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): January 29, 2021
ALUSSA
ENERGY ACQUISITION CORP.
(Exact
name of registrant as specified in its charter)
| Cayman
Islands |
|
001-39145 |
|
N/A |
(State
or other jurisdiction
of incorporation) |
|
(Commission
File Number) |
|
(IRS
Employer
Identification No.) |
PO
Box 500, 71 Fort Street
Grand
Cayman KY1-1106
Cayman
Islands
(Address
of principal executive offices, including zip code)
Registrant’s
telephone number, including area code: +1 345 949 4900
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 Class A Ordinary Share and one-half of one Redeemable Warrant |
|
ALUS.U |
|
The
New York Stock Exchange |
| |
|
|
|
|
| Class A
Ordinary Shares, par value $0.0001 per share |
|
ALUS |
|
The
New York Stock Exchange |
| |
|
|
|
|
| Warrants,
each whole warrant exercisable for one Class A Ordinary Share for $11.50 per share |
|
ALUS.WS |
|
The
New York Stock Exchange |
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 þ
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. ☐
ADDITIONAL
INFORMATION
FREYR Battery, a company organized under
the laws of Luxembourg (“Pubco”), intends to file with the U.S. Securities and Exchange Commission (the “SEC”)
a registration statement on Form S-4 (as amended, the “Registration Statement”), which will include a preliminary
proxy statement of Alussa Energy Acquisition Corp., a Cayman Island exempted company (“Alussa”), and a prospectus
in connection with the proposed business combination transaction (the “Business Combination”) involving Alussa,
Pubco and FREYR A/S, a company organized under the laws of Norway (“FREYR”). After the Registration Statement
is filed and declared effective, the definitive proxy statement and other relevant documents will be mailed to shareholders of
Alussa as of a record date to be established for voting on the Business Combination. Shareholders of Alussa and other interested
persons are advised to read, when available, the preliminary proxy statement, and amendments thereto, and the definitive proxy
statement in connection with Alussa’s solicitation of proxies for the special meetings to be held to approve the Business
Combination because these documents will contain important information about Alussa, FREYR, Pubco and the Business Combination.
Alussa shareholders and other interested persons will also be able to obtain copies of the Registration Statement and the proxy
statement/prospectus, without charge, once available, on the SEC’s website at www.sec.gov or by directing a request to Alussa
by contacting its Chief Executive Officer, Daniel Barcelo, c/o Alussa Energy Acquisition Corp. PO Box 500, 71 Fort Street, Grand
Cayman KY1-1106, Cayman Islands, at +1(345) 949 4900.
Participants
in the Solicitation
Alussa,
Pubco and FREYR and certain of their respective directors, executive officers, other members of management and employees, under
SEC rules, may be deemed to be participants in the solicitation of proxies from the shareholders of Alussa in favor of the approval
of the Business Combination. Shareholders of Alussa and other interested persons may obtain more information regarding the names
and interests in the proposed transaction of Alussa’s directors and officers in Alussa’s filings with the SEC, including
Alussa’s annual report on form 10-K for the year-ended December 31, 2019, which was filed with the SEC on March 26, 2020,
as modified or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing. Additional information regarding
the interests of such potential participants will also be included in the Registration Statement and other relevant documents
when they are filed with the SEC. These documents can be obtained free of charge from the sources indicated above.
Forward-Looking
Statements
Certain statements made herein or incorporated
by reference contain, and certain oral statements made by representatives of Alussa, Pubco and FREYR and their respective affiliates,
from time to time may contain, “forward-looking statements” within the meaning of the “safe harbor” provisions
of the Private Securities Litigation Reform Act of 1995. Alussa’s, Pubco’s and FREYR’s actual results may differ
from their expectations, estimates and projections and consequently, you should not rely on these forward-looking statements as
predictions of future events. Words such as “expect,” “estimate,” “project,” “budget,”
“forecast,” “anticipate,” “intend,” “plan,” “may,” “will,”
“could,” “should,” ”would,”“believe,” “predict,” “potential,”
“might” and “continue,” and similar expressions are intended to identify such forward-looking statements.
These forward-looking statements include, without limitation, Alussa’s, Pubco’s and FREYR’s expectations with
respect to future performance and anticipated financial impacts of the Business Combination, the satisfaction of the closing conditions
to the Business Combination and the timing of the completion of the Business Combination. These forward-looking statements involve
significant risks and uncertainties that could cause actual results to differ materially from expected results. Most of these factors
are outside of the control of Alussa,, Pubco or FREYR and are difficult to predict.
Factors that may cause such differences
include but are not limited to: (1) the occurrence of any event, change or other circumstances that could give rise to the termination
of the Business Combination Agreement (as defined below); (2) the inability to complete the Business Combination, including due
to the failure to obtain approval of the shareholders of Alussa or the shareholders of FREYR or other conditions to closing in
the Business Combination Agreement; (3) the inability to obtain or maintain (as applicable) the listing of Pubco’s or Alussa’s
common stock on Nasdaq following the Business Combination, (4) the failure to meet the minimum cash requirements of the Business
Combination Agreement due to Alussa shareholder redemptions and the failure to obtain replacement financing; (5) the risk that
the Business Combination disrupts current plans and operations of FREYR as a result of the announcement and consummation of the
Business Combination; (6) the failure to meet projected development and production targets; (7) costs related to the proposed Business
Combination; (8) changes in applicable laws or regulations; (9) the ability of the combined company to meet its financial and strategic
goals, due to, among other things, competition, the ability of the combined company to pursue a growth strategy and manage growth
profitability and hire and retain key employees; (10) the possibility that the combined company may be adversely affected by other
economic, business, and/or competitive factors; (11) the effect of the global COVID-19 pandemic on Alussa, Pubco and FREYR and
their ability to consummate the Business Combination or any of the foregoing risks; and (12) other risks and uncertainties described
herein, as well as those risks and uncertainties to be identified in the Registration Statement and proxy statement/prospectus
(when available) relating to the Business Combination, including those under “Risk Factors” therein, and in other filings
with the SEC made by Alussa or Pubco. The foregoing list of factors is not exclusive. Readers are cautioned not to place undue
reliance upon any forward-looking statements, which speak only as of the date made. Neither Alussa, Pubco nor FREYR undertakes
or accepts any obligation or undertaking to release publicly any updates or revisions to any forward-looking statements to reflect
any change in its expectations or any change in events, conditions or circumstances on which any such statement is based, subject
to applicable law.
No
Offer or Solicitation
This
Current Report on Form 8-K and the exhibits hereto do not constitute a solicitation of a proxy, consent or authorization with
respect to any securities or in respect of the Business Combination. This Current Report on Form 8-K shall also not constitute
an offer to sell or the solicitation of an offer to buy any securities, nor shall 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. No offering of securities shall be made except by means of a prospectus meeting the
requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.
