SEPAU SEP Acquisition Corporation

 

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, DC 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): September 27, 2023

 

SEP ACQUISITION CORP.

(Exact Name of Registrant as Specified in its Charter)

 

Delaware		001-40679		86-2365445
(State or Other Jurisdiction		(Commission		(IRS Employer
of Incorporation)		File Number)		Identification No.)

 

3737 Buffalo Speedway, Suite 1750 Houston, Texas 77098

(Address of Principal Executive Offices) (Zip Code)

 

(713) 715-6820

(Registrant’s telephone number, including area code)

 

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 (see General Instruction A.2. below):

 

☒

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 share of Class A common stock and one-half of one warrant		SEPAU		The Nasdaq Stock Market LLC
Class A common stock, par value $0.0001 per share		SEPA		The Nasdaq Stock Market LLC
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share		SEPAW		The Nasdaq Stock Market 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.

 

As described in more detail below in Item 3.01 of this Current Report on Form 8-K, SEP Acquisition Corp., a Delaware corporation (the “Company”), has received notice from the staff (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”) that it is not in compliance with the $35 million minimum Market Value of Listed Securities (“MVLS”) standard. In order to bring the Company into compliance with the MVLS standard, Mercury Sponsor Group I LLC (the “Sponsor”) has elected to convert (the “Conversion”) 2,415,375 of its shares of Class B common stock, par value $0.0001 per share, of the Company (“Class B Common Stock”) into 2,415,375 shares (the “Converted Shares”) of the Class A common stock, par value $0.0001 per share, of the Company (“Class A Common Stock”) so that the Company’s MVLS is above the $35 million minimum requirement. Following the Conversion, the Company has 3,719,634 shares of Class A Common Stock and 2,095,000 shares of Class B Common Stock outstanding as of October 3, 2023.

 

As disclosed in a Current Report on Form 8-K that the Company filed on August 23, 2023 with the U.S. Securities and Exchange Commission (the “SEC”), the Company previously entered into an Agreement and Plan of Merger (the “Merger Agreement”), dated August 23, 2023, with SEP Acquisition Holdings Inc., a Nevada corporation and a wholly owned subsidiary of the Company (“Merger Sub”), and SANUWAVE Health, Inc., a Nevada corporation (“SANUWAVE”), pursuant to which Merger Sub will merge with and into SANUWAVE, with SANUWAVE being the surviving entity and wholly-owned subsidiary of the Company (the “Business Combination”). The Merger Agreement contains a covenant requiring the Company to file, prior to the closing of the Business Combination upon approval by the holders of the Class B Common Stock, an amendment (the “Class B Charter Amendment”) to the Company’s Amended and Restated Certificate of Incorporation, dated July 27, 2021, as amended on December 20, 2022 (the “Amended and Restated Certificate of Incorporation”), to remove the anti-dilution provision applicable to certain issuances of securities by the Company and to adjust the conversion ratio so that shares of Class B Common Stock shall be convertible into shares of Class A Common Stock on a 1:0.277 basis instead of a 1:1 basis.

 

In order to conform with the terms and conditions of the Merger Agreement and to maintain the same economics of the Business Combination for all Class B stockholders, on October 2, 2023, the Sponsor, the Company and SANUWAVE entered into a Forfeiture and Redemption Agreement (the “Forfeiture and Redemption Agreement”), pursuant to which the Sponsor has agreed to forfeit 1,746,316 of its shares (the “Forfeited Shares”) of Class A Common Stock contingent upon and effective immediately prior to the closing of the Business Combination (the “Closing”). The Forfeiture and Redemption Agreement also provides that the Company will subsequently redeem the Forfeited Shares in exchange for no consideration contingent upon and effective immediately prior to the Closing. The Sponsor’s agreement to forfeit the Forfeited Shares pursuant to the Forfeiture and Redemption Agreement will result in the Sponsor having the number of shares of Class A Common Stock at the Closing that it would have otherwise had if it had converted all of its shares of Class B Common Stock at the Closing on a 1:0.277 basis in accordance with the Class B Charter Amendment. The Sponsor has agreed that it does not have any right, title, interest or claim of any kind to the assets in the Company’s trust account with respect to the Converted Shares.

