Exhibit 10.2

 

REGISTRATION RIGHTS AGREEMENT

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This RegistrationRights Agreement (this “Agreement”) is made and entered into as of October 19, 2023, between Next.e.GO N.V. (f/k/aNext.e.GO B.V.) (the “Company”), and the holder signatory hereto (the “Holder”).

 

This Agreement is made pursuant to the SecuritiesPurchase Agreement, dated as of October 19, 2023, between the Company, the Holder (the “Purchase Agreement”).

 

The Company and Holder hereby agree as follows:

 

 1. Definitions.

 

**Capitalized termsused and not otherwise defined herein that are defined in the Purchase Agreement shall have the meanings given such terms in the PurchaseAgreement**. As used in this Agreement, the following terms shall have the following meanings:

 

“Advice” shall havethe meaning set forth in Section 6(d).

 

“Athena” shall havethe meaning set forth in Section 6(a).

 

“Business Combination” shall have the meaningset forth in Section 6(a).

 

“BusinessCombination Registration Rights” shall have the meaning set forth in Section 6(a).

 

“BusinessCombination Securities” shall have the meaning set forth in Section 6(a).

 

“EffectivenessDate” means, with respect to any Registration Statement required to be filed hereunder, as soon as reasonably practicablefollowing the filing thereof with the Commission, but no later than the earlier of (i) the 60thcalendar day following the filing date thereof if the Commission notifies the Company that it will “review” the InitialRegistration Statement (including a limited review) and (ii) the fifth (5th) Trading Day afterthe date the Company is notified (orally or in writing, whichever is earlier) by the Commission that the Initial RegistrationStatement will not be “reviewed” or will not be subject to further review.

 

“Effectiveness Period” shall have the meaningset forth in Section 2(a).

 

“FilingDate” means, with respect to the Initial Registration Statement, the 30th calendar dayfollowing the later of (i) the date hereof and (ii) the date of the closing of the Business Combination and, with respect to any additionalRegistration Statements which may be required pursuant to Section 2(c) or Section 3(c), the earliest reasonably practicable date on whichthe Company is permitted by SEC Guidance to file such additional Registration Statementrelated to the Registrable Securities.

 

 

 

 

“Holder” has the meaning in the preamble.

 

“Indemnified Party” shall have the meaningset forth in Section 5(c).

 

“Indemnifying Party” shall have the meaningset forth in Section 5(c).

 

“Initial Registration Statement”means the initial Registration Statement filed pursuant to this Agreement.

 

“Losses” shall havethe meaning set forth in Section 5(a).

 

“Ordinary Shares” meansthe ordinary shares, nominal value of €0.12 per share, of the Company.

 

“Note” means the Notein the form of Exhibit A attached to the Purchase Agreement.

 

“Plan of Distribution” shall have the meaningset forth in Section 2(a).

 

“Prospectus”means the prospectus included in a Registration Statement (including, without limitation, a prospectus that includes any information previouslyomitted from a prospectus filed as part of an effective registration statement in reliance upon Rule 430A promulgated by the Commissionpursuant to the Securities Act), as amended or supplemented by any prospectus supplement, with respect to the terms of the offering ofany portion of the Registrable Securities covered by a Registration Statement, and all other amendments and supplements to the Prospectus,including post-effective amendments, and all material incorporated by reference or deemed to be incorporated by reference in such Prospectus.

 

“RegistrableSecurities” mean, as of any date of determination, (a) all Ordinary Shares issuable upon the conversion of the Note issued orissuable pursuant to the Purchase Agreement and the Note, (b) any additional Ordinary Shares issued and issuable in connection with anyanti-dilution provisions in the Purchase Agreement and the Note (in each case, without giving effect to any limitations on conversionset forth in the Purchase Agreement and the Note) and

 

(c) anysecurities issued or then issuable upon any share split, dividend or other distribution, recapitalization or similar event withrespect to the foregoing; provided, however, that any such Registrable Securities shall cease to be Registrable Securities(and the Company shall not be required to maintain the effectiveness of any, or file another, Registration Statement hereunder withrespect thereto) for so long as (i) a Registration Statement with respect to the sale of such Registrable Securities is declaredeffective by the Commission under the Securities Act and such Registrable Securities have been disposed of by the Holder inaccordance with such effective Registration Statement, (ii) such Registrable Securities have been previously sold in accordance withRule 144, or (iii) such securities become eligible for resale without volume or manner-of-sale restrictions and without currentpublic information pursuant to Rule 144 as set forth in a written opinion letter to such effect, addressed, delivered and acceptableto the Transfer Agent and the Holder (assuming that such securities and any securities issuable upon exercise, conversion orexchange of which, or as a dividend upon which, such securities were issued or are issuable, were at no time held by any Affiliateof the Company), as reasonably determined by the Company, upon the advice of counsel to the Company.

