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): January 29, 2024

 

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. ☐

 

 

 

INTRODUCTORY NOTE

 

SEP Acquisition Corp., a Delaware corporation (the “Company”), held a special meeting of stockholders on January 29, 2024 at 9:00 a.m. Central time virtually (the “Special Stockholder Meeting”), at which holders of 5,146,501 shares of the Company’s common stock (consisting of 3,283,351 shares of Class A common stock and 1,836,150 shares of Class B common stock) were present in person or by proxy, representing 89.461% of the Company’s common stock outstanding and entitled to vote as of the record date of January 2, 2024, and constituting a quorum for the transaction of business.

 

The Company also held a special meeting of warrant holders on January 29, 2024 at 9:30 a.m. Central time virtually (the “Special Warrant Holder Meeting”), at which holders of 6,395,791 of the Company’s public warrants were present in person or by proxy, representing 70.90% of the Company’s public warrants outstanding and entitled to vote as of the record date of January 2, 2024, and constituting a quorum for the transaction of business.

 

Capitalized terms used herein but not otherwise defined have the meanings set forth in the Company’s proxy statement/prospectus, as filed with the Securities and Exchange Commission (the “SEC”) on January 4, 2024.

 

Item 3.03          Material Modifications to Rights of Security Holders.

 

On January 29, 2024, the warrant agreement (the “Warrant Agreement”) governing all of the Company’s warrants, including the sponsor warrants, was amended to provide that, upon closing of the Business Combination, the then outstanding public warrants of the Company will be canceled and exchanged for the right to receive 450,336 shares of Class A common stock, and the then outstanding private placement warrants of the Company will be canceled and exchanged for the right to receive 400,000 shares of Class A common stock, as set forth in Amendment No. 1 to the Warrant Agreement. The Company’s warrant holders approved Amendment No. 1 to the Warrant Agreement at the Special Warrant Holder Meeting. The foregoing description of Amendment No. 1 to the Warrant Agreement does not purport to be complete and is qualified in its entirety by reference to Amendment No. 1 to the Warrant Agreement, a copy of which is filed herewith as Exhibit 4.1 and is incorporated herein by reference.

 

The information set forth in Item 5.03 is incorporated herein by reference.

 

Item 5.02          Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

 

At the Special Stockholder Meeting, the Company’s stockholders approved the SANUWAVE Health, Inc. 2023 Equity Incentive Plan (the “Incentive Plan”). The Company’s board of directors previously approved the Incentive Plan on September 22, 2023, subject to stockholder approval. The Incentive Plan will become effective immediately following the Closing, to be used by the Combined Company. The foregoing description of the Incentive Plan does not purport to be complete and is qualified in its entirety by reference to the Incentive Plan, a copy of which is filed herewith as Exhibit 10.1 and is incorporated herein by reference.

 

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

 

At the Special Stockholder Meeting, the Company’s stockholders approved an amendment to the Amended and Restated Certificate of Incorporation of the Company, dated July 27, 2021, as amended on December 20, 2022 and October 3, 2023 (the “Current Charter”), which amendment will be effective, if implemented by the Company, prior to the consummation of the proposed Business Combination, to remove from the Current Charter the redemption limitation contained under Section 9.2(a) of the Current Charter preventing the Company from redeeming shares of Class A common stock if it would have less than $5,000,001 of net tangible assets. The foregoing description of the NTA Amendment does not purport to be complete and is qualified in its entirety by reference to the NTA Amendment, a copy of which is filed herewith as Exhibit 3.1 and is incorporated herein by reference.

 

 

Item 5.07          Submission of Matters to a Vote of Security Holders.

 

The final results for each proposal submitted to a vote of stockholders at the Special Stockholder Meeting are as follows:

 

Proposal 1: To consider and vote on an amendment to the Current Charter, which amendment shall be effective, if adopted and implemented by the Company, prior to the consummation of the proposed Business Combination, to remove from the Current Charter the redemption limitation contained under Section 9.2(a) of the Current Charter preventing the Company from redeeming shares of Class A common stock, if it would have less than $5,000,001 of net tangible assets, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,141,301	100	5,100	0

 

Proposal 2: To consider and vote on a proposal to approve the Merger Agreement and the transactions contemplated thereby, including the Business Combination, pursuant to which Merger Sub will merge with and into SANUWAVE, with SANUWAVE continuing as the surviving entity of the Business Combination and becoming a subsidiary of the Company, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,137,623	3,778	5,100	0

