Form 8-K - Current report

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

PURSUANT TO SECTION 13 OR 15(d) OF THE

SECURITIES EXCHANGE ACT OF 1934

Date of Report (Date of earliest event reported): August 25, 2023

ATHENA CONSUMER ACQUISITION CORP.

(Exact name of registrant as specified in its charter)

Delaware		001-40921		87-1178222
(State or other jurisdiction of incorporation)		(Commission File Number)		(IRS Employer Identification No.)

442 5th Avenue

New York, NY 10018

(Address of principal executive offices, including zip code)

Registrant’s telephone number, including area code: (970) 925-1572

Not Applicable

(Former name or former address, if changed since last report)

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

☒	Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

☐	Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

☐	Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

☐	Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class	Trading Symbol(s)	Name of each exchange on which registered
Units, each consisting of one Class A common stock, par value $0.0001 per share, and one-half of one Redeemable Warrant	ACAQ.U	NYSE American LLC

Shares of Class A common stock, par value $0.0001 per share, included as part of the units	ACAQ	NYSE American LLC

Redeemable warrants, each exercisable for one share of Class A common stock for $11.50 per share	ACAQ WS	NYSE American LLC

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry Into a Material Definitive Agreement

Fourth Amendment to the Business Combination Agreement

As previously announced, on July 28, 2022, Athena Consumer Acquisition Corp., a Delaware corporation (“Athena”), entered into a Business Combination Agreement (as amended by the first, second and third amendment to the business combination agreement, dated as of September 29, 2022, June 29, 2023 and July 18, 2023, respectively, and as may be further, supplemented or otherwise modified from time to time, the “Business Combination Agreement”), by and among Athena, Next.e.GO Mobile SE, a German company (“e.GO”), Next.e.GO B.V., a Dutch private limited liability company and a wholly-owned subsidiary of e.GO (“TopCo”), and Time is Now Merger Sub, Inc., a Delaware corporation and wholly-owned subsidiary of TopCo (“Merger Sub”). The transactions contemplated by the Business Combination Agreement are hereinafter referred to as the “Business Combination”.

On August 25, 2023, Athena entered into a fourth amendment to the Business Combination Agreement (the “Fourth Amendment to the Business Combination Agreement”), by and between Athena and e.GO, pursuant to which, among other things, certain terms of the Business Combination Agreement (including with respect to the transaction steps, joint covenants of the parties, and the conditions to the obligations of the parties) were amended to reflect:

●

Warrant Exchange. The Business Combination Agreement previously provided that each outstanding warrant to purchase a share of Athena Class A common stock, par value $0.0001 per share, of Athena (the “Athena Class A Common Stock” and such warrants, the “Athena Warrants”) will be converted into a warrant to purchase a newly issued ordinary share, nominal value €0.12 per share, of TopCo (the “TopCo Share”) on the same contractual terms and conditions as were in effect with respect to each warrant prior to the Business Combination at the closing of the Business Combination (the “Closing”). Pursuant to the Fourth Amendment to the Business Combination Agreement, immediately prior to the Closing, each outstanding Athena Warrant will instead, subject to the approval of warrant holders of Athena, be cancelled and exchanged for 0.175 shares of Class A Common Stock, which will subsequently, in connection with the Closing, be exchanged for newly issued TopCo Shares (the “Warrant Exchange”).

●

Revised Form of Earn-out Agreement. In connection with the proposed Warrant Exchange, Athena and e.GO renegotiated certain terms of the earn-out agreement, which TopCo, Athena and holders of e.GO’s equity securities (the “e.GO Shareholders”) have agreed to enter into prior to the Closing, pursuant to which, among other things, TopCo will issue or cause to be issued to the e.GO Shareholders 30,000,000 Earn-Out Shares at the Closing. 20,000,000 of the Earn-Out Shares will be divided into four equal 5,000,000 share tranches, with each tranche subject to immediate vesting and release of trading and voting restrictions if the trading price per TopCo Share at any point during the trading hours of a trading day is greater than or equal to $12.50, $15.00, $20.00 and $25.00, respectively, for any 20 trading days within any period of 30 consecutive trading days during the five-year period following the Closing. The remaining 10,000,000 of such Earn-Out shares will vest immediately as of the Closing and will be subject to a 12-month lock-up.

The foregoing description of the Fourth Amendment to the Business Combination Agreement does not purport to be complete and is qualified in its entirety by the terms and conditions of the Fourth Amendment to the Business Combination Agreement, a copy of which is attached as Exhibit 2.1 hereto and is incorporated by reference herein.

