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): September 16, 2024
WINVEST ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware | | 001-40796 | | 86-2451181 |
(State or other jurisdiction
of incorporation or organization) | | (Commission File Number) | | (I.R.S. Employer Identification Number) |
125 Cambridgepark Drive, Suite 301
Cambridge, Massachusetts
02140
(Address of principal executive offices)
Registrant’s telephone number, including area code: (617) 658-3094
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, one redeemable Warrant, and one right | | WINVU | | The Nasdaq Stock Market LLC |
| Common Stock, par value $0.0001 per share | | WINV | | The Nasdaq Stock Market LLC |
| Warrants to acquire 1/2 of a share of Common Stock | | WINVW | | The Nasdaq Stock Market LLC |
| Rights to acquire one-fifteenth of one share of Common Stock | | WINVR | | 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.
Business Combination Agreement
As previously disclosed, on May 9, 2024, WinVest Acquisition Corp. (“WinVest”) entered into a Business Combination Agreement (the “Original Business Combination Agreement,” and the original date of execution, the “Original Execution Date”), by and among WinVest, WinVest Merger Sub I, LLC, a Delaware limited liability company and wholly owned subsidiary of WinVest (“Merger Sub I”), WinVest Merger Sub II, LLC, a Delaware limited liability company and wholly owned subsidiary of WinVest (“Merger Sub II”), Xtribe P.L.C., a public limited company incorporated and registered in England and Wales with number 07878011 (“Xtribe PLC”), and Xtribe Group, LLC, a Delaware limited liability company and wholly-owned subsidiary of Xtribe PLC (“Xtribe Group”). On September 16, 2024, WinVest entered into an Amended and Restated Business Combination Agreement (the “A&R Business Combination Agreement”), by and among WinVest, WinVest (BVI) Ltd., a British Virgin Islands business company registered with company number 2157117 and a wholly owned subsidiary of WinVest (“WinVest BVI”), Xtribe PLC and Xtribe (BVI) Ltd., a British Virgin Islands business company registered with company number 2157137 and a wholly-owned subsidiary of Xtribe PLC (“Xtribe BVI,” and together with Xtribe PLC, “Xtribe”), which amends and restates the Original Business Combination Agreement in its entirety. Capitalized terms used and not otherwise defined in this Current Report on Form 8-K (this “Current Report”) have the meanings set forth in the A&R Business Combination Agreement. The A&R Business Combination Agreement and transactions contemplated therein (the “Transactions”) were approved by the board of directors of WinVest (the “WinVest Board”) and the board of directors of Xtribe PLC (the “Xtribe Board”).
The Mergers
The A&R Business Combination Agreement provides that, among other things and upon the terms and subject to the conditions thereof, the following transactions will occur (together with the Transactions and other agreements contemplated by the A&R Business Combination Agreement, the “Business Combination”):
(i) prior to the date of the closing of the Business Combination (the “Closing”), Xtribe PLC will (a) cause the conversion of all convertible securities, conversion rights or other similar rights, agreements, arrangements or commitments of any character relating to the issued or unissued capital stock of Xtribe or obligating Xtribe to issue or sell any shares of capital stock of, or other equity interests in, Xtribe outstanding prior to the Contribution (as defined below) into capital stock of, or other equity interests in, Xtribe (such transactions, the “Securities Conversion”), or (b) pay in full and extinguish the Existing Convertible Note (as defined in the A&R Business Combination Agreement), and promptly thereafter, pursuant to the terms of a Contribution and Reorganization Agreement in substantially the form attached to the A&R Business Combination Agreement (the “Contribution and Reorganization Agreement”), (i) contribute substantially all of its assets (including all the issued and outstanding stock of Xtribe USA Corp.) to the Company in exchange for 10,943,732 Xtribe BVI ordinary shares, no par value per share (“Xtribe BVI Ordinary Shares”), and the assumption by Xtribe BVI of certain of its liabilities (the “Contribution”); (ii) immediately following the Contribution, pursuant to the terms of a Share Purchase Agreement in substantially the form attached to the A&R Business Combination Agreement (the “Purchase Agreement”), sell one hundred percent (100%) of the issued and outstanding shares of Xtribe BVI to the shareholders of Xtribe PLC in proportion to their ownership interests in Xtribe PLC (the “Sale”), and (iii) acting through the Xtribe Board, thereafter apply for a voluntary strike off of Xtribe PLC pursuant to Part 31 of the United Kingdom Companies Act 2006 and take such other commercially reasonable actions to ensure the voluntary strike off is successful (the “Application for Strike Off” and, together with the Securities Conversion, the Contribution and the Sale, the “Pre-Closing Reorganization”) and on and subject to the strike off being successful, Xtribe PLC will be dissolved;