 

Proposal 3: To consider and vote on a proposal to approve, in connection with the Merger Agreement, the replacement of the Current Charter with the proposed new Second Amended and Restated Certificate of Incorporation of the Company (the “Proposed Charter”), to be effective upon the filing with and acceptance by the Delaware Secretary of State pursuant to which, among other things, the name of the Company will be changed to “SANUWAVE Health, Inc.” and certain blank check provisions will be removed from the Current Charter, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,137,623	3,778	5,100	0

 

Proposals 4-11: To consider and vote, on an advisory and non-binding basis, on eight (8) separate proposals to approve certain governance provisions in the Proposed Charter, by the votes set forth in the table below:

 

a.	Name Change Charter Amendment: To approve and adopt provisions in the Proposed Charter changing the Combined Company’s corporate name from “SEP Acquisition Corp.” to “SANUWAVE Health, Inc.”
	For	Against	Abstained	Broker Non-Votes
	5,137,623	3,778	5,100	0
b.	“Blank-Check Company” Charter Amendment: To approve and adopt provisions in the Proposed Charter that would remove certain language related to the Company’s status as a blank check company that will no longer apply upon the consummation of the Business Combination.
	For	Against	Abstained	Broker Non-Votes
	5,137,623	3,778	5,100	0
c.	Dual Class Structure Charter Amendment: To approve and adopt provisions in the Proposed Charter to eliminate the dual-class structure such that the total number of authorized shares of all classes of stock will be 171,000,000 shares, each with a par value of $0.0001 per share, consisting of (i) 170,000,000 shares of Class A common stock, and (ii) 1,000,000 shares of preferred stock.

 

	For	Against	Abstained	Broker Non-Votes
	5,137,623	3,778	5,100	0

 

d.	Classified Board Structure Charter Amendment: To approve and adopt provisions in the Proposed Charter to eliminate the Company’s classified board of directors structure such that all directors will be elected at each annual meeting of the Company’s stockholders for a term of one year.
	For	Against	Abstained	Broker Non-Votes
	5,137,623	3,778	5,100	0
e.	Removal of Director Charter Amendment: To approve and adopt provisions in the Proposed Charter requiring the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all the then outstanding shares of capital stock of the Combined Company entitled to vote to remove a director for “cause.”
	For	Against	Abstained	Broker Non-Votes
	5,141,301	100	5,100	0
f.	Amendment of Bylaws Charter Amendment: To approve and adopt provisions in the Proposed Charter requiring the affirmative vote of the holders of at least two-thirds (2/3) of the voting power of all the then outstanding shares of capital stock of the Combined Company entitled to vote to adopt, amend, alter, or repeal the bylaws of the Company.
	For	Against	Abstained	Broker Non-Votes
	5,137,619	3,782	5,100	0
g.	Action by Written Consent Charter Amendment: To approve and adopt provisions in the Proposed Charter removing the ability of the holders of Class B common stock to take action by written consent (given that the Combined Company will no longer have holders of Class B common stock).
	For	Against	Abstained	Broker Non-Votes
	5,137,619	3,782	5,100	0
h.	Corporate Opportunity Doctrine Charter Amendment: To approve and adopt provisions in the Proposed Charter removing the provision that waives the “corporate opportunity” doctrine.
	For	Against	Abstained	Broker Non-Votes
	5,137,623	3,778	5,100	0

Proposal 12: To consider and vote on a proposal to approve, for purposes of complying with Nasdaq Listing Rules 5635(a), (b) and (d), the issuance of more than 20% of the issued and outstanding shares of Class A common stock and the resulting change in control of the Company in connection with the Business Combination, the PIPE Investment and transactions contemplated thereby, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,137,623	3,778	5,100	0

 

Proposal 13: To consider and vote on a proposal to approve the Incentive Plan, effective immediately prior to the Closing, to be used by the Combined Company, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,137,623	3,778	5,100	0

 

 

Proposal 14: To consider and vote on a proposal to adjourn the Special Stockholder Meeting to a later date or dates, if necessary, to permit further solicitation and vote of proxies if it is determined by the Company’s board of directors that more time is necessary or appropriate to approve one or more proposals at the Special Stockholder Meeting, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,137,619	3,782	5,100	0

 

Given that Proposals 1-13 were approved by the stockholders, no adjournment was deemed to be necessary by the board of directors of the Company.

