Item 1.01. Entry into a Material Definitive Agreement.
The First Amendment to Merger Agreement
As previously disclosed, on
April 25, 2022, Arogo Capital Acquisition Corp., a Delaware corporation (“Arogo”), entered into an Agreement and Plan
of Merger (the “Merger Agreement”), by and among Arogo, Arogo Merger Sub, Inc., a Delaware corporation and wholly-owned
subsidiary of Arogo (“Merger Sub”), EON Reality, Inc., a California corporation (“EON”), Koo Dom
Investment, LLC, in its capacity as (“Arogo Representative”), and EON, in its capacity as (“Seller Representative”).
On October 6, 2022, the parties
to the Merger Agreement entered into that certain First Amendment to the Agreement and Plan of Merger (the “Amendment”),
which amends the Merger Agreement to, among other things, reflect the parties’ agreement to:
| |
A. |
Revise the merger consideration to state that EON Stockholders are entitled to receive from Arogo a certain number of shares of Arogo Common Stock equal to an aggregate value of (the “Merger Consideration”) (a) Five Hundred and Fifty Million U.S. Dollars ($550,000,000) minus (b) the amount of Closing Net Indebtedness (the total portion of the Merger Consideration amount payable to all EON Stockholders in accordance with the Merger Agreement the “Stockholder Merger Consideration”), and after the Closing is subject to adjustment. |
| |
B. |
Remove all references to the defined term Redemption Price with and replace it with $10.00 with respect to the Conversion, valuation of Escrow Shares and calculation of any positive Adjustment Amount. |
| |
C. |
Remove all references to the defined term
“Net Working Capital” with respect to the calculation of Merger Consideration and any Adjustment Amount. |
| |
D. |
Delete references to and Closing deliverable of representations and warranty insurance. |
| |
E. |
Revise the PCAOB Audit delivery date obligation of EON to October 6, 2022 and replace corresponding references to such delivery date. |
| |
F. |
Revise applicable WARN-type event restrictive covenants to prohibit the taking of any such WARN-type event, in whole or in part, ninety (90) days before the Closing. |
| |
G. |
Revise mutual termination right with respect to consummating the Closing no later than November 15, 2022, to March 31, 2023. |
Other than as expressly modified
by the Amendment, the Merger Agreement remains in full force and effect. The foregoing description of the Amendment does not purport to
be complete and is subject to, and qualified in its entirety by reference to, the full text of the Amendment, which is attached as Exhibit
2.1 hereto and incorporated herein by reference.
Additional Information and Where to Find
It
For additional information
on the proposed business combination transaction, see Arogo’s Current Report on Form 8-K, filed with the SEC on April 26, 2022.
In connection with the proposed business combination transaction, Arogo intends to file relevant materials with the Securities and Exchange
Commission (the “SEC”), including a registration statement on Form S-4, which will include a proxy statement/prospectus
of Arogo, and other documents regarding the proposed business combination transaction. Arogo’s stockholders and other interested
persons are advised to read, when available, the preliminary proxy statement/prospectus and the amendments thereto and the definitive
proxy statement and documents incorporated by reference therein filed in connection with the proposed business combination transaction,
as these materials will contain important information about EON, Arogo and the proposed business combination transaction. Promptly after
the Form S-4 is declared effective by the SEC, Arogo will mail the definitive proxy statement/prospectus and a proxy card to each stockholder
entitled to vote at the meeting relating to the approval of the business combination and other proposals set forth in the proxy statement/prospectus.
Before making any voting or investment decision, investors and stockholders of Arogo are urged to carefully read the entire registration
statement and proxy statement/prospectus, when they become available, and any other relevant documents filed with the SEC, as well as
any amendments or supplements to these documents, because they will contain important information about the proposed business combination
transaction. The documents filed by Arogo with the SEC may be obtained free of charge at the SEC’s website at www.sec.gov, (Registration
No. 333-259338), or by directing a request to Arogo Capital Acquisition Corp., 848 Brickell Avenue, Penthouse 5, Miami, FL 33131.
Participants in the Solicitation
Arogo and its directors and
executive officers may be deemed participants in the solicitation of proxies from its stockholders with respect to the business combination.
A list of the names of those directors and executive officers and a description of their interests in Arogo will be included in the proxy
statement/prospectus for the proposed business combination when available at www.sec.gov. Information about Arogo’s directors and
executive officers and their ownership of Arogo common stock is set forth in Arogo’s prospectus, dated December 23, 2021, as modified
or supplemented by any Form 3 or Form 4 filed with the SEC since the date of such filing. Other information regarding the interests of
the participants in the proxy solicitation will be included in the proxy statement/prospectus pertaining to the proposed business combination
when it becomes available. These documents can be obtained free of charge from the source indicated above. EON and its directors and executive
officers may also be deemed to be participants in the solicitation of proxies from the stockholders of Arogo in connection with the proposed
business combination. A list of the names of such directors and executive officers and information regarding their interests in the proposed
business combination will be included in the proxy statement/prospectus for the proposed business combination.