Important Information about the Business Combination and Where to Find It

In connection with the Business Combination and the proposed Warrant Exchange, TopCo has filed with the SEC a registration statement on Form F-4 on March 13, 2023 (as amended, the “Registration Statement”), which includes a preliminary proxy statement/prospectus. This communication is not a substitute for the Registration Statement, the definitive proxy statement/final prospectus or any other document that Athena will send to its stockholders in connection with the Business Combination. Investors and security holders of Athena are advised to read the preliminary proxy statement/prospectus, and when available, the definitive proxy statement/prospectus in connection with Athena’s solicitation of proxies for its special meeting of stockholders to be held to approve the Business Combination (and related matters) because the proxy statement/prospectus will contain important information about the Business Combination and the parties to the Business Combination. The definitive proxy statement/final prospectus will be mailed to stockholders of Athena as of a record date to be established for voting on the Business Combination. Stockholders will also be able to obtain copies of the proxy statement/prospectus, without charge, once available, at the SEC’s website at www.sec.gov or by directing a request to: 442 5th Avenue, New York, NY, 10018.

This Current Report on Form 8-K is for informational purposes only and does not constitute an offer to sell or the solicitation of an offer to buy any securities, or a solicitation of any vote or approval, nor shall there be any sale of securities in any jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such jurisdiction. No offering of securities shall be made except by means of a prospectus meeting the requirements of Section 10 of the Securities Act, or an applicable exemption from the registration requirements thereof.

Participants in the Solicitation

Athena, e.GO, TopCo and their respective directors, executive officers, other members of management, and employees, under SEC rules, may be deemed to be participants in the solicitation of proxies of Athena’s stockholders in connection with the Business Combination. Investors and security holders may obtain more detailed information regarding the names and interests in the Business Combination of Athena’s directors and officers in Athena’s filings with the SEC, and such information and names of e.GO’s directors and executive officers is also in the Registration Statement, which includes the proxy statement of Athena for the Business Combination.

Forward Looking Statements

This Current Report on Form 8-K includes “forward-looking statements” within the meaning of the “safe harbor” provisions of the United States Private Securities Litigation Reform Act of 1995. Forward-looking statements may be identified by the use of words such as “estimate,” “plan,” “project,” “forecast,” “intend,” “will,” “expect,” “anticipate,” “believe,” “seek,” “target”, “may”, “intend”, “predict”, “should”, “would”, “predict”, “potential”, “seem”, “future”, “outlook” or other similar expressions (or negative versions of such words or expressions) that predict or indicate future events or trends or that are not statements of historical matters. These forward-looking statements include, but are not limited to, statements regarding Athena, e.GO, and TopCo’s expectations with respect to future performance and anticipated financial impacts of the Business Combination, the satisfaction of the closing conditions to the Business Combination, the level of redemptions by Athena’s public stockholders, the timing of the completion of the Business Combination and the use of the cash proceeds therefrom. These statements are based on various assumptions, whether or not identified herein, and on the current expectations of Athena, e.GO, and TopCo’s management and are not predictions of actual performance. These forward-looking statements are provided for illustrative purposes only and are not intended to serve as, and must not be relied on by any investor as, a guarantee, an assurance, a prediction or a definitive statement of fact or probability. Actual events and circumstances are difficult or impossible to predict and may differ from assumptions, and such differences may be material. Many actual events and circumstances are beyond the control of Athena, e.GO, and TopCo.

These forward-looking statements are subject to a number of risks and uncertainties, including: (i) changes in domestic and foreign business, market, financial, political and legal conditions; (ii) the inability of the parties to successfully or timely consummate the proposed Business Combination, including the risk that any required regulatory approvals are not obtained, are delayed or are subject to unanticipated conditions that could adversely affect the combined company or the expected benefits of the proposed Business Combination or that the approval of the stockholders of Athena or e.GO is not obtained; (iii) failure to realize the anticipated benefits of the proposed Business Combination; (iv) risks relating to the uncertainty of the projected financial information with respect to e.GO; (v) the outcome of any legal proceedings that may be instituted against Athena and/or e.GO following the announcement of the Business Combination agreement and the transactions contemplated therein; (vi) future global, regional or local economic and market conditions; (vii) the development, effects and enforcement of laws and regulations; (viii) e.GO’s ability to grow and achieve its business objectives; (ix) the effects of competition on e.GO’s future business; (x) the amount of redemption requests made by Athena’s public stockholders; (xi) the ability of Athena or the combined company to issue equity or equity-linked securities in the future; (xii) the ability of e.GO and Athena to raise interim financing in connection with the Business Combination; (xiii) the outcome of any potential litigation, government and regulatory proceedings, investigations and inquiries; (xiv) the risk that the proposed Business Combination disrupts current plans and operations as a result of the announcement and consummation, (xv) costs related to the Business Combination, (xvi) the impact of a sustained outbreak of COVID-19 and (xvi) those factors discussed below under the heading “Risk Factors” and in the documents of Athena filed, or to be filed, with the SEC. Additional risks related to e.GO’s business include, but are not limited to: the market’s willingness to adopt electric vehicles; volatility in demand for vehicles; e.GO’s dependence on the contemplated Business Combination and other external financing to continue its operations; significant challenges as a new entrant in the automotive industry; e.GO’s ability to control capital expenditures and costs; cost increases or disruptions in supply of raw materials, semiconductor chips or other components; breaches in data security; e.GO’s ability to establish, maintain and strengthen its brand; minimal experience in servicing and repairing vehicles; product recalls; failure by joint-venture to meet their contractual commitments; unfavorable changes to the regulatory environment; risks and uncertainties arising from the acquisition of e.GO’s predecessor business and assets following the opening of insolvency proceedings over the predecessor’s assets in July 2020; protection of e.GO’s intellectual property. If any of these risks materialize or our assumptions prove incorrect, actual results could differ materially from the results implied by these forward-looking statements.