Item
1.01 |
Entry
into a Material Definitive Agreement. |
Business
Combination Agreement
This
section describes the material provisions of the Business Combination Agreement (as defined below) but does not purport to describe
all of the terms and conditions thereof. The following summary is qualified in its entirety by reference to the complete text of
the Business Combination Agreement, a copy of which is attached hereto as Exhibit 2.1. Alussa’s shareholders,
warrant holders and other interested parties are urged to read such agreement in its entirety. Unless
otherwise defined herein, the capitalized terms used below are defined in the Business Combination Agreement.
General
Terms and Effects
On January 29, 2021,
Alussa entered into a Business Combination Agreement (the “Business Combination Agreement”) with FREYR A/S,
a company organized under the laws of Norway (“FREYR”), Alussa Energy Sponsor LLC, a limited liability company
formed under the laws of Delaware, in the capacity as the representative for the Alussa shareholders in accordance with the terms
and conditions of the Business Combination Agreement (“Sponsor” or “Purchaser Representative”),
FREYR Battery, a corporation in the form of a public limited liability company organized under the laws of Luxembourg (“Pubco”),
Norway Sub 1 AS, a private limited liability company under the laws of Norway (“Norway Merger Sub 1”), Norway
Sub 2 AS, a private limited liability company under the laws of Norway (“Norway Merger Sub 2” and together with
Norway Merger Sub 1, the “Norway Merger Subs”), Adama Charlie Sub, a Cayman Islands exempted company (“Cayman
Merger Sub”), certain shareholders of FREYR named in the Business Combination Agreement (the “Major Shareholders”),
and ATS NEXT AS, in the capacity as the representative for the Major Shareholders in accordance with the terms and conditions of
the Business Combination Agreement (the “Shareholder Representative”).
Prior
to the completion of the transactions contemplated by the Business Combination Agreement, (i) the Norway Merger Subs shall be
wholly-owned subsidiaries of Alussa, (ii) Pubco shall be a wholly-owned subsidiary of Purchaser Representative and (iii) Cayman
Merger Sub shall be a wholly-owned subsidiary of Pubco.
Pursuant
to the terms of the Business Combination Agreement, (a) Alussa will merge with and into Cayman Merger Sub, with Alussa continuing
as the surviving entity (the “Cayman Merger”), (b) Alussa will distribute all of its interests in Norway Merger
Sub 1 to Pubco, (c) FREYR will merge with and into Norway Merger Sub 2, with Norway Merger Sub 2 continuing as the surviving entity
(the “Norway Merger”), (d) Norway Merger Sub 1 will merge with and into Pubco, with Pubco continuing as the
surviving entity (the “Cross-Border Merger”), as a result of which, (i) each issued and outstanding security
of Alussa immediately prior to the effective time of the Cayman Merger shall be exchanged for the right of the holder thereof
to receive securities of Pubco in accordance with the Business Combination Agreement (or, in the case of Dissenting Purchaser
Shareholders, if any, the right to receive the fair value of such holder’s Dissenting Purchaser Ordinary Shares and such
other rights as are granted by the Cayman Companies Law), (ii) each issued and outstanding security of FREYR immediately prior
to the effective time of the Norway Merger shall be exchanged for the right of the holder thereof to receive securities of Norway
Merger Sub 1 in accordance with the Business Combination Agreement and (iii) each issued and outstanding security of Norway Merger
Sub 1 immediately prior to the Cross-Border Effective Time shall be exchanged for the right of the holder to receive securities
of Pubco, all upon the terms and subject to the conditions set forth in the Business Combination Agreement and in accordance with
the provisions of applicable law.
Prior to the First Closing (as defined below), FREYR will transfer its wind farm business
to Sjonfjellet Vindpark Holding AS (“SVPH”), a private limited liability company to be incorporated by way
of demerger resulting in such business becoming held by the FREYR shareholders through such company (the “Norway Demerger”)
in accordance with the Norway Plan of Demerger.
Consideration
After the implementation
of the Norway Merger and prior to the implementation of the Cross-Border Merger, Pubco shall acquire all preferred shares of Norway
Merger Sub 1 (which will be issued in exchange for the preferred shares in FREYR as a part of the Norway Merger) from the Company
Preferred Share Transferors (as defined below) in exchange for a number of newly issued shares of Pubco equal to (A) (i) $7,446,000
or, (ii) to the extent the Company Preferred Share Transferors fund the second tranche of the investment contemplated by the Funding
Commitment Letter, $14,895,000, divided by (B) $10.00 per ordinary share, which is equal to the subscription price in the Commitment
Agreement (the “PIPE Price”). As part of such transaction, 92,500,000 warrants held by the Company Preferred
Share Transferors to subscribe for common shares of Norway Merger Sub 1 (which will be issued in exchange for the warrants in FREYR
as a part of the Norway Merger) shall be cancelled. the Company Preferred Share Transferors and FREYR entered into the Funding
Commitment Letter on October 23, 2020, as amended or restated, pursuant to which the Company Preferred Share Transferors agreed
to invest either $7,500,000 or $15,000,000 into preferred shares and warrants of FREYR. Following the Norway Demerger, the Company
Preferred Share Transferors received shares in SVPH. The Company Preferred Share Transferors informed us that they have entered
into an agreement with another FREYR shareholders whereby the Company Preferred Share Transferors will exchange their shares in
SVPH for shares in FREYR, to be completed prior to the First Closing.
As
a result of and upon the Second Closing (as defined below), among other things, all outstanding FREYR Shares (other than those
held by Pubco), will be exchanged for the right to receive shares in Pubco, which in the aggregate will be a number of Pubco ordinary
shares equal to (A) $410,550,000 (the “Base Consideration”), plus or minus (B) any Legal Cost Adjustment (as
described below), as applicable, and dividing such number by the lower of (i) the Redemption Price and (ii) the PIPE Price (as
defined in the Commitment Agreements), which number shall then be multiplied by (C) the Exchange Ratio. The Legal Cost Adjustment
shall be (x) to the extent the legal costs incurred in connection with the Transactions by FREYR up to the Second Closing Date
(“FREYR Legal Costs”) exceed $4,500,000, an amount equal to the FREYR Legal Costs minus $4,500,000 (which amount
shall be deducted from the consideration above), (y) to the extent the FREYR Legal Costs are less than $2,500,000, an amount equal
to $2,500,000 minus the FREYR Legal Costs (which amount shall be added to the consideration above) and (z) to the extent the FREYR
Legal Costs are between $2,500,000 and $4,500,000, the Legal Cost Adjustment shall equal $0. The Exchange Ratio is a number equal
to the quotient obtained by dividing (a) the Equity Consideration divided by the lower of (i) the Redemption Price and (ii) the
PIPE Price, divided by (b) the number of Aggregate Fully Diluted Company Shares. Based on the currently available information
with respect to the variables included in the Exchange Ratio calculation, the Exchange Ratio is expected to be 0.179031.
An additional 60,000,000
Pubco Ordinary Shares will be purchased at the PIPE Price on or prior to the Second Closing by certain third-party investors (the
“PIPE Investment”) pursuant to the Subscription Agreement (as defined below). The proceeds of the PIPE Investment,
together with the amounts remaining in Alussa’s Trust Account as of immediately following completion of the Cross-Border
Merger, will be retained by Pubco following the Second Closing.