 

The foregoing description of the Forfeiture and Redemption Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Forfeiture and Redemption Agreement, a copy of which is filed herewith as Exhibit 10.1 to this report and is incorporated herein by reference.

 

Item 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.

 

On September 27, 2023, the Company received a determination letter (the “Letter”) from the Staff of Nasdaq stating that the Company has not regained compliance with the MVLS standard, since the Company’s Class A Common Stock, was below the $35 million minimum MVLS requirement for continued listing on The Nasdaq Capital Market under Nasdaq Listing Rule 5550(b)(2) (the “MVLS Rule”) and had not been at least $35 million for a minimum of 10 consecutive business days at any time during the 180-day grace period granted to the Company. As previously disclosed, the Company was initially notified by the Staff on March 28, 2023 that the minimum MVLS for the Company’s Class A Common Stock was below the $35 million minimum MVLS requirement for the previous 30 consecutive business days, and in accordance with the Nasdaq Listing Rules, the Company was provided 180 calendar days, or until September 25, 2023, to regain compliance with the MVLS Rule.

 

Pursuant to the Letter, unless the Company requests a hearing to appeal this determination by 4:00 p.m. Eastern Time on October 4, 2023, the Company’s Class A Common Stock will be delisted from The Nasdaq Capital Market, trading of the Company’s Class A Common Stock will be suspended at the opening of business on October 6, 2023, and a Form 25-NSE will be filed with the SEC, which will remove the Company’s securities from listing and registration on Nasdaq.

 

 

The Company intends to request a hearing before the Nasdaq Hearings Panel (the “Panel”) to appeal the Letter received on September 27, 2023. A hearing request will stay the suspension of trading of the Company’s Class A Common Stock, and the Company’s Class A Common Stock will continue to trade on The Nasdaq Capital Market until the hearing process concludes and the Panel issues a written decision.

 

The Company anticipates that the Conversion will allow the Company to regain compliance with the MVLS Rule. However, there can be no assurance that the Panel will grant the Company’s request for a suspension of delisting or continued listing on The Nasdaq Capital Market.

 

Item 5.03 Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year

 

On October 3, 2023, the Sponsor, as the holder of a majority of the outstanding Class B Common Stock, approved the Class B Charter Amendment that removes the anti-dilution provision applicable to certain issuances of securities by the Company and adjusts the conversion ratio so that shares of Class B Common Stock shall be convertible into shares of Class A Common Stock on a 1:0.277 basis instead of a 1:1 basis, as described above. The Class B Charter Amendment was filed by the Company with the Secretary of State of the State of Delaware on October 3, 2023.

 

The foregoing description of the Class B Charter Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Class B Charter Amendment, a copy of which is filed herewith as Exhibit 3.1 to this report and is incorporated herein by reference.

 

Item 9.01 Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.		Description
3.1		Certificate of Amendment to the Amended and Restated Certificate of Incorporation
10.1		Forfeiture and Redemption Agreement, dated as of October 2, 2023, between the Company and the Sponsor
104		Cover Page Interactive Data File (embedded within the Inline XBRL document)

 

 

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.

 

	SEP Acquisition Corp.
Date: October 3, 2023	By:	/s/ R. Andrew White
	Name: R. Andrew White
	Title: President and Chief Executive Officer

 

 

 

Exhibit 3.1

 

CERTIFICATE OF AMENDMENT TO THE

AMENDED AND RESTATED

CERTIFICATE OF INCORPORATION

OF

SEP ACQUISITION CORP.

 

SEP Acquisition Corp., a corporation organized and existing under the and by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:

 

1.            The name of the corporation is SEP Acquisition Corp.

 

2.            The Amended and Restated Certificate of Incorporation, dated July 27, 2021, as amended by the Certificate of Amendment, dated December 20, 2022, of SEP Acquisition Corp., as further amended by the Certificate of Amendment, dated December 20, 2022, of SEP Acquisition Corp. (as amended, the “Amended and Restated Certificate of Incorporation”) is amended by deleting Section 4.3(b) thereof and so that, as amended, said Section 4.3(b) shall be and read as follows:

 

(b)          Class B Common Stock.