 

The final results for the matters submitted to a vote of the warrant holders at the Special Warrant Holder Meeting are as follows:

 

Proposal 1:

 

To consider and vote on an amendment to the Warrant Agreement to provide that, upon closing of the Business Combination, the then outstanding public warrants of the Company will be canceled and exchanged for the right to receive 450,336 shares of Class A common stock, and the then outstanding private placement warrants of the Company will be canceled and exchanged for the right to receive 400,000 shares of Class A common stock (i.e., approximately 0.0499 shares of Class A common stock for each private placement warrant), by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
5,904,092	456,273	35,426	0

 

Proposal 2: To consider and vote on a proposal to approve the adjournment of the Special Warrant Holder Meeting to a later date or dates, if necessary, (a) to permit further solicitation and vote of proxies in the event that there are insufficient votes for the approval of the Warrant Amendment Proposal at the Special Warrant Holder Meeting or (b) if the board of directors of the Company determines before the Special Warrant Holder Meeting that it is not necessary or no longer desirable to proceed with the proposal, by the votes set forth in the table below:

 

For	Against	Abstained	Broker Non-Votes
6,293,115	67,248	35,428	0

 

Given that the amendment to the Warrant Agreement was approved by the warrant holders, no adjournment was deemed to be necessary by the board of directors of the Company.

 

Item 8.01

Other Events.

 

In connection with the stockholder vote at the Special Stockholder Meeting, the Company’s stockholders had the right to elect to redeem all or a portion of their Class A common stock for a per share price calculated in accordance with the Company’s organizational documents. The Company’s stockholders holding 495,067 shares of Class A common stock validly elected to redeem their shares of Class A common stock.

 

 

Item 9.01

Financial Statements and Exhibits.

 

(d) Exhibits

 

Exhibit No.		Description
3.1		Form of Certificate of Amendment to the Amended and Restated Certificate of Incorporation (Incorporated by reference to Annex C to SEP Acquisition Corp.’s proxy statement / prospectus filed on January 4, 2024)
4.1		Amendment Number One to Warrant Agreement between SEP Acquisition Corp. and Continental Stock Transfer & Trust Company
10.1		SANUWAVE Health, Inc. 2023 Equity Incentive Plan (Incorporated by reference to Annex E to SEP Acquisition Corp.’s proxy statement/prospectus filed on January 4, 2024)
104		Cover Page Interactive Date File (the cover page XBRL tags are embedded within the inline XBRL document)

 

Important Notice Regarding Forward-Looking Statements

 

This Current Report on Form 8-K includes forward-looking statements regarding, among other things, the plans, strategies and prospects, both business and financial, of the Company. These statements are based on the beliefs and assumptions of the management of the Company. Although the Company believes that their plans, intentions and expectations reflected in or suggested by these forward-looking statements are reasonable, the Company cannot assure you that it will achieve or realize these plans, intentions or expectations. Forward-looking statements are inherently subject to risks, uncertainties and assumptions. Generally, statements that are not historical facts, including statements concerning possible or assumed future actions, business strategies, events or results of operations, are forward-looking statements. These statements may be preceded by, followed by or include the words “believes,” “estimates,” “expects,” “projects,” “forecasts,” “may,” “will,” “should,” “seeks,” “plans,” “scheduled,” “anticipates,” “intends” or similar expressions. The forward-looking statements are based on projections prepared by, and are the responsibility of, the Company’s management. These forward-looking statements are not guarantees of future performance, conditions or results, and involve a number of known and unknown risks, uncertainties, assumptions and other important factors, many of which are outside the control of the Company, that could cause actual results or outcomes to differ materially from those discussed in the forward-looking statements. New risk factors that may affect actual results or outcomes emerge from time to time and it is not possible to predict all such risk factors, nor for the Company to assess the impact of all such risk factors on its business, or the extent to which any factor or combination of factors may cause actual results to differ materially from those contained in any forward-looking statements. Forward-looking statements are not guarantees of performance. You should not put undue reliance on these statements, which speak only as of the date hereof. All forward-looking statements attributable to the Company or persons acting on its behalf are expressly qualified in their entirety by the foregoing cautionary statements. The Company prior to the Business Combination, and the Combined Company, undertake no obligations to update or revise publicly any forward-looking statements, whether as a result of new information, future events or otherwise, except as required by law.