Treatment
of FREYR Options, FREYR EDGE Warrants and FREYR Warrants
As
a result of and upon the Second Closing, among other things, all (i) options to purchase FREYR Ordinary Shares, (ii) FREYR warrants
issued to EDGE Global LLC and (iii) all other warrants, in each case outstanding as of immediately prior to the effective time
of the Norway Merger will be converted into (a) options to purchase Pubco Ordinary Shares (“Pubco Options”),
(b) warrants issued to EDGE Global to purchase Pubco Ordinary Shares (“Pubco EDGE Warrants”) and (c) other
warrants to purchase Pubco Ordinary Shares (“Pubco Warrants”), respectively.
Subject
to the terms of the Business Combination Agreement, each Pubco Option, Pubco EDGE Warrant and Pubco Warrant will relate to the
number of whole shares of Pubco Ordinary Shares (rounded down to the nearest whole share) equal to (i) the number of Pubco Ordinary
Shares subject to the applicable Pubco Option, Pubco EDGE Warrant and Pubco Warrant multiplied by (ii) the Exchange Ratio. The
exercise price for each Pubco Option, Pubco EDGE Warrant and Pubco Warrant will equal (i) the exercise price of the applicable
Pubco Option, Pubco EDGE Warrant and Pubco Warrant divided by (ii) the Exchange Ratio. Each Pubco Option, Pubco EDGE Warrant and
Pubco Warrant will remain subject to the same terms and conditions that were in effect with respect to the related FREYR Option,
FREYR EDGE Warrant or FREYR Option, as applicable, prior to the effective time of the Norway Merger.
Escrow
Shares
At or prior to the
First Closing Date, Pubco, the Purchaser Representative, the Shareholder Representative and the Escrow Agent shall enter into an
Escrow Agreement, effective as of the Second Closing Date (the “Escrow Agreement”), pursuant to which Pubco
shall cause to be delivered to the Escrow Agent at the Second Closing a number of Pubco Ordinary Shares (valued at the lower of
(i) the Redemption Price and the (ii) PIPE Price) equal to 5% of the amount of Base Consideration (the “Escrow Shares”).
Such Escrow Shares shall serve as the Major Shareholders’ obligations after the Closings in respect of indemnification and
leakage. Payments in respect of the Major Shareholders’ obligations in respect of indemnification and leakage shall be first
settled against the Escrow Shares.
The
portion of Pubco Ordinary Shares that shall be withheld at the Second Closing for deposit in the Escrow Account shall be allocated
among the Major Shareholders based on their respective pro rata equity interests in FREYR (as between the Major Shareholders)
immediately prior to the Second Closing. The Escrow Shares shall be released from the Escrow Account 12 months after the Second
Closing.
Closings
The transactions contemplated
by the Business Combination Agreement shall be consummated on the First Closing Date and the Second Closing Date. In accordance
with the terms and subject to the conditions of the Business Combination Agreement, the First Closing shall take place on the fifth
business day after the satisfaction or waiver of the closing conditions set forth in the Business Combination Agreement (other
than the closing conditions that by their nature are to be satisfied at the First Closing, but subject to the satisfaction or waiver
of those conditions) unless another time or date is mutually agreed to in writing by the parties. In accordance with the terms
and subject to the conditions of the Business Combination Agreement, the Second Closing shall take place on the second business
day after the First Closing unless another time or date is mutually agreed to in writing by the parties.
Representations
and Warranties
The
Business Combination Agreement contains representations and warranties of Alussa, Pubco, FREYR and the Major Shareholders, certain
of which are qualified by materiality and Material Adverse Effect (as defined below) and may be further modified and limited by
the disclosure schedules. The representations and warranties of Alussa are also qualified by information included in Alussa’s
public filings, filed or submitted to the SEC on or prior to the date of the Business Combination Agreement (subject to certain
exceptions contemplated by the Business Combination Agreement). The representations and warranties made by Alussa, Pubco, FREYR
and the Major Shareholders are customary for similar transactions
Representations
and Warranties of FREYR
FREYR
has made representations and warranties relating to, among other things, company organization, subsidiaries, due authorization,
no conflict, governmental authorities and consents, capitalization of FREYR and its subsidiaries, financial statements, litigation
and proceedings, legal compliance, contracts and no defaults, benefit plans, employment and labor relations, taxes, brokers’
fees, insurance, licenses, tangible personal property, real property, intellectual property, privacy, cybersecurity, information
technology, environmental matters, absence of changes, anti-corruption compliance, sanctions and international trade compliance,
information supplied, vendors and customers, including memoranda of understanding with potential vendors and customers, related
party transactions and sufficiency of assets. The representations and warranties of FREYR identified as fundamental under the
terms of the Business Combination Agreement are those made pursuant to: (i) Section 7.1 of the Business Combination Agreement
(Organization and Standing), (ii) Section 7.2 of the Business Combination Agreement (Authorization; Binding Agreement), (iii)
7.3(a) of the Business Combination Agreement (Capitalization) and (iv) Section 7.4 of the Business Combination Agreement (Subsidiaries)
(collectively, the “FREYR Fundamental Warranties”).
Representations
and Warranties of Alussa
Alussa
has made representations and warranties (on behalf of itself and the Norway Merger Subs) relating to, among other things, company
organization, due authorization, no conflict, SEC filings, internal controls, listing, financial statements, governmental authorities
and consents, legal compliance, trust account, Investment Company Act, absence of changes, capitalization, brokers’ fees,
indebtedness, taxes, business activities and no outside reliance.
Representations
and Warranties of Pubco
Pubco
has made representations and warranties (on behalf of itself and the Cayman Merger Sub) relating to, among other things, company
organization, due authorization, no conflict, governmental authorities and consents, legal compliance, Investment Company Act,
absence of changes, capitalization, brokers’ fees, indebtedness, business activities and no outside reliance.
Representations
and Warranties of the Major Shareholders
Each
Major Shareholder has made representations and warranties (with respect to itself only) relating to, among other things, company
organization, due authorization, no conflict, governmental authorities and consents, title to shares, litigation and proceedings
and brokers’ fees. The representations and warranties of the Major Shareholders identified as fundamental under the terms
of the Business Combination Agreement are those made pursuant to: (i) Section 8.1 of the Business Combination Agreement (Organization
and Standing), (ii) Section 8.2 of the Business Combination Agreement (Authorization; Binding Agreement) and (iii) Section 8.3
of the Business Combination Agreement (Ownership) (collectively, the “Major Shareholder Fundamental Warranties”).
Survival
of Representations and Warranties
The
FREYR Fundamental Warranties and the Major Shareholder Fundamental Warranties survive the Second Closing for a period of six years.
The representations and warranties of FREYR made in Sections 7.13(a)-(d) (Intellectual Property) and 7.14 (Taxes and Returns)
survive the Second Closing for a period equal to the applicable statute of limitations plus 30 days (together with the FREYR Fundamental
Warranties and the Major Shareholder Fundamental Warranties, the “Special Reps and Warranties”). All other
representations and warranties of FREYR and the Major Shareholders shall survive the Second Closing for a period of 12 months.