 

(i)             Right to Convert. Shares of Class B Common Stock shall be convertible into shares of Class A Common Stock on a 1:0.277 basis, such that 1 share of Class B Common Stock is convertible to 0.277 shares of Class A Common Stock, and shall be convertible (A) at any time and from time to time at the option of the holder thereof and (B) automatically on the closing of the Business Combination.

 

(ii)            Mechanics of Conversion. No fractional shares of Class A Common Stock shall be issued upon conversion of Class B Common Stock. All Class A Common Stock (including fractions thereof) issuable upon conversion of more than one share of Class B Common Stock by a holder thereof shall be aggregated for purposes of determining whether the conversion would result in the issuance of any fractional shares. If, after the aforementioned aggregation, the conversion would result in the issuance of a fractional share of Class A Common Stock, the Corporation shall round up the fractional share of Class A Common Stock to the nearest whole share of Class A Common Stock.

 

(iii)          Voting. Except as otherwise required by law or this Amended and Restated Certificate (including any Preferred Stock Designation), for so long as any shares of Class B Common Stock shall remain outstanding, the Corporation shall not, without the prior vote or written consent of the holders of a majority of the shares of Class B Common Stock then outstanding, voting separately as a single class, amend, alter or repeal any provision of this Amended and Restated Certificate, whether by merger, consolidation or otherwise, if such amendment, alteration or repeal would alter or change the powers, preferences or relative, participating, optional or other or special rights of the Class B Common Stock. Any action required or permitted to be taken at any meeting of the holders of Class B Common Stock may be taken without a meeting, without prior notice and without a vote, if a consent or consents in writing, setting forth the action so taken, shall be signed by the holders of the outstanding Class B Common Stock having not less than the minimum number of votes that would be necessary to authorize or take such action at a meeting at which all shares of Class B Common Stock were present and voted and shall be delivered to the Corporation by delivery to its registered office in the State of Delaware, its principal place of business, or an officer or agent of the Corporation having custody of the book in which minutes of proceedings of stockholders are recorded. Delivery made to the Corporation’s registered office shall be by hand or by certified or registered mail, return receipt requested. Prompt written notice of the taking of corporate action without a meeting by less than unanimous written consent of the holders of Class B Common Stock shall, to the extent required by law, be given to those holders of Class B Common Stock who have not consented in writing and who, if the action had been taken at a meeting, would have been entitled to notice of the meeting if the record date for notice of such meeting had been the date that written consents signed by a sufficient number of holders of Class B Common Stock to take the action were delivered to the Corporation.

 

 

3.            This Certificate of Amendment to the Amended and Restated Certificate of Incorporation has been duly adopted in accordance with the provisions of Sections 228(a) and 242 of the DGCL.

 

4.            All other provisions of the Company’s Amended and Restated Certificate of Incorporation shall remain in full force and effect.

 

[Signature page follows.]

 

 

IN WITNESS WHEREOF, the corporation has caused this Certificate of Amendment to be signed this 3rd day of October, 2023.

 

	/s/ R. Andrew White
	R. Andrew White
	Chief Executive Officer, President and Director

 

 

 

Exhibit 10.1

 

FORFEITURE AND REDEMPTION AGREEMENT

 

This FORFEITURE AND REDEMPTION AGREEMENT (this “Agreement”) is entered into as of October 2, 2023 (the “Agreement Date”) by and among SEP Acquisition Corp., a Delaware corporation (“SEPA”), Mercury Sponsor Group I LLC, a Delaware limited liability company (the “Sponsor”), and SANUWAVE Health, Inc., a Nevada corporation (“SANUWAVE”). SEPA the Sponsor and SANUWAVE are collectively referred to herein as the “Parties” and individually as a “Party”. All capitalized terms used but not defined herein shall have the respective meanings specified in the Merger Agreement (as defined herein).

