SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): September 18, 2023
TRADEUP ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
|(State or other jurisdiction||(Commission File Number)||(IRS Employer|
|of incorporation)||Identification Number)|
437 Madison Avenue, 27th Floor
New York, New York
|(Address of principal executive offices)||(Zip Code)|
(Registrant’s telephone number, including area code)
(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||
Name of each exchange
on which registered
Units, each consisting of one share of Common Stock and one-half of one Warrant
|UPTDU||The Nasdaq Stock Market LLC|
Common Stock, par value $0.0001 per share
|UPTD||The Nasdaq Stock Market LLC|
Warrants, each whole warrant exercisable for one share of Common Stock at an exercise price of $11.50
|UPTDW||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.
The disclosure included under Item 2.03 is incorporated by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant
As provided in an Agreement and Plan of Merger (as it may be amended, supplemented or otherwise modified from time to time, the “Merger Agreement”) dated September 30, 2022 by and among TradeUP Acquisition Corp. (the “Company”), Estrella Biopharma, Inc., a Delaware corporation (“Estrella”) and Tradeup Merger Sub Inc., a Delaware corporation and wholly-owned subsidiary of UPTD (“Merger Sub”), Estrella has agreed to, upon request by the sponsors of the Company, deposit the agreed reasonable amount to the Company’s trust in order to effectuate extension of the Company’s deadline to consummate a business combination. Pursuant to the Merger Agreement, Estrella has deposited a monthly extension payment of $37,432.70 to the trust account of the Company to extend the deadline for the Company to complete the business combination contemplated therein by October 19, 2023. Such deposit is evidenced by an unsecured promissory note in the principal amount of $37,432.70 issued by the Company to Estrella (the “Extension Note”).
The Extension Note bears no interest and is payable in full upon the consummation of the Company’s business combination (the “Business Combination”) (such date, the “Maturity Date”). The following shall constitute an event of default: (i) a failure to pay the principal within five business days of the Maturity Date; (ii) the commencement of a voluntary or involuntary bankruptcy action, (iii) the breach of the Company’s obligations thereunder; (iv) any cross defaults; (v) an enforcement proceedings against the Company; and (vi) any unlawfulness and invalidity in connection with the performance of the obligations thereunder, in which case the Extension Note may be accelerated.
Estrella has the right, but not the obligation, to convert the Extension Note, in whole or in part, respectively, into private shares of the common stock (the “Conversion Shares”) of the Company, as described in the prospectus of the Company (File Number 333-253322), by providing the Company with written notice of the intention to convert at least two business days prior to the closing of the Business Combination. The number of Conversion Shares to be received by Estrella in connection with such conversion shall be an amount determined by dividing (x) the sum of the outstanding principal amount payable to Estrella by (y) $10.00, respectively. Notwithstanding the foregoing, the Company shall have the obligation to pay to Estrella the funds amounting to the principal amount of the Extension Note if the proposed business combination is terminated pursuant to the Merger Agreement. The Company shall refund the principal amount of the Extension Note to Estrella fully within 5 business days of such termination.
The issuance of the Extension Note was made pursuant to the exemption from registration contained in Section 4(a)(2) of the Securities Act of 1933, as amended.
The copy of the Extension Note is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The disclosures set forth in this Item 2.03 are intended to be summaries only and are qualified in their entirety by reference to the Extension Note.
Item 3.02 Unregistered Sales of Equity Securities.
The information disclosed under Item 1.01 of this Current Report on Form 8-K is incorporated by reference into this Item 3.02 to the extent required herein. The Conversion Shares, if any, (1) may not, subject to certain limited exceptions, be transferable or salable by Estrella until 30 days after the completion of the Company’s initial Business Combination and (2) are entitled to registration rights.
Item 8.01. Other Events.
The Company issued the press release filed herewith on September 18, 2023, announcing the issuance of the Extension Note. The material attached as Exhibit 99.1 is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. The following exhibits are filed with this Form 8-K:
|Exhibit No.||Description of Exhibits|
|10.1||Extension Note, dated September 18, 2023, issued by TradeUP Acquisition Corp. to Estrella Biopharma, Inc.|
|99.1||Press Release dated September 18, 2023.|
Cover Page Interactive Data File (formatted in Inline XBRL).