There may be additional risks that neither e.GO nor Athena presently know or that e.GO and Athena currently believe are immaterial that could also cause actual results to differ from those contained in the forward-looking statements. In addition, forward-looking statements reflect e.GO’s and Athena’s expectations, plans or forecasts of future events and views as of the date of this Current Report on Form 8-K. e.GO and Athena anticipate that subsequent events and developments will cause e.GO’s and Athena’s assessments to change. However, while e.GO and Athena may elect to update these forward-looking statements at some point in the future, e.GO and Athena specifically disclaim any obligation to do so. These forward-looking statements should not be relied upon as representing e.GO’s and Athena’s assessments as of any date subsequent to the date of this Current Report on Form 8-K. Accordingly, undue reliance should not be placed upon the forward-looking statements.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits

Exhibit Number		Description
2.1		Fourth Amendment to the Business Combination Agreement, dated as of August 25, 2023, by and between Athena Consumer Acquisition Corp. and Next.e.GO Mobile SE.
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.

	ATHENA CONSUMER ACQUISITION CORP.

	By:	/s/ Jane Park
		Name:	Jane Park
		Title:	Chief Executive Officer

Dated: August 28, 2023

Exhibit 2.1

FOURTH AMENDMENT TO BUSINESS COMBINATION AGREEMENT

This amendment (this “Amendment”), dated as of August 25, 2023, by and between Athena Consumer Acquisition Corp., a Delaware corporation (“SPAC”), and Next.e.GO Mobile SE, a European company incorporated in Germany (the “Company”), to that certain Business Combination Agreement, dated as of July 28, 2022, by and among SPAC, the Company, Next.e.GO B.V., a Dutch private limited liability company, and Time is Now Merger Sub, Inc., a Delaware corporation, as amended by that certain First Amendment to Business Combination Agreement, dated as of September 29, 2022, that certain Second Amendment to Business Combination Agreement, dated as of June 29, 2023, and that certain Third Amendment to Business Combination Agreement, dated as of July 18, 2023 (the “Agreement”). SPAC and the Company are collectively referred to herein as the “Amending Parties” and each individually as an “Amending Party.” Any term used in this Amendment without definition has the meaning set forth for such term in the Agreement.

RECITALS

WHEREAS, Section 12.10 of the Agreement provides that, prior to the Closing, the Agreement may be amended or modified upon a written agreement executed by SPAC and the Company; and

WHEREAS, the undersigned Amending Parties wish to amend the Agreement to reflect certain revisions as set forth herein.

AGREEMENT

NOW THEREFORE, in consideration of the mutual agreements and covenants herein contained, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Amending Parties hereby agree as follows:

1. The Agreement is hereby amended as set forth below in this Section 1. Revisions to existing provisions of the Agreement are set forth, for ease of reference in this Amendment, with deleted text showing in ~~strikethrough~~ and new text shown in underlined boldface.

(a) Exhibit H-1 – Form of Private Warrant Assumption Agreement and Exhibit H-2 – Form of Public Warrant Assumption Agreement shall be deleted from the index of Exhibits on page (iv) of the Agreement.

(b) The fourth Recital is hereby amended and restated to read as follows:

WHEREAS, pursuant to SPAC’s Governing Documents, SPAC is required to provide an opportunity for its stockholders to have their outstanding SPAC Class A Shares redeemed on the terms and subject to the conditions set forth therein in connection with obtaining the SPAC Stockholder Approval at the Stockholder Special Meeting

“WHEREAS, prior to the Merger (as defined below), the SPAC Public Warrant Agreement will be amended to provide that, immediately prior to the Merger, each outstanding SPAC Warrant (as defined below) shall be cancelled and exchanged for 0.175 SPAC Class A Shares, which shall, as a consequence of the Merger, become part of the Surviving Company Common Stock (as defined below) and shall subsequently, as part of the TopCo-SPAC Business Combination (as defined below), be exchanged for TopCo Ordinary Shares (as defined below), on the terms and subject to the conditions set forth in this Agreement;”

(d) The ninth Recital is hereby amended and restated to read as follows:

