Item 3.01. Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
As previously announced, on July 21, 2022, Mercato Partners Acquisition Corporation (the “Company”) notified the Listing Qualifications Department of the Nasdaq Stock Market (“Nasdaq”) that, due to the previously disclosed resignation of Joshua James from the Company’s Board of Directors (the “Board”) (as described in Item 5.02 of the Current Report on Form 8-K filed on July 22, 2022), the Company was not in compliance with the audit committee requirements set forth in Nasdaq Listing Rule 5605. More specifically, the Board’s Audit Committee did not have at least three members, each of whom is independent and meets the criteria for independence set forth in Rule 10A-3(b)(1) under the Securities Exchange Act of 1934, as amended, as required by Nasdaq Listing Rule 5605(c)(2)(A). Consistent with Nasdaq Listing Rules 5605(c)(4), Nasdaq provided the Company a cure period to regain compliance (i) until the earlier of the Company’s next annual shareholders’ meeting or July 19, 2023, or (ii) if the next annual shareholders’ meeting was held before January 16, 2023, then the Company must have evidenced compliance no later than January 16, 2023.
On July 18, 2023, JB Henriksen was appointed to serve as a Class II member of the Board and a member of the Board’s Audit Committee. As a result, the Company is in compliance with the Audit Committee composition requirements of Nasdaq Listing Rule 5605(c)(2)(A) at the time of this filing. Currently, the Board has three independent members and one non-independent member, and the Audit Committee consists of the three independent members.
Item 5.02. Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On July 18, 2023, the holders of 5,575,000 shares of the Company’s Class B common stock (the “Class B Stockholders”), representing 96.9% of the outstanding shares of Class B common stock, appointed Mr. Henriksen to serve on the Board as a director. Mr. Henriksen has been determined by the Board to be an independent director under the listing rules of the Nasdaq Stock Market. Mr. Henriksen has also been appointed to the Audit Committee of the Board.
Mr. Henriksen, 65, has served as the outsourced CFO of numerous businesses, including multiple in the medical products and services industries, and has served as the Acting CFO for several high growth companies in the wholesale, retail, technology and medical space. From January 2005 to December 2020, Mr. Henriksen served as a partner in the firm Ampleo (formerly Advanced CFO), a company providing fractional business professional services to small and midsized companies servicing a variety of industries. Mr. Henriksen graduated from the University of Utah with a degree in Accounting and later received his MBA from the University of Utah’s David Eccles School of Business. A licensed Certified Public Accountant in the State of Utah (inactive), Mr. Henriksen has taught finance and accounting at Brigham Young University and the University of Utah for over 30 years.
Mercato Partners Acquisition Group, LLC, the Company’s sponsor, has agreed to transfer to Mr. Henriksen 2,000 shares of the Company’s Class B common stock held by it for his service on the Board.
In connection with the appointment, the Company and Mr. Henriksen will enter into an indemnification agreement, the form of which was filed with the SEC on October 13, 2021, as Exhibit 10.8 to the Company’s Registration Statement on Form S-1 dated October 13, 2021.
Other than as described herein, there are no arrangements or understandings pursuant to which Mr. Henriksen was selected as a director, and Mr. Henriksen does not have a direct or indirect material interest in any transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.
Item 5.07. Submission of Matters to a Vote of Security Holders.
The information set forth under Item 5.02 of this Current Report on Form 8-K is incorporated herein by reference.