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):
July 18, 2023
ATHENA CONSUMER ACQUISITION CORP.
(Exact name of registrant as specified in its charter)
| Delaware |
|
001-40921 |
|
87-1178222 |
(State or other jurisdiction
of incorporation) |
|
(Commission File Number) |
|
(IRS Employer
Identification No.) |
442 5th Avenue
New York, NY 10018
(Address of principal executive offices, including
zip code)
Registrant’s telephone number, including
area code: (970) 925-1572
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 common stock, par value $0.0001 per share, and one-half of one Redeemable Warrant |
|
ACAQ.U |
|
NYSE American LLC |
| |
|
|
|
|
| Shares of Class A common stock, par value $0.0001 per share, included as part of the units |
|
ACAQ |
|
NYSE American LLC |
| |
|
|
|
|
| Redeemable warrants, each exercisable for one share of Class A common stock for $11.50 per share |
|
ACAQ WS |
|
NYSE American LLC |
Indicate by check mark whether
the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule
12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).
Emerging growth company ☒
If an emerging growth company,
indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial
accounting standards provided pursuant to Section 13(a) of the Exchange Act.
Item 1.01 Entry Into a Material Definitive Agreement
Third Amendment 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 and second amendment to the business combination agreement, dated as of on September 29,
2022 and on June 29, 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 July 18, 2023, Athena entered
into a third amendment to the Business Combination Agreement (the “Third Amendment to the Business Combination Agreement”),
by and between Athena and e.GO, pursuant to which the treatment of Athena Class B common stock was amended that,
in connection with the closing of the Business Combination, each issued and outstanding share of Athena’s Class B common stock will
be converted into TopCo ordinary shares on a one-for-one basis, instead of 1:1.05, as had been the case under the second amendment to
the Business Combination Agreement. The one-for-one conversion ratio aligns with what’s currently in Athena’s amended and
restated certificate of incorporation, dated October 19, 2021 (as amended on December 21, 2022, the “Existing Athena Charter”).
The foregoing description
of the Third Amendment to the Business Combination Agreement does not purport to be complete and is qualified in its entirety by the terms
and conditions of the Third Amendment to the Business Combination Agreement, a copy of which is attached as Exhibit 2.1 hereto and is
incorporated by reference herein.
Item 5.03. Amendments to Articles of Incorporation or Bylaws; Change
in Fiscal Year.
The information included in
Item 5.07 is incorporated by reference in this item to the extent required.
Item 5.07. Submission of Matters to a Vote
of Security Holders.
On July 19, 2023, Athena held a special meeting of stockholders (the
“Special Meeting”). At the Special Meeting, Athena’s stockholders approved (1) a proposal to amend the
Existing Athena Charter (the proposed amendment, the “Extension Amendment”) to provide Athena with the right
to extend the date by which Athena must consummate a merger, capital stock exchange, asset acquisition, stock purchase, reorganization
or similar business combination involving Athena and one or more businesses (a “business combination”) up to
three times for an additional one month each time, from July 22, 2023 (the date which is 21 months from the closing date of Athena’s
initial public offering (the “IPO”) of units) to up to October 22, 2023 (the date which is 24 months from the
closing date of the IPO) (the “Extension Amendment Proposal”) and (2) a proposal to amend the Existing Athena
Charter (the “Redemption Limitation Amendment”, together with the Extension Amendment, the “Charter
Amendment”) to eliminate (i) the limitation that Athena may not redeem public shares in an amount that would cause Athena’s
net tangible assets to be less than $5,000,001 and (ii) the limitation that Athena shall not consummate a business combination unless
Athena has net tangible assets of at least $5,000,001 (the “Redemption Limitation Amendment Proposal”).
Athena’s stockholders voted on and approved the Extension Amendment
Proposal at the Special Meeting. A detailed description of the Extension Amendment Proposal is included in Athena’s definitive proxy
statement filed with the U.S. Securities and Exchange Commission (the “SEC”) on July 7, 2023, and mailed to
Athena’s stockholders on or about the same date (the “Proxy Statement”). The final vote tabulation for
the Extension Amendment Proposal is set forth below.
| For | | |
Against | | |
Abstain | |
| | 10,427,880 | | |
| 356,642 | | |
| 1 | |
Athena’s stockholders also voted on and approved the Redemption
Limitation Amendment Proposal at the Special Meeting. A detailed description of the Redemption Limitation Amendment Proposal is included
in the Proxy Statement. The final vote tabulation for the Redemption Limitation Amendment Proposal is set forth below.
| For | | |
Against | | |
Abstain | |
| | 10,439,295 | | |
| 345,227 | | |
| 1 | |
A total of 1,082,596 shares
of Athena’s Class A common stock were presented for redemption in connection with the Special Meeting. As a result, there will be
approximately $10.40 million remaining in the trust account following redemptions.