 

Important Information for Investors and Stockholders

 

This document relates to a proposed transaction between the Company and SANUWAVE. This document does not constitute an offer to sell or exchange, or the solicitation of an offer to buy or exchange, any securities, nor will there be any sale of securities in any jurisdiction in which such offer, sale or exchange would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. The Company has filed a registration statement on Form S-4 with the SEC, which includes a document that serves as a prospectus and proxy statement of the Company, referred to as a proxy statement/prospectus. A proxy statement/prospectus has been sent to all of the Company’s stockholders. The Company has also filed other documents regarding the proposed transaction with the SEC. Before making any voting decision, investors and security holders of the Company are urged to read the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC in connection with the proposed transaction as they become available because they contain important information about the proposed transaction.

 

Stockholders can obtain a copy of the Form S-4, including the proxy statement/prospectus, and other documents filed with the SEC without charge, by directing a request to: SEP Acquisition Corp., at 3737 Buffalo Speedway, Suite 1750 Houston, Texas 77098. Investors and stockholders will also be able to obtain free copies of the registration statement, the proxy statement/prospectus and all other relevant documents filed or that will be filed with the SEC by the Company through the website maintained by the SEC at www.sec.gov. INVESTORS AND SECURITY HOLDERS OF SEP ACQUISITION CORP. ARE URGED TO READ THESE MATERIALS (INCLUDING ANY AMENDMENTS OR SUPPLEMENTS THERETO) AND ANY OTHER RELEVANT DOCUMENTS IN CONNECTION WITH THE TRANSACTIONS THAT SEP ACQUISITION CORP. WILL FILE WITH THE SEC WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT SEP ACQUISITION CORP. AND THE TRANSACTIONS.

 

 

Participants in the Solicitation

 

The Company and its directors and executive officers may be deemed participants in the solicitation of proxies from the Company’s stockholders with respect to the Business Combination. Information about the Company’s directors and executive officers and a description of their interests in the Company are included in the proxy statement/prospectus for the proposed transaction and are available at the SEC’s website (www.sec.gov). Additional information regarding the interests of such participants are contained in the proxy statement/prospectus for the proposed transaction.

 

SANUWAVE and its directors and executive officers also may be deemed to be participants in the solicitation of proxies from the stockholders of the Company in connection with the proposed Business Combination. Information about SANUWAVE’s directors and executive officers and information regarding their interests in the proposed transaction are included in the proxy statement/prospectus for the proposed transaction.

 

No Offer or Solicitation

 

This Current Report on Form 8-K is not a proxy statement or solicitation of a proxy, consent or authorization with respect to any securities or in respect of the transactions described above and shall not constitute an offer to sell or a solicitation of an offer to buy the securities of the Company, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation, or sale would be unlawful prior to registration or qualification under the securities laws of such state or jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act of 1933, as amended, or an exemption therefrom.

 

 

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: January 30, 2024

By:

/s/ R. Andrew White

Name: R. Andrew White

Title: President and Chief Executive Officer

 

Exhibit 4.1

 

AMENDMENT NUMBER ONE

 

to

 

WARRANT AGREEMENT

 

between

 

SEP ACQUISITION CORP.

 

and

 

CONTINENTAL STOCK TRANSFER & TRUST COMPANY

 

THIS AMENDMENT NUMBER ONE TO WARRANT AGREEMENT (this “Amendment”), dated as of January 29, 2024, is by and between SEP Acquisition Corp., a Delaware corporation formerly known as “Mercury Ecommerce Acquisition Corp.” (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation, as warrant agent (the “Warrant Agent”, also referred to herein as the “Transfer Agent”). Defined terms used herein but not otherwise defined herein shall have the meanings assigned to them in the Original Warrant Agreement (defined below).

 

RECITALS

 

WHEREAS, the Company and Warrant Agent are parties to that certain Warrant Agreement dated as of July 21, 2021 (the “Original Warrant Agreement”);

 

WHEREAS, the Company, SEP Acquisition Holdings Inc., a Nevada corporation and wholly owned subsidiary of the Company (“Merger Sub”), and SANUWAVE Health, Inc., a Nevada corporation (“Target”), have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), dated August 23, 2023 (the “Effective Date”), pursuant to which Target will merge with and into Merger Sub (the “Merger”), with Target being the surviving entity in the Merger (the date of such Merger, the “Closing Date”);

 

WHEREAS, pursuant to Section 9.8 of the Original Warrant Agreement, this Amendment has been approved by vote or written consent of the Registered Holders of more than 50% of the outstanding Public Warrants, and each of the Registered Holders of the Private Placement Warrants; and

 

WHEREAS, the Company and the Registered Holders have agreed to amend the Original Warrant Agreement on the terms set forth herein.