“WHEREAS, following the Exchange, at the Effective Time, (i) Merger Sub will merge with and into SPAC (the “Merger”), with SPAC as the surviving company in the Merger (the “Surviving Company”) and, after giving effect to the Merger, the Surviving Company will be a wholly owned Subsidiary of TopCo, (ii) each issued and outstanding SPAC Class A Share will be automatically cancelled and extinguished and converted into one share of common stock, par value $0.0001 per share, of the Surviving Company (“Surviving Company Common Stock”), and, immediately thereafter, and (iii) each of the resulting shares of Surviving Company Common Stock will be exchanged for one TopCo Ordinary Share (defined below) and (iv) each SPAC Warrant (defined below) that is outstanding immediately prior to the Effective Time will be converted into a warrant that is exercisable for an equivalent number of TopCo Ordinary Shares on the same contractual terms and conditions as were in effect with respect to such SPAC Warrant immediately prior to the effective time under the terms of the Warrant Agreement (defined below), in each case, on the terms and subject to the conditions set forth in this Agreement;”

(e) Section 1.01 of the Agreement is hereby amended by deleting the definition “Converted Warrant”.

(f) Section 1.01 of the Agreement is hereby amended by deleting the definition “Private Warrant Assumption Agreement”.

(g) Section 1.01 of the Agreement is hereby amended by deleting the definition “Public Warrant Assumption Agreement”.

(h) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “SPAC Public Warrant Agreement” and “SPAC SEC Reports”:

““SPAC Public Warrant Amendment” has the meaning specified in the Recitals.”

““SPAC Public Warrant Holder Approval” means the votes of the holders of SPAC Public Warrants required to approve, in accordance with applicable Law, the SPAC’s Governing Documents and the SPAC Public Warrant Agreement, (a) the SPAC Public Warrant Amendment; (b) the adoption and approval of any other proposals as either the SEC or Stock Exchange (or the respective staff members thereof) may indicate are necessary in its comments to the Registration Statement/Proxy Statement or in correspondence related thereto, and of any other proposals reasonably agreed by SPAC, TopCo and the Company as necessary or appropriate in connection with the consummation of the SPAC Public Warrant Amendment as contemplated by this Agreement and the SPAC Public Warrant Agreement (as it may be amended in accordance with this Agreement); and (c) the adjournment of the Warrant Holder Special Meeting, if necessary, to permit further solicitation of proxies there are not sufficient votes to approve and adopt any of the foregoing or the other Transaction Proposals.”

(i) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “SPAC Transaction Expenses” and “SPAC Warrants”:

“‘SPAC Warrant Exchange’ has the meaning specified in Section 2.01(d).”

(j) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “Sponsor Letter Agreement” and “Stock Exchange”:

“‘Sponsor Warrant Support Agreement’ has the meaning specified in Section 2.01(d).”

(k) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “Stock Exchange” and “Subsidiary”:

“‘Stockholder Special Meeting’ has the meaning specified in Section 9.03(b).”

(l) Section 1.01 of the Agreement is hereby amended by amending and restating the definition of “Transaction Documents” to read as follows:

“‘Transaction Documents’ means this Agreement, the Undertakings, the Shareholder Lock-Up Agreements, the Sponsor Letter Agreement, the Registration Rights Agreement, ~~the Warrant Assumption Agreements,~~ the Intellectual Property Security Agreement, the TopCo Amended and Restated Articles of Association, the Dutch Deeds of Issue, the German Transfer Deed and all the agreements, documents, instruments and certificates entered into in connection herewith or therewith and any and all exhibits and schedules thereto.”

(m) Section 1.01 of the Agreement is hereby amended by amending and restating the definition of “Transactions” to read as follows:

“‘Transactions’ means the transactions contemplated by this Agreement and the other Transaction Documents, including the TopCo-SPAC Business Combination, the Exchange, ~~and~~ the Conversion and the SPAC Warrant Exchange.”

(n) Section 1.01 of the Agreement is hereby amended by deleting the definition “Warrant Assumption Agreements”.

(o) Section 1.01 of the Agreement is hereby amended by inserting the following between the definitions of “Warrant Agreements” and “White & Case”:

“‘Warrant Holder Special Meeting’ has the meaning specified in Section 9.03(b).”

(p) Section 2.01 of the Agreement is hereby amended by amending and restating Section 2.01(c)(i) to read as follows:

(i) On the terms and subject to the conditions set forth herein and in accordance with the DGCL, on the Closing Date and immediately after giving effect to the Change of Legal Form of TopCo as referred to in Section 2.01(b) and the SPAC Warrant Exchange contemplated by Section 2.01(d), SPAC and Merger Sub shall consummate the Merger, pursuant to which Merger Sub shall be merged with and into SPAC, whereupon the separate existence of Merger Sub shall cease and SPAC shall continue as the Surviving Company and shall succeed to and assume all the rights and obligations of Merger Sub in accordance with the DGCL, and SPAC shall, upon the consummation of the transactions contemplated by Section 2.01(c)(v), continue as the Surviving Company as a direct, wholly-owned Subsidiary of TopCo. At the Closing, SPAC and Merger Sub shall file with the Delaware Secretary of State a certificate of merger substantially in the form attached to this Agreement as Exhibit G (the “Certificate of Merger”) in accordance with the applicable provisions of the DGCL. The Merger shall become effective at the date and time the Certificate of Merger is accepted for filing by the Delaware Secretary of State or at such later date and time as may be mutually agreed by SPAC and Merger Sub and specified in the Certificate of Merger. The time at which the Merger actually becomes effective is referred to herein as the “Effective Time”

