Attached files
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| EX-10.20 - AgFeed Industries, Inc. | v165502_ex10-20.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
D.C. 20549
FORM
8-K/A
Amendment
No. 1
CURRENT
REPORT
PURSUANT
TO SECTION 13 OR 15(d) OF THE
SECURITIES
EXCHANGE ACT OF 1934
Date of
Report (Date of earliest event reported): September 9,
2009
AgFeed Industries,
Inc.
(Exact
Name of Registrant as Specified in Charter)
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Nevada
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001-33674
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20-2597168
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(State
or Other Jurisdiction
of
Incorporation)
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(Commission
File
Number)
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(IRS
Employer
Identification
No.)
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Suite
A1001-1002, Tower 16, Hengmao Int'l Center
Nanchang City, Jiangxi
Province, China 330003
(Address
of principal executive offices; zip code)
Registrant’s
telephone number, including area
code: 86-791-6669093
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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¨
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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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Explanatory
Note
AgFeed
Industries, Inc. (the “Company”) filed a Current Report on Form 8-K (“Original
Form 8-K”) with the Securities and Exchange Commission on September 10, 2009,
disclosing under Item 1.01, among others, a summary of the terms of an Equity
Credit Agreement, dated as of September 9, 2009 (the "Agreement"), that the
Company entered into with an institutional investor (the
"Investor").
On
November 9, 2009, the Company and the Investor amended and restated the
Agreement to remove Section 2.1(c), which provided that if the closing bid price
on any day during a Valuation Period was less than 80% of the average of the
closing bid prices for the five trading days before the put notice (the "Floor
Price"), the Investment Amount would have been reduced by 20%. If the closing
bid price on any two days during the Valuation Period was less than 80% of the
Floor Price, the Investment Amount would have been reduced to an amount equal to
20% of the Investment Amount for each trading day during the Valuation Period
that the closing bid price was 80% or more of the Floor Price. No
other provisions of the Agreement were amended.
This
Amendment No. 1 to the Original Form 8-K (this "Amendment") is being filed to
amend the disclosure under Item 1.01 to correctly summarize the terms of the
Agreement, as amended and restated on November 9, 2009. Accordingly,
this Amendment hereby amends and restates Item 1.01 of the Original Form 8-K as
follows:
Item
1.01. Entry into a
Material Definitive Agreement.
On
September 9, 2009, AgFeed Industries, Inc. (the "Company") entered into an
Equity Credit Agreement with an institutional investor (the "Investor"), which
was amended and restated as of November 9, 2009, providing for, among other
things, the issuance of shares of its common stock (the "Shares") at any time
and from time to time during the next two years for gross proceeds of up to
$50,000,000. In connection with the closing of the transaction, the Company also
issued warrants to purchase an additional 400,000 shares of its common stock
during a five year period at an exercise price of $5.75 per share (the
"Warrants").The Company also entered into a Registration Rights Agreement as
part of the transaction. The closing took place on September 9,
2009.
The
following is a summary of the Equity Credit Agreement, the Registration Rights
Agreement and the Warrant, is not complete, and is qualified in its entirety by
reference to the full text of those agreements. The Equity Credit
Agreement, as amended and restated, is attached as an exhibit to this Current
Report on Form 8-K/A and each of the Registration Rights Agreement and the
Warrant is attached as an exhibit to the Original Form 8-K. Readers should
review those agreements for a complete understanding of the terms and conditions
associated with this financing.
The
provisions of the Equity Credit Agreement, Registration Rights Agreement, and
Warrant, 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").
Equity
Credit Agreement
Terms
of Sale
The
Company may require the Investor to purchase our shares of common stock from
time to time under the equity credit agreement by delivering a put notice
specifying the total purchase price for the shares to be purchased (the
"Investment Amount"). The Investment Amount may not be greater than the lesser
of (a) $2,500,000 or (b) 300% of the average dollar volume (closing bid price
times the volume on the Nasdaq Global Market for a trading day) for the 20
trading days preceding the put notice.
The
purchase price per share for the shares to be purchased for the Investment
Amount will be 95% of the lowest closing bid price on the Nasdaq Global Market
during the five trading days following the put notice (the "Valuation
Period").