 

NOW, THEREFORE, in consideration of the mutual covenants and promises set forth herein, the parties hereto, intending to be legally bound hereby, agree as of the date hereof, as follows:

 

AGREEMENTS

 

1. Amendments to Original Warrant Agreement. The Original Warrant Agreement is hereby amended as follows:

 

(a) A new Section 10 shall be added to the Original Warrant Agreement that reads as follows:

 

10. Merger Transaction Matters.

 

(a) Reference is made to that certain Agreement and Plan of Merger (the “Merger Agreement”) dated as of August 23, 2023 (the “Effective Date”), by and among the Company, SEP Acquisition Holdings Inc., a Nevada corporation and wholly owned subsidiary of the Company (“Merger Sub”), and SANUWAVE Health, Inc., a Nevada corporation (“Target”), pursuant to which Target will merge with and into Merger Sub (the “Merger”), with Target being the surviving entity in the Merger (the date of such Merger, the “Closing Date” and the consummation of such Merger, the “Closing”).

 

 

(b) Notwithstanding anything to the contrary set forth in this Agreement or any Warrant issued thereunder, at all times between the date hereof and the earlier of Closing or the termination of the Merger Agreement (the “Merger Period”), the:

 

(1) Public Warrants are not exercisable to purchase shares of Class A Common Stock, and instead, effective as of immediately prior to the effective time of the Merger (the “Effective Time”) shall be automatically converted solely into the right to receive 450,336 shares of Class A Common Stock of the Company, calculated in respect of each Registered Holder of Public Warrants, as follows: each Public Warrant shall be converted into the right to receive, effective as of immediately prior to the Effective Time, that number of shares of Class A Common Stock equal to: (1) (i) the number of shares of Class A Common Stock issuable to such Registered Holder if such Registered Holder’s Public Warrants had been exercised under the terms of Section 3 of this Agreement divided by (ii) the number of shares of Class A Common Stock issuable if all the Public Warrants had been exercised under the terms of Section 3 of this Agreement, multiplied by (2) 450,336.

 

(2) Private Placement Warrants are not exercisable to purchase shares of Class A Common Stock and instead, effective as of immediately prior to the Effective Time, shall be automatically converted solely into the right to receive 400,000 shares of Class A Common Stock of the Company, calculated in respect of each Registered Holder of Private Placement Warrants, as follows: each Private Placement Warrant shall be converted into the right to receive, effective as of immediately prior to the Effective Time, that number of shares of Class A Common Stock equal to: (1) (i) the number of shares of Class A Common Stock issuable to such Registered Holder if such Registered Holder’s Private Placement Warrants had been exercised under the terms of Section 3 of this Agreement divided by (ii) the number of shares of Class A Common Stock issuable if all of the Private Placement Warrants had been exercised under the terms of Section 3 of this Agreement, multiplied by (2) 400,000.

 

(c) During the Merger Period, the (i) terms of Section 3 of this Agreement regarding any exercise of a Warrant or issuance of Class A Common Stock in connection therewith shall be of no force or effect and (ii) the terms of Section 6 of this Agreement shall be of no force or effect.

 

(d) If, by reason of any exchange of Warrants contemplated by this Section 10, the Registered Holder of any Warrant would be entitled, upon such exchange, to receive a fractional interest in a share of Class A Common Stock, the Company shall round down to the nearest whole number the number of shares of Class A Common Stock to be issued to such Registered Holder.

 

(e) Subject to the terms of subsection (f) below, all provisions set forth in this Agreement relating to the issuance of shares of Class A Common Stock to a Registered Holder of Warrants upon an exercise of the Warrants shall apply, mutatis mutandis, to the issuance of shares of Class A Common Stock to a Registered Holder of Warrants in exchange for such Registered Holder’s Warrants. In the event of any conflict between the terms of subsection (f) and any other term of this Agreement, subsection (f) shall control.

