UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or Section 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): June 13, 2023
ATHENA TECHNOLOGY ACQUISITION CORP. II
(Exact name of registrant as specified in its charter)
| Delaware | 001-41144 | 87-2447308 | ||
| (State or other jurisdiction of | (Commission File Number) | (IRS Employer | ||
| incorporation or organization) | Identification No.) |
442 5th Avenue
New York, NY 10018
(Address of registrant’s principal executive offices, including zip code)
(970) 925-1572
(Registrant’s telephone number, including area code)
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 Symbols | Name of each exchange on which registered | ||
| Units, each consisting of one share of Class A Common Stock and one-half of one Redeemable Warrant | ATEK.U | The New York Stock Exchange | ||
| Class A Common Stock, par value $0.0001 per share | ATEK | The New York Stock Exchange | ||
| Redeemable Warrants, each whole warrant exercisable for one share of Class A Common Stock, each at an exercise price of $11.50 per share | ATEK WS | The New York Stock Exchange |
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
Amendment No. 1 to the Investment Management Trust Agreement
As approved by the stockholders of Athena Technology Acquisition Corp. II, a Delaware corporation (the “Company”), at its
special meeting of stockholders held on June 13, 2023 (the “Special Meeting”), the “Company and Continental Stock Transfer
& Trust Company entered into Amendment No. 1 (the “Trust Amendment”) to the Investment Management Trust Agreement, dated
as of December 9, 2021 (the “Trust Agreement”). The Trust Amendment amends the Trust Agreement to allow the Company
to extend the date by which the Company must consummate a business combination from June 14, 2023 (the date which is 18 months from the
closing date of the Company’s initial public offering (the “IPO”) of units) (the “Current Outside Date”)
to up to March 14, 2024 (the date which is 27 months from the closing date of the IPO) by electing to extend the date to consummate an
initial business combination on a monthly basis up to nine times by an additional one month each time after the Current Outside Date until
the Extended Date, or a total of up to nine months after the Current Outside Date, provided that Athena Technology Sponsor II, LLC (the
“Sponsor”) or its affiliates or permitted designees will deposit into the trust account established by the Company in connection
with the IPO (the “trust account”) the lesser of (a) $60,000 and (b) $0.03 for each share of common stock (as defined in Item
5.03 below) issued and outstanding that has not been redeemed in accordance with the terms of the Company’s Amended and Restated
Certificate of Incorporation (the “charter”) upon the election of each such one-month extension unless the closing of the
Company’s initial business combination shall have occurred.
The foregoing description of the Trust Amendment is qualified in its entirety by reference to the Trust Amendment, a copy of which is attached as Exhibit 10.1 hereto and is incorporated herein by reference.
Item 5.03 Amendments to Articles of Incorporation or Bylaws
As approved by its stockholders at the Special Meeting, on June 13, 2023 the Company filed an amendment (the “Extension Amendment”) to its charter with the Secretary of State of the State of Delaware. The Extension Amendment (i) extends the date by which the Company must consummate its initial business combination from the Current Outside Date to up to the Extended Date and (ii) provides holders of the Company’s Class B common stock, par value $0.0001 per share (“Class B common stock”), the right to convert any and all of their Class B common stock into Class A common stock, par value $0.0001 per share, of the Company (“Class A common stock” and, together with the Class B common stock, the “common stock”) on a one-for-one basis prior to the closing of a business combination at the election of the holder.
The foregoing description of the Extension Amendment is qualified in its entirety by reference to the Extension Amendment, a copy of which
is attached as Exhibit 3.1 hereto and is incorporated herein by reference.
Item 5.07 Submission of Matters to a Vote of Security Holders
On June 13, 2023, the Company convened the Special Meeting. As of the close of business on May 15, 2023, the record date for the Special Meeting, there were an aggregate of 35,210,000 shares of common stock outstanding (consisting of 26,328,750 shares of Class A common stock and 8,881,250 shares of the Company’s Class B common stock), each of which was entitled to one vote with respect to the Extension Amendment Proposal, the Trust Amendment Proposal and the Founder Share Amendment Proposal (each as defined below). A total of 27,853,592 shares of common stock, representing approximately 79.10% of the outstanding shares of common stock entitled to vote at the Special Meeting, were present in person or by proxy, constituting a quorum. The proposals listed below are described in more detail in the Company’s definitive proxy statement filed with the Securities and Exchange Commission on May 16, 2023, as amended and supplemented by the proxy amendment and supplement filed by the Company on June 2, 2023. The stockholders of the Company voted on proposals to amend the charter to extend the date by which the Company must consummate an initial business combination (the “Extension Amendment Proposal”), to provide holders of Class B common stock the right to convert their Class B common stock into Class A common stock prior to the closing of a business combination (the “Founder Share Amendment Proposal”) and to amend the Trust Agreement to extend the date by which the Company must consummate a business combination (the “Trust Amendment Proposal”). A summary of the voting results at the Special Meeting is set forth below:
The Extension Amendment Proposal – To approve and amend the charter to extend the date by which the Company must consummate a business combination from the Current Outside Date to up to the Extended Date.
