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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): May 28, 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.
Item
1.01 Entry into a Material Definitive Agreement.
On
May 28, 2024, SEP Acquisition Corp., a Delaware corporation (the “Company”), and SANUWAVE Health, Inc., a Nevada corporation
(“SANUWAVE”), entered into that certain Amendment Number Three (the “Amendment”) to the Agreement and Plan of
Merger, dated as of August 23, 2023, by and among the Company, SANUWAVE and SEP Acquisition Holdings Inc., a Nevada corporation and a
wholly owned subsidiary of the Company (as amended, the “Merger Agreement”). Pursuant to the Amendment, the “Outside
Date” under the Merger Agreement, which is the date after which the Company or SANUWAVE, in its discretion, can elect to terminate
the Merger Agreement if any of the conditions to the closing of the other party have not been satisfied or waived, has been extended
from May 31, 2024 to June 30, 2024. In addition, the Amendment provides SANUWAVE with a unilateral right to terminate the Merger Agreement
at any time upon written notice to the Company. No other changes were made to the Merger Agreement.
The
foregoing description is qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit 2.1 hereto and
is incorporated herein by reference.
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. Neither the Company nor SANUWAVE
undertakes or accepts any obligation 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 U.S. Securities and Exchange Commission (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.
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.
Item
9.01 Financial Statements and Exhibits.
(d)
Exhibits
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: June 3, 2024 |
By: |
/s/ R. Andrew
White |
|
Name: R. Andrew White |
|
Title: President and Chief Executive Officer |
Exhibit
2.1
AMENDMENT
NUMBER THREE TO AGREEMENT AND PLAN OF MERGER
THIS
AMENDMENT NUMBER THREE TO AGREEMENT AND PLAN OF MERGER (this “Amendment”), dated as of May 28, 2024, is by
and between (i) SEP Acquisition Corp., a Delaware corporation (the “Purchaser”), and (ii) SANUWAVE Health,
Inc., a Nevada corporation (the “Company”).
RECITALS
WHEREAS,
Purchaser, SEP Acquisition Holdings Inc., a Nevada corporation and a wholly-owned subsidiary of the Purchaser (“Merger Sub”),
and the Company have entered into that certain Agreement and Plan of Merger (the “Merger Agreement”), dated
August 23, 2023, pursuant to which the Company will merge with and into Merger Sub, with the Company being the surviving entity in the
Merger;
WHEREAS,
Purchaser and the Company have entered into that certain Amendment Number One to Agreement and Plan of Merger, dated as of February 27,
2024 and that certain Amendment Number Two to Agreement and Plan of Merger, dated as of April 25, 2024; and
WHEREAS,
pursuant to Section 9.9 of the Merger Agreement, Purchaser and the Company have agreed to further amend the Merger 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.
Amendment.
| a. | Section
7.1(b) of the Merger Agreement is hereby deleted and replaced with the following: |
(b)
by written notice by either the Purchaser or the Company if any of the conditions of the other
Party to the Closing set forth in Article VI have not been satisfied or waived by June 30, 2024 (the “Outside Date”);
| b. | The
following is hereby added to Section 7.1 of the Merger Agreement as Section 7.1(k): |
(k) by
written notice by the Company to the Purchaser.
2.
Effect of Amendment. The undersigned hereby agree and acknowledge that, except as provided in this Amendment, the Merger 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 Merger Agreement 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 Merger Agreement, including this Amendment, shall be governed
in all respects by the laws of the State of Delaware, 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 Amendment to be duly executed as of the date first above written.
The
Purchaser:
SEP
ACQUISITION CORP.
By:
/s/ R. Andrew White
Name: R.
Andrew White
Title: Chief
Executive Officer
The
Company:
SANUWAVE
HEALTH, INC.
By:
/s/ Morgan Frank
Name: Morgan
Frank
Title: Chairman,
Chief Executive Officer
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