UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) OF THE
SECURITIES EXCHANGE ACT OF 1934
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| 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) |
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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
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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
Fifth and Sixth Amendments to the Business Combination Agreement
As previously announced, on July 28, 2022, Athena Consumer Acquisition Corp., a Delaware corporation (“Athena”), entered into a Business Combination Agreement (as amended by the first, second, third and fourth amendment to the business combination agreement, dated as of September 29, 2022, June 29, 2023, July 18, 2023 and August 25, 2023, respectively, and as may be further, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among Athena, Next.e.GO Mobile SE, a German company (“e.GO”), Next.e.GO B.V., a Dutch private limited liability company and a wholly-owned subsidiary of e.GO (“TopCo”), and Time is Now Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of TopCo (“Merger Sub”). The transactions contemplated by the Business Combination Agreement are hereinafter referred to as the “Business Combination”.
On September 8, 2023, Athena entered into a fifth amendment to the Business Combination Agreement (the “Fifth Amendment to the Business Combination Agreement”), by and between Athena and e.GO, pursuant to which certain terms of the Business Combination Agreement were amended to clarify the mechanics of the warrant exchange that is to occur at the closing of the Business Combination (the “Closing”), subject to the approval of Athena’s warrant holders.
Further, on September 11, 2023, Athena entered into a sixth amendment to the Business Combination Agreement (the “Sixth Amendment to the Business Combination Agreement”), by and between Athena and e.GO, pursuant to which certain terms of the Business Combination Agreement were amended to reflect the potential for TopCo Shares to be listed on Nasdaq following the Closing.
The foregoing descriptions of the Fifth Amendment to the Business Combination Agreement and the Sixth Amendment to the Business Combination Agreement do not purport to be complete and are qualified in their entirety by the terms and conditions of the Fifth Amendment to the Business Combination Agreement and the Sixth Amendment of the Business Combination Agreement, copies of which are attached as Exhibit 2.1 and Exhibit 2.2 hereto, respectively, and are incorporated by reference herein.
Important Information about the Business Combination and Where to Find It
In connection with the Business Combination and the proposed warrant exchange, TopCo has filed with the U.S. Securities and Exchange Commission (the “SEC”) a registration statement on Form F-4 on March 13, 2023 (as amended, the “Registration Statement”), which includes a preliminary proxy statement/prospectus. This communication is not a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that Athena will send to its stockholders in connection with the Business Combination. Investors and security holders of Athena are advised to read the preliminary proxy statement/prospectus, and when available, the definitive proxy statement/prospectus in connection with Athena’s solicitation of proxies for its special meeting of stockholders to be held to approve the Business Combination (and related matters) because the proxy statement/prospectus will contain important information about the Business Combination and the parties to the Business Combination. The definitive proxy statement/final prospectus will be mailed to stockholders of Athena as of a record date to be established for voting on the Business Combination. Stockholders will also be able to obtain copies of the proxy statement/prospectus, without charge, once available, at the SEC’s website at www.sec.gov or by directing a request to: 442 5th Avenue, New York, NY, 10018.
This Current Report on Form 8-K is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction 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, or an applicable exemption from the registration requirements thereof.
Participants in the Solicitation
Athena, e.GO, TopCo and 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 of Athena’s stockholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of Athena’s directors and officers in Athena’s filings with the SEC, and such information and names of e.GO’s directors and executive officers is also in the Registration Statement, which includes the proxy statement of Athena for the Business Combination.
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Forward Looking Statements
This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target”, “may”, “intend”, “predict”, “should”, “would”, “predict”, “potential”, “seem”, “future”, “outlook” or other similar expressions (or negative versions of such words or expressions) that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding Athena, e.GO, and TopCo’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, the level of redemptions by Athena’s public stockholders, the timing of the completion of the Business Combination and the use of the cash proceeds therefrom. These statements are based on various assumptions, whether or not identified herein, and on the current expectations of Athena, e.GO, and TopCo’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and may differ from assumptions, and such differences may be material. Many actual events and circumstances are beyond the control of Athena, e.GO, and TopCo.