No Offer or Solicitation
This Current Report on Form
8-K does not constitute (i) a solicitation of a proxy, consent, or authorization with respect to any securities or in respect of the proposed
business combination, or (ii) 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 the U.S. Securities Act.
Forward Looking Statements
This Current Report on Form
8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the Private Securities
Litigation Reform Act of 1995. Arogo and EON’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,” “believes,” “predicts,”
“potential,” “continue,” and similar expressions are intended to identify such forward-looking statements. These
forward-looking statements include, without limitation, Arogo’s and EON’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 the actual results to differ materially from the expected results. Most of these factors are outside Arogo’s and
EON’s control and are difficult to predict. All forward-looking statements are based upon estimates, forecasts and assumptions that,
while considered reasonable by Arogo and its management, and EON and its management, as the case may be, are inherently uncertain and
many factors may cause the actual results to differ materially from current expectations which 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 Merger Agreement or could otherwise
cause the Business Combination to fail to close; (2) the outcome of any legal proceedings that may be instituted against Arogo or EON
following the announcement of the Merger Agreement, any amendments thereto, and the Business Combination; (3) the inability to complete
the Business Combination, including due to failure to obtain approval of the stockholders of Arogo or other conditions to closing in the
Merger Agreement; (4) the receipt of an unsolicited offer from another party for an alternative business transaction that could interfere
with the Business Combination; (5) the inability to obtain the listing of the common stock of the post-acquisition EON on the Nasdaq Stock
Market or any alternative national securities exchange following the Business Combination; (6) the risk that the announcement and consummation
of the Business Combination disrupts current plans and operations; (7) the ability to recognize the anticipated benefits of the Business
Combination, which may be affected by, among other things, competition, the ability of the combined EON to grow and manage growth profitably
and retain its key employees; (8) costs related to the Business Combination; (9) changes to the proposed structure of the Business Combination
that may be required or appropriate as a result of applicable laws or regulations or as a condition to obtaining regulatory approval of
the Business Combination; (10) the ability of EON to successfully increase market penetration into its target markets; (11) the addressable
markets that EON intends to target do not grow as expected; (12) the inability to protect EON’s intellectual property; (13) EON’s
projected financial results and meeting or satisfying the underlying assumptions with respect thereto; (14) the risk that the Business
Combination may not be completed in a timely manner or at all, which may adversely affect the price of Arogo’s securities; (15)
changes in applicable laws or regulations; (16) the possibility that EON may be adversely affected by other economic, business, and/or
competitive factors; (17) the impact of COVID-19 on the combined EON’s business; and (18) other risks and uncertainties set forth
in the sections entitled “Risk Factors” and “Cautionary Note Regarding Forward-Looking Statements” in Arogo’s
Form S-1 (File No. 333-259338), Annual Report on Form 10-K for the year ended December 31, 2021, Quarterly Report on Form 10-Q for the
quarter ended June 30, 2022 and the registration statement on Form S-4 with the SEC, as it may be amended once filed, which is subject
to change and will include a document that serves as a prospectus and proxy statement of Arogo, and other reports and documents filed
by Arogo from time to time with the SEC. These filings identify and address other important risks and uncertainties that could cause actual
events and results to differ materially from those contained in the forward-looking statements. Arogo cautions that the foregoing list
of factors is not exclusive. Nothing in this Current Report on Form 8-K should be regarded as a representation by any person that the
forward-looking statements set forth herein will be achieved or that any of the contemplated results of such forward looking statements
will be achieved. You should not place undue reliance on forward-looking statements, which speak only as of the date they are made. Arogo
does not undertake or accept 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, except
as otherwise required by law.
Actual results, performance
or achievements may differ materially, and potentially adversely, from any projections and forward-looking statements and the assumptions
on which those forward-looking statements are based. There can be no assurance that the data contained herein is reflective of future
performance to any degree. You are cautioned not to place undue reliance on forward-looking statements as a predictor of future performance
as projected financial information and other information are based on estimates and assumptions that are inherently subject to various
significant risks, uncertainties and other factors, many of which are beyond the management’s control. All information set forth
herein speaks only as of the date hereof in the case of information about Arogo and EON or the date of such information in the case of
information from persons other than Arogo or EON, and except to the extent required by applicable law, we disclaim any intention or obligation
to update or revise any forward-looking statements as a result of new information, future events and developments or otherwise occurring
after the date of this communication. Forecasts and estimates regarding EON’s industry and markets are based on sources we believe
to be reliable, however there can be no assurance these forecasts and estimates will prove accurate in whole or in part. Projected and
estimated numbers are used for illustrative purpose only, are not forecasts and may not reflect actual results. Neither Arogo nor EON
gives any assurance that either Arogo or EON, respectively, will achieve its expectations.