 

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“RegistrationStatement” means any registration statement required to be filed hereunder pursuant to Section 2(a) and any additional registrationstatements contemplated by Section 2(c) or Section 3(c), including (in each case) the Prospectus, amendments and supplements to any suchregistration statement or Prospectus, including pre- and post-effective amendments, all exhibits thereto, and all material incorporatedby reference or deemed to be incorporated by reference in any such registration statement.

 

“Rule 415”means Rule 415 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

 

“Rule 424”means Rule 424 promulgated by the Commission pursuant to the Securities Act, as such Rule may be amended or interpreted from time to time,or any similar rule or regulation hereafter adopted by the Commission having substantially the same purpose and effect as such Rule.

 

“SellingShareholder Questionnaire” shall have the meaning set forth in Section 3(a).

 

“SEC Guidance”means (i) any publicly-available written or oral guidance of the Commission staff, or any comments, requirements or requests of the Commissionstaff and (ii) the Securities Act.

 

“Sponsor” shall havethe meaning set forth in Section 6(a).

 

 2. Shelf Registration.

 

(a) On or priorto the applicable Filing Date, the Company shall prepare and submit or file with the Commission a Registration Statement coveringthe resale of the maximum number of Registrable Securities that are not then registered on an effective Registration Statement asagreed between the Company and the Holder, provided, however, that the number of Registrable Securities that are ultimatelyregistered shall be as permitted to be included therein by the Commission (determined as of two Trading Days prior to suchsubmission or filing). Each Registration Statement filed hereunder shall be on Form F-3 (except if the Company is not then eligibleto register for resale the Registrable Securities on Form F-3, in which case such registration shall be on another appropriate formin accordance herewith, subject to the provisions of Section 2(e)). The Company shall cause a Registration Statement filed underthis Agreement (including, without limitation, under Section 3(c)) to be declared effective under the Securities Act by theapplicable Effectiveness Date, and shall keep such Registration Statement continuously effective under the Securities Act until thedate that all Registrable Securities covered by such Registration Statement (i) have been sold, thereunder or pursuant to Rule 144,or (ii) may be sold without volume or manner-of-sale restrictions pursuant to Rule 144, as determined by the counsel to the Companypursuant to a written opinion letter to such effect, addressed and acceptable to the Transfer Agent and the Holder (the“Effectiveness Period”). The Company shall promptly notify the Holder via facsimile or by e-mail of theeffectiveness of a Registration Statement after the Commission telephonically confirms effectiveness with the Commission to theCompany. The Company shall, by 9:30 a.m. (New York City time) on the Trading Day after the effective date of such RegistrationStatement, file a final Prospectus with the Commission as required by Rule 424.

 

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(b)Notwithstanding the registration obligations set forth in Section 2(a), if the Commission informs the Company that all of theRegistrable Securities cannot, as a result of the application of Rule 415, be registered for resale as a secondary offering on asingle registration statement, the Company agrees to promptly inform the Holder and use its reasonable efforts to file amendments tothe Initial Registration Statement as required by the Commission, covering the maximum number of Registrable Securities permitted tobe registered by the Commission, on Form F-3 or such other form available to register for resale the Registrable Securities as asecondary offering, subject to the provisions of Section 2(e); provided, however, that prior to filing such amendment, the Companyshall be obligated to use commercially reasonable efforts to advocate with the Commission for the registration of all of theRegistrable Securities in accordance with the SEC Guidance, including without limitation, Compliance and Disclosure Interpretation612.09.

 

(c)Notwithstanding any other provision of this Agreement, if the Commission sets forth a limitation on the number of securitiespermitted to be registered on a particular registration statement as a secondary offering the number of securities to be registeredon such registration statement will be reduced as follows:

 

 

 

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In the event of a cutbackhereunder, the Company shall give the Holder at least one (1) Trading Day prior written notice along with the calculations as toHolder’s allotment. In the event the Company amends the Initial Registration Statement in accordance with the foregoing, theCompany will use its commercially reasonable efforts to file with the Commission, as promptly as allowed by Commission or SECGuidance provided to the Company or to registrants of securities in general, one or more registration statements on Form F-3 or suchother form available to register for resale those Registrable Securities that were not registered for resale on the InitialRegistration Statement, as amended.

 

(d) IfForm F-3 is not available for the registration of the resale of Registrable Securities hereunder, the Company shall (i) register the resaleof the Registrable Securities on another appropriate form and (ii) undertake to register the Registrable Securities on Form F-3 as soonas practicable after such form is available, provided that the Company shall maintain the effectiveness of the Registration Statementthen in effect until such time as a Registration Statement on Form S-3 covering the Registrable Securities has been declared effectiveby the Commission.