These forward-looking statements are subject to a number of risks and uncertainties, including: (i) changes in domestic and foreign business, market, financial, political and legal conditions; (ii) the inability of the parties to successfully or timely consummate the proposed Business Combination, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed Business Combination or that the approval of the stockholders of Athena or e.GO is not obtained; (iii) failure to realize the anticipated benefits of the proposed Business Combination; (iv) risks relating to the uncertainty of the projected financial information with respect to e.GO; (v) the outcome of any legal proceedings that may be instituted against Athena and/or e.GO following the announcement of the Business Combination agreement and the transactions contemplated therein; (vi) future global, regional or local economic and market conditions; (vii) the development, effects and enforcement of laws and regulations; (viii) e.GO’s ability to grow and achieve its business objectives; (ix) the effects of competition on e.GO’s future business; (x) the amount of redemption requests made by Athena’s public stockholders; (xi) the ability of Athena or the combined company to issue equity or equity-linked securities in the future; (xii) the ability of e.GO and Athena to raise interim financing in connection with the Business Combination; (xiii) the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries; (xiv) the risk that the proposed Business Combination disrupts current plans and operations as a result of the announcement and consummation, (xv) costs related to the Business Combination, (xvi) the impact of a sustained outbreak of COVID-19 and (xvi) those factors discussed below under the heading “Risk Factors” and in the documents of Athena filed, or to be filed, with the SEC. Additional risks related to e.GO’s business include, but are not limited to: the market’s willingness to adopt electric vehicles; volatility in demand for vehicles; e.GO’s dependence on the contemplated Business Combination and other external financing to continue its operations; significant challenges as a new entrant in the automotive industry; e.GO’s ability to control capital expenditures and costs; cost increases or disruptions in supply of raw materials, semiconductor chips or other components; breaches in data security; e.GO’s ability to establish, maintain and strengthen its brand; minimal experience in servicing and repairing vehicles; product recalls; failure by joint-venture to meet their contractual commitments; unfavorable changes to the regulatory environment; risks and uncertainties arising from the acquisition of e.GO’s predecessor business and assets following the opening of insolvency proceedings over the predecessor’s assets in July 2020; protection of e.GO’s intellectual property. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements.
There may be additional risks that neither e.GO nor Athena presently know or that e.GO and Athena currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect e.GO’s and Athena’s expectations, plans or forecasts of future events and views as of the date of this Current Report on Form 8-K. e.GO and Athena anticipate that subsequent events and developments will cause e.GO’s and Athena’s assessments to change. However, while e.GO and Athena may elect to update these forward-looking statements at some point in the future, e.GO and Athena specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing e.GO’s and Athena’s assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.
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Item 9.01 Financial Statements and Exhibits.
(d) Exhibits
| Exhibit Number |
Description | |
| 2.1 | Fifth Amendment to the Business Combination Agreement, dated as of September 8, 2023, by and between Athena Consumer Acquisition Corp. and Next.e.GO Mobile SE. | |
| 2.2 | ||
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document) |
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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.
| ATHENA CONSUMER ACQUISITION CORP. | |||
| By: | /s/ Jane Park | ||
| Name: | Jane Park | ||
| Title: | Chief Executive Officer | ||
| Dated: September 12, 2023 | |||
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Exhibit 2.1
Fifth AMENDMENT TO BUSINESS COMBINATION AGREEMENT
This amendment (this “Amendment”), dated as of September 8, 2023, by and between Athena Consumer Acquisition Corp., a Delaware corporation (“SPAC”), and Next.e.GO Mobile SE, a European company incorporated in Germany (the “Company”), to that certain Business Combination Agreement, dated as of July 28, 2022, by and among SPAC, the Company, Next.e.GO B.V., a Dutch private limited liability company, and Time is Now Merger Sub, Inc., a Delaware corporation, as amended by that certain First Amendment to Business Combination Agreement, dated as of September 29, 2022, that certain Second Amendment to Business Combination Agreement, dated as of June 29, 2023, that certain Third Amendment to Business Combination Agreement, dated as of July 18, 2023, and that certain Fourth Amendment to the Business Combination Agreement, dated as of August 25, 2023 (the “Agreement”). SPAC and the Company are collectively referred to herein as the “Amending Parties” and each individually as an “Amending Party.” Any term used in this Amendment without definition has the meaning set forth for such term in the Agreement.