 

WHEREAS, on August 23, 2023, SEPA, SEP Acquisition Holdings Inc., a Nevada corporation and a wholly-owned subsidiary of SEPA (the “Merger Sub”), and SANUWAVE, entered into an Agreement and Plan of Merger (the “Merger Agreement”), pursuant to which, subject to the terms and conditions set forth in the Merger Agreement, the Merger Sub will merge with and into SANUWAVE, with SANUWAVE continuing as the surviving corporation following the Merger as a wholly-owned subsidiary of SEPA (the “Business Combination”);

 

WHEREAS, pursuant to the terms and subject to the conditions of the Merger Agreement, the board of directors of SEPA (the “Board of Directors”) has recommended its stockholders approve an amendment to the Amended and Restated Certificate of Incorporation of SEPA, dated July 27, 2021, as amended on December 20, 2022 (the “Current Charter”), to adjust the conversion ratio so that shares of Class B common stock, par value $0.0001 per share, of SEPA (“Class B Common Stock”) shall be convertible into shares of Class A common stock, par value $0.0001 per share, of SEPA (“Class A Common Stock”) on a 1:0.277 basis instead of a 1:1 basis (the “Charter Amendment”);

 

WHEREAS, SEPA acknowledges that SANUWAVE’s consent is required to effectuate the Charter Amendment pursuant to Section 5.4(b)(i) of the Merger Agreement;

 

WHEREAS, it is a condition to consummation of the transactions contemplated by the Merger Agreement that SEPA’s shares be listed on Nasdaq;

 

WHEREAS, in order to bring SEPA into compliance with Nasdaq Listing Rule 5550(b)(2), which requires a listed company to have a minimum Market Value of Listed Securities of at least $35 million, the Sponsor has agreed to convert 2,415,375 shares of Class B Common Stock into 2,415,375 shares of Class A Common Stock (the “Converted Shares”) on a 1:1 basis, pursuant to Section 4.3(b)(i) of the Current Charter (the “Conversion”);

 

WHEREAS, in order to conform with the terms and conditions of the Merger Agreement, the Sponsor desires to agree to forfeit 1,746,316 shares (the “Forfeited Shares”) of Class A Common Stock (the “Forfeiture”) following the Conversion and contingent upon and effective immediately prior to the closing of the Business Combination (the “Closing”), and SEPA desires to redeem the Forfeited Shares in exchange for no consideration (the “Redemption”) contingent upon and effective immediately prior to the Closing; and

 

WHEREAS, SEPA and the Sponsor acknowledge that any shares of capital stock of SEPA that the Sponsor beneficially owns, holds or otherwise has voting power are currently subject to the restrictions set forth in the Sponsor Voting Agreement, dated August 23, 2023, by and among the Parties (the “Sponsor Voting Agreement”), from the date of the Sponsor Voting Agreement until the Sponsor Voting Agreement is terminated in accordance with its terms.

 

 

NOW, THEREFORE, in consideration of the premises, covenants and agreements set forth herein, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree, intending to be legally bound, as follows:

 

1.            Trust Account Waiver. The Sponsor acknowledges that SEPA has established a trust account (the “Trust Account”) containing the proceeds of its initial public offering (“IPO”) and certain proceeds of the private placement consummated simultaneously with the IPO (including interest accrued from time to time thereon) for the benefit of SEPA’s public stockholders. The Sponsor hereby agrees (on its own behalf and on behalf of its affiliates and related parties) that it does not now and shall not at any time hereafter have any right, title, interest or claim of any kind in or to any assets held in the Trust Account with respect to the Converted Shares, and it shall not make any claim against the Trust Account with respect to the Converted Shares, regardless of whether such claim arises as a result of, in connection with or relating in any way to this Agreement, the Merger Agreement, or any other matter, and regardless of whether such claim arises based on contract, tort, equity or any other theory of legal liability.