 

(e)Notwithstanding anything to the contrary contained herein, in no event shall the Company be permitted to name Holder or affiliate ofHolder as any Underwriter without the prior written consent of Holder.

 

(f) Subjectto the last sentence of Section 6(a), in no event shall the Company include any securities other than Registrable Securities on any RegistrationStatement without consulting the Holder and its legal counsel prior to filing such Registration Statement with the Commission. Holderacknowledges that it will be disclosed as a “selling shareholder” in each Registration Statement and in any Prospectus containedtherein to the extent required by applicable law and to the extent the Prospectus is related to the resale of Registrable Securities.

 

 3. Registration Procedures.

 

In connection with the Company’s registrationobligations hereunder, the Company shall:

 

(a) not lessthan three (3) Trading Days prior to the filing of each Registration Statement and not less than one (1) Trading Day prior to thefiling of any related Prospectus, the Company shall (i) furnish to Holder copies of all such documents proposed to be filed, whichdocuments (other than those incorporated or deemed to be incorporated by reference) will be subject to the review of Holder, and(ii) reasonably cause its officers and directors, counsel and independent registered public accountants to respond to such inquiriesas shall be necessary to conduct a reasonable investigation within the meaning of the Securities Act. The Company shall not file aRegistration Statement or any such Prospectus to which the Holder shall reasonably object in good faith, provided that, the Companyis notified of such objection in writing prior to filing such Registration Statement, Prospectus, and, in each case, no later thanthree (3) Trading Days after the Holder has been so furnished copies of a Registration Statement or one (1) Trading Day after theHolder has been so furnished copies of any related Prospectus. At least five (5) Trading Days prior to any Filing Date (or suchshorter period to which the parties agree), the Company shall notify Holder in writing of the information the Company requires fromHolder with respect to such Registration Statement. It shall be a condition precedent to the obligations of the Company to completethe registration pursuant to this Agreement with respect to the Registrable Securities of Holder that Holder shall furnish to theCompany such information regarding itself, the Registrable Securities held by it and the intended method of disposition of theRegistrable Securities held by it, as shall be reasonably required to effect and maintain the effectiveness of the registration ofsuch Registrable Securities. To the extent that disclosure contained in an amendment or supplement is consistent to a previouslyfiled Registration Statement or Prospectus and reviewed by Holder, the Company shall be under no obligation to furnish suchamendment or supplement to Holder as required herein.

 

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(b) (i)prepare and file with the Commission such amendments, including post-effective amendments, to a Registration Statement and the Prospectusused in connection therewith as may be necessary to keep a Registration Statement continuously effective as to the applicable RegistrableSecurities for the Effectiveness Period and prepare and file with the Commission such additional Registration Statements in order to registerfor resale under the Securities Act all of the Registrable Securities provided, however, that nothing herein shall require the Companyto file an annual report on Form 20-F before the end of the relevant grace period afforded by Rule 12b-25 under the Exchange Act, (ii)cause the related Prospectus to be amended or supplemented by any required Prospectus supplement (subject to the terms of this Agreement),and, as so supplemented or amended, to be filed pursuant to Rule 424, (iii) respond as promptly as reasonably possible to any commentsreceived from the Commission with respect to a Registration Statement or any amendment thereto and provide as promptly as reasonably possibleto the Holder true and complete copies of all correspondence from and to the Commission relating to a Registration Statement (providedthat, the Company shall excise any information contained therein which would constitute material non-public information regarding theCompany or any of its Subsidiaries), and (iv) comply in all material respects with the applicable provisions of the Securities Act andthe Exchange Act with respect to the disposition of all Registrable Securities covered by a Registration Statement during the applicableperiod in accordance (subject to the terms of this Agreement) with the intended methods of disposition by the Holder set forth in suchRegistration Statement as so amended or in such Prospectus as so supplemented.

 

(c) ifduring the Effectiveness Period, the number of Registrable Securities at any time exceeds 100% of the number of Ordinary Shares thenregistered in a Registration Statement, then the Company shall file as soon as reasonably practicable, but in any case prior to theapplicable Filing Date, an additional Registration Statement covering the resale by the Holder of such additional number ofRegistrable Securities.