| For | Against | Abstain | ||
| 27,430,536 | 423,056 | 0 |
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The Founder Share Amendment Proposal – To approve and amend the charter to provide holders of Class B common stock the right to convert any and all of their Class B common stock into Class A common stock on a one-for-one basis prior to the closing of an initial business combination at the election of the holder.
| For | Against | Abstain | ||
| 27,430,536 | 423,056 | 0 |
The Trust Amendment Proposal – To approve and amend the Trust Agreement allowing the Company to extend the Current Outside Date to up to the Extended Date by electing to extend the date to consummate an initial business combination on a monthly basis up to nine times by an additional one month each time after the Current Outside Date until the Extended Date, or a total of up to nine months after the Current Outside Date, provided that the Sponsor or its affiliates or permitted designees will deposit into the trust account the lesser of (a) $60,000 and (b) $0.03 for each share of common stock issued and outstanding that has not been redeemed in accordance with the terms of the Company’s charter upon the election of each such one-month extension unless the closing of the Company’s initial business combination shall have occurred.
| For | Against | Abstain | ||
| 27,430,536 | 423,056 | 0 |
Stockholders holding 23,176,961 shares of Class A common stock exercised their right to redeem such shares for a pro rata portion of the funds in the trust account. As a result, approximately $241,790,903.82 (approximately $10.43 per share) will be withdrawn from the trust account to pay such redeeming holders.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibit:
| Exhibit No. | Description of Exhibits | |
| 3.1 | Certificate of Amendment to the Amended and Restated Certificate of Incorporation of the Company. | |
| 10.1 | Amendment No. 1 to the Investment Management Trust Agreement, dated June 13, 2023, entered into between the Company and Continental Stock Transfer & Trust Company. | |
| 104 | Cover Page Interactive Data File (embedded within Inline XBRL document). |
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
| Dated: June 14, 2023 | ATHENA TECHNOLOGY ACQUISITION CORP. II | |
| By: | /s/ Isabelle Freidheim | |
| Name: | Isabelle Freidheim | |
| Title: | Chief Executive Officer and Chairperson of the Board of Directors | |
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Exhibit 3.1
CERTIFICATE OF AMENDMENT TO THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
ATHENA TECHNOLOGY ACQUISITION CORP. II
Athena Technology Acquisition Corp. II (the “Corporation”), a corporation organized and existing under the laws of the State of Delaware by virtue of the General Corporation Law of the State of Delaware (the “DGCL”), does hereby certify:
1. The name of the Corporation is Athena Technology Acquisition Corp. II.
2. The Corporation’s original Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on May 20, 2021. The Corporation’s Amended and Restated Certificate of Incorporation was filed with the Secretary of State of the State of Delaware on December 14, 2021 (as amended, the “Amended and Restated Certificate of Incorporation”).
3. This Amendment to the Amended and Restated Certificate of Incorporation amends the Amended and Restated Certificate of Incorporation of the Corporation.
4. This Amendment to the Amended and Restated Certificate of Incorporation was duly adopted by the affirmative vote of the holders of at least 65% of the outstanding shares of common stock at a meeting of stockholders in accordance with ARTICLE IX of the Amended and Restated Certificate of Incorporation and the provisions of Section 242 the DGCL.
5. The text of Section 9.1(b) of Article IX of the Amended and Restated Certificate of Incorporation is hereby amended and restated to read in its entirety as follows:
“(b) Immediately after the Offering, a certain amount of the net offering proceeds received by the Corporation in the Offering (including the proceeds of any exercise of the underwriters’ over-allotment option) and certain other amounts specified in the Corporation’s registration statement on Form S-1, initially filed with the U.S. Securities and Exchange Commission (the “SEC”) on November 23, 2021, as amended (the “Registration Statement”), shall be deposited in a trust account (the “Trust Account”), established for the benefit of the Public Stockholders (as defined below) pursuant to a trust agreement described in the Registration Statement. Except for the withdrawal of interest to pay taxes (less up to $100,000 of interest to pay dissolution expenses), none of the funds held in the Trust Account (including the interest earned on the funds held in the Trust Account) will be released from the Trust Account until the earliest to occur of (i) the completion of the initial Business Combination, (ii) the redemption of 100% of the Offering Shares (as defined below) if the Corporation is unable to complete its initial Business Combination within 25 months from the closing of the Offering (or, if the Office of the Delaware Division of Corporations shall not be open for business (including filing of corporate documents) on such date the next date upon which the Office of the Delaware Division of Corporations shall be open) (the “Deadline Date”) or such earlier date as the Board shall determine to dissolve and liquidate the Corporation in accordance with the terms of this Amended and Restated Certificate and (iii) the redemption of shares in connection with a vote seeking to amend such provisions of this Amended and Restated Certificate as described in Section 9.7. Holders of shares of Common Stock included as part of the units sold in the Offering (the “Offering Shares”) (whether such Offering Shares were purchased in the Offering or in the secondary market following the Offering and whether or not such holders are the Sponsor or officers or directors of the Corporation, or affiliates of any of the foregoing) are referred to herein as “Public Stockholders”.
