
of
incorporation) |
|
(Commission
File Number) |
|
(I.R.S.
Employer
Identification
No.) |
515
Madison Avenue, 8th Floor – Suite 8078
New
York, New York
|
|
10022
|
| (Address
of principal executive offices) |
|
(Zip
Code) |
(646) 908-2659
(Registrant’s telephone number, including area code)
N/A
(Former name or former address, if changed since last report)
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:
| ☒ |
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 Class A Ordinary Share and one half of one Redeemable Warrant |
|
AEHAU |
|
The
Nasdaq Stock Market LLC |
| Class
A Ordinary Share, par value $0.0001 per share |
|
AEHA |
|
The
Nasdaq Stock Market LLC |
| Warrants,
each warrant exercisable for one Class A Ordinary Share at an exercise price of $11.50 |
|
AEHAW |
|
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
1.01 |
Entry
into a Material Definitive Agreement. |
On
August 31, 2022, Aesther Healthcare Acquisition Corp., a Delaware corporation (“Aesther”) entered into an Agreement
and Plan of Merger by and among Aesther, AHAC Merger Sub, Inc., a Delaware corporation and a wholly-owned subsidiary of Aesther (“Merger
Sub”), Aesther Healthcare Sponsor, LLC, Aesther’s sponsor (the “Sponsor”), in its capacity as purchaser
representative, Ocean Biomedical, Inc., a Delaware corporation (“Ocean Biomedical”), and Dr. Chirinjeev Kathuria,
in his capacity as seller representative (as may be amended and/or restated from time to time, the “Merger Agreement”),
pursuant to which, among other things, the parties will effect the merger of Merger Sub with and into Ocean Biomedical, with Ocean Biomedical
continuing as the surviving entity (the “Merger”), as a result of which all of the issued and outstanding capital
stock of Ocean Biomedical shall be exchanged for shares of Class A common stock, par value $0.0001 per share, of Aesther (the “Share
Exchange”) subject to the conditions set forth in the Merger Agreement, with Ocean Biomedical surviving the Share Exchange
as a wholly owned subsidiary of Aesther (the Share Exchange and the other transactions contemplated
by the Merger Agreement, together, the “Transaction”).
Backstop
Agreement
On February 10, 2023, Aesther
and Ocean Biomedical entered into an amended and restated OTC Equity Prepaid Forward Transaction (the “Backstop Agreement”)
with Vellar Opportunity Fund SPV LLC – Series 3 (“Vellar”), a copy of which is attached hereto as Exhibit
10.1 and is incorporated herein by reference. Capitalized terms used but not otherwise defined in this filing shall have the meaning
given to such terms in the Backstop Agreement. Pursuant to the Backstop Agreement, Vellar has agreed to support the Transaction by
purchasing up to 6,000,000 shares of Aesther Class A common stock in the open market for up to $60,000,000, including from other
Aesther stockholders that elected to redeem and subsequently revoked their prior elections to redeem their shares, following the expiration
of the Company’s redemption offer. Aesther has agreed to purchase those shares from Vellar on a forward basis. The purchase price
payable by the Company will include a prepayment in the amount of the redemption price per share. The Backstop Agreement matures on the
earlier to occur of (a) 3 years after the closing of the Merger Agreement or (b) the date specified by Vellar in a written notice delivered
at Vellar’s discretion if the VWAP of the shares during 30 out of 45 consecutive trading days is less than $4 per
share. In addition, Vellar shall receive $12,408,000 from the Trust Account and use it to purchase Share Consideration Shares
that otherwise would have been redeemed using funds from the Trust Account. These shares are not subject to the Backstop
Agreement. Aesther has the option to repurchase the Share Consideration Shares from Vellar at an aggregate price of $3,000,000
at any time during the first six months after the Prepayment Date.
If
an event occurs causing the VWAP Price of Aesther shares to be at or above $20.00 per share for any 30 trading days during a 45 consecutive
trading day-period and the aggregate trading volume in respect of such shares during the same 20-day period is at least the product of
(a) three and (b) the difference of (x) the Number of Shares and (y) the Terminated Shares (a “Counterparty
VWAP Trigger Event”), then Aesther can notify Vellar of such event an cause the Maturity Date of the Backstop Agreement
to occur.