 

(d) notifythe Holder of Registrable Securities to be sold (which notice shall, pursuant to clauses (iii) through (vi) hereof, be accompaniedby an instruction to suspend the use of the Prospectus until the requisite changes have been made) as promptly as reasonablypossible (and, in the case of (i)(A) below, not less than one (1) Trading Day prior to such filing) (i) (A) when a Prospectus or anyProspectus supplement or post-effective amendment to a Registration Statement is proposed to be filed, (B) when the Commissionnotifies the Company whether there will be a “review” of such Registration Statement and whenever the Commissioncomments in writing on such Registration Statement, and (C) with respect to a Registration Statement or any post-effectiveamendment, when the same has become effective, (ii) of any request by the Commission or any other federal or state governmentalauthority for amendments or supplements to a Registration Statement or Prospectus or for additional information, (iii) of theissuance by the Commission or any other federal or state governmental authority of any stop order suspending the effectiveness of aRegistration Statement covering any or all of the Registrable Securities or the initiation of any Proceedings for that purpose, (iv)of the receipt by the Company of any notification with respect to the suspension of the qualification or exemption fromqualification of any of the Registrable Securities for sale in any jurisdiction, or the initiation or threatening of any Proceedingfor such purpose, (v) of the occurrence of any event or passage of time that makes the financial statements included in aRegistration Statement ineligible for inclusion therein or any statement made in a Registration Statement or Prospectus or anydocument incorporated or deemed to be incorporated therein by reference untrue in any material respect or that requires anyrevisions to a Registration Statement, Prospectus or other documents so that, in the case of a Registration Statement or theProspectus, as the case may be, it will not contain any untrue statement of a material fact or omit to state any material factrequired to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made,not misleading, and (vi) of the occurrence or existence of any pending corporate development with respect to the Company that theCompany believes may be material and that, in the determination of the Company, makes it not in the best interest of the Company toallow continued availability of a Registration Statement or Prospectus; provided, however, that in no event shall anysuch notice contain any information which would constitute material, non-public information regarding the Company or any of itsSubsidiaries.

 

(e) useits commercially reasonable efforts to avoid the issuance of, or, if issued, obtain the withdrawal of (i) any order stopping or suspendingthe effectiveness of a Registration Statement, or (ii) any suspension of the qualification (or exemption from qualification) of any ofthe Registrable Securities for sale in any jurisdiction, at the earliest practicable moment.

 

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(f)   furnishto Holder, without charge, at least one conformed copy of each such Registration Statement and each amendment thereto, including financialstatements and schedules, all documents incorporated or deemed to be incorporated therein by reference to the extent requested by suchPerson, and all exhibits to the extent requested by such Person (including those previously furnished or incorporated by reference) promptlyafter the filing of such documents with the Commission, provided that any such item which is available on the EDGAR system (or successorthereto) need not be furnished in physical form.

 

(g)   subjectto the terms of this Agreement, the Company hereby consents to the use of such Prospectus and each amendment or supplement thereto byeach of the selling Holder in connection with the offering and sale of the Registrable Securities covered by such Prospectus and any amendmentor supplement thereto, except after the giving of any notice pursuant to Section 3(d).

 

(h)   priorto any resale of Registrable Securities by Holder, use its commercially reasonable efforts to register or qualify or cooperate with theselling Holder in connection with the registration or qualification (or exemption from the Registration or qualification) of such RegistrableSecurities for the resale by the Holder under the securities or Blue Sky laws of such jurisdictions within the United States as Holderreasonably requests in writing, to keep each registration or qualification (or exemption therefrom) effective during the EffectivenessPeriod and to do any and all other acts or things reasonably necessary to enable the disposition in such jurisdictions of the RegistrableSecurities covered by each Registration Statement, provided that the Company shall not be required to qualify generally to do businessin any jurisdiction where it is not then so qualified, subject the Company to any material tax in any such jurisdiction where it is notthen so subject or file a general consent to service of process in any such jurisdiction.

 

(i) Ifrequested by Holder, cooperate with Holder to facilitate the timely preparation and delivery of certificates representing RegistrableSecurities to be delivered to a transferee pursuant to a Registration Statement, which certificates shall be free, to the extent permittedby the Purchase Agreement, of all restrictive legends, and to enable such Registrable Securities to be in such denominations and registeredin such names as Holder may request.

 

(j) Uponthe occurrence of any event contemplated by Section 3(d), as promptly as reasonably practicable under the circumstances taking intoaccount the Company’s good faith assessment of any adverse consequences to the Company and its shareholders of the prematuredisclosure of such event, to prepare a supplement or amendment, including a post-effective amendment, to a Registration Statement ora supplement to the related Prospectus or any document incorporated or deemed to be incorporated therein by reference, and file anyother required document so that, as thereafter delivered, neither a Registration Statement nor such Prospectus will contain anuntrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make thestatements therein, in light of the circumstances under which they were made, not misleading. If the Company notifies the Holder inaccordance with clauses (iii) through (vi) of Section 3(d) above to suspend the use of any Prospectus until the requisite changes tosuch Prospectus have been made, then the Holder shall suspend use of such Prospectus. The Company will ensure that the use of theProspectus may be resumed as promptly as is practicable. The Company shall be entitled to exercise its right under this Section 3(j)to suspend the availability of a Registration Statement and Prospectus for a period not to exceed sixty (60) calendar days (whichneed not be consecutive days) in any 12-month period.

