UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 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):
February 1,
2011
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SulphCo,
Inc.
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(Exact
name of registrant as specified in
charter)
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(State
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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4333
W. Sam Houston Pkwy N., Suite 190
Houston,
Texas 77043
(Address
of principal executive offices) (Zip Code)
(713)
896-9100
(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 (see General Instruction A.2. below):
¨
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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¨
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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¨
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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¨
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Section
1– Registrant’s Business and Operations
Item
1.01. Entry into a Material Definitive Agreement.
On
February 1, 2011, SulphCo, Inc. (the “Company” or “SulphCo”) entered into a
placement agency agreement (the “Placement Agency Agreement”) with Chardan
Capital Markets, LLC (the “Placement Agent”), pursuant to which the
Placement Agent agreed to use its reasonable best efforts to arrange for the
sale of up to 13,333,334 units (the “Units”), comprised of (i) one share of
common stock, (ii) a warrant to purchase approximately 0.45 shares of SulphCo
common stock at a price of $0.20 with a term of five years and (iii) a warrant
to purchase approximately 0.24 shares of SulphCo common stock at a price $0.20
with a term of 66 months but not exercisable until 181 days after the closing
date of the transaction. The Units will be offered to investors at a
negotiated price of $0.15 per Unit. Units will not be issued or
certificated, and the shares of common stock and the warrants will be issued
separately.
On
February 1, 2011, the Company executed a Securities Purchase Agreement (the
“Purchase Agreement”) and warrants (“Warrants”) with two institutional investors
(the “Purchasers”) for the sale of up to 13,333,334 Units at a price of $0.15
per Unit for aggregate gross proceeds of approximately $2.0
million. In addition, the Company agreed to amend and re-issue
warrants to purchase 2,745,098 shares of SulphCo common stock currently held by
one of the investors. The re-issued warrants – equal in number to the original
warrants – will allow the holders to purchase shares of SulphCo common stock at
a price of $0.20 per share with a term of 54 months. The re-issued warrants are
not exercisable until 181 days after the closing date of the
transaction.
The net
proceeds to the Company from the registered direct public offering, after
deducting Placement Agent fees and expenses and the Company’s offering expenses,
are expected to be approximately $1.8 million. The Placement Agent
will receive a cash fee of $120,000 (6.0% of the gross offering
proceeds). The offering closed on February 4, 2011.
The
shares are being offered pursuant to a prospectus supplement filed with the
Securities and Exchange Commission (the “Commission”) on February 3, 2011, in
conjunction with a shelf take down from the Company’s registration statement on
Form S-3 (File No. 333-169062) which was declared effective by the Commission on
October 20, 2010.
The
Purchase Agreement, Warrants and Placement Agency Agreement contain
representations, warranties, and covenants of the Company, the Purchasers and
the Placement Agent which are typical for transactions of this
type.
This
summary is not complete, and is qualified in its entirety by reference to the
full text of the Placement Agency Agreement, Warrants and Purchase Agreement
which are attached hereto as Exhibits 1.1, 4.1 and 10.1,
respectively. Readers should review the Placement Agency Agreement,
Warrants and Purchase Agreement for a more complete understanding of the terms
and conditions associated with this transaction.
The
provisions of the Placement Agency Agreement, Warrants and Purchase Agreement,
including without limitation the representations and warranties contained
therein, are not intended as documents for investors and the public to obtain
factual information about the current state of affairs of the parties to those
documents and agreements. Rather, investors and the public should
look to other disclosures contained in the Company’s reports under the
Securities Exchange Act of 1934, as amended (the “Exchange
Act”).
Section
8 – Other Events
Item
8.01. Other Events.
On
February 1, 2011, the Company issued a press release announcing the execution of
the Purchase Agreement. A copy of the press release is attached
hereto as Exhibit 99.1. Exhibit 99.1 shall not be deemed “filed” for purposes of
Section 18 of the Exchange Act, or otherwise subject to the liabilities under
that Section and shall not be deemed to be incorporated by reference in to any
filing of the Company under the Securities Act of 1933, as amended, or the
Exchange Act.
The
Company has filed, in accordance with the Securities Act of 1933, as amended
(the “Securities Act”), with the Commission a registration statement on Form S-3
(File No. 333-169062), including a base prospectus dated October 26, 2010,
registering up to $122,180,000 of equity securities and the offering thereof
from time to time in accordance with Rule 415 under the Securities Act, which
incorporates by reference documents which the Company has filed or will file in
accordance with the Exchange Act. On February 3, 2011, the Company
filed prospectus supplement No. 1 dated February 3, 2011 relating to the sale of
its shares of common stock under the Purchase Agreement, as described under Item
1.01 above. Exhibits 1.1, 4.1, 5.1, 10.1 and 23.1 are attached to
this current report in connection with that offering.
Section
9 - Financial Statements and Exhibits
Item
9.01. Financial Statements and Exhibits.
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(d) Exhibits
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Exhibit
Number
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Exhibit Title or
Description
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1.1
4.1
5.1
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Placement
Agency Agreement Dated February 1, 2011
Form
of Warrant
Opinion
of McDonald Carano Wilson LLP
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10.1
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Form
of Securities Purchase Agreement Dated February 1, 2011
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23.1
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Consent
of McDonald Carano Wilson LLP (included in Exhibit 5.1)
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99.1
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Press
release dated February 1,
2011
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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.
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SulphCo,
Inc.
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Dated
as of: February 7, 2011
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By:
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/s/ Stanley W.
Farmer
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Name:
Stanley W. Farmer
Title: President,
Chief Financial Officer,
Treasurer
and Corporate Secretary
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