(q) Section 2.01 of the Agreement is hereby amended to delete and replace Section 2.01(d) in its entirety to read as follows:

“(d) SPAC Warrant Exchange. Immediately prior to the Merger, each outstanding SPAC Warrant shall be cancelled and exchanged for 0.175 SPAC Class A Shares, which shall, as a consequence of the Merger, become part of the Surviving Company Common Stock and shall subsequently, as part of the TopCo-SPAC Business Combination (as defined below), be exchanged for TopCo Ordinary Shares pursuant to Section 2.01(d)(ii) below (the “SPAC Warrant Exchange”). Prior to the Warrant Holder Special Meeting, SPAC shall use its reasonable best efforts to enter into (i) the maximum number of support agreements which are permitted by Law with holders of SPAC Public Warrants who each hold at least 5% or more of the SPAC Public Warrants, in which such holders of SPAC Public Warrants shall agree to vote all of their SPAC Public Warrants in favor of the SPAC Warrant Exchange, and (ii) a support agreement with the Sponsor (the “Sponsor Warrant Support Agreement”) pursuant to which the Sponsor shall provide its written consent to the SPAC Warrant Exchange with respect to the SPAC Private Placement Warrants.”

(r) Section 2.01 of the Agreement is hereby amended by amending and restating Section 2.01(f) to read as follows:

“(f) Earn-Out Shares. At the Closing, TopCo shall issue, or cause to be issued, to the Company Shareholders, following the Conversion, 30,000,000 new ~~unvested~~ TopCo Ordinary Shares, 20,000,000 of which shall be unvested and shall be subject to certain restrictions and vesting as set forth below, while 10,000,000 shall vest immediately as of the Closing and shall be unrestricted except for a 12-month lock-up period beginning at Closing (such 30,000,000 TopCo Ordinary Shares, the “Earn-Out Shares”). Prior to the Closing, TopCo, SPAC, the Company Shareholders and the Lenders shall enter into an earn-out agreement on a form to be mutually and reasonably agreed by the Parties (the “Earn-Out Agreement”). Pursuant to and in accordance with the Earn-Out Agreement, the Earn-Out Shares shall be issued at par and the aggregate nominal value of the Earn-Out Shares shall be charged against TopCo’s reserves as recognized for Dutch dividend withholding tax purposes. Upon their issuance, 20,000,000 ~~the~~ Earn-Out Shares shall be subject to restrictions concerning the exercise of the voting rights attached thereto and the transfer thereof, as shall be set forth in the Earn-Out Agreement until the earlier of (a) their vesting, at which time they shall automatically become unrestricted TopCo Ordinary Shares, and (b) the fifth anniversary of the Closing Date, upon which any unvested Earn-Out Shares shall be deemed forfeited and must be transferred to or at the instruction of TopCo for no consideration. Such 20,000,000 ~~The~~ Earn-Out Shares shall vest in four equal ~~one-sixth~~ increments of the total number of Earn-Out Shares in each case upon the occurrence of the closing share price of TopCo on the primary stock exchange where the TopCo Ordinary Shares are listed being greater than $12.50, $15.00, $20.00 and , $25.00~~, $30.00 and $35.00~~, respectively, for a period, in each case, of more than 20 trading days out of 30 consecutive trading days after the Closing Date.”

(s) Section 3.03 of the Agreement is hereby amended and restated to read as follows:

“Section 3.03 Closing Statements. At least three Business Days prior to the Closing Date, the Company shall deliver to SPAC a statement (the “TopCo Closing Statement”) setting forth the Company Transaction Expenses. Two Business Days prior to the Special Meeting but, in any event, not earlier than the time that the holders of SPAC Class A Shares may no longer elect to redeem their SPAC Class A Shares in accordance with the SPAC Stockholder Redemption, SPAC shall deliver to the Company a statement (the “SPAC Closing Statement”) setting forth: (a) the aggregate amount of cash in the Trust Account (prior to giving effect to the SPAC Stockholder Redemption and SPAC Class B Conversion), (b) the aggregate amount of all payments required to be made in connection with the SPAC Stockholder Redemption, (c) the Available Closing SPAC Cash resulting therefrom, (d) the SPAC Transaction Expenses, and (e) the number of SPAC Shares to be outstanding as of immediately prior to the Effective Time after giving effect to the SPAC Stockholder Redemption, and (f) the number of shares of SPAC Class A Shares that may be issued upon the exercise of all SPAC Warrants issued and outstanding as of immediately prior to the Effective Time and the exercise prices therefor. From and after the delivery of the TopCo Closing Statement or the SPAC Closing Statement, as the case may be, until the Closing Date, each of TopCo and SPAC shall (i) provide the other Parties and their Representatives with reasonable access to information reasonably requested by the other or any of its respective Representatives in connection with the review of the TopCo Closing Statement or the SPAC Closing Statement, as the case may be, (ii) consider in good faith any comments to the TopCo Closing Statement or the SPAC Closing Statement, as the case may be, provided by any other Party at least two Business Days prior to the Closing Date and (iii) revise the TopCo Closing Statement or SPAC Closing Statement as needed to reflect any reasonable comments and any other comments that, based on its good faith assessment, are warranted or appropriate and deliver such revised TopCo Closing Statement or SPAC Closing Statement, as the case may be, to any other Party prior to the Closing Date reflecting any such changes.”