 

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(k)   Otherwiseuse commercially reasonable efforts to comply with all applicable rules and regulations of the Commission under the Securities Act andthe Exchange Act, including, without limitation, Rule 172 under the Securities Act, file any final Prospectus, including any supplementor amendment thereof, with the Commission pursuant to Rule 424 under the Securities Act, promptly inform the Holder in writing if, atany time during the Effectiveness Period, the Company does not satisfy the conditions specified in Rule 172 and, as a result thereof,the Holder is required to deliver a Prospectus in connection with any disposition of Registrable Securities and take such other actionsas may be reasonably necessary to facilitate the registration of the Registrable Securities hereunder.

 

(l)   TheCompany shall use its commercially reasonable efforts to maintain eligibility for use of Form F-3 (or any successor form thereto) forthe registration of the resale of Registrable Securities.

 

(m)    TheCompany may require each selling Holder to furnish to the Company a certified statement as to the number of Ordinary Shares beneficiallyowned by Holder and, if required by the Commission, the natural persons thereof that have voting and dispositive control over the shares.

 

4. RegistrationExpenses. All reasonable fees and expenses incident to the performance of or compliance with, this Agreement by the Companyshall be borne by the Company whether or not any Registrable Securities are sold pursuant to a Registration Statement. The fees andexpenses referred to in the foregoing sentence shall include, without limitation, (i) all registration and filing fees (including,without limitation, fees and expenses of the Company’s counsel and independent registered public accountants) (A) with respectto filings made with the Commission, (B) with respect to filings required to be made with any Trading Market on which the OrdinaryShares is then listed for trading, and (C) in compliance with applicable state securities or Blue Sky laws reasonably agreed to bythe Company in writing (including, without limitation, fees and disbursements of counsel for the Company in connection with Blue Skyqualifications or exemptions of the Registrable Securities), (ii) printing expenses (including, without limitation, expenses ofprinting certificates for Registrable Securities), (iii) messenger, telephone and delivery expenses, (iv) fees and disbursements ofcounsel for the Company, (v) Securities Act liability insurance, if the Company so desires such insurance, and (vi) fees andexpenses of all other Persons retained by the Company in connection with the consummation of the transactions contemplated by thisAgreement. In addition, the Company shall be responsible for all of its internal expenses incurred in connection with theconsummation of the transactions contemplated by this Agreement (including, without limitation, all salaries and expenses of itsofficers and employees performing legal or accounting duties), the expense of any annual audit and the fees and expenses incurred inconnection with the listing of the Registrable Securities on any securities exchange as required hereunder. In no event shall theCompany be responsible for any broker or similar commissions of Holder or any legal fees or other costs of the Holder.

 

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 5. Indemnification.

 

(a) Indemnificationby the Company. The Company shall, notwithstanding any termination of this Agreement, indemnify and hold harmless Holder, theofficers, directors, members, partners, agents, brokers (including brokers who offer and sell Registrable Securities as principal asa result of a pledge or any failure to perform under a margin call of Ordinary Shares), investment advisors and employees (and anyother Persons with a functionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any othertitle) of each of them, each Person who controls Holder (within the meaning of Section 15 of the Securities Act or Section 20 of theExchange Act) and the officers, directors, members, shareholders, partners, agents and employees (and any other Persons with afunctionally equivalent role of a Person holding such titles, notwithstanding a lack of such title or any other title) of each suchcontrolling Person, to the fullest extent permitted by applicable law, from and against any and all losses, claims, damages,liabilities, costs (including, without limitation, reasonable attorneys’ fees) and expenses (collectively,“Losses”), as incurred, arising out of or relating to (1) any untrue or alleged untrue statement of a materialfact contained in a Registration Statement, any Prospectus or any form of prospectus or in any amendment or supplement thereto or inany preliminary prospectus, or arising out of or relating to any omission or alleged omission of a material fact required to bestated therein or necessary to make the statements therein (in the case of any Prospectus or supplement thereto, in light of thecircumstances under which they were made) not misleading or (2) any violation or alleged violation by the Company of the SecuritiesAct, the Exchange Act or any state securities law, or any rule or regulation thereunder, in connection with the performance of itsobligations under this Agreement, except to the extent, but only to the extent, that (i) such untrue statements or omissions arebased solely upon information regarding Holder furnished in writing to the Company by Holder expressly for use therein, or to theextent that such information relates to Holder or Holder’s proposed method of distribution of Registrable Securities and wasreviewed and expressly approved in writing by Holder expressly for use in a Registration Statement, such Prospectus or in anyamendment or supplement thereto or (ii) in the case of an occurrence of an event of the type specified in Section 3(d)(iii)-(vi),the use by Holder of an outdated, defective or otherwise unavailable Prospectus after the Company has notified Holder in writingthat the Prospectus is outdated, defective or otherwise unavailable for use by Holder and prior to the receipt by Holder of theAdvice contemplated in Section 6(c). The Company shall notify the Holder promptly of the institution, threat or assertion of anyProceeding arising from or in connection with the transactions contemplated by this Agreement of which the Company is aware. Suchindemnity shall remain in full force and effect regardless of any investigation made by or on behalf of such indemnified person andshall survive the transfer of any Registrable Securities the Holder in accordance with Section 6(g).