[Signature page follows]
IN WITNESS WHEREOF, the Corporation has caused this Amendment to the Amended and Restated Certificate of Amendment to be duly executed in its name and on its behalf by an authorized officer as of this 13th day of June, 2023.
| /s/ Isabelle Freidheim | |
| Isabelle Freidheim | |
| Chief Executive Officer |
[Signature Page to Certificate of Amendment]
Exhibit 10.1
AMENDMENT NO. 1 TO
INVESTMENT MANAGEMENT TRUST AGREEMENT
THIS AMENDMENT NO. 1 TO THE INVESTMENT MANAGEMENT TRUST AGREEMENT (this “Amendment”) is made as of June 13, 2023, by and between Athena Technology Acquisition Corp. II, a Delaware corporation (the “Company”), and Continental Stock Transfer & Trust Company, a New York corporation (the “Trustee”). Capitalized terms contained in this Amendment, but not specifically defined in this Amendment, shall have the meanings ascribed to such terms in the Original Agreement (as defined below).
WHEREAS, on December 14, 2021, the Company consummated an initial public offering (the “Offering”) of units of the Company, each of which is composed of one share of the Company’s Class A common stock, par value $0.0001 per share (“Common Stock”), and one-half of one redeemable warrant, each whole warrant entitling the holder thereof to purchase one share of Common Stock;
WHEREAS, $256,287,500 of the gross proceeds of the Offering and sale of the Private Placement Warrants (as defined in the Underwriting Agreement) were delivered to the Trustee to be deposited and held in the segregated Trust Account located in the United States for the benefit of the Company and the holders of the shares of Common Stock included in the Units issued in the Offering pursuant to the investment management trust agreement made effective as of December 9, 2021, by and between the Company and the Trustee (the “Original Agreement”);
WHEREAS, the Company has sought the approval of the holders of its shares of Common Stock and holders of its shares of Class B common stock, par value $0.0001 per share (the “Class B Common Stock”), at a special meeting to: (i) give the Company the right to extend the date (the “Termination Date”) by which it has to consummate a business combination from June 14, 2023 to up to March 14, 2024 (the “Extended Date”) (the “Extension Amendment”) and (ii) a proposal to amend the Original Agreement to allow the Company to extend the Termination Date to the Extended Date by electing to extend the date to consummate an initial business combination on a monthly basis up to nine times by an additional one month each time after June 14, 2023 until the Extended Date, or a total of up to nine months after June 14, 2023, provided that Athena Technology Sponsor II, LLC or its affiliates or permitted designees will deposit into the Trust Account the lesser of (a) $60,000 and (b) $0.03 for each share of Common Stock issued and outstanding that has not been redeemed in accordance with the terms of the Company’s charter upon the election of each such one-month extension unless the closing of the Company’s initial business combination shall have occurred (the “Trust Amendment”);
WHEREAS, holders of at least sixty-five percent (65%) of the then issued and outstanding shares of Common Stock and Class B Common Stock, voting together as a single class, approved the Extension Amendment and the Trust Amendment; and
WHEREAS, the parties desire to amend the Original Agreement to, among other things, reflect amendments to the Original Agreement contemplated by the Trust Amendment.