The
Backstop Agreement calls for the adjustment of the Reset Price on the first scheduled trading day of each month commencing on the first
calendar month following the closing of the Business Combination to be the lowest of (a) the then-current Reset Price, (b) the Initial
Price and (c) the VWAP Price of the Shares of the last ten trading days of the prior calendar month, but not lower than $10.34. The Reset
Price may be reduced further in connection with a dilutive offering undertaken by Aesther. The Reset Price is relevant to the provision
entitling Aesther to terminate the Backstop Agreement early (in whole or in part) and require Vellar to pay Aesther an amount equal to
the product of (x) the number of shares Aesther elects to terminate from the forward transaction and (y) the Reset Price as of the termination
date.
At maturity, any remaining shares
subject to the Backstop Agreement will be finally purchased by Aesther at maturity for an
additional $2.50 per share. During the term of the Backstop Agreement, Vellar may elect to
sell some or all of the shares subject to the Backstop Agreement after which those shares
will no longer be subject to the Backstop Agreement, and in such event Vellar will repay the
Company with a portion of the sale proceeds. If the Backstop Agreement is terminated after
the business combination fails to close, except due to regulatory items or a material breach by Vellar, Aesther will be obligated to
pay Vellar a break-up fee equal to $1 million and certain fees and expenses.
Forward-Looking
Statements
This
filing contains certain statements that are not historical facts and are forward-looking statements within the meaning of the federal
securities laws with respect to the proposed Transaction between Aesther and Ocean Biomedical, including without limitation statements
regarding the anticipated benefits of the proposed Transaction, the anticipated timing of the proposed Transaction, the implied enterprise
value, future financial condition and performance of Ocean Biomedical and the combined company after the closing and expected financial
impacts of the proposed Transaction, the satisfaction of closing conditions to the proposed Transaction, the level of redemptions of
Aesther’s public stockholders and the products and markets and expected future performance and market opportunities of Ocean Biomedical.
These forward-looking statements generally are identified by the words “believe,” “project,” “expect,”
“anticipate,” “estimate,” “intend,” “think,” “strategy,” “future,”
“opportunity,” “potential,” “plan,” “seeks,” “may,” “should,”
“will,” “would,” “will be,” “will continue,” “will likely result,” and similar
expressions, but the absence of these words does not mean that a statement is not forward-looking. 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.
These
forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on as,
a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult
or impossible to predict and will differ from assumptions. Many factors could cause actual future events to differ materially from the
forward-looking statements in this communication, including but not limited to: (i) the risk that the proposed Transaction may not be
completed in a timely manner or at all, which may adversely affect the price of Aesther’s securities; (ii) the risk that the proposed
Transaction may not be completed by Aesther’s business combination deadline; (iii) the failure to satisfy the conditions to the
consummation of the proposed Transaction, including the approval of the Merger Agreement by the stockholders of Aesther, the satisfaction
of the minimum net tangible assets and minimum cash at closing requirements and the receipt of certain governmental, regulatory and third
party approvals; (iv) the occurrence of any event, change or other circumstance that could give rise to the termination of the Merger
Agreement; (v) the failure to achieve the minimum amount of cash available following any redemptions by Aesther’s stockholders;
(vi) redemptions exceeding anticipated levels or the failure to meet The Nasdaq Global Market’s initial listing standards in connection
with the consummation of the proposed Transaction; (vii) the effect of the announcement or pendency of the proposed Transaction on Ocean
Biomedical’s business relationships, operating results, and business generally; (viii) risks that the proposed Transaction disrupts
current plans and operations of Ocean Biomedical; (ix) the outcome of any legal proceedings that may be instituted against Ocean Biomedical
or against Aesther related to the Merger Agreement or the proposed Transaction ; (x) changes in the markets in which Ocean Biomedical’s
competes, including with respect to its competitive landscape, technology evolution, or regulatory changes; (xi) changes in domestic
and global general economic conditions; (xii) risk that Ocean Biomedical may not be able to execute its growth strategies; (xiii) risks
related to the ongoing COVID-19 pandemic and response, including supply chain disruptions; (xiv) risk that Ocean Biomedical may not be
able to develop and maintain effective internal controls; (xv) costs related to the proposed Transaction and the failure to realize anticipated
benefits of the proposed Transaction or to realize estimated pro forma results and underlying assumptions, including with respect to
estimated stockholder redemptions; (xvi) the ability to recognize the anticipated benefits of the proposed Transaction and to achieve
its commercialization and development plans, and identify and realize additional opportunities, which may be affected by, among other
things, competition, the ability of Ocean Biomedical to grow and manage growth economically and hire and retain key employees; (xvii)
the risk that Ocean Biomedical may fail to keep pace with rapid technological developments to provide new and innovative products and
services or make substantial investments in unsuccessful new products and services; (xviii) the ability to develop, license or acquire
new therapeutics; (xix) the risk that Ocean Biomedical will need to raise additional capital to execute its business plan, which may
not be available on acceptable terms or at all; (xx) the risk that Ocean Biomedical, post-combination, experiences difficulties in managing
its growth and expanding operations; (xxi) the risk of product liability or regulatory lawsuits or proceedings relating to Ocean Biomedical’s
business; (xxii) the risk of cyber security or foreign exchange losses; (xxiii) the risk that Ocean Biomedical is unable to secure or
protect its intellectual property; and (xxiv) those factors discussed in Aesther’s filings with the SEC and that are contained
in the Definitive Proxy Statement relating to the proposed Transaction.