 

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(b)   Indemnificationby Holder. Holder shall indemnify and hold harmless the Company, its directors, officers, agents and employees, each Person who controlsthe Company (within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act), and the directors, officers,agents or employees of such controlling Persons, to the fullest extent permitted by applicable law, from and against all Losses, as incurred,to the extent arising out of or based solely upon: any untrue or alleged untrue statement of a material fact contained in any RegistrationStatement, any Prospectus, or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or relating toany omission or alleged omission of a material fact required to be stated therein or necessary to make the statements therein (in thecase of any Prospectus or supplement thereto, in light of the circumstances under which they were made) not misleading (i) to the extent,but only to the extent, that such untrue statement or omission is contained in any information so furnished in writing by Holder to theCompany expressly for inclusion in such Registration Statement or such Prospectus or (ii) to the extent, but only to the extent, thatsuch information relates to Holder’s information provided in the Selling Shareholder Questionnaire or the proposed method of distributionof Registrable Securities and was reviewed and expressly approved in writing by Holder expressly for use in a Registration Statement,such Prospectus or in any amendment or supplement thereto. In no event shall the liability of a selling Holder be greater in amount thanthe dollar amount of the proceeds (net of all expenses paid by Holder in connection with any claim relating to this Section 5 and theamount of any damages Holder has otherwise been required to pay by reason of such untrue statement or omission) received by Holder uponthe sale of the Registrable Securities included in the Registration Statement giving rise to such indemnification obligation.

 

(c) Conductof Indemnification Proceedings. If any Proceeding shall be brought or asserted against any Person entitled to indemnityhereunder (an “Indemnified Party”), such Indemnified Party shall promptly notify the Person from whom indemnityis sought (the “Indemnifying Party”) in writing, and the Indemnifying Party shall have the right to assume thedefense thereof, including the employment of counsel reasonably satisfactory to the Indemnified Party and the payment of all feesand expenses incurred in connection with defense thereof, provided that the failure of any Indemnified Party to give such noticeshall not relieve the Indemnifying Party of its obligations or liabilities pursuant to this Agreement, except (and only) to theextent that it shall be finally determined by a court of competent jurisdiction (which determination is not subject to appeal orfurther review) that such failure shall have materially and adversely prejudiced the Indemnifying Party.

 

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An Indemnified Partyshall have the right to employ separate counsel in any such Proceeding and to participate in the defense thereof, but the fees and expensesof such counsel shall be at the expense of such Indemnified Party or Parties unless: (1) the Indemnifying Party has agreed in writingto pay such fees and expenses, (2) the Indemnifying Party shall have failed promptly to assume the defense of such Proceeding and to employcounsel reasonably satisfactory to such Indemnified Party in any such Proceeding, or (3) the named parties to any such Proceeding (includingany impleaded parties) include both such Indemnified Party and the Indemnifying Party, and counsel to the Indemnified Party shall reasonablybelieve that a material conflict of interest is likely to exist if the same counsel were to represent such Indemnified Party and the IndemnifyingParty (in which case, if such Indemnified Party notifies the Indemnifying Party in writing that it elects to employ separate counsel atthe expense of the Indemnifying Party, the Indemnifying Party shall not have the right to assume the defense thereof and the reasonablefees and expenses of no more than one separate counsel shall be at the expense of the Indemnifying Party). The Indemnifying Party shallnot be liable for any settlement of any such Proceeding effected without its written consent, which consent shall not be unreasonablywithheld or delayed. No Indemnifying Party shall, without the prior written consent of the Indemnified Party, effect any settlement ofany pending Proceeding in respect of which any Indemnified Party is a party, unless such settlement includes an unconditional releaseof such Indemnified Party from all liability on claims that are the subject matter of such Proceeding.

 

Subject to the termsof this Agreement, all reasonable fees and expenses of the Indemnified Party (including reasonable fees and expenses to the extent incurredin connection with investigating or preparing to defend such Proceeding in a manner not inconsistent with this Section) shall be paidto the Indemnified Party, as incurred, within ten Trading Days of written notice thereof to the Indemnifying Party, provided that theIndemnified Party shall promptly reimburse the Indemnifying Party for that portion of such fees and expenses applicable to such actionsfor which such Indemnified Party is finally determined by a court of competent jurisdiction (which determination is not subject to appealor further review) not to be entitled to indemnification hereunder.