(ii) at the Closing, upon the terms and subject to the conditions of a plan of merger and the A&R Business Combination Agreement, and in accordance with the Delaware General Corporation Act and the BVI Companies Act, WinVest will merge with and into WinVest BVI (the “Reincorporation Merger”), whereupon the separate corporate existence of WinVest will cease and WinVest BVI shall continue as the surviving company of the Reincorporation Merger (WinVest BVI, in its capacity as the surviving company of the Reincorporation Merger, is sometimes referred to herein as the “Reincorporation Merger Surviving Company”);
(iii) promptly following the consummation of the Reincorporation Merger, upon the terms and subject to the conditions of the A&R Business Combination Agreement and a second plan of merger, and in accordance with the BVI Companies Act, Xtribe BVI will merge with and into the Reincorporation Merger Surviving Company (the “Acquisition Merger”), whereupon the separate corporate existence of Xtribe BVI will cease and the Reincorporation Merger Surviving Company shall continue as the surviving company of the Acquisition Merger (the “Surviving Company”);
(iv) as a result of the Acquisition Merger, (a) each Xtribe BVI Ordinary Share issued and outstanding as of immediately prior to the effective time of the Acquisition Merger (the “Acquisition Merger Effective Time”) shall be canceled and converted into the right to receive (X) that number of ordinary shares, with a par value of one ten-thousandth of one dollar ($0.0001) per share, of WinVest BVI (“WinVest BVI Ordinary Shares”) equal to the Per Share Exchange Ratio (as defined in the A&R Business Combination Agreement), and (Y) that number of Earnout Rights (as defined in the A&R Business Combination Agreement) equal to 6,000,000 divided by the number of Xtribe BVI Ordinary Shares outstanding immediately prior to the Acquisition Merger (excluding the Xtribe BVI Ordinary Shares of any holders who have waived in writing their right to receive Earnout Rights prior to the Acquisition Merger Effective Time), with each holder of such Xtribe BVI Ordinary Shares having the right to receive that number of WinVest BVI Ordinary Shares and that number of Earnout Shares (as defined in the A&R Business Combination Agreement); and
(v) pursuant to the A&R Business Combination Agreement, at the Closing, WinVest BVI shall deposit with Continental Stock Transfer & Trust Company, for the benefit of the holders of Xtribe BVI Ordinary Shares, (i) 9,133,204 WinVest BVI Ordinary Shares, plus (ii) a number of WinVest BVI Ordinary Shares equal to the quotient of (a) the aggregate amount of outstanding indebtedness owed under convertible notes that were converted prior to Closing, divided by (b) $10.00 (the “Conversion Stock Consideration”), provided that the Conversion Stock Consideration shall not exceed a maximum of 190,000 WinVest BVI Ordinary Shares, plus (iii) a number of WinVest BVI Ordinary Shares equal to the quotient of (a) the cash proceeds to the Xtribe BVI resulting from certain subscription agreements that may be entered into by investors, prior to the Closing, with Xtribe PLC, divided by (b) $10.00, plus (iv) and Earnout Rights to receive, if earned, up to 6,000,000 WinVest BVI Ordinary Shares.
The WinVest Board has (i) determined that it is advisable to enter into the A&R Business Combination Agreement and the documents contemplated thereby, (ii) approved the execution and delivery of the A&R Business Combination Agreement, the Transactions and the documents contemplated thereby, and (iii) recommended the adoption and approval of the A&R Business Combination Agreement, the Transactions and the other documents contemplated thereby by its stockholders.
Conditions to Closing
The A&R Business Combination Agreement is subject to the satisfaction or waiver of certain customary closing conditions, including, among others, (i) approval of the Business Combination, the Transactions and related agreements by the respective shareholders of WinVest and Xtribe, (ii) effectiveness of the registration statement on Form F-4 to be filed by WinVest, WinVest BVI and Xtribe in connection with the Business Combination (the “Registration Statement”); (iii) the absence of laws or governmental orders prohibiting the Business Combination, (iv) the receipt of certain required regulatory approvals, (v) the Surviving Company having at least $5,000,0001 of net tangible assets upon the Acquisition Merger Effective Time, (vi) WinVest having at least $15,000,000 of cash or cash equivalents after giving effect to the consummation of any exercise of redemption rights by stockholders of WinVest and payments made as a result thereof and prior to the payment of any Outstanding WinVest Transaction Expenses and Outstanding Company Transaction Expenses (as each such term is defined in the A&R Business Combination Agreement), (vii) customary bringdown of the representations, warranties and covenants of the parties and (viii) receipt of approval for listing on the Nasdaq Stock Market LLC of the WinVest BVI Ordinary Shares to be issued in connection with the Acquisition Merger.