RECITALS
WHEREAS, Section 12.10 of the Agreement provides that, prior to the Closing, the Agreement may be amended or modified upon a written agreement executed by SPAC and the Company; and
WHEREAS, the undersigned Amending Parties wish to amend the Agreement to reflect certain revisions as set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Amending Parties hereby agree as follows:
1.
The Agreement is hereby amended as set forth below in this Section 1. Revisions to existing provisions of the Agreement
are set forth, for ease of reference in this Amendment, with deleted text showing in strikethrough and new text shown
in underlined boldface.
(a) The seventh Recital is hereby amended and restated to read as follows:
“WHEREAS,
prior to the Merger (as defined below), the SPAC Public Warrant Agreement will be amended to permit the actions contemplated by
Section 2.01(d) (the “SPAC Public Warrant Amendment”)provide that, immediately prior to the Merger, each outstanding
SPAC Warrant (as defined below) shall be cancelled exchanged for 0.175 SPAC Class A Shares, which shall, as a consequence of the Merger,
become part of the Surviving Company Common Stock (as defined below) and shall subsequently, as part of the TopCo-SPAC Business Combination
(as defined below), be exchanged for TopCo Ordinary Shares (as defined below), on the terms and subject to the conditions set forth in
this Agreement;”
(b) The tenth Recital is hereby amended and restated to read as follows:
“WHEREAS,
following the Exchange, at the Effective Time, (i) Merger Sub will merge with and into SPAC (the “Merger”), with SPAC as the
surviving company in the Merger (the “Surviving Company”) and, after giving effect to the Merger, the Surviving Company will
be a wholly owned Subsidiary of TopCo, (ii) each issued and outstanding SPAC Class A Share will be automatically cancelled and extinguished
and converted into one share of common stock, par value $0.0001 per share, of the Surviving Company (“Surviving Company Common Stock”),
and, immediately thereafter, and (iii) each of the resulting shares of Surviving Company Common Stock will
be exchanged for one TopCo Ordinary Share (defined below) and (iv) each issued and outstanding SPAC Warrant (as defined below) will
be automatically cancelled and extinguished and exchanged for 0.175 TopCo Ordinary Shares, in each case, on the terms and subject
to the conditions set forth in this Agreement;”
(c) Section 1.01 of the Agreement is hereby amended by amending and restating the definition of “Dutch Deeds of Issue” to read as follows:
“’Dutch Deeds of Issue’ means each deed governed by Dutch law in form and substance reasonably satisfactory to SPAC and the Company, pursuant to which TopCo will issue, as applicable, (a) TopCo Ordinary Shares to the relevant Company Shareholders and, if applicable, the Lenders in accordance with Section 2.01(a), (b) TopCo Ordinary Shares to the Exchange Agent, acting solely for the account and benefit of the Pre-Closing SPAC Holders and Pre-Closing SPAC Warrant Holders as of immediately prior to the Effective Time in accordance with Section 2.01(c)(ii) and Section 2.01(d), respectively, or (c) subject to vesting and forfeiture conditions specified in Section 2.01(f), the Earn-Out Shares to the relevant Company Shareholders.”
(d) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “Pre-Closing SPAC Holders” and “Privacy Laws”:
““Pre-Closing SPAC Warrant Holders” means the holders of SPAC Warrants as of immediately prior to the Effective Time.”
(e) Section 1.01 of the Agreement is hereby amended by deleting the definition “SPAC Warrant Exchange” in its entirety.