NOW, THEREFORE, in consideration of the mutual agreements contained herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree as follows:
| 1. | Section 1(i) of the Original Agreement is hereby amended and restated in its entirety as follows: |
“(i) Commence liquidation of the Trust Account only after and promptly after (x) receipt of, and only in accordance with, the terms of a letter from the Company (“Termination Letter”) in a form substantially similar to that attached hereto as either Exhibit A or Exhibit B, as applicable, signed on behalf of the Company by the Chief Executive Officer, Chief Financial Officer, President, Executive Vice President, Vice President, Secretary or Chairman of the board of directors of the Company (the “Board”) or other authorized officer of the Company, and, in the case of a Termination Letter in a form substantially similar to the attached hereto as Exhibit A, acknowledged and agreed to by the Representative, and complete the liquidation of the Trust Account and distribute the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its tax obligations (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses), only as directed in the Termination Letter and the other documents referred to therein, or (y) the date which is the later of (1) 18 months after the closing of the Offering (which such date may be extended by the Company for one month up to nine times following such date, provided that Athena Technology Sponsor II, LLC, the Company’s sponsor, or any of its affiliates or designees will deposit into the Trust Account, upon the election of each such one-month extension, the lesser of (a) $60,000 and (b) $0.03 per unredeemed share of Common Stock) and (2) such later date as may be approved by the Company’s stockholders in accordance with the Company’s amended and restated certificate of incorporation if a Termination Letter has not been received by the Trustee prior to such date, in which case the Trust Account shall be liquidated in accordance with the procedures set forth in the Termination Letter attached as Exhibit B and the Property in the Trust Account, including interest earned on the funds held in the Trust Account and not previously released to the Company to pay its taxes (less up to $100,000 of interest that may be released to the Company to pay dissolution expenses) shall be distributed to the Public Stockholders of record as of such date;”
| 2. | A new Section 1(m) shall me added to the Original Agreement as follows: |
“(m) Upon receipt of an extension letter (“Extension Letter”) substantially similar to Exhibit E hereto at least five days prior to the applicable Termination Date (as may be extended in accordance with Section 1(i) herein), signed on behalf of the Company by an executive officer, and receipt of the dollar amount specified in the Extension Letter on or prior to such Termination Date (if and as applicable), to follow the instructions set forth in the Extension Letter.”
| 3. | A new Exhibit E shall be added to the Original Agreement as follows: |
EXHIBIT E
[Letterhead of Company]
[Insert date]
Continental Stock Transfer & Trust Company 1 State Street, 30th Floor
New York, New York 10004
Attn:
Re: Trust Account No. [ ] Extension Letter
Dear :
Pursuant to Section 1(i) of the Investment Management Trust Agreement between Athena Technology Acquisition Corp. II (“Company”) and Continental Stock Transfer & Trust Company, dated as of December 9, 2021 (“Trust Agreement”), this is to advise you that the Company is extending the time available to consummate an initial business combination for an additional one (1) month, from to (the “Extension”).
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This Extension Letter shall serve as the notice required with respect to any Extension prior to the applicable Termination Date (as may be extended in accordance with Section 1(i) of the Trust Agreement). Capitalized words used herein and not otherwise defined shall have the meanings ascribed to them in the Trust Agreement.
In accordance with the terms of the Trust Agreement, we hereby authorize you to the deposit a contribution in the amount of $[●] for such one-month extension, unless the closing of the Company’s initial business combination shall have occurred, which will be wired to you, into the Trust Account investments upon receipt.
Very truly yours,
| Athena Technology Acquisition Corp. II | |||
| By: | |||
| Name: | |||
| Title: | |||
4. Miscellaneous Provisions.
4.1. Successors. All the covenants and provisions of this Amendment by or for the benefit of the Company or the Trustee shall bind and inure to the benefit of their permitted respective successors and assigns.
4.2. Severability. This Amendment shall be deemed severable, and the invalidity or unenforceability of any term or provision hereof shall not affect the validity or enforceability of this Amendment or of any other term or provision hereof. Furthermore, in lieu of any such invalid or unenforceable term or provision, the parties hereto intend that there shall be added as a part of this Amendment a provision as similar in terms to such invalid or unenforceable provision as may be possible and be valid and enforceable.
4.3. Applicable Law. This Amendment shall be governed by and construed and enforced in accordance with the laws of the State of New York.
4.4. Counterparts. This Amendment may be executed in several original or facsimile counterparts, each of which shall constitute an original, and together shall constitute but one instrument.
4.5. Effect of Headings. The section headings herein are for convenience only and are not part of this Amendment and shall not affect the interpretation thereof.
4.6. Entire Agreement. The Original Agreement, as modified by this Amendment, constitutes the entire understanding of the parties and supersedes all prior agreements, understandings, arrangements, promises and commitments, whether written or oral, express or implied, relating to the subject matter hereof, and all such prior agreements, understandings, arrangements, promises and commitments are hereby canceled and terminated.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written.
| Continental Stock Transfer & Trust Company, as Trustee | ||
| By: | /s/ Francis Wolf | |
| Name: | Francis Wolf | |
| Title: | Vice President | |
| Athena Technology Acquisition Corp. II | ||
| By: | /s/ Isabelle Freidheim | |
| Name: | Isabelle Freidheim | |
| Title: | Chief Executive Officer | |
[Signature Page to Amendment No. 1 to Investment Management Trust Agreement]
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