(t) Section 4.23 of the Agreement is hereby amended and restated to read as follows:

“Section 4.23 Information Supplied. None of the information supplied or to be supplied by, or on behalf of, the Company and its Subsidiaries expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement/Proxy Statement will, when the Registration Statement/Proxy Statement is declared effective or when the Registration Statement/Proxy Statement is mailed to the Pre-Closing SPAC’s Holders and the holders of SPAC Public Warrants or at the time of the Special Meeting, and in the case of any amendment or supplement thereto, at the time of such amendment or supplement, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.”

(u) Section 6.02 of the Agreement is hereby amended and restated to read as follows:

“Section 6.02 Due Authorization. SPAC has the requisite corporate power and authority to execute and deliver this Agreement and each Transaction Document to which SPAC is or will be a party and to consummate the transactions contemplated hereby and thereby. Subject to obtaining the SPAC Stockholder Approval by the Pre-Closing SPAC Holders and the SPAC Public Warrant Holder Approval by the holders of the SPAC Public Warrants at the Special Meeting, the execution and delivery of this Agreement, the Transaction Documents to which SPAC is or will be a party and the consummation of the transactions contemplated hereby and thereby have been (or, in the case of any Transaction Document entered into after the date of this Agreement, will be upon execution thereof) duly authorized by all necessary exempted company action on the part of SPAC. This Agreement has been, and each Transaction Document to which SPAC is or will be upon execution thereof, duly and validly executed and delivered by SPAC and constitutes or will constitute, upon execution thereof, as applicable, assuming due power and authority of, and due execution and delivery by, the Company, a valid, legal and binding agreement of SPAC (assuming this Agreement has been and the Transaction Documents to which SPAC is or will be a party are or will be upon execution thereof, as applicable, duly authorized, executed and delivered by the other Persons party hereto or thereto, as applicable), enforceable against SPAC in accordance with their terms, subject to the Enforceability Exceptions.”

(v) Section 6.05 of the Agreement is hereby amended and restated to read as follows:

“Section 6.05 Consents and Requisite Government Approvals; No Violations. (a) No consent, approval or authorization of, or designation, declaration or filing with, any Governmental Authority is required on the part of SPAC with respect to SPAC’s execution, delivery or performance of its obligations under this Agreement or the Transaction Documents to which it is or will be party or the consummation of the transactions contemplated hereby or by the Transaction Documents, except for (i) the filing with the SEC of (A) the Registration Statement/Proxy Statement and the declaration of the effectiveness thereof by the SEC and (B) such reports under Section 13(a) or 15(d) of the Exchange Act as may be required in connection with this Agreement, the Transaction Documents or the transactions contemplated by hereby or thereby, (ii) such filings with and approvals of the Stock Exchange to permit TopCo Ordinary Shares to be issued in accordance with this Agreement to be listed on the Stock Exchange, (iii) filing of the Certificate of Merger under the DGCL, (iv) the SPAC Stockholder Approval and the SPAC Public Warrant Holder Approval or (v) any consents, approvals, authorizations, designations, declarations, waivers or filings, the absence of which would not reasonably be expected to be, individually or in the aggregate, material to SPAC.”

(w) Section 6.13 of the Agreement is hereby amended and restated to read as follows:

“Section 6.13 Information Supplied. None of the information supplied or to be supplied by, or on behalf of, SPAC expressly for inclusion or incorporation by reference prior to the Closing in the Registration Statement/Proxy Statement will, when the Registration Statement/Proxy Statement is declared effective or when the Registration Statement/Proxy Statement is mailed to the Pre-Closing SPAC Holders and the holders of the SPAC Public Warrants or at the time of the Special Meeting, and in the case of any amendment or supplement thereto, at the time of such amendment or supplement, contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in light of the circumstances under which they are made, not misleading.”

(x) The heading of Section 9.03 of the Agreement is hereby amended and restated to read as follows:

“Section 9.03 Registration Statement/Proxy Statement; SPAC Special Meetings.”