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(f) Section 1.01 of the Agreement is hereby amended by amending and restating the definition of “Transactions” to read as follows:
“’Transactions’
means the transactions contemplated by this Agreement and the other Transaction Documents, including the TopCo-SPAC Business Combination,
the Exchange, and the Conversion and the SPAC Warrant Exchange.”
(g) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “Warrant Agreements” and “Warrant Holder Special Meeting”:
““Warrant Consideration” has the meaning specified in Section 2.01(d).”
(h) Section 2.01 of the Agreement is hereby amended by amending and restating Section 2.01(c)(i) to read as follows:
“(c) Merger.
(i) On
the terms and subject to the conditions set forth herein and in accordance with the DGCL, on the Closing Date and immediately after giving
effect to the Change of Legal Form of TopCo as referred to in Section 2.01(b) and the SPAC Warrant Exchange contemplated
by Section 2.01(d), SPAC and Merger Sub shall consummate the Merger, pursuant to which Merger Sub shall be merged with and into
SPAC, whereupon the separate existence of Merger Sub shall cease and SPAC shall continue as the Surviving Company and shall succeed to
and assume all the rights and obligations of Merger Sub in accordance with the DGCL, and SPAC shall, upon the consummation of the transactions
contemplated by Section 2.01(c)(v), continue as the Surviving Company as a direct, wholly-owned Subsidiary of TopCo. At the Closing, SPAC
and Merger Sub shall file with the Delaware Secretary of State a certificate of merger substantially in the form attached to this Agreement
as Exhibit G (the “Certificate of Merger”) in accordance with the applicable provisions of the DGCL. The Merger shall become
effective at the date and time the Certificate of Merger is accepted for filing by the Delaware Secretary of State or at such later date
and time as may be mutually agreed by SPAC and Merger Sub and specified in the Certificate of Merger. The time at which the Merger actually
becomes effective is referred to herein as the “Effective Time”
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(i) Section 2.01 of the Agreement is hereby amended by amending and restating Section 2.01(c)(ii) to read as follows:
“At the Effective Time, each SPAC Share (other than SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)) issued and outstanding as of immediately prior to the Effective Time shall be automatically cancelled and extinguished and exchanged for the Merger Consideration, which Merger Consideration will be settled as follows: (A) at the Effective Time, each issued and outstanding SPAC Share (other than the SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)) will be automatically cancelled and extinguished and exchanged for one share of Surviving Company Common Stock that is held in the accounts of the Exchange Agent, solely for the benefit of the holder of such SPAC Share as of immediately prior to the Effective Time; and (B) in accordance with the provisions of Section 2:94b of the Dutch Civil Code (Burgerlijk Wetboek) the Exchange Agent, acting solely for the benefit of the Pre-Closing SPAC Holders immediately prior to the Effective Time (other than the Pre-Closing SPAC Holders holding SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)), shall contribute and transfer on behalf of such Pre-Closing SPAC Holders (other than the Pre-Closing SPAC Holders holding SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)) to TopCo, as a contribution in kind (inbreng op aandelen anders dan in geld) each of the shares of common stock of the Surviving Company that were issued to the Exchange Agent solely for the account and benefit of such Pre-Closing SPAC Holders, and, in consideration of this contribution in kind, TopCo shall issue (uitgeven) to the Exchange Agent for the account and benefit of such Pre-Closing SPAC Holders (other than the Pre-Closing SPAC Holders holding SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)) one TopCo Ordinary Share in respect of each share of common stock in the Surviving Company so contributed, (such TopCo Ordinary Shares described in clause (B) of this Section 2.01(c)(ii), the “Merger Consideration”) (such issuance, together with the Merger and the actions contemplated by Section 2.01(d), the “TopCo-SPAC Business Combination”). From and after the Effective Time, the holder(s) of Certificates, if any, evidencing ownership of SPAC Shares or SPAC Shares held in book-entry form issued and outstanding immediately prior to the Effective Time shall cease to have any rights with respect to such shares except as otherwise provided for herein or under applicable Law.”
