Item 1.01.
|
Entry into a Material Definitive Agreement.
|
The information set forth in the Introductory Note is
incorporated herein by reference.
Underwriting Agreement
On March 29, 2016, the Company entered into an underwriting agreement (the
Underwriting Agreement
) with H.C.
Wainwright & Co., LLC (the
Underwriter
) relating to the sale and issuance by the Company of Units to the Underwriter in a firm commitment underwritten public offering. Each Series C Unit consists of one share of
the Companys common stock, one Series F warrant to purchase one share of the Companys common stock (each, a
Series F Warrant
) and two Series H warrants, each to purchase one share of the Companys common
stock (each, a
Series H Warrant
), and each Series D Unit consists of a pre-funded Series G warrant to purchase one share of the Companys common stock (each, a
Series G Warrant
and, together
with the Series F Warrants and the Series H Warrants, the
Warrants
), one Series F Warrant and two Series H Warrants. The shares of common stock and Warrants comprising the Series C Units will be immediately separable and
will be issued separately but will be sold together in the Offering. The Warrants comprising the Series D Units will be immediately separable and will be issued separately, but will be sold together in the Offering. The Series F Warrants will be
exercisable during the period commencing on October 1, 2016 and ending on April 1, 2021 at an exercise price of $0.35 per share of common stock (subject to adjustment under certain circumstances). The Series G Warrants will be exercisable
during the period commencing from the date of issuance and ending on April 1, 2017 at an exercise price of $0.35 per share of common stock. The exercise price of $0.35 per share, except for a nominal exercise price of $0.01 per share, will be
pre-paid to us upon issuance of the pre-funded Series G warrants and, consequently, no additional payment or other consideration (other than the nominal exercise price of $0.01 per share) will be required to be delivered to us by the holder upon
exercise. The Series H Warrants will be exercisable during the period commencing on the date of original issuance and ending on October 1, 2016 at an exercise price of $0.75 per share of common stock (subject to adjustment under certain
circumstances). Subject to the terms and conditions contained in the Underwriting Agreement, the Underwriter has agreed to purchase, and the Company has agreed to sell, 3,721,429 Series C Units at the public offering price of $0.35, less an
underwriting discount of $0.0245 per Series C Unit, resulting in a net purchase price to the Company of $0.3255 per Series C Unit, and 6,571,429 Series D Units at the public offering price of $0.34, less an underwriting discount of $0.0245
per Series D Unit, resulting in a net purchase price to the Company of $0.3155 per Series D Unit. The Company has agreed to reimburse the Underwriter for certain of its out-of-pocket expenses.
The Underwriting Agreement contains customary representations, warranties and agreements by the Company, customary conditions to closing, indemnification
obligations of the Company and the Underwriter, including for liabilities under the Securities Act of 1933, as amended, other obligations of the parties and termination provisions. The representations, warranties and covenants contained in the
Underwriting Agreement are solely for the benefit of the parties to such agreement, and may be subject to limitations agreed upon by the contracting parties.
The foregoing description of the Underwriting Agreement and the transactions contemplated thereby does not purport to be complete and is subject to, and
qualified in its entirety by, the full text of the Underwriting Agreement, a copy of which is attached hereto as
Exhibit 1.1
, and the terms of which are incorporated herein by reference.
Amendments to Existing Agreements
On
March 28, 2016, the Company and its subsidiaries, as guarantors, entered into a Eighth Supplemental Indenture (the
Eighth Supplemental Indenture
) with Wilmington Savings Fund Society, FSB, as trustee (the
Trustee
) and collateral trustee (the
Collateral Trustee
) and WB Gevo, Ltd., as Requisite Holder. The Eighth Supplemental Indenture
amends that certain Indenture, by and among the Company, and its subsidiaries, as guarantors, the Trustee, and the Collateral Trustee, dated as of June 6, 2014, to, among other things, (a) permit the offering and issuance of the Warrants
and the incurrence of indebtedness by the Company under the Warrants and (b) permit certain cash payments by Company to the holders of warrants issued by the Company from time to time.
On March 28, 2016, the Company entered into (i) an amendment (the
Security Agreement Amendment
) to that certain Plain
English Security Agreement, by and between the Company and TriplePoint Capital LLC (
TriplePoint
), dated as of September 22, 2010 (as amended, the
Security Agreement
), which secures the
Companys guarantee of the obligations of Agri-Energy, LLC, a Minnesota limited liability company (
Agri-Energy
), under that certain Amended and Restated Plain English Growth Capital Loan and Security Agreement, by and
among the Company, Agri-Energy and TriplePoint, dated as of October 20, 2011 (as amended, the
Amended Agri-Energy Loan Agreement
); and (ii) an amendment (the
TriplePoint Amendment
) to the
Amended Agri-Energy Loan Agreement. The Security Agreement Amendment and the TriplePoint Amendment amend the Security Agreement and Amended Agri-Energy Loan Agreement to, among other things, (a) permit the offering and issuance of the Warrants
and the incurrence of indebtedness by the Company under the Warrants and (b) permit certain cash payments by Company to the holders of warrants issued by the Company from time to time.
The foregoing descriptions of the Eighth Supplemental Indenture, the TriplePoint Amendment and the Security Agreement Amendment do not purport to be complete
and are subject to, and qualified in their entirety by, the full text of such agreements, copies of which are attached hereto as
Exhibit 4.1
,
Exhibit 10.1
and
Exhibit 10.2
, respectively, and the terms of each of which are
incorporated herein by reference.