 

(d)Contribution. If the indemnification under Section 5(a) or 5(b) is unavailable to an Indemnified Party or insufficientto hold an Indemnified Party harmless for any Losses, then each Indemnifying Party shall contribute to the amount paid or payable bysuch Indemnified Party, in such proportion as is appropriate to reflect the relative fault of the Indemnifying Party and IndemnifiedParties in connection with the actions, statements or omissions that resulted in such Losses as well as any other relevant equitableconsiderations. The relative fault of such Indemnifying Party and Indemnified Parties shall be determined by reference to, amongother things, whether any action in question, including any untrue or alleged untrue statement of a material fact or omission oralleged omission of a material fact, has been taken or made by, or relates to information supplied by, such Indemnifying Party orIndemnified Party, and the parties’ relative intent, knowledge, access to information and opportunity to correct or preventsuch action, statement or omission. The amount paid or payable by a party as a result of any Losses shall be deemed to include,subject to the limitations set forth in this Agreement, any reasonable attorneys’ or other fees or expenses incurred by suchparty in connection with any Proceeding to the extent such party would have been indemnified for such fees or expenses if theindemnification provided for in this Section was available to such party in accordance with its terms.

 

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The parties heretoagree that it would not be just and equitable if contribution pursuant to this Section 5(d) were determined by pro rata allocation orby any other method of allocation that does not take into account the equitable considerations referred to in the immediately precedingparagraph. In no event shall the contribution obligation of Holder of Registrable Securities be greater in amount than the dollar amountof the proceeds (net of all expenses paid by Holder in connection with any claim relating to this Section 5 and the amount of any damagesHolder has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission) receivedby it upon the sale of the Registrable Securities giving rise to such contribution obligation.

 

The indemnity andcontribution agreements contained in this Section are in addition to any liability that the Indemnifying Parties may have to the IndemnifiedParties.

 

 6. Miscellaneous.

 

(a) BusinessCombination Registration Rights. The parties hereto acknowledge that the Company or its affiliate, Next.e.GO Mobile SE, asthe case may be, has, in connection with the business combination between Athena Consumer Acquisition Corp. (“Athena”),the Company and Next.e.GO Mobile SE (the “Business Combination”), granted with respect to certain securities (the“Business Combination Securities”) certain registration rights (the “Business Combination Registration Rights”)outside of, and unaffected by, this Agreement to (i) Athena, Athena Consumer Acquisition Sponsor LLC (the “Sponsor”),certain stockholders of Next.e.GO Mobile SE, and certain of Athena’s officers and directors, certain members of the Sponsor and/ortheir respective affiliates based on a registration rights agreement, to be entered into on or around October 2, 2023, (ii) Brucke AgentLLC regarding the registration of 3,000,000 ordinary shares in the capital of the Company based on a settlement and release agreementbetween Next.e.GO Mobile SE, the Company, Brucke Agent LLC, Brucke Funding LLC and Vellar Opportunity Fund SPV LLC – Series 3,dated as of June 29, 2023, and (iii) certain note purchasers regarding the registration of 500,000 warrants based on a note purchaseand guaranty agreement between Next.e.GO Mobile SE, certain guarantors, UMB Bank, National Association, Echo IP Series 1 LLC and thenote purchasers thereunder, dated as of June 30, 2023. The parties hereto acknowledge further, that the securities referred to in thepreceding sentence may be registered based on the same registration statement as any other securities referred to in this Agreement oneor more in separate registration statements at the discretion of the Company.

 

(b) Remedies.In the event of a breach by the Company or by Holder of any of their respective obligations under this Agreement, Holder or theCompany, as the case may be, in addition to being entitled to exercise all rights granted by law and under this Agreement, includingrecovery of damages, shall be entitled to specific performance of its rights under this Agreement. Each of the Company and Holderagrees that monetary damages would not provide adequate compensation for any losses incurred by reason of a breach by it of any ofthe provisions of this Agreement and hereby further agrees that, in the event of any action for specific performance in respect ofsuch breach, it shall not assert or shall waive the defense that a remedy at law would be adequate.

 

(c) No Piggybackon Registrations; Prohibition on Filing Other Registration Statements. Except as set forth (i) on Schedule 6(c) attached heretoand (ii) the last sentence of Section 6(a), the Ordinary Shares issuable upon conversion of the Note in the transactions contemplatedby the Purchase Agreement and the Note, neither the Company nor any of its security holders (other than the Holder in such capacity pursuanthereto) may include securities of the Company in any Registration Statements other than the Registrable Securities. Until all RegistrableSecurities are registered pursuant to a Registration Statement that is declared effective by the Commission, the Company shall not fileany registration statements unless such registration statement includes the maximum number of Registrable Securities that are not thenregistered on an effective Registration Statement, provided that this Section 6(c) shall not prohibit the Company from filing (x) amendmentsto registration statements filed prior to the date of this Agreement so long as no new securities are registered on any such existingregistration statements, (y) registration statements with respect to any Business Combination Registration Rights and (z) any registrationstatements related to effort by the Company to raise additional debt or equity or hybrid capital; provided that the Company shall notfile any Registration Statements following the closing of the Business Combination that does not include the Registrable Securities untilall Registrable Securities, not exceeding 20% of the outstanding ordinary shares of the Company or such lower amount as the SEC requires,are registered on an effective Registration Statement.