(y) Section 9.03(a)(i) of the Agreement is hereby amended and restated to read as follows:

“(i) As promptly as practicable following the date of this Agreement, SPAC, TopCo and the Company shall use reasonable best efforts to prepare and mutually agree upon (such agreement not to be unreasonably withheld, conditioned or delayed by any of the Parties), and TopCo shall use reasonable best efforts to file with the SEC, the Registration Statement/Proxy Statement (it being understood that the Registration Statement/Proxy Statement shall include a proxy statement/prospectus which will be included therein as a prospectus and which will be used for the Special Meeting to adopt and approve the Transaction Proposals and other matters reasonably related to the Transaction Proposals, including the SPAC Public Warrant Amendment, all in accordance with, and as required by, the SPAC Governing Documents, applicable Law and any applicable rules and regulations of the SEC and the Stock Exchange). Each of SPAC, TopCo and the Company shall use its reasonable best efforts to (A) cause the Registration Statement/Proxy Statement to comply in all material respects with the applicable rules and regulations promulgated by the SEC (including, with respect to the Company, the provision of financial statements for the Company and its Subsidiaries for all periods, and in the form, required to be included in the Registration Statement/Proxy Statement under Securities Laws (after giving effect to any waivers received) or in response to any comments from the SEC); (B) promptly notify the other Parties of, reasonably cooperate with each other Party with respect to and respond promptly to, any comments of the SEC or its staff; (C) have the Registration Statement/Proxy Statement declared effective under the Securities Act as promptly as reasonably practicable after it is filed with the SEC; and (D) keep the Registration Statement/Proxy Statement effective through the Closing in order to permit the consummation of the transactions contemplated by this Agreement. Without limiting the generality of the foregoing, the Company and SPAC shall reasonably cooperate in connection with the preparation for inclusion in the Registration Statement/Proxy Statement of pro forma financial statements that comply with the requirements of Regulation S-X under the rules and regulations of the SEC (as interpreted by the staff of the SEC) to the extent such pro forma financial statements are required for the Registration Statement/Proxy Statement.”

(z) Section 9.03(b) of the Agreement is hereby amended and restated to read as follows:

“(b) SPAC Special Meeting. As promptly as practicable following the time at which the Registration Statement/Proxy Statement is declared effective under the Securities Act, SPAC shall (i) duly give notice of a meeting of the SPAC shareholders (the “Stockholder Special Meeting”) and a meeting of the holders of the SPAC Public Warrants (the “Warrant Holder Special Meeting”, and together with the Stockholder Special Meeting, the “Special Meeting”), (ii) cause the Registration Statement/Proxy Statement to be mailed to the SPAC shareholders and the holders of the SPAC Public Warrants and (iii) duly convene and hold the Special Meeting (it being understood that both the Stockholder Special Meeting and the Warrant Holder Special Meeting shall be held on the same day), in each case, in accordance with the Governing Documents of SPAC, the SPAC Public Warrant Agreement and applicable Law, for the purposes of obtaining the SPAC Stockholder Approval and the SPAC Public Warrant Holder Approval (as applicable) and, if applicable, any approvals related thereto and providing its shareholders with the opportunity to elect to effect a SPAC Stockholder Redemption. SPAC shall, through its board of directors, recommend to its shareholders the (w) adoption and approval of this Agreement and the Transactions and include such recommendation in the Registration Statement/Proxy Statement (the “Business Combination Proposal”); (x) adoption and approval of any other proposals as either the SEC or Stock Exchange (or the respective staff members thereof) may indicate are necessary in its comments to the Registration Statement/Proxy Statement or in correspondence related thereto, and of any other proposals reasonably agreed by SPAC, TopCo and the Company as necessary or appropriate in connection with the consummation of the transactions contemplated by this Agreement and the other Transaction Documents; (y) adoption and approval of the Merger, along with the documents relating thereto and the transactions contemplated thereby (the “Merger Proposal”); and (z) the adjournment of the Stockholder Special Meeting, if necessary, to permit further solicitation of proxies because there are not sufficient votes to approve and adopt any of the foregoing (such proposals in clauses (w) through (y) together, the “Transaction Proposals”); provided that SPAC may postpone or adjourn the Special Meeting (A) to solicit additional proxies for the purpose of obtaining the SPAC Stockholder Approval or the SPAC Public Warrant Holder Approval, (B) as a result of the absence of a quorum, (C) to allow reasonable time for the filing or mailing of any supplemental or amended disclosures that SPAC has determined, based on the advice of outside legal counsel, is reasonably likely to be required under applicable Law and for such supplemental or amended disclosure to be disseminated and reviewed by the Pre-Closing SPAC Holders or the holders of SPAC Public Warrants prior to the Special Meeting or (D) if SPAC determines that one or more of the Transaction Conditions under this Agreement is not satisfied or waived. The board of directors of SPAC shall not withdraw, amend, qualify or modify the recommendation to its shareholders that is contemplated by this Section 9.03(b); provided, that the board of directors of SPAC may withdraw, amend, qualify or modify such recommendation if it determines in good faith, after consultation with its outside legal counsel, that a failure to do so would constitute a breach of its fiduciary duties to its stockholders under applicable Law.”