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.
|TradeUP Acquisition Corp.|
|By:||/s/ Weiguang Yang|
|Title:||Co-Chief Executive Officer|
|Date: September 18, 2023|
THIS PROMISSORY NOTE (“NOTE”) HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”). THIS NOTE HAS BEEN ACQUIRED FOR INVESTMENT ONLY AND MAY NOT BE SOLD, TRANSFERRED OR ASSIGNED IN THE ABSENCE OF REGISTRATION OF THE RESALE THEREOF UNDER THE SECURITIES ACT OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY IN FORM, SCOPE AND SUBSTANCE TO THE COMPANY THAT SUCH REGISTRATION IS NOT REQUIRED.
Principal Amount: US$37,432.70
Dated: September 18, 2023
New York, New York
FOR VALUE RECEIVED, TradeUP Acquisition Corp. (the “Maker” or the “Company”) promises to pay to the order of Estrella Biopharma, Inc., a Delaware corporation, or its registered assignees or successors in interest (the “Payee”), the principal sum of Thirty-Seven Thousand Four Hundred Thirty-Two and Seventy Cents (US$37,432.70), on the terms and conditions described below. All payments on this Note shall be made by wire transfer of immediately available funds to such account as the Payee may from time to time designate by written notice in accordance with the provisions of this note (the “Note”). The Note is issued pursuant to an Agreement and Plan of Merger (the “Merger Agreement”), dated September 30, 2022, by and among the Maker, TradeUP Merger Sub Inc., a wholly owned-subsidiary of Maker and the Payee.
|1.||Principal. The principal balance of this Note shall be payable by the Maker to the Payee upon the date on which the Maker consummates a business combination with the Payee (the “Merger”) (such date, the “Maturity Date”). The principal balance may be prepaid at any time prior to the Maturity Date without penalty. Under no circumstances shall any individual, including but not limited to any officer, director, employee or stockholder of the Maker, be obligated personally for any obligations or liabilities of the Maker hereunder.|
|2.||Conversion Rights. The Payee has the right, but not the obligation, to convert this Note, in whole or in part, into private shares of the common stock (the “Shares”) of the Maker, as described in the Prospectus of the Maker (File Number 333-253322) (the “Prospectus”), by providing the Maker with written notice of its intention to convert this Note at least two business days prior to the closing of the Merger. The number of Shares to be received by the Payee in connection with such conversion shall be an amount determined by dividing (x) the sum of the outstanding principal amount payable to such Payee by (y) $10.00.|
|(a)||Fractional Shares. No fractional Shares will be issued upon conversion of this Note. In lieu of any fractional Shares to which Payee would otherwise be entitled, the Maker will pay to Payee in cash the amount of the unconverted principal balance of this Note that would otherwise be converted into such fractional Share.|
|(b)||Effect of Conversion. If the Maker timely receives notice of the Payee’s intention to convert this Note at least two business days prior to the closing of the Merger, this Note shall be deemed to be converted on such closing date. At its expense, the Maker will, upon receipt of such conversion notice, as soon as practicable after consummation of the Merger, issue and deliver to Payee, at Payee’s address as requested by Payee in its conversion notice, a certificate or certificates for the number of Shares to which Payee is entitled upon such conversion (bearing such legends as are customary pursuant to applicable state and federal securities laws), including a check payable to Payee for any cash amounts payable as a result of any fractional Shares as described herein.|
|3.||Mandatory Repayment. Notwithstanding the foregoing, the Maker shall have the obligation to pay to the Payee the funds amounting to the principal amount of this Note if the Merger is terminated pursuant to the Merger Agreement. The Maker shall refund the principal amount of this Note to the Payee fully within 5 business days of such termination.|
|4.||Interest. This Note does not carry any interest on the unpaid principal balance of this Note, provided, that, any overdue amounts shall accrue default interest at a rate per annum equal to the interest rate which is the prevailing short term United States Treasury Bill rate, from the date on which such payment is due until the day on which all sums due are received by the Payee.|
|5.||Application of Payments. All payments shall be applied first to payment in full of any costs incurred in the collection of any sum due under this Note, including but not limited to reasonable attorney’s and auditor’s fees and expenses, then to the payment in full of any late charges, and finally to the reduction of the unpaid principal balance of this Note.|
|6.||Events of Default. The following shall constitute an event of default (each, an “Event of Default”):|
|(a)||Failure to Make Required Payments. Failure by the Maker to pay the principal amount due pursuant to this Note more than 5 business days of the Maturity Date.|