 

2.            Forfeiture. The Sponsor hereby agrees that, contingent upon and effective immediately prior to the Closing and without any further action by the Sponsor, the Forfeited Shares shall automatically be forfeited to SEPA for no consideration. The Sponsor agrees that SEPA shall accept the Forfeited Shares and redeem such shares in exchange for no consideration contingent upon and effective immediately prior to the Closing.

 

3.            Redemption. SEPA hereby agrees to accept the Forfeited Shares and to redeem such Forfeited Shares for no consideration contingent upon and effective immediately prior to Closing.

 

4.            Representations and Warranties of the Sponsor. The Sponsor represents and warrants to SEPA as follows:

 

(a)            The Sponsor is duly organized, validly existing and in good standing under the laws of the State of Delaware and has all requisite power and authority to execute and deliver this Agreement and perform its respective obligations hereunder.

 

(b)            The Sponsor, in making the decisions to enter into this Agreement and to forfeit the Forfeited Shares, has not relied upon any oral or written representations or assurances from SANUWAVE, SEPA or any of their respective officers, directors, partners, or employees or any other representatives or agents.

 

(c)            The Sponsor acknowledges that it has had the opportunity to review this Agreement and the transactions contemplated by this Agreement with the Sponsor’s own legal counsel and investment and tax advisors, has sought such accounting, legal and tax advice as the Sponsor has considered necessary to make an informed decision with respect to the transactions contemplated by this Agreement, and has not received and is not relying on any statement, representation or warranty made by any person, firm or corporation (including without limitation SANUWAVE, SEPA or their Affiliates) in connection with the transactions contemplated by this Agreement.

 

 

(d)            The execution, delivery and performance of this Agreement by the Sponsor and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Sponsor and no other actions or proceedings on the part of the Sponsor are necessary to authorize this Agreement or to consummate the transactions contemplated hereby. This Agreement has been duly and validly executed and delivered by the Sponsor and constitutes the legal, valid and binding obligations of the Sponsor, enforceable against the Sponsor in accordance with its terms.

 

(e)            No filing with, or notification to, any Governmental Authority, and no consent, approval, authorization or permit of any other person is necessary for the execution of this Agreement by the Sponsor, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby. None of the execution and delivery of this Agreement by the Sponsor, the performance of its obligations hereunder or the consummation by it of the transactions contemplated hereby shall (i) conflict with or result in any breach of the organizational documents of the Sponsor, (ii) result in, or give rise to, a violation or breach of or a default under any of the terms of any contract or obligation to which the Sponsor is a party or by which the Sponsor or any of its assets may be bound, or (iii) violate any applicable Law or Order, except for any of the foregoing in clauses (i) through (iii) as would not reasonably be expected to impair the Sponsor’s ability to perform its obligations under this Agreement in any material respect.

 

5.            Termination. This Agreement shall terminate and be of no further force or effect upon the earliest to occur of (a) the termination of the Merger Agreement pursuant to and in compliance with the terms therein, or (b) the mutual written agreement of each of the Parties to terminate this Agreement. Upon such termination, no Party shall have any further obligations hereunder; provided that (i) this Section 5, Section 7, Section 8 and Section 9 shall survive any termination of this Agreement and (ii) the termination of this Agreement shall not prevent any Party hereunder from seeking any remedies (at law or in equity) against another Party or relieve such Party from liability for such Party’s breach of any terms of this Agreement.

 

6.            Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary, (a) the Sponsor makes no agreement or understanding herein in any capacity other than in the Sponsor’s capacity as a record holder and beneficial owner of the Forfeited Shares, and not in the Sponsor’s capacity as a fiduciary of SEPA or any of its Affiliates, as applicable, and (b) nothing herein will be construed to limit or affect any action or inaction by the Sponsor or any representative of the Sponsor serving as a member of the Board of Directors or the board of directors of SEPA’s Affiliates or as an officer, employee or fiduciary of SEPA or its Affiliates, in each case, acting in such person’s capacity as a director, officer, employee or fiduciary of SEPA or such Affiliate.