(j) Section 2.01 of the Agreement is hereby amended by amending and restating the first sentence of Section 2.01(d) to read as follows:
“(d) Treatment of SPAC Warrants in the Merger. At the Effective Time, each issued and outstanding SPAC Warrant as of immediately prior to the Effective Time, shall be automatically cancelled and extinguished and exchanged for 0.175 TopCo Ordinary Shares, with any fractional entitlement being rounded down (such TopCo Ordinary Shares, the “Warrant Consideration”).
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(k) Section 2.01 of the Agreement is hereby amended by amending and restating the second sentence of Section 2.01(d) to read as follows:
“Prior to the Warrant Holder Special
Meeting, SPAC shall use its reasonable best efforts to enter into (i) the maximum number of support agreements which are permitted by
Law with holders of SPAC Public Warrants who each hold at least 5% or more of the SPAC Public Warrants, as permitted by applicable Law,
in which such holders of SPAC Public Warrants shall agree to vote all of their SPAC Public Warrants in favor of the SPAC Warrant AmendmentExchange,
and (ii) a support agreement with the Sponsor (the “Sponsor Warrant Support Agreement”) pursuant to which the Sponsor
shall provide its written consent to the MergerSPAC Warrant Exchange with respect to the treatment
of the SPAC Private Placement Warrants as contemplated by this Section 2.01(d).”
(l) Section 2.02(a) of the Agreement is hereby amended and restated as follows:
“Exchange Agent. (a) Prior to
the Closing, TopCo and SPAC shall appoint the Exchange Agent to act on behalf of the Pre-Closing SPAC Holders as of immediately prior
to the Effective Time (other than the Pre-Closing SPAC Holders holding SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)),
and enter into an exchange agent agreement with the Exchange Agent (the “Exchange Agent Agreement”) reasonably acceptable
to TopCo and SPAC for the purpose of (i) effecting the contribution of the shares of common stock of the Surviving Company that were issued
to the Exchange Agent, against the issuance of TopCo Ordinary Shares, each as contemplated by Section 2.01(c)(ii); and
(ii) exchanging Certificates (if any) or uncertificated SPAC Shares of the Pre-Closing SPAC Holders as of immediately prior to the Effective
Time (other than the Pre-Closing SPAC Holders holding SPAC Shares to be cancelled pursuant to Section 2.01(c)(iii)) for the TopCo Ordinary
Shares issued to the Exchange Agent for the account and benefit of such Pre-Closing SPAC Holders pursuant to Section 2.01(c)(v);
and (iii) exchanging the SPAC Warrants for the Warrant Consideration pursuant to Section 2.01(d).”
(m) The last sentence of Section 2.02(b) of the Agreement is hereby amended by amending and restating the last sentence of Section 2.02(b) to read as follows:
“The delivery of a duly completed and validly executed Letter of Transmittal is a condition to each holder of SPAC Shares receiving any portion of the Merger Consideration; provided that, notwithstanding anything to the contrary in this Agreement, no holder of SPAC Warrants or holder of direct registered SPAC Shares that are held in the name of the Exchange Agent will be required to provide a Letter of Transmittal to the Exchange Agent in order to receive the portion of the Merger Consideration that such holder is entitled to receive pursuant to terms and conditions set forth in this Agreement.”
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(n) Section 2.02(d) of the Agreement is hereby amended by amending and restating Section 2.02(d) to read as follows:
“(d) All TopCo Ordinary Shares delivered upon the surrender or cancellation of SPAC Shares or SPAC Warrants in accordance with the terms of this Article II shall be deemed to have been exchanged and paid in full satisfaction of all rights pertaining to the securities represented by such SPAC Shares or SPAC Warrants and there shall be no further registration of transfers on the stock transfer books of SPAC of the SPAC Shares or the SPAC Warrants that were issued and outstanding immediately prior to the Effective Time. From and after the Effective Time, holders of SPAC Shares or SPAC Warrants shall cease to have any rights as stockholders or securityholders of SPAC, except as provided in this Agreement or by applicable Law.”