If within
15 trading days after the closing of any purchase and sale of shares under the
equity credit agreement (a "Closing") the Company delivers a notice (a "Blackout
Notice") to the Investor that the Company's Board of Directors has determined in
good faith that (a) either (i) the Company possesses material information not
ripe for disclosure in a registration statement or (ii) the Company is engaged
in a material activity that would be adversely affected by disclosure in a
registration statement and (b) the registration statement of which this
prospectus supplement is a part would be materially misleading absent the
inclusion of such information and the Investor still holds shares of common
stock purchased at such Closing and the Company suspends the right of the
Investor to sell the common stock for a period (a "Blackout Period"), the
Company may be required to issue additional shares of common stock to the
Investor if the closing bid price for the common stock on the first trading day
following the Blackout Period (the "New Bid Price") is less than the closing bid
price for the common stock on the trading day immediately preceding the Blackout
Period (the "Old Bid Price"). The number of additional shares to be issued, if
any, will be equal to the difference between (a) the number of shares purchased
at such Closing still held by the Investor (the "Remaining Shares") multiplied
by the Old Bid Price, divided by the New Bid Price and (b) the Remaining
Shares.
The
Equity Credit Agreement contains representations and warranties of the Company
and the Investor which are typical for transactions of this type. The
representations and warranties made by the Company in the Equity Credit
Agreement are qualified by reference to certain exceptions contained in
disclosure schedules delivered to the Investor. Accordingly, the representations
and warranties contained in the Equity Credit Agreement should not be relied
upon by third parties who do not have access to those disclosure
schedules.
The
Equity Credit Agreement contains a variety of covenants on the part of the
Company which are typical for transactions of this type, as well as the
obligation, without the prior written consent of the Investor, not to enter into
any other equity line of credit agreement with a third party during the term of
the Equity Credit Agreement.
The
Equity Credit Agreement also obligates the Company to indemnify the Investor and
other holders of the securities issued to them for certain losses resulting from
any misrepresentation or breach of any representation or warranty made by the
Company or breach of any obligation of the Company.
Warrant
The
Warrant entitles the Investor to purchase up to an aggregate of 400,000 shares
of common stock. The Warrant is exercisable in whole or in part beginning on
September 10, 2009 and remain exercisable until September 9,
2014. The exercise price of the Warrant is $5.75 per share of common
stock, subject to adjustment in certain circumstances as set forth in the
Warrant.
Registration
Rights Agreement
The
Registration Rights Agreement requires the Company to file a post-effective
amendment or supplement to the Company’s existing shelf registration statement
on Form S-3, filed with the Securities and Exchange Commission (the
"Commission") on June 26, 2009 and declared effective by the SEC on July 6, 2009
for the resale of the Shares and the shares of common stock issuable upon
exercise of the Warrant. The post-effective amendment or supplement must be
filed by September 25, 2009 and must remain effective and available for use
until earlier of (a) six months after the completion of the last Closing Date
under the Equity Credit Agreement, (b) the date the Investor has sold all of the
securities covered by the registration statement and (c) the date the Investor
can resell all of such securities pursuant to Rule 144 free of the manner of
sale and volume limitations.
2
If the
prospectus included in the registration statement, as then in effect, includes
any untrue statement of a material fact or omits to state a material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading (a
"Registration Default"), and the Company fails to cure the Registration Default
within 10 business days, the Company is required to pay liquidated damages in an
amount equal to 2% of the Purchase Price of all registrable securities then held
by the Investor and still subject to Rule 144 volume limitations for each thirty
(30) calendar day period or portion thereof, beginning on the date of
suspension. The Registration Rights Agreement provides for customary
indemnification for the Company and the Investor.
Item
9.01 Financial
Statements and Exhibits.
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(d)
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Exhibits
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10.20
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Equity
Credit Agreement dated September 9, 2009, as amended and restated as of
November 9, 2009
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10.21
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Registration
Rights Agreement dated September 9, 2009 (filed as Exhibit 10.21 of the
Original Form 8-K on September 10,
2009)
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10.22
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Form
of Warrant (filed as Exhibit 10.22 of the Original Form 8-K on September
10, 2009)
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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.
Dated: November
10, 2009
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AGFEED
INDUSTRIES, INC.
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By:
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/s/ Junhong Xiong
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Junhong
Xiong
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Chief
Executive Officer
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