Item 1.01 Entry into a Material Definitive Agreement.
Issuance and Sale of 26.5% Convertible Senior
On
Issuance of Convertible Notes
The Notes are governed by a form of indenture (the "Indenture") incorporated by
reference into the Notes. The Notes will bear interest at a rate of 26.5% per
annum, which interest shall be entirely paid-in-kind. All interest payments on
the Notes shall be made through an increase in the principal amount of the
outstanding Notes or through the issuance of additional Notes (such interest is
referred to herein as "PIK Interest"). Interest on the Notes is payable
semi-annually in arrears on
The Notes are convertible at the option of the holder at any time until the
business day prior to the maturity date, including in connection with a
redemption by the Company. The Notes will be convertible into shares of the
Company's common stock, par value
On or after
With certain exceptions, upon the occurrence of certain fundamental changes described in the Indenture (each, a "Fundamental Change"), the holders of the Notes may require that the Company repurchase all or part of the principal amount of the Notes at a purchase price of 100% of the principal amount of such Notes, plus accrued and unpaid interest to, but excluding, the Fundamental Change repurchase date.
The Indenture includes customary "events of default," which may result in the acceleration of the maturity of the Notes under the Indenture. The Indenture will also include customary covenants for convertible notes of this type.
The Notes are senior unsecured obligations of the Company and rank equal in right of payment to all senior unsecured indebtedness of the Company, and will rank senior in right of payment to any indebtedness that is contractually subordinated to the Notes.
Standstill Obligations
Pursuant to the Investment Agreement, the Purchasers have agreed, subject to certain exceptions, that during the period commencing on the Closing and ending on the six (6) month anniversary of the Closing (the "Standstill Period"), each individual Purchaser will not, among other things: (i) acquire any securities of the Company if, immediately after such acquisition, such Purchaser would collectively own in the aggregate more than 20.0% of the then outstanding voting securities of the Company, (ii) propose or seek to effect any tender or exchange offer, merger or other business combination involving the Company or its securities, or make any public statement with respect to such transaction, (iii) make, or in any way participate in any "proxy contest" or other solicitation of proxies, (iv) seek the appointment of any director or (v) call or seek to call any meeting of stockholders or other referendum or consent solicitation.
Transfer and Conversion Restrictions; Registration Rights; Participation Rights
The Investment Agreement restricts the Purchasers' ability to transfer or hedge the Notes or the Company's common stock, subject to certain exceptions specified in the Investment Agreement. In particular, prior to the six-month anniversary of the Closing, the Purchasers will be restricted from transferring or entering into an agreement that transfers the economic consequences of ownership of the Notes or shares. These restrictions do not apply to, among others, transfers to affiliates.
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Subject to certain limitations, the Investment Agreement provides the Purchasers with certain registration rights for the Notes and shares of the Company's common stock issuable upon conversion of the Notes.
The foregoing summaries of the Indenture, the Notes and the Investment Agreement . . .
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of the Registrant.
The information related to the issuance of the Notes contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 3.02 Unregistered Sales of
On
The information related to the issuance of the Notes and the underlying shares of the Company's common stock contained in Item 1.01 of this Current Report on Form 8-K is incorporated herein by reference.
Item 8.01 Other Events.
On
Item 9.01 Financial Statement and Exhibits.
(d) Exhibits Exhibit Number Description of Document 4.1 Form of Note (including Indenture incorporated by reference therein) 10.1* Investment Agreement, datedJanuary 18, 2023 , by and amongEos Energy Enterprises, LLC and the purchasers listed therein 10.2 Limited Consent Agreement, dated as ofJanuary 17, 2023 , amongEos Energy Enterprises, LLC , the lenders party thereto, andACP Post Oak Credit I LLC , as administrative agent. 99.1 Press release datedJanuary 19, 2023 104 Cover Page Interactive Data File (embedded within the Inline XBRL document).
* Certain schedules and exhibits to this agreement have been omitted pursuant to
Item 601(a)(5) of Regulation S-K. A copy of any omitted exhibit or schedule
will be furnished supplementally to the
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