|(b)||Voluntary Bankruptcy, etc. The commencement by the Maker of a voluntary case under any applicable bankruptcy, insolvency, reorganization, rehabilitation or other similar law, or the consent by it to the appointment of or taking possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator (or other similar official) of the Maker or for any substantial part of its property, or the making by it of any assignment for the benefit of creditors, or the failure of the Maker generally to pay its debts as such debts become due, or the taking of corporate action by the Maker in furtherance of any of the foregoing.|
|(c)||Involuntary Bankruptcy, etc. The entry of a decree or order for relief by a court having jurisdiction in the premises in respect of the Maker in an involuntary case under any applicable bankruptcy, insolvency or other similar law, or appointing a receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar official) of the Maker or for any substantial part of its property, or ordering the winding-up or liquidation of its affairs, and the continuance of any such decree or order unstayed and in effect for a period of 60 consecutive days.|
|(d)||Breach of Other Obligations. The Maker fails to perform or comply with any one or more of its obligations under this Note.|
|(e)||Cross Default. Any present or future indebtedness of the Maker in respect of moneys borrowed or raised becomes (or becomes capable of being declared) due and payable prior to its stated maturity by reason of any event of default, or any such indebtedness is not paid when due or, as the case may be, within any applicable grace period.|
|(f)||Enforcement Proceedings. A distress, attachment, execution or other legal process is levied or enforced on or against any assets of the Maker which is not discharged or stayed within 30 days.|
|(g)||Unlawfulness and Invalidity. It is or becomes unlawful for the Maker to perform any of its obligations under this Note, or any obligations of the Maker under this Note are not or cease to be legal, valid, binding or enforceable.|
|(a)||Upon the occurrence of an Event of Default specified in Section 5(a) and 5(d) hereof, the Payee may, by written notice to the Maker, declare this Note to be due immediately and payable, whereupon the unpaid principal amount of this Note, and all other amounts payable hereunder, shall become immediately due and payable without presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, notwithstanding anything contained herein or in the documents evidencing the same to the contrary.|
|(b)||Upon the occurrence of an Event of Default specified in Sections 5(b), 5(c), 5(e), 5(f) and 5(g) hereof, the unpaid principal balance of this Note, and all other sums payable with regard to this Note hereunder, shall automatically and immediately become due and payable, in all cases without any action on the part of the Payee.|
|8.||Taxes. The Maker will pay all amounts due hereunder free and clear of and without reduction for any taxes, levies, imposts, deductions, withholding or charges imposed or levied by any governmental authority or any political subdivision or taxing authority thereof with respect thereto (“Taxes”). The Maker will pay on behalf of the Payee all such Taxes so imposed or levied and any additional amounts as may be necessary so that the net payment of principal and any interest on this Note received by the Payee after payment of all such Taxes shall be not less than the full amount provided hereunder.|
|9.||Waivers. The Maker and all endorsers and guarantors of, and sureties for, this Note waive presentment for payment, demand, notice of dishonor, protest, and notice of protest with regard to the Note, all errors, defects and imperfections in any proceedings instituted by the Payee under the terms of this Note, and all benefits that might accrue to the Maker by virtue of any present or future laws exempting any property, real or personal, or any part of the proceeds arising from any sale of any such property, from attachment, levy or sale under execution, or providing for any stay of execution, exemption from civil process, or extension of time for payment; and the Maker agrees that any real estate that may be levied upon pursuant to a judgment obtained by virtue hereof or any writ of execution issued hereon, may be sold upon any such writ in whole or in part in any order desired by the Payee.|
|10.||Unconditional Liability. The Maker hereby waives all notices in connection with the delivery, acceptance, performance, default, or enforcement of the payment of this Note, and agrees that its liability shall be unconditional, without regard to the liability of any other party, and shall not be affected in any manner by any indulgence, extension of time, renewal, waiver or modification granted or consented to by the Payee, and consents to any and all extensions of time, renewals, waivers, or modifications that may be granted by the Payee with respect to the payment or other provisions of this Note, and agrees that additional makers, endorsers, guarantors, or sureties may become parties hereto without notice to the Maker or affecting the Maker’s liability hereunder. For the purpose of this Note, “business day” shall mean a day (other than a Saturday, Sunday or public holiday) on which banks are open in China and New York for general banking business.|