(o) Section 2.02(f) of the Agreement is hereby amended by amending and restating Section 2.02(f) to read as follows:
“(f) Any portion of the SPAC Exchange Fund that remains unclaimed by the holders of SPAC Shares or SPAC Warrants who were entitled to receive a portion of the SPAC Exchange Fund in accordance with Section 2.01(c)(v), Section 2.01(d) and this Section 2.02 12 months after the Effective Time shall be returned to TopCo for no consideration and any such holder of SPAC Shares or SPAC Warrants who has not received its portion of the SPAC Exchange Fund in accordance with Section 2.01(c)(v), Section 2.01(d) and this Section 2.02 prior to that time, shall thereafter look only to TopCo (subject to abandoned property, escheat or other similar Laws), as general creditors thereof, for the delivery of the TopCo Ordinary Shares to which they are entitled, subject to TopCo receiving a Letter of Transmittal (accompanied with all Certificates representing SPAC Shares of the holder of such SPAC Shares, to the extent such SPAC Shares are certificated (or an affidavit of loss in lieu thereof) other than in the case of holders of SPAC Warrants or direct registered SPAC Shares who shall not be required to provide a Letter of Transmittal) duly, completely and validly executed in accordance with the instructions thereto, and such other documents as may reasonably be required by TopCo. Notwithstanding the foregoing, TopCo shall not be liable to any holder or former holder of SPAC Shares or SPAC Warrants for any amounts paid to any Governmental Authority pursuant to applicable abandoned property, escheat or similar Laws. Any TopCo Ordinary Shares remaining unclaimed by holders of SPAC Shares or SPAC Warrants 24 months after the Effective Time shall become, to the extent permitted by applicable Law, the property of TopCo free and clear of any claims or interest of any Person previously entitled thereto and TopCo. All TopCo Ordinary Shares deposited with the Exchange Agent pursuant to this Section 2.02 shall be referred to as the “SPAC Exchange Fund”.
2. Upon the execution and delivery hereof, the Agreement shall be deemed to be amended and/or restated as hereinabove set forth as fully and with the same effect as if the amendments and/or restatements made hereby were originally set forth in the Agreement, and this Amendment and the Agreement shall henceforth respectively be read, taken and construed as one and the same instrument, but such amendments and/or restatements shall not operate so as to render invalid or improper any action heretofore taken under the Agreement. Further, except as specifically waived hereby, the Agreement shall continue in full force and effect as written.
3. The terms of Article XII (Miscellaneous) of the Agreement shall apply to this Amendment mutatis mutandis, as applicable.
[Signatures on the following pages]
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IN WITNESS WHEREOF, the Amending Parties have caused this Amendment to be duly executed as of the date set forth above.
| ATHENA CONSUMER ACQUISITION CORP. | ||
| By: | /s/ Jane Park | |
| Name: | Jane Park | |
| Title: | Chief Executive Officer | |
[Signature Page to Fifth Amendment to Business Combination Agreement]
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| NEXT.E.GO MOBILE SE | ||
| By: | /s/ Eelco Van der Leij | |
| Name: | Eelco Van der Leij | |
| Title: | Chief Financial Officer | |
[Signature Page to Fifth Amendment to Business Combination Agreement]
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Exhibit 2.2
Sixth AMENDMENT TO BUSINESS COMBINATION AGREEMENT
This amendment (this “Amendment”), dated as of September 11, 2023, by and between Athena Consumer Acquisition Corp., a Delaware corporation (“SPAC”), and Next.e.GO Mobile SE, a European company incorporated in Germany (the “Company”), to that certain Business Combination Agreement, dated as of July 28, 2022, by and among SPAC, the Company, Next.e.GO B.V., a Dutch private limited liability company, and Time is Now Merger Sub, Inc., a Delaware corporation, as amended by that certain First Amendment to Business Combination Agreement, dated as of September 29, 2022, that certain Second Amendment to Business Combination Agreement, dated as of June 29, 2023, that certain Third Amendment to Business Combination Agreement, dated as of July 18, 2023, that certain Fourth Amendment to the Business Combination Agreement, dated as of August 25, 2023, and that certain Fifth Amendment to the Business Combination Agreement, dated as of September 8, 2023 (the “Agreement”). SPAC and the Company are collectively referred to herein as the “Amending Parties” and each individually as an “Amending Party.” Any term used in this Amendment without definition has the meaning set forth for such term in the Agreement.