The
foregoing list of factors is not exhaustive. You should carefully consider the foregoing factors and the other risks and uncertainties
that are described in Aesther’s Annual Report on Form 10-K for the year ended December 31, 2021 and Aesther’s Quarterly Report
on Form 10-Q for the quarter ended September 30, 2022, and which are described in the “Risk Factors” section of the Definitive
Proxy Statement, and other documents to be filed by Aesther from time to time with the SEC and which are and will be available at www.sec.gov.
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. 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 while Ocean Biomedical and Aesther may elect to update these forward-looking
statements at some point in the future, they assume no obligation to update or revise these forward-looking statements, whether as a
result of new information, future events or otherwise, except as required by applicable law. Neither Ocean Biomedical nor Aesther gives
any assurance that Ocean Biomedical or Aesther, or the combined company, will achieve its expectations. These forward-looking statements
should not be relied upon as representing Aesther’s or Ocean Biomedical’s assessments as of any date subsequent to the date
of this filing. Accordingly, undue reliance should not be placed upon the forward-looking statements.
Additional
Information and Where to Find It
In
connection with the Merger Agreement and the proposed transaction, Aesther has filed with the U.S. Securities and Exchange Commission
(the “SEC”) a Definitive Proxy Statement on Schedule 14A relating to the proposed transaction. This communication
is not intended to be, and is not, a substitute for the Definitive Proxy Statement or any other document that Aesther has filed or may
file with the SEC in connection with the proposed transaction. Aesther’s stockholders and other interested persons are advised
to read the Definitive Proxy Statement and the amendments thereto, and documents incorporated by reference therein filed in connection
with the proposed transaction, as these materials will contain important information about Aesther, Ocean Biomedical, the Merger Agreement,
and the proposed transaction. The Definitive Proxy Statement and other relevant materials for the proposed transaction will be mailed
to stockholders of Aesther as of a record date to be established for voting on the proposed transaction. Before making any voting or
investment decision, investors and stockholders of Aesther are urged to carefully read the entire Definitive Proxy Statement and any
other relevant documents filed with the SEC, as well as any amendments or supplements to these documents, because they will contain important
information about the proposed Transaction. Aesther investors and stockholders will also be able to obtain copies of the Definitive Proxy
Statement and other documents filed with the SEC that will be incorporated by reference therein, without charge, at the SEC’s website
at www.sec.gov, or by directing a request to: Aesther Healthcare Acquisition Corp., 515 Madison Avenue, Suite 8078, New York, NY 10022,
Attention: Mr. Suren Ajjarapu.
Participants
in the Solicitation
Aesther,
Ocean Biomedical and their respective directors, executive officers, other members of management and employees may be deemed participants
in the solicitation of proxies from Aesther’s stockholders with respect to the proposed transaction. Investors and security holders
may obtain more detailed information regarding the names and interests in the proposed transaction of Aesther’s directors and officers
in Aesther’s filings with the SEC, including its most recent Annual Report on Form 10-K, the Definitive Proxy Statement, and other
documents filed with the SEC.
No
Offer or Solicitation
This
filing is not a solicitation of a proxy, consent or authorization with respect to any securities or in respect of the proposed transaction
and will not constitute an offer to sell or the solicitation of an offer to buy any securities, nor will there be any sale of securities
in any states or jurisdictions in which such offer, solicitation or sale would be unlawful prior to registration or qualification under
the securities laws of any such jurisdiction.
Item
9.01. Financial Statements and Exhibits.
The
following exhibits are being filed herewith:
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.
| |
|
Aesther
HEALTHCARE ACQUISITION CORP.
|
| |
|
|
| |
By: |
/s/
Suren Ajjarapu |
| |
Name: |
Suren
Ajjarapu |
| |
Title: |
Chief
Executive Officer |
Date:
February 10, 2023
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