|11.||Notices. All notices, statements or other documents which are required or contemplated by this Note shall be made in writing and delivered: (i) personally or sent by first class registered or certified mail, overnight courier service to the address most recently provided in writing to such party or such other address as may be designated in writing by such party, (ii) by fax to the number most recently provided to such party or such other fax number as may be designated in writing by such party, or (iii) by email, to the email address most recently provided to such party or such other email address as may be designated in writing by such party. Any notice or other communication so transmitted shall be deemed to have been given on (a) the day of delivery, if delivered personally, (b) only if the receipt is acknowledged, the day after such receipt, if sent by fax or email, (c) the business day after delivery to an overnight courier service, if sent by an overnight courier service, or (d) 5 days after mailing if sent by first class registered or certified mail.|
|12.||Construction. This Note shall be construed and enforced in accordance with the laws of New York, without regard to conflict of law provisions thereof.|
|13.||Severability. Any provision contained in this Note which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof, and any such prohibition or unenforceability in any jurisdiction shall not invalidate or render unenforceable such provision in any other jurisdiction. The Payee hereby waives any and all right, title, interest or claim of any kind (“Claim”) in or to any amounts contained in the trust account deriving from the proceeds of the IPO conducted by the Maker and the proceeds of the sale of securities in a private placement (if any) prior to the effectiveness of the IPO, as described in greater detail in the Prospectus filed with the Securities and Exchange Commission in connection with the IPO (the “Trust Account Funds”), and hereby agrees not to seek recourse, reimbursement, payment or satisfaction for any Claim from the Trust Account Funds or any distribution therefrom for any reason whatsoever. If Maker does not consummate the Merger, this Note shall be repaid only from amounts other than Trust Account Funds, if any.|
|14.||Amendment; Waiver. Any amendment hereto or waiver of any provision hereof may be made with, and only with, the written consent of the Maker and the Payee.|
|15.||Assignment. This Note shall be binding upon the Maker and its successors and assigns and is for the benefit of the Payee and its successors and assigns, except that the Maker may not assign or otherwise transfer its rights or obligations under this Note. The Payee may at any time without the consent of or notice to the Maker assign to one or more entities all or a portion of its rights under this Note.|
[signature page follows]
The Parties, intending to be legally bound hereby, have caused this Note to be duly executed by the undersigned as of the day and year first above written.
TradeUP Acquisition Corp.
|/s/ Weiguang Yang|
Co-CEO and Director
Estrella Biopharma, Inc.
|By:||/s/ Peter Xu|
|Title:||Chief Financial Officer|
[signature page to the promissory note]
TradeUP Acquisition Corp. Announces
Extension of the Deadline for an Initial Business Combination
New York, September 18, 2023 /PRNewswire/ -- TradeUP Acquisition Corp. (the “Company” or “TradeUP”) (NASDAQ: UPTD) today announced that, in order to extend the date by which the Company must complete its initial business combination from September 19, 2023 to October 19, 2023, for each public share that is not redeemed by the Company’s stockholders in connection with such extension (collectively, the “Remaining Shares”, each, a “Remaining Share”), the Company has deposited into its trust account (the “Trust Account”) an aggregate of $37,432.70 (the “Monthly Extension Fee”), representing $0.05 per Remaining Share of the Company.
The payment for such Monthly Extension Fee was made by Estrella Biopharma, Inc., a Delaware corporation (“Estrella”), pursuant to the Agreement and Plan of Merger (the “Merger Agreement”), entered by and among the Company, Tradeup Merger Sub Inc., a Delaware corporation and direct and wholly owned subsidiary of UPTD (“Merger Sub”), and Estrella on September 30, 2022.
Pursuant to the Company’s current Charter, the Company may extend on monthly basis from July 19, 2023 to July 14, 2024 or such an earlier date as may be determined by its board to complete a business combination by depositing the Monthly Extension Fee for each month into the Trust Account.
TradeUP Acquisition Corp. is a blank check company formed for the purpose of effecting a merger, capital stock exchange, asset acquisition, stock purchase, reorganization or similar business combination with one or more businesses. TradeUP was incorporated under the laws of the State of Delaware on January 6, 2021.
Estrella Biopharma, Inc., a Delaware corporation, is a preclinical-stage biopharmaceutical company developing CD19 and CD22-targeted ARTEMIS®️ T-cell therapies with the capacity to address treatment challenges for patients with blood cancers and solid tumors. Estrella’s mission is to harness the evolutionary power of the human immune system to transform the lives of patients fighting cancer.