No
claim for indemnification may be made after the applicable expiration date, with the exception of any claims of fraud made in
accordance with the terms of the Business Combination Agreement.
The
representations and warranties of Alussa and Pubco contained in the Business Combination Agreement or in any certificate or instrument
delivered by or on behalf of Alussa, Pubco and the Merger Subs pursuant to the Business Combination Agreement do not survive the
First Closing and Second Closing. No claims or actions may be asserted against the Purchaser, the Purchaser Representative or
their respective Representatives with respect thereto.
Indemnification
The
Major Shareholders have agreed to indemnify Pubco for losses that Pubco may sustain as a result of (i) the breach of any representation
or warranty made by FREYR in the Business Combination Agreement or in any certificate executed and delivered by FREYR thereto,
(ii) the breach of any covenant, obligation or agreement on the part of FREYR in the Business Combination Agreement or in any
certificate delivered by FREYR pursuant thereto, (iii) the breach of any representation or warranty made by the Major Shareholders
in the Business Combination Agreement or in any certificate executed and delivered by the Major Shareholders thereto and (iv)
the breach of any covenant, obligation or agreement on the part of the Major Shareholders in the Business Combination Agreement
or in any certificate delivered by the Major Shareholders pursuant thereto (provided that in the case of (iii) and (iv), the Major
Shareholders are not liable in respect of breaches by another Major Shareholder).
Pubco is not entitled
to receive any indemnification payments unless and until the aggregate amount of losses incurred by Pubco exceeds $2,000,000, in
which case the Major Shareholders are obligated to Pubco for the amount of all losses from the first dollar of losses, provided
that the basket shall not apply for breaches of any Special Reps and Warranties or in respect of fraud claims. The maximum aggregate
amount of payments which each Major Shareholder is obligated to pay (other than with respect to (i) fraud claims and (ii) claims
for breaches of Special Reps and Warranties) does not exceed an amount equal to 10% of the sum of (x) the Exchange Shares received
by such Major Shareholder at the Second Closing, plus (y) any Escrow Shares withheld from such Major Shareholder at the Second
Closing (each such Escrow valued at the lower of the Redemption Price and the PIPE Price). The maximum aggregate amount of payments
which each Major Shareholder is obligated to pay (other than with respect to (i) fraud claims and (ii) claims for breaches of FREYR
Fundamental Warranties and Major Shareholder Fundamental Warranties) does not exceed an amount equal to 25% of the sum of (x) the
Exchange Shares received by such Major Shareholder at the Second Closing, plus (y) any Escrow Shares withheld from such Major Shareholder
at the Second Closing (each such Escrow Share valued at the lower of the Redemption Price and the PIPE Price). The maximum aggregate
amount of payments which each Major Shareholder is obligated to pay (other than with respect to fraud claims), does not exceed
an amount equal to 100% of the sum of (x) Exchange Shares received by such Major Shareholder at the Second Closing, plus (y) any
Escrow Shares withheld from such Major Shareholder at the Second Closing) (each such Escrow Share valued at the lower of the Redemption
Price and the PIPE Price).
Indemnification
claims against the Major Shareholders shall first be applied against Escrow Shares (based on the relevant Major Shareholder Pro
Rata Percentage). After the Escrow Shares are exhausted, each Major Shareholder’s indemnification obligation will be determined
by reference to the Shareholder Pro Rata Percentage. After all Escrow Shares are applied with respect to any indemnification obligations,
each Major Shareholder shall be entitled to satisfy its indemnification obligations with cash or ordinary shares in Pubco. For
purposes of determining the indemnification payment, the value of each Escrow Share or other ordinary share of Pubco used to satisfy
indemnification obligations shall be the value-weighted average trading price of ordinary shares in Pubco in the 10 trading days
up to the date on which the indemnification claim is finally determined.
Leakage
Under
the Business Combination Agreement, the transaction consideration shall be adjusted on a dollar-for-dollar basis with respect
to Leakages between September 30, 2020 and the Second Closing Date (the “Locked Box Period”). “Leakage”
shall include, among others, dividends declared to any FREYR shareholder or their affiliates, any transaction bonuses (in excess
of $5 million), consultant, advisory or other fees outside of the course and the other Leakages set forth in the Business Combination
Agreement, other than Permitted Leakages.
If
at any time prior to the Second Closing, FREYR becomes aware of the occurrence of any Leakage during the Locked Box Period, FREYR
shall notify Alussa of such Leakage and the FREYR shareholder(s) to whom such Leakage is attributable. The consideration attributable
to such shareholder(s) on the Second Closing shall be reduced by the amount of such Leakage.
Material
Adverse Effect
Under
the Business Combination Agreement, certain representations and warranties of FREYR are qualified in whole or in part by a material
adverse effect standard for purposes of determining whether a breach of such representations and warranties has occurred. Pursuant
to the Business Combination Agreement, a material adverse effect (“Material Adverse Effect”) means any event,
state of facts, development, circumstance, occurrence or effect that has had, or would reasonably be expected to have, individually
or in the aggregate, a material adverse effect on (i) the business, assets, liabilities, results of operations or financial condition
of FREYR and its subsidiaries, taken as a whole or (ii) the ability of FREYR or its subsidiaries to consummate the transactions
contemplated by the Business Combination Agreement or the Ancillary Documents to which they are parties or bound or to perform
their obligations thereunder, in each case subject to certain customary exceptions.
Covenants
and Agreements
FREYR
has provided covenants relating to, among other things, conduct of business, inspection, preparation and delivery of certain audited
and unaudited financial statements and acquisition proposals.
Alussa
and Pubco have provided covenants relating to, among other things, preparation of the registration statement, employee matters,
trust account proceeds, listing, no solicitation by Alussa, Alussa’s conduct of business, post-closing directors and officers,
indemnification and insurance, Alussa public filings and PIPE Investment subscriptions.
Conduct
of Business
FREYR
has agreed that from the date of the Business Combination Agreement through the earlier of the termination of the Business Combination
Agreement and the Second Closing Date (the “Interim Period”), except as otherwise explicitly contemplated by the Business
Combination Agreement and the Ancillary Agreements, FREYR shall (and shall cause its subsidiaries to) (i) conduct their respective
businesses, in all material respects, in the ordinary course of business consistent with past practice and/or FREYR’s business
plan and (ii) comply in all material respects with all laws applicable to FREYR’s direct and indirect subsidiaries and their
respective businesses, assets and employees. During the Interim Period, FREYR has also agreed not to, and to cause its subsidiaries
not to, take certain specified customary actions except as otherwise contemplated by the Business Combination Agreement, the Ancillary
Agreements or FREYR’s business plan, as consented to by Alussa in writing (which consent will not be unreasonably conditioned,
withheld, delayed or denied) or as required by applicable law.
