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.
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
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.
Date: January 30, 2024 |
By: |
/s/ 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.
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SEP
Acquisition Corp. |
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By: |
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/s/
R. Andrew White |
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Name: |
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R. Andrew White |
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Title: |
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President and
Chief Executive Officer |
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Continental
Stock Transfer & Trust Company, as Warrant Agent |
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By: |
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/s/
Erika Young |
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Name: |
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Erika
Young |
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Title: |
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Vice President |
[Signature
Page to Amendment No. One to Warrant Agreement]
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