Important Additional Information Regarding the Transaction Will Be Filed With the SEC
TradeUP has filed with the SEC a registration statement on Form S-4 (File No.: 333-267918) containing a preliminary proxy statement and a preliminary prospectus of TradeUP containing information about the proposed business combination and the respective businesses of TradeUP and Estrella, which was declared effective on July 11, 2023. TradeUP has mailed a definitive proxy statement/prospectus relating to the proposed business combination (the “Proxy Statement/Prospectus”) to its stockholders and Estrella’s shareholders. This press release does not contain all the information that should be considered concerning the proposed business combination and is not intended to form the basis of any investment decision or any other decision in respect of the business combination. TradeUP’s stockholders and other interested persons are advised to read, when available, the Proxy Statement/Prospectus and other documents filed in connection with the proposed business combination, as these materials will contain important information about Estrella, TradeUP and the proposed business combination. The Proxy Statement/Prospectus and other relevant materials for the proposed business combination have been mailed to stockholders of TradeUP as of a record date of June 13, 2023. Such stockholders will also be able to obtain copies of the preliminary proxy statement/prospectus, the definitive proxy statement/prospectus and other documents filed with the SEC, without charge, once available, at the SEC’s website at www.sec.gov, or by directing a request to TradeUP Acquisition Corp., 437 Madison Avenue, 27th Floor, New York, New York 10022, and its telephone number is (732) 910-9692, Attention: Jianwei Li, Co-Chief Executive Officer.
This press release contains forward-looking statements within the meaning of section 27A of the U.S. Securities Act of 1933, as amended (the “Securities Act”), and section 21E of the U.S. Securities Exchange Act of 1934 (“Exchange Act”) that are based on beliefs and assumptions and on information currently available to TradeUP and Estrella. In some cases, you can identify forward-looking statements by the following words: “may,” “will,” “could,” “would,” “should,” “expect,” “intend,” “plan,” “anticipate,” “believe,” “estimate,” “predict,” “project,” “potential,” “continue,” “ongoing,” “target,” “seek” or the negative or plural of these words, or other similar expressions that are predictions or indicate future events or prospects, although not all forward-looking statements contain these words. Any statements that refer to expectations, projections or other characterizations of future events or circumstances, including projections of market opportunity and market share, the capability of Estrella’s business plans including its plans to expand, the sources and uses of cash from the proposed transaction, the anticipated enterprise value of the combined company following the consummation of the proposed transaction, any benefits of Estrella’s partnerships, strategies or plans as they relate to the proposed transaction, anticipated benefits of the proposed transaction and expectations related to the terms and timing of the proposed transaction are also forward-looking statements. These statements involve risks, uncertainties and other factors that may cause actual results, levels of activity, performance or achievements to be materially different from those expressed or implied by these forward-looking statements. Although each of TradeUP and Estrella believes that it has a reasonable basis for each forward-looking statement contained in this communication, each of TradeUP and Estrella caution you that these statements are based on a combination of facts and factors currently known and projections of the future, which are inherently uncertain. In addition, there are risks and uncertainties described in the Proxy Statement/Prospectus relating to the proposed transaction and other documents filed by TradeUP or Estrella from time to time with the SEC. These filings may 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. Neither TradeUP nor Estrella can assure you that the forward-looking statements in this communication will prove to be accurate. These forward-looking statements are subject to a number of risks and uncertainties, including, among others, the ability to complete the business combination due to the failure to obtain approval from TradeUP’s stockholders or satisfy other closing conditions in the business combination agreement, the occurrence of any event that could give rise to the termination of the business combination agreement, the ability to recognize the anticipated benefits of the business combination, the amount of redemption requests made by TradeUP’s public stockholders, costs related to the transaction, the impact of the global COVID-19 pandemic, the risk that the transaction disrupts current plans and operations as a result of the announcement and consummation of the transaction, the outcome of any potential litigation, government or regulatory proceedings and other risks and uncertainties, including those to be included under the heading “Risk Factors” in the Proxy Statement/Prospectus , the final prospectus for TradeUP’s initial public offering filed with the SEC on June 19, 2021, its Annual Report on Form 10-K and in its subsequent quarterly reports on Form 10-Q and other filings with the SEC. There may be additional risks that neither TradeUP or Estrella presently know or that TradeUP and Estrella currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In light of the significant uncertainties in these forward-looking statements, you should not regard these statements as a representation or warranty by TradeUP, Estrella, their respective directors, officers or employees or any other person that TradeUP and Estrella will achieve their objectives and plans in any specified time frame, or at all. The forward-looking statements in this press release represent the views of TradeUP and Estrella as of the date of this communication. Subsequent events and developments may cause those views to change. However, while TradeUP and Estrella may update these forward-looking statements in the future, there is no current intention to do so, except to the extent required by applicable law. You should, therefore, not rely on these forward-looking statements as representing the views of TradeUP or Estrella as of any date subsequent to the date of this communication.