During
the Interim Period and except as otherwise explicitly contemplated by the Business Combination Agreement and the Ancillary Agreements,
Alussa, Pubco and the Merger Subs have each agreed to (i) conduct their respective businesses, in all material respects, in the
ordinary course of business consistent with past practice and (ii) comply in all material respects with all laws applicable to
such person and its businesses, assets and employees. During the Interim Period, except as otherwise contemplated by the Business
Combination Agreement or the Ancillary Agreements, Alussa, Pubco and the Merger Subs agreed not to take certain specified customary
actions.
Covenants
of Alussa and Pubco
Pursuant
to the Business Combination Agreement, Alussa and/or Pubco has agreed (as applicable), among other things, to:
| ● | adopt,
prior to the Second Closing Date, the new equity incentive plan in the form agreed in
connection with the Business Combination Agreement; |
| ● | take
certain actions so that the Trust Amount will released from the trust account and so
that the trust account will terminate thereafter, in each case, pursuant to the terms
and subject to the terms and conditions of the Trust Agreement; |
| ● | during
the Interim Period, not instruct its representatives not to, initiate any negotiations
or enter into any agreements for certain alternative transactions; |
| ● | delist
and deregister Alussa units, Class A ordinary shares and Alussa Warrants from the NYSE
and to terminate its registration with the SEC as of the First Closing Date; |
| ● | use
commercially reasonable efforts to cause Pubco’s ordinary shares to be approved
for listing on the NYSE by no later than the First Closing Date, and to remain listed
as a public company on the NYSE through the Second Closing Date; |
| ● | take
all necessary action so that, effective as of the Second Closing, Pubco’s board of directors will consist of eight natural
persons, of whom (i) three shall be appointed by Alussa, of whom at least two shall qualify as independent directors under NYSE
rules, (ii) three shall be appointed by FREYR, of whom at least two shall qualify as independent directors under NYSE rules and
(iii) two persons shall be mutually agreed between Alussa and FREYR prior to the First Closing Date, who shall qualify as independent
under NYSE rules, provided that the parties will ensure that the composition of Pubco’s board of directors satisfies the
applicable requirement for Pubco to qualify as a "foreign private issuer" (as defined in the Securities Exchange Act
of 1933); |
| ● | take
all actions to terminate the existing registration rights agreement, dated November 25,
2019, between Alussa and Alussa Energy Sponsor LLC, effective as of the First Closing;
|
| ● | maintain
for a period of not less than six years from the Second Closing Date (i) provisions in
Pubco’s governing documents and those of its subsidiaries concerning the indemnification
and exoneration of Alussa’s and FREYR’s former and current officers, directors
and employees and agents, on terms no less favorable than as contemplated by the applicable
governing documents of Alussa or FREYR (as applicable), in each case as of the date of
the Business Combination Agreement and (ii) a directors’ and officers’ liability
insurance policy covering those persons who are currently covered by Alussa and FREYR’s
directors’ and officers’ liability insurance policies on terms not less favorable
than the terms of such insurance coverage as of the date of the Business Combination
Agreement; |
| ● | from
the date of the Business Combination Agreement through the effective time of the Merger,
keep current and timely file all reports required to be filed or furnished with the SEC
and otherwise comply in all material respects with its reporting obligations under applicable
law; |
| ● | promptly
as practicable after the registration statement is declared effective under the Securities
Act, (i) disseminate proxy statement to shareholders of Alussa, (ii) give notice, convene
and hold a meeting of the shareholders to vote on the Purchaser Shareholder Approval
Matters (as defined in the Business Combination Agreement) in each case in accordance
with its governing documents then in effect and Section 710 of the NYSE Listing Rules,
for a date no later than 30 business days following the date the registration statement
is declared effective, (iii) solicit proxies from the holders of Public Shares to vote
in favor of each of the Purchaser Shareholder Approval Matters, and (iv) provide its
shareholders with the opportunity to elect to effect a Redemption; and |
| ● | use
its reasonable best efforts to take, or to cause to be taken, all actions required, necessary
or that it deems to be proper or advisable to consummate the transaction contemplated
by the PIPE Subscription Agreements on the terms described therein, including using its
reasonable best efforts to enforce its rights under the PIPE Subscription Agreements
to cause the PIPE Investors to pay to (or as directed by) Pubco the applicable purchase
price under each PIPE Investor’s applicable Subscription Agreement in accordance
with its terms. |
Covenants
of FREYR
Pursuant
to the Business Combination Agreement, FREYR has agreed, among other things, to:
| ● | provide
Alussa and its accountants, counsel and other representatives reasonable access during
the Interim Period such materials and information about FREYR, and specified members
of management of FREYR, in each case as Alussa may reasonably request; |
| ● | provide
to Pubco and Alussa, as soon as practicable after entry into the Business Combination
Agreement, (i) audited financial statements (together with the auditor’s reports
thereon) of Alussa and its subsidiaries as of and for (x) the years ended December 31,
2020, 2019 and 2018, audited in accordance with PCAOB auditing standard by a PCAOB qualified
auditor and (ii) if required to be provided by law or SEC rule or practice as of the
date of the initial filing of the registration statement with the SEC, financial statements
as of and for the period ending for as of the latest available calendar quarter end date; |
| ● | at
or prior to the Second Closing Date, terminate and settle all shareholders’, voting
rights or other similar agreement between the Company and its shareholders without further
liability to Alussa, FREYR, Pubco or any of their subsidiaries; |
| ● | at
or prior to the Second Closing Date, take all other actions to cancel the remaining unallocated
share reserve under the FREYR equity plan and provide that no new FREYR options will
be granted under such plan, provided that FREYR may, prior to the Second Closing Date,
conditionally grant options under the Pubco equity incentive plan to be effective after
Closing; |
| ● | take
all actions necessary under applicable law and its governing documents to convene a special
meeting of shareholders to approve and adopt the transactions contemplated by the Business
Combination Agreement; and |
| ● | during
the Interim Period, not, and to use reasonable best efforts to cause its representatives
to not, among others, (i) solicit or facilitate the making, submission or announcement
of any alternate transaction, (ii) furnish any non-public information regarding itself
to any party in connection with or in response to an alternate transaction, or (iii)
engage or participate in discussions with any person or group with respect to, or that
would reasonably be expected to give rise to, an alternate transaction. |
Joint
Covenants of Alussa and FREYR
In
addition, each of Alussa, FREYR and Pubco has agreed, among other things, to take certain actions as set forth below:
| ● | give
notice to the other parties as promptly as practicable to such party of facts, circumstances
and conditions which would, or would reasonably be expected to cause any closing conditions
to not be satisfied, or the satisfaction of certain conditions to be delayed; |
| ● | use
commercially reasonable efforts to take, or cause to be taken, all actions necessary,
proper or advisable under applicable law and regulations to consummate the transactions
contemplated by the Business Combination Agreement; |
| ● | to
cause the proxy statement/prospectus, and the Registration Statement, to comply with
the rules and regulations promulgated by the SEC, to have the Registration Statement
declared effective under the Securities Act as promptly as practicable after such filing
and to keep the Registration Statement effective as long as is necessary to consummate
the transactions contemplated by the Business Combination Agreement and otherwise ensure
that the information contained therein contains no untrue statement of material fact
or material omission; and |
| ● | take
all actions necessary in respect of the Merger Subs under applicable law and their respective
organizational documents to hold shareholders’ meetings and pass resolutions approving
and adopting the Business Combination Agreement and the applicable Mergers and other
transactions contemplated thereby. |
Closing
Conditions
The
consummation of the Transactions is conditioned upon the satisfaction or waiver by the applicable parties to the Business Combination
Agreement of the conditions summarized below. Therefore, unless these conditions are waived by the applicable parties to the Business
Combination Agreement, the Transactions may not be consummated. There can be no assurance that the parties to the Business Combination
Agreement would waive any such provisions therein.