 

7.            Non-Recourse. This Agreement may only be enforced against, and any claim or cause of action based upon, arising out of, or related to this Agreement or the transactions contemplated hereby may only be brought against, the Persons that are expressly named as Parties and then only with respect to the specific obligations set forth herein with respect to such Party. Notwithstanding the foregoing, nothing in this Section 7 shall limit, amend or waive any rights or obligations of any party to this Agreement, the Merger Agreement, or any Ancillary Documents.

 

 

8.            Grant of Power of Attorney.

 

(a)            At the time of the Closing, in the event that the Sponsor fails to perform or otherwise comply with the covenants, agreements or obligations set forth in Section 2, the Sponsor hereby irrevocably and unconditionally grants to, and appoints, SEPA’s transfer agent and any of its respective designees, as the Sponsor’s attorney-in-fact (with full power of substitution), for and in the name, place and stead of the Sponsor, to forfeit or to cause to be forfeited the Forfeited Shares.

 

(b)            The Sponsor hereby represents that there are no other powers of attorney with respect to the Forfeited Shares.

 

(c)            The Sponsor hereby affirms that the irrevocable power of attorney set forth in this Section 8 is given in connection with the Closing of the Business Combination, and that such irrevocable power of attorney is given to secure the performance of the duties of the Sponsor under this Agreement. The Sponsor hereby further affirms that the irrevocable power of attorney is coupled with an interest and, except as set forth in this Section 8, is intended to be irrevocable.

 

9.            Miscellaneous.

 

(a)            This Agreement and all of the provisions hereof shall be binding upon and inure to the benefit of the Parties hereto and their respective permitted successors and assigns. No Party may assign any or all of its rights under this Agreement without obtaining the consent or approval of the other Parties.

 

(b)            Nothing contained in this Agreement or in any instrument or document executed by any Party in connection with the transactions contemplated hereby shall create any rights in, or be deemed to have been executed for the benefit of, any person that is not a Party hereto or thereto or a successor or permitted assign of such a Party.

 

(c)            This Agreement and any dispute or controversy arising out of or relating to this Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of law principles thereof. All Actions arising out of or relating to this Agreement shall be heard and determined exclusively in the Chancery Court of the State of Delaware (or, if the Chancery Court of the State of Delaware declines to accept jurisdiction over a particular matter, any state or U.S. federal court located in the State of Delaware (or in any appellate court thereof)) (the “Specified Courts”). Each Party hereto hereby (i) submits to the exclusive jurisdiction of any Specified Court for the purpose of any Action arising out of or relating to this Agreement brought by any Party hereto and (ii) irrevocably waives, and agrees not to assert by way of motion, defense or otherwise, in any such Action, any claim that it is not subject personally to the jurisdiction of any Specified Court, that its property is exempt or immune from attachment or execution, that the Action is brought in an inconvenient forum, that the venue of the Action is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any Specified Court. Each Party agrees that a final judgment in any Action shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by Law. Each Party irrevocably consents to the service of the summons and complaint and any other process in any other action or proceeding relating to the transactions contemplated by this Agreement, on behalf of itself, or its property, by personal delivery of copies of such process to such Party. Nothing in this Section 9(c) shall affect the right of any Party to serve legal process in any other manner permitted by applicable law.

 

 

(d)            EACH OF THE PARTIES HERETO HEREBY WAIVES TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY WITH RESPECT TO ANY ACTION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH PARTY HERETO (i) CERTIFIES THAT NO REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SEEK TO ENFORCE THAT FOREGOING WAIVER AND (ii) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9(D).

 

(e)            Any term of this Agreement may be amended and the obligations of any term of this Agreement may be waived (either generally or in a particular instance, and either retroactively or prospectively) only with the written consent of the Parties. No failure or delay by a Party in exercising any right hereunder shall operate as a waiver thereof. No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or more instances, shall be deemed to be or construed as a further or continuing waiver of any such term, condition, or provision.