In addition, on July 19, 2023, Athena filed the Charter Amendment with
the Secretary of State of the State of Delaware. A copy of the Charter Amendment is attached hereto as Exhibit 3.1.
Important Information about
the Business Combination and Where to Find It
In connection with the Business
Combination, TopCo has filed with 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.
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.
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.
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ATHENA CONSUMER ACQUISITION CORP. |
| |
|
|
| |
By: |
/s/ Jane Park |
| |
|
Name: |
Jane Park |
| |
|
Title: |
Chief Executive Officer |
| |
|
|
|
| Dated: July 19, 2023 |
|
|
5
EXHIBIT
2.1
THIRD
AMENDMENT TO BUSINESS COMBINATION AGREEMENT
This amendment (this “Amendment”),
dated as of July 17, 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, and that certain Second Amendment to Business Combination Agreement, dated as of June 29, 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
ninth and tenth Recitals of the Agreement are hereby amended and restated in their entirety to read as follows:
WHEREAS, the
certificate of incorporation of SPAC will be amended to remove the requirement that the SPAC Class B Shares automatically convert into
SPAC Class A Shares upon the consummation of an initial Business Combination (as defined therein) (the “SPAC Charter Amendment”);
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, and (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 each issued and outstanding SPAC Class B Share will be automatically cancelled and extinguished
and converted into 1.05 shares of Surviving Company Common Stock (i.e. into 8,452,500 shares of Surviving Company Common Stock in aggregate)
and, immediately thereafter, (iii) each of the resulting shares of Surviving Company Common Stock will be exchanged for one TopCo Ordinary
Share (defined below) and (iv) each SPAC Warrant (defined below) that is outstanding immediately prior to the Effective Time will be converted
into a warrant that is exercisable for an equivalent number of TopCo Ordinary Shares on the same contractual terms and conditions as were
in effect with respect to such SPAC Warrant immediately prior to the effective time under the terms of the Warrant Agreement (defined
below), in each case, on the terms and subject to the conditions set forth in this Agreement;
WHEREAS, the
SPAC Class B Shares will automatically convert into SPAC Class A Shares prior to the cancelation and conversion described above, pursuant
to the Governing Documents (defined below) of SPAC (the “SPAC Class B Conversion”);
(b) Section
1.01 of the Agreement is hereby amended by deleting the definition “SPAC Charter Amendment”.
(c) Section
1.01 of the Agreement is hereby amended by inserting the following between the definitions of “SPAC Class A Shares” and “SPAC
Class Shares”:
“‘SPAC Class B Conversion’
has the meaning set forth in the Recitals.”
(d) Section
1.01 of the Agreement is hereby amended by amending and restating the definition of “Transactions” in its entirety to read
as follows:
“‘Transactions’ means
the transactions contemplated by this Agreement and the other Transaction Documents, including the SPAC Charter Amendment,
TopCo-SPAC Business Combination, the Exchange and the Conversion.”
(e) Section
2.01(c)(ii) of the Agreement is hereby amended and restated in its entirety to read as follows:
“(ii) 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, (x) each issued and outstanding SPAC Class A
Share (other than the SPAC Class A 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 Class A Share as of immediately prior to the Effective Time and (y)
each issued and outstanding SPAC Class B Share (other than the SPAC Class B Shares to be cancelled pursuant to Section 2.01(c)(iii)) will
be automatically cancelled and extinguished and converted into 1.05 shares of Surviving Company Common Stock (i.e. into 8,452,500 shares
of Surviving Company Common Stock in aggregate) that is held in the accounts of the Exchange Agent, solely for the benefit of the holder
of such SPAC Class B Share as of immediately prior to the Effective Time; (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, 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.”
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]
IN WITNESS WHEREOF, the Amending
Parties have caused this Amendment to be duly executed as of the date set forth above.
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ATHENA CONSUMER ACQUISITION CORP. |
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|
| |
By: |
/s/ Jane Park |
| |
Name: |
Jane Park |
| |
Title: |
Chief Executive Officer |
[Signature Page to Third
Amendment to Business Combination Agreement]
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NEXT.E.GO MOBILE SE |
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|
| |
By: |
/s/ Eelco Van der Leij |
| |
Name: |
Eelco Van der Leij |
| |
Title: |
Chief Financial Officer |
[Signature Page to Third
Amendment to Business Combination Agreement]
Exhibit 3.1
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATHENA CONSUMER ACQUISITION CORP.