Covenants
The A&R Business Combination Agreement contains additional covenants, including, among others, requiring (i) the parties to conduct their respective businesses in the ordinary course through the Closing, subject to certain exceptions, (ii) the parties to not initiate any negotiations or enter into any agreements for certain alternative transactions, (iii) WinVest and Xtribe BVI to prepare and WinVest, WinVest BVI and Xtribe to file the Registration Statement, which shall include a proxy statement/consent solicitation statement, and take certain other actions to obtain the requisite approval of WinVest stockholders of certain proposals regarding the Business Combination, (iv) the Company Signatories (as defined in the A&R Business Combination Agreement) to deliver true, correct and complete copies of the Required Financials (as defined in the A&R Business Combination Agreement) not later than 15 days from the date of the execution of the A&R Business Combination Agreement, and to make any necessary amendments, restatements or revisions to such so that they remain compliant through the date of completion of the offering pursuant to the Registration Statement and completion of the WinVest PIPE Investments (as defined in the A&R Business Combination Agreement) and/or Xtribe Private Placement Investments (as defined in the A&R Business Combination Agreement), as the case may be, (v) the parties to use reasonable best efforts to obtain necessary approvals from government agencies and (vi) Xtribe to consummate the (x) Securities Conversion, (y) the Contribution and (z) the Sale, and take all necessary or appropriate actions to accomplish the Pre-Closing Reorganization.
Representations and Warranties
The A&R Business Combination Agreement contains customary representations and warranties by Xtribe, WinVest and WinVest BVI. The representations and warranties of the respective parties to the A&R Business Combination Agreement will not survive the Closing.
Termination
The A&R Business Combination Agreement may be terminated at any time prior to the Closing (i) by mutual written consent of WinVest and Xtribe BVI, (ii) by either WinVest or Xtribe BVI if the Acquisition Merger Effective Time has not occurred by December 17, 2024, so long as the failure of a condition to be satisfied by such date is not principally caused by a breach by such party, (iii) by either WinVest or Xtribe BVI if any governmental order prohibiting the transaction has become final and nonappealable, (iv) by WinVest or Xtribe BVI if certain approvals of the stockholders of WinVest or Xtribe BVI are not obtained or (v) by WinVest or Xtribe BVI if the other party has breached the A&R Business Combination Agreement such that a closing condition would not be satisfied, subject to a 30 day cure period.
The foregoing description of the A&R Business Combination Agreement and the Transactions and documents contemplated thereby is not complete and is subject to and qualified in its entirety by reference to the A&R Business Combination Agreement, a copy of which is filed with this Current Report on Form 8-K as Exhibit 2.1, and the terms of which are incorporated by reference herein. The A&R Business Combination Agreement has been included to provide investors with information regarding its terms. It is not intended to provide any other factual information about WinVest, Xtribe or any of their respective affiliates. The representations, warranties, covenants and agreements contained in the A&R Business Combination Agreement were made only for purposes of the A&R Business Combination Agreement as of the specific dates therein, were solely for the benefit of the parties to the A&R Business Combination Agreement and may be subject to limitations agreed upon by the contracting parties, including being qualified by confidential disclosures made for the purposes of allocating contractual risk among the parties to the A&R Business Combination Agreement, instead of establishing these matters as facts, and may be subject to standards of materiality applicable to the contracting parties that differ from those applicable to investors. Investors are not third-party beneficiaries under the A&R Business Combination Agreement and should not rely on the representations, warranties, covenants and agreements or any descriptions thereof as characterizations of the actual state of facts or condition of the parties thereto or any of their respective subsidiaries or affiliates. Moreover, information concerning the subject matter of representations and warranties may change after the date of the A&R Business Combination Agreement, which subsequent information may or may not be fully reflected in WinVest’s public disclosures.
Additional Information and Where to Find It
This Current Report on Form 8-K relates to a proposed transaction between Xtribe and WinVest. This Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the potential transaction and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of Xtribe, the combined company or WinVest, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offer of securities shall be made except by means of a prospectus meeting the requirements of the Securities Act of 1933, as amended. WinVest, WinVest BVI and Xtribe currently intend to file the Registration Statement with the Securities and Exchange Commission (the “SEC”), which will include a document that serves as a prospectus and proxy statement of WinVest, referred to as a proxy statement/prospectus, and certain other related documents. A proxy statement/prospectus will be sent to all WinVest stockholders. WinVest also will file other documents regarding the proposed transaction with the SEC. Before making any voting decision, investors and security holders of WinVest are urged to read the Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they will contain important information about the proposed transaction.