 

(f) Each Registered Holder shall be entitled to receive the number of shares of Class A Common Stock to which it is entitled under subsection (b) above, on or as soon as reasonably practicable after the Closing Date, but subject to the delivery by such holder to the Transfer Agent of the following items prior thereto (collectively, the “Transmittal Documents”) in forms mutually agreed by the Company and Target prior to the Closing: (i) a properly completed and duly executed Letter of Transmittal; and (ii) such other related documents as may be reasonably requested by the Transfer Agent or the Company. Until so surrendered, each Warrant shall represent after the Closing Date for all purposes only the right to receive the shares of Class A Common Stock attributable to such Warrant. If any portion of the shares of Class A Common Stock are to be issued to a Person other than the Person in whose name the Warrant is registered immediately prior to the Closing Date, it shall be a condition to such issuance that (i) the Person in whose name such portion of the shares are to be issued shall have executed and delivered such Transmittal Documents as are reasonably deemed necessary by the Transfer Agent or the Company, and (ii) the Person requesting such delivery shall pay to the Transfer Agent any transfer or other taxes required as a result of such issuance to a Person other than the Registered Holder or establish to the satisfaction of the Transfer Agent that such tax has been paid or is not payable. Subject to applicable Law, following delivery of the Transmittal Documents, the Company shall promptly deliver to the Registered Holder, without interest, book-entry shares representing Class A Common Stock issued in exchange therefor and the amount of any such dividends or other distributions with a record date after the Closing Date theretofore paid with respect to such Class A Common Stock.

 

 

(g) All Class A Common Stock issued in exchange for and upon surrender of the Warrant(s) in accordance with the terms hereof shall be deemed to have been issued in full satisfaction of all rights pertaining to such Warrant(s). Any Registered Holder who has not exchanged its Warrant(s) for shares of Class A Common Stock in accordance with this Section 10 prior to the date that is four (4) years after the Effective Time shall thereafter look only to the Company for payment of the shares of Class A Common Stock attributable to such Warrant(s) without any interest thereon (but with any dividends paid with respect thereto). Notwithstanding the foregoing, none of the Company, Target or any party hereto shall be liable to any person for any amount properly paid to a public official pursuant to any applicable abandoned property, escheat or similar law.

 

(h) Notwithstanding the foregoing, this Section 10 shall terminate, and have no further force and effect, on the date the Merger Agreement is terminated in accordance with its terms.

 

(i) (i) This Agreement shall automatically terminate and each Warrant hereunder shall automatically be cancelled, without any further action of the Company or any other party, upon the Closing and issuance of shares of Class A Common Stock to the Registered Holders of the Public Warrants and Private Placement Warrants in accordance with this Section 10. Each Registered Holder of Warrants shall cease to have any rights related to this Agreement or such Warrants upon such termination and cancellation.

 

2. Effect of Amendment. The undersigned hereby agree and acknowledge that, except as provided in this Amendment, the Original Warrant Agreement shall remain in full force and effect and has not been modified or amended in any respect, it being the intention of the undersigned that this Amendment and the Warrant be read, construed and interpreted as one and the same instrument.

 

3. Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.

 

4. Counterparts. This Amendment may be executed in any number of original or facsimile counterparts and each of such counterparts shall for all purposes be deemed to be an original, and all such counterparts shall together constitute but one and the same instrument.

 

5. Governing Law. The validity, interpretation, and performance of the Agreement, including this Amendment, and of the Warrants shall be governed in all respects by the laws of the State of New York, without giving effect to conflicts of law principles that would result in the application of the substantive laws of another jurisdiction.

 

[Signature Page Follows]

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

 

	​	​	SEP Acquisition Corp.
	​	​		​	​		​	​
	​	​	By:	​	​	/s/ R. Andrew White
	​	​		​	​	Name:	​	​	R. Andrew White
	​	​		​	​	Title:	​	​	President and Chief Executive Officer

 

	​	​	Continental Stock Transfer & Trust Company, as Warrant Agent
	​	​		​	​
	​	​	By:	​	​	/s/ Erika Young
	​	​		​	​	Name:	​	​	Erika Young
	​	​		​	​	Title:	​	​	Vice President

 

[Signature Page to Amendment No. One to Warrant Agreement]

 

v3.24.0.1

Cover	Jan. 29, 2024
Document Type	8-K
Amendment Flag	false
Document Period End Date	Jan. 29, 2024
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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