Conditions
to the Obligations of Each Party
The
obligations of each party to consummate the Transactions are subject to the satisfaction or written waiver (where permissible)
by FREYR, Alussa and Purchaser Representative of the following conditions as of the First Closing Date:
| ● | the
relevant shareholder approval matters shall have been approved by the requisite vote
of Alussa’s shareholders entitled to vote thereon; |
| ● | the
relevant shareholder approval matters shall have been approved by the requisite vote
of FREYR’s shareholders entitled to vote thereon; |
| ● | no
governmental authority shall have enacted, issued, promulgated, enforced or entered any
law (whether temporary, preliminary or permanent) or order that is then in effect and
which has the effect of making the transactions or agreements contemplated by the Business
Combination Agreement illegal or which otherwise prevents or prohibits consummation of
the transactions contemplated by the Business Combination Agreement; |
| ● | there
shall not be any pending action brought by a governmental authority seeking to enjoin
the consummation of the Transactions; |
| ● | upon
the First Closing, after giving effect to the Redemption, Alussa shall have net tangible
assets of at least $5,000,001; |
| ● | the
members of the Post-Closing Pubco Board shall have been elected or appointed to take
effect as of the Second Closing consistent with the requirements stipulated under the
Business Combination Agreement; |
| ● | the
Registration Statement shall have been declared effective by the SEC and shall remain
effective as of the First Closing; |
| ● | the
Pubco Ordinary Shares and Pubco Public Warrants shall be approved for listing on the
NYSE, subject only to notice of issuance; |
| ● | the
Norway Demerger shall have been effected in accordance with the Norway Demerger Plan;
and |
| ● | the
issuance of Pubco securities to the holders of FREYR securities shall be either exempt
from registration, or registered in compliance with applicable securities laws of any
state of the United States or the securities laws of any governmental authority. |
Conditions
to the Obligations of FREYR and the Major Shareholders
The
obligations of FREYR and the Major Shareholders to consummate the Transactions are subject to the satisfaction or written waiver
(where permissible) by FREYR and Pubco of the following conditions as of the First Closing Date:
| ● | all
of the representations and warranties of Alussa and Pubco set forth in the Business Combination
Agreement and in any certificate delivered by or on behalf of Alussa, Pubco and the Merger
Subs pursuant thereto shall be true and correct in all material respects on and as of
the date of the Business Combination Agreement and on and as of the First Closing Date
as if made on the First Closing Date, except for (i) those that address matters only
as of a particular date (which shall have been true and correct in all material respects
as of such particular date) and (ii) any failures to be true and correct that (without
giving effect to any qualifications or limitations as to materiality), individually or
in the aggregate, would not have a material adverse effect on Purchaser, Pubco or the
Merger Subs; |
| ● | Alussa,
Pubco and the Merger Subs shall have performed in all material respects all of its obligations
and complied in all material respects with all of its agreements and covenants under
the Business Combination Agreement to be performed or complied with by it on or prior
to the First Closing Date; |
| ● | as
of the First Closing Date, after giving effect to the completion of the Redemption, commitments
in respect of the PIPE Investment and the Funding Commitment Letter, but without giving
effect to Alussa’s transaction expenses and the repayment of certain deferred liabilities
of Alussa assuming that (A) all funds are drawn under the Funding Commitment Letter,
(B) the funds drawn under the Funding Commitment letter are held by Alussa and (C) none
of the funds drawn under the Funding Commitment Letter have been used as of the First
Closing, Alussa and Pubco shall collectively have at least $400 million in the aggregate
in cash and cash equivalents, including funds in the Trust Account and any proceeds from
any of the Commitment Agreements, the Funding Commitment Letter or other PIPE Investment
(including any funds in respect of the PIPE Investment which are deposited into an escrow
account on or prior to First Closing which are to be released to Pubco on the Second
Closing in accordance with the applicable Commitment Agreement); |
| ● | the
execution and delivery of certain closing deliverables, including (i) officers’
certificates and (ii) copies of (a) the executed Registration Rights Agreement (signed
by the Purchaser Representative); (y) the executed Escrow Agreement (signed by the Purchaser
Representative); and (z) the amended and restated articles of association of Pubco (the
“First Amended Pubco Articles”); and |
| ● | Alussa
shall have made appropriate arrangements to have the funds in the Trust Account paid
in accordance with the terms of the Business Combination Agreement. |
Conditions
to the Obligations of Alussa
The
obligations of Alussa to consummate the Transactions are subject to the satisfaction or written waiver (where permissible) by
Alussa and Purchaser Representative of the following conditions as of the First Closing:
| ● | all
of the representations and warranties of FREYR and the Major Shareholders set forth in
the Business Combination Agreement and in any certificate delivered by or on behalf of
FREYR and the Major Shareholders pursuant thereto shall be true and correct in all material
respects on and as of the date of the Business Combination Agreement and on and as of
the First Closing Date as if made on the First Closing Date, except for (i) those that
address matters only as of a particular date (which shall have been true and correct
in all material respects as of such particular date) and (ii) any failures to be true
and correct that (without giving effect to any qualifications or limitations as to materiality),
individually or in the aggregate, would not have a Material Adverse Effect on FREYR (provided
that such limitation shall not apply with respect to representations and warranties provided
by FREYR regarding its capitalization and subsidiaries); |
| ● | FREYR
and the Major Shareholders shall have performed in all material respects all of its obligations
and complied in all material respects with all of its agreements and covenants under
the Business Combination Agreement to be performed or complied with by it on or prior
to the First Closing Date; |
| ● | since
the date of the Business Combination Agreement, no Material Adverse Effect shall have occurred with respect to FREYR and its subsidiaries,
taken as a whole, and be continuing; and |
| ● | the
delivery or receipt of certain closing deliverables to Alussa (including (i) an officer’s certificate from FREYR, (ii) a
certificate from the Shareholder Representative, and (iii) copies of (A) the executed Registration Rights Agreement; (B) the executed
Escrow Agreement; (C) the conversion of certain convertible loans of FREYR into shares; and (D) at or prior to the First Closing,
the termination of the shareholders’ agreement between certain Major Shareholders and the Company). |
Termination;
Effectiveness
The
Business Combination Agreement may be terminated and the transactions contemplated therein may be abandoned at any time prior
to the First Closing:
| ● | by
mutual written consent of Alussa and FREYR; |
| ● | by
written notice by Alussa or FREYR if the First Closing shall not have occurred by July
31, 2021 (the “Outside Date”); provided, however, that such right to terminate
is not available to a party if the breach or violation of such party or its affiliates
of any representation, warranty, covenant or obligation under the Business Combination