Investors and security holders will be able to obtain free copies of the Registration Statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by WinVest through the website maintained by the SEC at www.sec.gov.
Participants in the Solicitation
WinVest and Xtribe, certain stockholders of WinVest, and WinVest’s and Xtribe’s respective directors, executive officers and employees and other persons, may be deemed to be participants in the solicitation of proxies from the holders of WinVest Common Stock in connection with the proposed transaction. Information about WinVest’s directors and executive officers and their ownership of WinVest Common Stock is set forth in WinVest’s 2023 Form 10-K (defined below), as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of that filing. Other information regarding the identity of and interests of the participants in the proxy solicitation, including Xtribe’s directors and executive officers, will be included in the Registration Statement pertaining to the proposed transaction when it is filed with the SEC. These documents can be obtained free of charge from the sources indicated above.
Cautionary Statement Regarding Forward-Looking Statements
Certain statements made in this Current Report on Form 8-K are “forward looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Statements that are not historical facts, including statements about the proposed transaction described herein, and the parties’ perspectives and expectations, are forward-looking statements. The words “anticipate,” “expect,” “believe,” “estimate,” “intend,” “may,” “plan,” “proposed,” “seek,” “will,” “would,” and similar expressions indicate forward-looking statements. These forward-looking statements are not guarantees of future performance and are subject to various risks, uncertainties and assumptions (including assumptions about general economic, market, industry and operational factors), known or unknown, which could cause the actual results to vary materially from those indicated or anticipated.
Such risks and uncertainties include, but are not limited to: risks related to the expected timing and likelihood of completion of the proposed transaction, including the risk that the proposed transaction may not close due to the failure to receive the required securityholder approvals or due to one or more other closing conditions to the transaction not being satisfied or waived, such as regulatory approvals not being obtained, on a timely basis or otherwise, or that a governmental entity prohibited, delayed or refused to grant approval for the consummation of the transaction or required certain conditions, limitations or restrictions in connection with such approvals; the risk that WinVest may not receive the benefits of the proposed transaction; WinVest’s or the combined company’s inability to meet Nasdaq’s listing standards; the costs related to the proposed transaction; Xtribe’s ability to manage growth; Xtribe’s ability to execute its business plan; risks related to the ability of WinVest and Xtribe to successfully integrate their respective businesses; general economic and market conditions; the occurrence of any event, change or other circumstances that could give rise to the termination of the applicable transaction agreements; the risk that there may be a material adverse change with respect to the financial position, performance, operations or prospects of Xtribe or WinVest; risks related to disruption of management time from ongoing business operations due to the proposed transaction; the risk that any announcements relating to the proposed transaction could have adverse effects on the market price of WinVest’s securities; the risk that the proposed transaction and its announcement could have an adverse effect on the ability of Xtribe to retain customers and retain and hire key personnel and maintain relationships with their suppliers and customers and on their operating results and businesses generally; and risks relating to the combined company’s ability to enhance its services and products, execute its business strategy, expand its customer base and maintain stable relationship with its business partners.
A further list and description of risks and uncertainties can be found in WinVest’s Annual Report on Form 10-K for the fiscal year ended December 31, 2023, filed with the SEC on April 15, 2024 (the “2023 Form 10-K”), and in the Registration Statement that will be filed with the SEC by WinVest in connection with the proposed transaction, and other documents that the parties may file or furnish with the SEC, which you are encouraged to read. Should one or more of these risks or uncertainties materialize, or should underlying assumptions prove incorrect, actual results may vary materially from those indicated or anticipated by such forward-looking statements. Accordingly, investors are cautioned not to place undue reliance on these forward-looking statements. Forward-looking statements relate only to the date they were made, and WinVest, Xtribe and their subsidiaries undertake no obligation to update or revise forward-looking statements, whether as a result of new information or to reflect events or circumstances occurring after the date they were made except, as required by law or applicable regulation.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
| * | Certain schedules to this Exhibit have been omitted in accordance with Item 601(a)(5) of Regulation S-K. WinVest hereby agrees to hereby furnish supplementally a copy of all omitted schedules to the SEC upon request. |
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.
Dated: September 16, 2024
| | WINVEST ACQUISITION CORP. |
| | | |
| | By: | /s/ Manish Jhunjhunwala |
| | Name: | Manish Jhunjhunwala |
| | Title: | Chief Executive Officer and Chief Financial Officer |