RECITALS
WHEREAS, Section 12.10 of the Agreement provides that, prior to the Closing, the Agreement may be amended or modified upon a written agreement executed by SPAC and the Company; and
WHEREAS, the undersigned Amending Parties wish to amend the Agreement to reflect certain revisions as set forth herein.
AGREEMENT
NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Amending Parties hereby agree as follows:
1.
The Agreement is hereby amended as set forth below in this Section 1. Revisions to existing provisions of the Agreement
are set forth, for ease of reference in this Amendment, with deleted text showing in strikethrough and new text shown
in underlined boldface.
(a) Section 1.01 of the Agreement is hereby amended by amending and restating the definition of “Stock Exchange” to read as follows:
“’Stock Exchange’ means the New York Stock Exchange or Nasdaq.”
(b) Section 6.09(c) of the Agreement is hereby amended and restated to read as follows:
“(c) Since its initial public offering, except as set forth in Section 6.09(c) of SPAC Disclosure Schedules, SPAC has complied in all material respects with all applicable listing and corporate governance rules and regulations of the New York Stock Exchange. The SPAC Class A Shares are registered pursuant to Section 12(b) of the Exchange Act and are listed for trading on the New York Stock Exchange. As of the date of this Agreement, there is no Proceeding pending or, to the SPAC’s knowledge, threatened against SPAC by the New York Stock Exchange or the SEC with respect to any intention by such entity to deregister SPAC Class A Shares or prohibit or terminate the listing of SPAC Class A Shares on the New York Stock Exchange. SPAC has not taken any action that is designed to terminate the registration of SPAC Class A Shares under the Exchange Act.”
(c) Section 8.04 of the Agreement is hereby amended and restated to read as follows:
“Section 8.04 De-Listing. Prior to the Closing, SPAC shall cooperate with TopCo and use its reasonable best efforts to take, or cause to be taken, all actions reasonably necessary to de-list SPAC’s Class A Shares from the New York Stock Exchange and de-register such securities under the Exchange Act as soon as practicable following the Effective Time.”
2. Upon the execution and delivery hereof, the Agreement shall be deemed to be amended and/or restated as hereinabove set forth as fully and with the same effect as if the amendments and/or restatements made hereby were originally set forth in the Agreement, and this Amendment and the Agreement shall henceforth respectively be read, taken and construed as one and the same instrument, but such amendments and/or restatements shall not operate so as to render invalid or improper any action heretofore taken under the Agreement. Further, except as specifically waived hereby, the Agreement shall continue in full force and effect as written.
3. The terms of Article XII (Miscellaneous) of the Agreement shall apply to this Amendment mutatis mutandis, as applicable.
[Signatures on the following pages]
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IN WITNESS WHEREOF, the Amending Parties have caused this Amendment to be duly executed as of the date set forth above.
| ATHENA CONSUMER ACQUISITION CORP. | ||
| By: | /s/ Jane Park | |
| Name: | Jane Park | |
| Title: | Chief Executive Officer | |
[Signature Page to Sixth Amendment to Business Combination Agreement]
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| NEXT.E.GO MOBILE SE | ||
| By: | /s/ Eelco Van der Leij | |
| Name: | Eelco Van der Leij | |
| Title: | Chief Financial Officer | |
[Signature Page to Sixth Amendment to Business Combination Agreement]
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