Second Amendment to Investment Management Trust Agreement dated November 6, 2023
Exhibit 10.1
SECOND AMENDMENT TO THE
INVESTMENT MANAGEMENT TRUST AGREEMENT
This Amendment No. 2 (this “Second Amendment”), dated as of November 6, 2023, to the Investment Management Trust Agreement (as defined below) is made by and between Digital Health 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 November 3, 2021 and as amended on October 26, 2022 (as amended, 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 the 2023 annual stockholder meeting of the Company held on November 6, 2023, the Company’s stockholders approved (i) a proposal to amend the Company’s amended and restated certificate of incorporation, as amended on October 26, 2022 and September 8, 2023 (as amended, the “A&R COI”) extending the date by which the Company has to consummate a business combination from November 8, 2023 up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months to November 8, 2024 or such earlier date as determined by the Company’s board of directors (the “Extended Date”); and (ii) a proposal to amend the Trust Agreement to extend the business combination period from November 8, 2023 to up to four (4) times, each by an additional three (3) months, for an aggregate of twelve (12) additional months to November 8, 2024 and to update related defined terms
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, Chief Financial Officer, President, Vice President, Secretary or Chairman of the board of directors of the Company (the “Board”) or other authorized officer of the Company, 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 $100,000 of interest that may be released to the Company to pay dissolution expenses in the case of a Termination Letter in the form of Exhibit B hereto), 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) 24 months after the closing of the Offering, or up to 36 months after the closing of the Offering if the Company were to exercise the four (4) three-month extensions described in the Company’s amended and restated certificate of incorporation (as amended, the “Amended and Restated Certificate of Incorporation”), 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 form of letter attached hereto 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; 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;”
| 2. | Section 1(m) of the Trust Agreement is hereby amended and restated in its entirety as follows: |
“(m) Upon receipt of an extension letter (“Extension Letter”) substantially similar to Exhibit E hereto at least one business day prior to the application termination date (as may be extended in accordance with Section 1(i), signed on behalf of the Company by an executive officer, to follow the instructions set forth in the Extension Letter.”
| 3. | The following defined terms in the Trust Agreement shall be amended and restated in their entirety: |
“Trust Agreement” shall mean that certain Investment Management Trust Agreement dated November 3, 2021, between Digital Health Acquisition Corp. and Continental Stock Transfer & Trust Company, as amended on October 26, 2022 and November 6, 2023, and as may be further amended from time to time.
| 4. | Exhibit E to the Trust Agreement is hereby amended and restated in its entirety as below: |
[Letterhead of Company]
[Insert date]
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 Digital Health Acquisition Corp. (“Company”) and Continental Stock Transfer & Trust Company (“Trustee”), dated as of November 3, 2021, as amended on October 26, 2022 and November 6, 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 Businesses for an additional [three (3)] months, 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
| Very truly yours, | ||
| DIGITAL HEALTH ACQUISITION CORP. | ||
| By: | ||
| Name: | ||
| Title: | ||
cc: A.G.P./Alliance Global Partners
| 5. | All other provisions of the Trust Agreement shall remain unaffected by the terms hereof. |
| 6. | This Second 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 Second Amendment. |
| 7. | This Second Amendment is intended to be in full compliance with the requirements for a Second 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. |
| 8. | This Second 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 Second Amendment to the Investment Management Trust Agreement as of the date first written above.
CONTINENTAL STOCK TRANSFER & TRUST COMPANY, as Trustee
| By: | /s/ Francis Wolf | |
| Name: | Francis Wolf | |
| Title: | Vice President |
DIGITAL HEALTH ACQUISITION CORP.
| By: | /s/ Scott Wolf | |
| Name: | Scott Wolf | |
| Title: | Chief Executive Officer |
