Item 8. Additional Information.
Item 8 “Additional Information” of the Schedule 14D-9 is hereby amended and supplemented as
follows:
1. The sentence under the section entitled “Legal Proceedings” on page 40 is hereby amended
and restated by deleting the sentence and replacing it with the following paragraphs to read as follows:
“To date, there have
been five complaints filed by purported stockholders of Romeo related to the Offer. On September 1, 2022, a purported stockholder of Romeo, Brian Rushing, filed a lawsuit against Romeo and the members of its Board of Directors in the United
States District Court for the Central District of California, captioned Rushing v. Romeo Power, Inc., No. 2:22-cv-06237. On September 2, 2022, another
purported stockholder of Romeo, filed a lawsuit in the United States District Court for the Central District of California, captioned Cataldi v. Romeo Power, Inc., No.
8:22-cv-01642. On September 8, 2022, a purported stockholder of Romeo, filed a lawsuit in the United States District Court for the Southern District of New York,
captioned Wilhelm v. Romeo Power, Inc., No. 1:22-cv-07662. On September 8, 2022, a purported stockholder of Romeo filed a lawsuit in the United States
District Court for the District of Delaware, captioned Wheeler v. Romeo Power, Inc., No. 1:22-cv-01182. Also, on September 9, 2022, a purported stockholder
of Romeo filed a lawsuit in the United States District Court for the Southern District of New York, captioned Ryan v. Romeo Power, Inc., No. 1:22-cv-07734.
The lawsuits allege that Romeo and its Board of Directors made materially incomplete and misleading statements in the Schedule 14D-9. Specifically, the lawsuits allege that Romeo and its Board of Directors violated Sections 14(d)(4), 14(e) and 20(a) of the Securities Exchange Act of 1934 (the “Act”), as amended, and Rule 14d-9 promulgated under the Act, and asserts claims challenging the adequacy of the disclosures regarding the sales process leading up to the proposed transaction, Romeo’s and Nikola’s financial
projections, the interests of Romeo’s senior management and Board of Directors and Morgan Stanley’s financial analysis.
The
lawsuits seek, among other things, injunctive relief to enjoin the Offer, rescission and rescissory damages should the Offer be consummated, an injunction directing the Board of Directors to comply with the Act, and an award of attorney’s and
expert fees and expenses. Nikola and Offeror are not named as parties to the lawsuits. Tender offers, mergers and acquisitions commonly draw lawsuits of this sort and it can be expected that other law firms may file further similar complaints in the
following days or weeks.
The outcome of any pending or future litigation is uncertain. Such litigation, if not resolved, could prevent or
delay consummation of the Offer and result in substantial costs to Romeo.
One of the conditions to the consummation of the Offer is that
no temporary restraining order, preliminary or permanent injunction or other order preventing the consummation of the transactions contemplated by the Merger Agreement shall have been issued by any court of competent jurisdiction or other
governmental body of competent jurisdiction and remain in effect, or there is any legal requirement which has the effect of making the consummation of the Merger illegal. Therefore, if these lawsuits or other similar lawsuits are successful in
obtaining an injunction prohibiting the consummation of the Offer or Merger on the agreed-upon terms, that injunction might prevent the Offer from being consummated, or from being consummated within the expected time frame.”
2. By adding a new sentence at the end of the first paragraph of the section entitled “Regulatory Approvals—HSR
Act” on page 40 to read as follows:
“At 11:59 p.m., New York City time, on September 9, 2022, the waiting
period applicable to the Offer and the Merger under the HSR Act expired.”
2