 

(f)            The Sponsor and SEPA expressly acknowledge that any breach by them or their Affiliates of this Agreement may be irreparably detrimental to SANUWAVE. Therefore, the Sponsor and SEPA agree to be responsible for any breach by them or their Affiliates of this Agreement. It is further understood and agreed that money damages may not be a sufficient remedy for any breach of this Agreement and that SANUWAVE shall be entitled to specific performance and other injunctive or equitable relief as a remedy for any such breach, without proof of actual damages and without the requirement of posting a bond or other security. The Sponsor and SEPA agree not to oppose the granting of such relief. Such remedy shall not be deemed to be the exclusive remedy for breach of this Agreement, but shall be in addition to all other remedies available to SANUWAVE at law or in equity.

 

(g)            In case any provision in this Agreement shall be held invalid, illegal or unenforceable in a jurisdiction, such provision shall be modified or deleted, as to the jurisdiction involved, only to the extent necessary to render the same valid, legal and enforceable, and the validity, legality and enforceability of the remaining provisions hereof shall not in any way be affected or impaired thereby nor shall the validity, legality or enforceability of such provision be affected thereby in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the Parties will substitute for any invalid, illegal or unenforceable provision a suitable and equitable provision that carries out, so far as may be valid, legal and enforceable, the intent and purpose of such invalid, illegal or unenforceable provision.

 

 

(h)            This Agreement (together with the Merger Agreement to the extent referred to herein) constitutes the full and entire understanding and agreement among the Parties with respect to the subject matter hereof, and any other written or oral agreement relating to the subject matter hereof existing between the Parties is expressly canceled; provided, that, for the avoidance of doubt, the foregoing shall not affect the rights and obligations of the Parties under the Merger Agreement or any Ancillary Document.

 

(i)             This Agreement may also be executed and delivered by facsimile or electronic signature or by email in portable document format in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.

 

[Signature Pages Follow.] 

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as of the date first above written.

 

	SEPA:
	SEP ACQUISITION CORP.
	By:	/s/ R. Andrew White
	Name: R. Andrew White
	Title: Chief Executive Officer

 

[Signature page to Forfeiture and Redemption Agreement] 

 

 

	SPONSOR:
	Mercury Sponsor Group I LLC
	By:	/s/ R. Andrew White
	Name: R. Andrew White
	Title: Authorized Person

 

 [Signature page to Forfeiture and Redemption Agreement] 

 

 

	SANUWAVE:
	SANUWAVE HEALTH, INC.
	By:	/s/ Morgan C. Frank
	Name: Morgan C. Frank
	Title: Chief Executive Officer

 

 [Signature page to Forfeiture and Redemption Agreement] 

 

v3.23.3

Cover	Sep. 27, 2023
Document Type	8-K
Amendment Flag	false
Document Period End Date	Sep. 27, 2023
Current Fiscal Year End Date	--12-31
Entity File Number	001-40679
Entity Registrant Name	SEP ACQUISITION CORP.
Entity Central Index Key	0001849902
Entity Tax Identification Number	86-2365445
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	3737 Buffalo Speedway, Suite 1750
Entity Address, City or Town	Houston
Entity Address, State or Province	TX
Entity Address, Postal Zip Code	77098
City Area Code	(713)
Local Phone Number	715-6820
Written Communications	true
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Entity Emerging Growth Company	true
Elected Not To Use the Extended Transition Period	false
Entity Information, Former Legal or Registered Name	Not Applicable
Units, each consisting of one share of Class A common stock and one-half of one warrant
Title of 12(b) Security	Units, each consisting of one share of Class A common stock and one-half of one warrant
Trading Symbol	SEPAU
Security Exchange Name	NASDAQ
Class A common stock, par value $0.0001 per share
Title of 12(b) Security	Class A common stock, par value $0.0001 per share
Trading Symbol	SEPA
Security Exchange Name	NASDAQ
Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share
Title of 12(b) Security	Warrants, each whole warrant exercisable for one share of Class A common stock at an exercise price of $11.50 per share
Trading Symbol	SEPAW
Security Exchange Name	NASDAQ

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