(aa) Between Section 10.01(b) and Section 10.01(c) of the Agreement, the following shall be inserted:

“(c) the Sponsor shall have delivered to SPAC the Sponsor Warrant Support Agreement, duly executed by the Sponsor, prior to the Warrant Holders Meeting;”

(bb) Section 10.01(c) of the Agreement is hereby amended and restated to read as follows:

“~~(c)~~(d) the SPAC Stockholder Approval and the SPAC Public Warrant Holder Approval shall have been obtained; and”

(cc) Section 10.03(h)(ii) of the Agreement is hereby deleted.

(dd) Section 11.01(d) of the Agreement is hereby amended and restated to read as follows:

“(d) by either SPAC or the Company, if the transactions contemplated by this Agreement shall not have been consummated on or prior to October 22 ~~September 30~~, 2023 (the “Termination Date”); provided that (i) the right to terminate this Agreement pursuant to this Section 11.01(d) shall not be available to SPAC if SPAC’s breach of any of its covenants or obligations under this Agreement shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date and (ii) the right to terminate this Agreement pursuant to this Section 11.01(d) shall not be available to the Company if the Company’s, TopCo’s or Merger Sub’s breach of any of his, her or its covenants or obligations under this Agreement shall have proximately caused the failure to consummate the transactions contemplated by this Agreement on or before the Termination Date;”

(ee) Between Section 11.01(e) and Section 11.01(f) of the Agreement, the following shall be inserted:

“(f) by either SPAC or the Company if the Sponsor failed to deliver to SPAC the Sponsor Warrant Support Agreement, duly executed by the Sponsor, prior to the Warrant Holders Meeting;”

(ff) Section 11.01(f) of the Agreement is hereby amended and restated to read as follows:

“~~(f)~~(g) by either SPAC or the Company, if the Special Meeting has been held (including any adjournment or postponement thereof), has concluded, the Pre-Closing SPAC Holders and the holders of SPAC Public Warrants have duly voted and the SPAC Stockholder Approval or the SPAC Public Warrant Holder Approval was not obtained; or”

(gg) Exhibit E – Form of Registration Rights Agreement shall be restated in its entirety and shall have the form attached as Annex A hereto.

2. Upon the execution and delivery hereof, the Agreement shall be deemed to be amended and/or restated as hereinabove set forth as fully and with the same effect as if the amendments and/or restatements made hereby were originally set forth in the Agreement, and this Amendment and the Agreement shall henceforth respectively be read, taken and construed as one and the same instrument, but such amendments and/or restatements shall not operate so as to render invalid or improper any action heretofore taken under the Agreement. Further, except as specifically waived hereby, the Agreement shall continue in full force and effect as written.

3. The terms of Article XII (Miscellaneous) of the Agreement shall apply to this Amendment mutatis mutandis, as applicable.

[Signatures on the following pages]

IN WITNESS WHEREOF, the Amending Parties have caused this Amendment to be duly executed as of the date set forth above.

	ATHENA CONSUMER ACQUISITION CORP.

	By:	/s/ Isabelle Freidheim
	Name:	Isabelle Freidheim
	Title:	Chairperson of the Board

[Signature Page to Fourth Amendment to Business Combination Agreement]

	NEXT.E.GO MOBILE SE

	By:	/s/ Eelco Van der Leij
	Name:	Eelco Van der Leij
	Title:	Chief Financial Officer

[Signature Page to Fourth Amendment to Business Combination Agreement]

Annex A

Restated Form of Registration Rights Agreement

Cover	Aug. 25, 2023
Document Type	8-K
Amendment Flag	false
Document Period End Date	Aug. 25, 2023
Entity File Number	001-40921
Entity Registrant Name	ATHENA CONSUMER ACQUISITION CORP.
Entity Central Index Key	0001869141
Entity Tax Identification Number	87-1178222
Entity Incorporation, State or Country Code	DE
Entity Address, Address Line One	442 5th Avenue
Entity Address, City or Town	New York
Entity Address, State or Province	NY
Entity Address, Postal Zip Code	10018
City Area Code	970
Local Phone Number	925-1572
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
Units, each consisting of one Class A common stock, par value $0.0001 per share, and one-half of one Redeemable Warrant
Title of 12(b) Security	Units, each consisting of one Class A common stock, par value $0.0001 per share, and one-half of one Redeemable Warrant
Trading Symbol	ACAQ.U
Security Exchange Name	NYSEAMER
Shares of Class A common stock, par value $0.0001 per share, included as part of the units
Title of 12(b) Security	Shares of Class A common stock, par value $0.0001 per share, included as part of the units
Trading Symbol	ACAQ
Security Exchange Name	NYSEAMER
Redeemable warrants, each exercisable for one share of Class A common stock for $11.50 per share
Title of 12(b) Security	Redeemable warrants, each exercisable for one share of Class A common stock for $11.50 per share
Trading Symbol	ACAQ WS
Security Exchange Name	NYSEAMER