 

(d) DiscontinuedDisposition. By its acquisition of Registrable Securities, Holder agrees that, upon receipt of a notice from the Company of the occurrenceof any event of the kind described in Section 3(d)(iii) through (vi), Holder will forthwith discontinue disposition of such RegistrableSecurities under a Registration Statement until it is advised in writing (the “Advice”) by the Company that the useof the applicable Prospectus (as it may have been supplemented or amended) may be resumed. The Company will use its commercially reasonableefforts to ensure that the use of the Prospectus may be resumed as promptly as is practicable.

 

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(e)   Amendmentsand Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented,and waivers or consents to departures from the provisions hereof may not be given, unless the same shall be in writing and signed by theCompany and the Holder. No consideration shall be offered or paid to any Person to amend or consent to a waiver or modification of anyprovision of this Agreement unless the same consideration also is offered to all of the parties to this Agreement.

 

(f) Notices.Any and all notices or other communications or deliveries required or permitted to be provided hereunder shall be delivered as set forthin the Purchase Agreement.

 

(g) Successorsand Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of theparties and shall inure to the benefit of Holder. The Company may not assign (except by merger) its rights or obligations hereunder withoutthe prior written consent of the Holder. Holder may assign its rights hereunder in the manner and to the Persons as permitted under Section5.6 of the Purchase Agreement.

 

(h)   NoInconsistent Agreements. Neither the Company nor any of its Subsidiaries has entered, as of the date hereof, nor shall the Companyor any of its Subsidiaries, on or after the date of this Agreement, enter into any agreement with respect to its securities, that wouldhave the effect of impairing the rights granted to the Holder in this Agreement or otherwise conflicts with the provisions hereof. Exceptas set forth on Schedule 6(h) or in Section 6(a) hereof, neither the Company nor any of its Subsidiaries has previously enteredinto any agreement granting any registration rights with respect to any of its securities to any Person that have not been satisfied infull.

 

(i)   Executionand Counterparts. This Agreement may be executed in two or more counterparts, all of which when taken together shall be consideredone and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party,it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmissionor by e- mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the partyexecuting (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signaturepage were an original thereof.

 

(j) GoverningLaw. All questions concerning the construction, validity, enforcement and interpretation of this Agreement shall be determined inaccordance with the provisions of the Purchase Agreement.

 

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(k) Trialby Jury. EACH PARTY HERETO ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TOINVOLVE COMPLICATED AND DIFFICULT ISSUES, AND, THEREFORE, EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TO THEFULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT TO ANY ACTION DIRECTLY ORINDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THISAGREEMENT.

 

(l) CumulativeRemedies. The remedies provided herein are cumulative and not exclusive of any other remedies provided by law.

 

(m) Severability.If any term, provision, covenant or restriction of this Agreement is held by a court of competent jurisdiction to be invalid, illegal,void or unenforceable, the remainder of the terms, provisions, covenants and restrictions set forth herein shall remain in full forceand effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their commercially reasonable effortsto find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term, provision,covenant or restriction. It is hereby stipulated and declared to be the intention of the parties that they would have executed the remainingterms, provisions, covenants and restrictions without including any of such that may be hereafter declared invalid, illegal, void orunenforceable.

 

(n) Headings.The headings in this Agreement are for convenience only, do not constitute a part of the Agreement and shall not be deemed to limit oraffect any of the provisions hereof.

 

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*(Signature Pages Follow)*

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IN WITNESS WHEREOF, the parties have executedthis Registration Rights Agreement as of the date first written above.

 

 

[SIGNATURE PAGE OF HOLDER FOLLOWS]

 

 

 

 

Name of Holder: ACM ARRT M LLC

 

*Signature of AuthorizedSignatory of Holder*: /s/ ACM ARRT M LLC

 

Name of Authorized Signatory_______________________

Authorized Signatory

Title of Authorized Signatory:  _______________________

 

[SIGNATURE PAGE OF HOLDER TO NEXT.E.GON.V. RRA]

 

 

 

 

Schedule 6(c)

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*Reference is made to Schedule 3.1(o)to the Securities Purchase Agreement*

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Schedule 6(h)

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*Not applicable*

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