Athena Consumer Acquisition Corp. (the “Corporation”),
a corporation organized and existing under the laws of the State of Delaware by virtue of the General Corporation Law of the State of
Delaware (the “DGCL”), does hereby certify:
1. The name of the Corporation is Athena Consumer
Acquisition Corp.
2. The Corporation’s original Certificate
of Incorporation was filed with the Secretary of State of the State of Delaware on June 4, 2021. The Corporation’s Amended
and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on October 19, 2021, and
a Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company was filed with the Secretary of State
of the State of Delaware on December 21, 2022 (as amended, the “Amended and Restated Certificate of Incorporation”).
3. This Amendment to the Amended and Restated
Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation of the Corporation.
4. This Amendment to the Amended and Restated
Certificate of Incorporation was duly adopted by the affirmative vote of the holders of at least 65% of the outstanding shares of common
stock at a meeting of stockholders in accordance with ARTICLE IX of the Amended and Restated Certificate of Incorporation and the
provisions of Section 242 the DGCL.
5. The text of Section 9.1(b) of Article IX
of the Amended and Restated Certificate of Incorporation is hereby amended and restated to read in its entirety as follows:
“(b) Immediately
after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds
of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration
statement on Form S-1, initially filed with the U.S. Securities and Exchange Commission (the “SEC”)
on July 20, 2021, as amended (the “Registration Statement”), shall be deposited in a trust account (the
“Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust
agreement described in the Registration Statement. Except for the withdrawal of interest to pay taxes (less up to $100,000 of interest
to pay dissolution expenses), none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust
Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination,
(ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business
Combination within 22 months from the closing of the Offering (or up to 24 months
from the closing date of the Offering, if applicable, under the provisions of this Section 9.1(b), or, if the Office of the Delaware Division
of Corporations shall not be open for business (including filing of corporate documents) on such date the next date upon which the Office
of the Delaware Division of Corporations shall be open) (the “Deadline Date”) and (iii) the redemption
of shares in connection with a vote seeking to amend such provisions of this Amended and Restated Certificate as described in Section 9.7.
Holders of shares of Common Stock included as part of the units sold in the Offering (the “Offering Shares”)
(whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such
holders are the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as
“Public Stockholders”.
Notwithstanding
the foregoing or any other provisions of the Articles of this Amended and Restated Certificate, the Corporation may, without a stockholder
vote, elect to extend the Deadline Date on a monthly basis for up to two times by an additional one month each time after the 22 month
anniversary of the closing of the Offering, by resolution of the Board, to up to 24 months
from the closing of the Offering.”
6. The text of sub-paragraph (a) of Section 9.2
of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read as follows:
“(a) Prior to the consummation of the initial
Business Combination, the Corporation shall provide all holders of Offering Shares with the opportunity to have their Offering Shares
redeemed upon the consummation of the initial Business Combination pursuant to, and subject to the limitations of, Sections 9.2(b) and
9.2(c) hereof (such rights of such holders to have their Offering Shares redeemed pursuant to such Sections, the “Redemption
Rights”) for cash equal to the applicable redemption price per share determined in accordance with Section 9.2(b) hereof
(the “Redemption Price”). Notwithstanding anything to the contrary contained in this Amended and Restated Certificate,
there shall be no Redemption Rights or liquidating distributions with respect to any warrant issued pursuant to the Offering.”
7. The text of sub-paragraph (e) of Section 9.2
of the Amended and Restated Certificate of Incorporation is hereby amended and restated in its entirety to read as follows:
“(e) If the Corporation offers to redeem
the Offering Shares in conjunction with a stockholder vote on an initial Business Combination, the Corporation shall consummate the proposed
initial Business Combination only if such initial Business Combination is approved by the affirmative vote of the holders of a majority
of the shares of the Common Stock that are voted at a stockholder meeting held to consider such initial Business Combination.”
8. Sub-paragraph (f) of Section 9.2 of the Amended
and Restated Certificate of Incorporation is hereby deleted in its entirety.
9. Section 9.7 of the Amended and Restated Certificate
of Incorporation is hereby amended to remove “provided, however, that any such amendment will be voided, and this Article IX will
remain unchanged, if any stockholders who wish to redeem are unable to redeem due to the Redemption Limitation.”
IN WITNESS WHEREOF, the Corporation has
caused this Amendment to the Amended and Restated Certificate of Amendment to be duly executed in its name and on its behalf by an authorized
officer as of this 19th day of July, 2023.
| |
/s/ Jane Park |
| |
Jane Park |
| |
Chief Executive Officer |
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