Agreement was the primary cause of the failure of the First Closing to occur on or before
the Outside Date; |
| ● | by
written notice by Alussa or FREYR if a governmental authority of competent jurisdiction
shall have issued an order or taken any other action permanently restraining, enjoining
or otherwise prohibiting the transactions contemplated by the Business Combination Agreement,
and such order or other action has become final and non-appealable; provided, however,
that such right to terminate is not available to a party if the breach or violation of
such party or its affiliates to comply with any provision of the Business Combination
Agreement has been the primary cause of such action by such governmental authority; |
| ● | by
written notice by FREYR to Alussa, if (i) there has been a breach by Alussa, Pubco or
the Merger Subs of any of its representations, warranties, covenants or agreements contained
in the Business Combination Agreement, or if any representation or warranty of Alussa,
Pubco or the Merger Subs shall have become untrue or inaccurate, in any case, which would
result in a failure of certain Closing conditions to be satisfied (treating the First
Closing Date for such purposes as the date of the Business Combination Agreement or,
if later, the date of such breach), and (ii) the breach or inaccuracy is incapable of
being cured or is not cured within the earlier of (A) twenty (20) days after written
notice of such breach or inaccuracy is provided to Alussa by FREYR or (B) the Outside
Date; provided, that FREYR shall not have the right to terminate the Business Combination
Agreement if at such time FREYR or the Major Shareholders is in material uncured breach
of the Business Combination Agreement; |
| ● | by
written notice by FREYR to Alussa, if (i) there has been a breach by FREYR or the Major
Shareholders of any of their respective representations, warranties, covenants or agreements
contained in the Business Combination Agreement, or if any representation or warranty
of such parties shall have become untrue or inaccurate, in any case, which would result
in a failure of certain Closing conditions to be satisfied (treating the First Closing
Date for such purposes as the date of the Business Combination Agreement or, if later,
the date of such breach), and (ii) the breach or inaccuracy is incapable of being cured
or is not cured within the earlier of (A) twenty (20) days after written notice of such
breach or inaccuracy is provided to FREYR by Alussa or (B) the Outside Date; provided,
that Alussa shall not have the right to terminate the Business Combination Agreement
if at such time Alussa, Pubco or any of the Merger Subs is in material uncured breach
of the Business Combination Agreement; |
| ● | by
written notice by either FREYR or Alussa if the special meeting of Alussa shareholders
is held and has concluded, Alussa shareholders have duly voted, and the Required Purchaser
Shareholder Approval was not obtained; |
| ● | by
written notice by Alussa to FREYR if the special meeting of FREYR is held, has concluded,
FREYR Shareholders have duly voted, and the Required Company Shareholder Approval was
not obtained; |
| ● | by
FREYR if Alussa makes any Purchaser Change of Recommendation (as defined in the Business
Combination Agreement); provided that with respect to any particular Purchaser Change
of Recommendation, the right to terminate under this provision shall expire on the 10th
day following the occurrence of such Purchaser Change of Recommendation; or |
| ● | by
Alussa if FREYR makes any Company Change of Recommendation (as defined in the Business
Combination Agreement); provided that with respect to any particular Company Change of
Recommendation, the right to terminate under this provision shall expire on the 10th
day following the occurrence of such Company Change of Recommendation. |
In
the event of the termination of the Business Combination Agreement, the Business Combination Agreement will become void and have
no effect, without any liability on the part of any party thereto or its respective representative, as the case may be, for any
willful breach of the Business Combination Agreement occurring prior to such termination, other than with respect to certain exceptions
contemplated by the Business Combination Agreement that will survive any termination of the Business Combination Agreement.
Fees
and Expenses
All
Expenses incurred in connection with the Business Combination Agreement and the transactions contemplated therein shall be paid
by the party incurring such expenses. As used in the Business Combination Agreement, “Expenses” shall mean all out-of-pocket
expenses (including all fees and expenses of counsel, accountants, investment bankers, financial advisors, financing sources,
experts and consultants to a party thereto or any of its affiliates) incurred by a party or on its behalf in connection with or
related to the authorization, preparation, negotiation, execution or performance of the Business Combination Agreement or any
Ancillary Agreement related hereto and all other matters related to the consummation of the Business Combination Agreement. With
respect to Alussa, Expenses shall include any and all deferred expenses (including fees or commissions payable to the underwriters
and any legal fees) of the IPO upon consummation of a business combination and any ordinary course administrative costs and expenses
and Expenses incurred in connection with the consummation of the Transactions incurred by Alussa, including any PIPE Investment.
Ancillary
Agreements
This
section describes the material provisions of certain additional agreements entered into or to be entered into pursuant to the
Business Combination Agreement (the “Ancillary Agreements”) but does not purport to describe all of the terms
thereof. The following summary is qualified in its entirety by reference to the complete text of each of the Ancillary Agreements,
copies of each of which are attached hereto as exhibits. Shareholders and other interested parties are urged to read such Ancillary
Agreements in their entirety.
Lock-Up
Agreements
As
of the date of the Business Combination Agreement, certain FREYR shareholders, Pubco and Purchaser Representative entered into
Lock-Up Agreements. Pursuant to the Lock-Up Agreement, effective as of the Second Closing Date, and subject to certain limited
exceptions, the applicable FREYR shareholders and the Sponsor agree not to transfer any Pubco Ordinary Shares (including Pubco
Ordinary Shares issued or issuable upon the exercise of FREYR options exchanged into options of Pubco), during the period commencing
from the Second Closing and ending on the earlier of (a) one (1) year after the Second Closing Date, (b) subsequent to the Second
Closing Date, if the last sale price of the Pubco Ordinary Shares equals or exceeds $12.00 per share (as adjusted for share splits,
share capitalizations, rights issuances, subdivisions, reorganizations, recapitalizations and the like) for any 20 trading days
within any 30-trading day period commencing at least 150 days after the Second Closing Date and (c) the date on which Pubco completes
a liquidation, merger, share exchange, reorganization or other similar transaction that results in all of Pubco’s shareholders
having the right to exchange their Pubco Ordinary Shares for cash, securities or other property. The FREYR shareholders who are
party to a Lock-Up Agreement shall be permitted to sell a certain number of Pubco Ordinary Shares to settle their tax liabilities.
The
Sponsor also agrees not to transfer any Pubco Warrants (or Pubco Ordinary Shares issued or issuable upon the conversion of the
Pubco Warrants), until 30 days after the Second Closing.
The
form of Lock-Up Agreement is filed as Exhibit 10.1 to this Current Report on Form 8-K, and the foregoing description thereof is
qualified in its entirety by reference to the full text of the Lock-Up Agreement.
Registration
Rights Agreement
Prior
to the First Closing Date, Pubco, FREYR, the Major Shareholders and the Purchaser Representative will use their commercially reasonable
efforts to enter into the Registration Rights Agreement in the agreed form, pursuant to which Pubco will agree to register for
resale, pursuant to Rule 415 under the Securities Act, certain Pubco Ordinary Shares and other equity securities of Pubco that
are held by the parties thereto from time to time. Under the terms of the Registration Rights Agreement, the Purchaser Representative
and the Major Shareholders, can demand that Pubco register their registrable securities under certain circumstances and will also
have piggyback registration rights for these securities in connection with certain registrations of securities that Pubco undertakes.
Following the consummation of the Business Combination, Pubco intends to file and maintain an effective registration statement
under the Securities Act covering such securities. A form of the Registration Rights Agreement is filed as Exhibit 10.2 to
this Current Report on Form 8-K, and the foregoing description thereof is qualified in its entirety by reference to the full text
of the Registration Rights Agreement.
Purchaser
Shareholder Irrevocable Undertakings
In connection with
the execution of the Business Combination Agreement, Alussa has entered into irrevocable undertakings with FREYR and certain Alussa
shareholders holding at least 25% of the Purchaser ordinary shares as of the date of the Business Combination Agreement (the “Purchaser
Shareholder Irrevocable Undertakings”), pursuant to which those Alussa shareholders committed to, among other things,
vote in favor of the Purchaser Shareholder Approval Matters at any meeting of Alussa shareholders and take other actions in furtherance
of the Purchaser Shareholder Approval Matters until the earlier of (i) the Cayman Effective Time and (ii) the termination of the
Business Combination Agreement. A form of the Purchaser Shareholder Irrevocable Undertakings is filed as Exhibit 10.3 to this
Current Report on Form 8-K, and the foregoing description thereof is qualified in its entirety by reference to the full text of
the Purchaser Shareholder Irrevocable Undertakings.
FREYR
Shareholder Irrevocable Undertakings
In connection with
the execution of the Business Combination Agreement, certain FREYR shareholders holding at least 55.76% of FREYR ordinary shares
as of the date of the Business Combination Agreement have entered into irrevocable undertakings with FREYR and Alussa on January
29, 2021, pursuant to which such shareholders committed to, among other things, vote in favor of the Company Shareholder Approval
Matters and take other actions in furtherance of the Purchaser Shareholder Approval Matters until the earlier at any meeting or
written resolutions of the shareholders held prior to or on the earlier of (i) the Second Closing and (ii) the termination of the
Business Combination Agreement. A form of the FREYR Shareholder Irrevocable Undertakings is filed as Exhibit 10.4 to this Current
Report on Form 8-K, and the foregoing description thereof is qualified in its entirety by reference to the full text of the FREYR
Shareholder Irrevocable Undertakings.
Preferred
Share Acquisition Agreement
Simultaneously with the execution of the
Business Combination Agreement, Encompass Capital Master Fund LP, BEMAP Master Fund LP Ltd. and Encompass Capital E L Master Fund
L.P. (the “Company Preferred Share Transferors”) have entered into the preferred share acquisition agreement
(the “Company Preferred Share Acquisition Agreement”) with Pubco, pursuant to which the Company Preferred Share
Transferors have agreed to transfer, and Pubco has agreed to acquire for shares of Pubco, all of the Company Preferred Shares at
the Second Closing. A form of the Company Preferred Share Acquisition Agreement is filed as Exhibit 10.5 to this Current Report
on Form 8-K, and the foregoing description thereof is qualified in its entirety by reference to the full text of the Company Preferred
Share Acquisition Agreement.
Subscription
Agreements
In connection with
the execution of the Business Combination Agreement, Alussa entered into subscription agreements (each, a “Subscription
Agreement”) with Pubco and various investors, pursuant to which such investors will collectively have committed to purchase
60,000,000 Pubco Ordinary Shares at the Second Closing for a purchase price of $10 per share, representing aggregate gross proceeds
of $600 million. The obligation of the parties to consummate the purchase and sale of the shares covered by the Subscription Agreements
is conditioned upon (i) there not being in force any injunction or order enjoining or prohibiting the issuance and sale of the
shares covered by the Subscription Agreements and (ii) all conditions precedent to the consummation of the Transactions set forth
in the Business Combination Agreement having been satisfied or waived (other than those conditions which, by their nature, are
to be satisfied at the applicable Closing Date under the Business Combination Agreement).
The
Subscription Agreements provide that, solely with respect to subscriptions by third-party investors, Pubco is required to file
with the SEC, within 30 days after the consummation of the transactions contemplated by the Business Combination Agreement, a
shelf registration statement covering the resale of the Pubco Ordinary Shares to be issued to any such third-party investor and
to use its commercially reasonable efforts to have such registration statement declared effective as soon as practicable after
the filing thereof but no later than the earlier of (i) the 90th day following the filing date thereof if the SEC notifies Pubco
that it will “review” such registration statement and (ii) the 10th business day after the date Pubco is notified
(orally or in writing, whichever is earlier) by the SEC that such registration statement will not be “reviewed” or
will not be subject to further review.
A
form of the Subscription Agreement is filed as Exhibit 10.6 to this Current Report on Form 8-K, and the foregoing description
thereof is qualified in its entirety by reference to the full text of the Subscription Agreement
| Item
3.02. | Unregistered
Sales of Equity Securities |
The
disclosure set forth above under the heading “Subscription Agreements” in Item 1.01 of this Current Report on Form
8-K are incorporated by reference into this Item 3.02. The Pubco Ordinary Shares to be issued in connection with the Subscription
Agreements and Pubco securities to be issued to the holders of FREYR securities are not to be registered under the Securities
Act in reliance on the exemption from registration provided by Section 4(a)(2) of the Securities Act, Regulation S and/or Regulation
D promulgated thereunder.
| Item
7.01 | Regulation
FD Disclosure. |
On
January 29, 2021, Alussa and FREYR issued a joint press release announcing the execution of the Business Combination Agreement
described in Item 1.01 above. The press release is attached hereto as Exhibit 99.1.
Attached
as Exhibit 99.2 is the investor presentation that will be used by Alussa, Pubco and FREYR with respect to the transactions contemplated
by the Business Combination Agreement.
The
foregoing items are being furnished pursuant to Item 7.01 and will not be deemed to be filed for purposes of Section 18 of the
Securities and Exchange Act of 1934, as amended (the “Exchange Act”), or otherwise be subject to the liabilities
of that section, nor will they be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange
Act.
On
January 29, 2021, Alussa and FREYR held an investor conference call regarding the proposed Business Combination. A copy of the
prepared remarks for the call is attached hereto as Exhibit 99.3
|
Item
9.01 |
Financial
Statements and Exhibits. |
(d)
Exhibits
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.
| |
ALUSSA
ENERGY ACQUISITION CORP. |
| |
|
|
| |
By: |
/s/
Daniel Barcelo |
| |
|
Name:
Daniel Barcelo |
| |
|
Title:
Chief Executive Officer and President |
| |
|
|
| Dated:
January 29, 2021 |
|
|
16
