Attached files
| file | filename |
|---|---|
| EX-4.1 - THERMOENERGY CORP | v207865_ex4-1.htm |
| EX-10.2 - THERMOENERGY CORP | v207865_ex10-2.htm |
| EX-10.1 - THERMOENERGY CORP | v207865_ex10-1.htm |
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 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):
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January 7,
2011
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ThermoEnergy Corporation
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(Exact
name of registrant as specified in its charter)
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Delaware
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(State
or other jurisdiction of
incorporation)
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33-46104-FW
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71-0659511
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(Commission
File Number)
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(IRS
Employer Identification No.)
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124 West Capitol Avenue, Suite 880, Little Rock,
Arkansas
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72201
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(Address
of principal executive offices)
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(Zip
Code)
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(501) 376-6477
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(Registrant’s
telephone number, including area
code)
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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):
¨ Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
¨ Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
¨ Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
¨ Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Item
1.01 — Entry into a Material Definitive
Agreement.
On
January 7, 2011, we entered into Note Amendment and Forbearance Agreements,
effective as of January 4, 2011, with the following Noteholders, all of which
were holders of our Convertible Promissory Notes due May 31, 2010 (the “Old
Notes”): BancBoston Ventures, Inc.; BCLF Ventures I, LLC; Essex Regional
Retirement Board; Massachusetts Technology Development Corporation; and Spencer
Trask Specialty Group, LLC (collectively, the “Noteholders”). The Old Notes were
issued in July 2007 in connection with our acquisition from the Noteholders of
shares of the preferred stock of CASTion Corporation (“Castion”) representing,
in the aggregate, 90.31% of the total issued and outstanding shares of CASTion’s
common stock on an as-converted basis.
Pursuant
to the Note Amendment and Forbearance Agreements, (i) we made an aggregate of
$1,144,335.52 in payments against the outstanding balances of the Old Notes;
(ii) the Noteholders converted an aggregate of $902,709.60 in principal and
accrued interest under the Old Notes into shares of our Series B Convertible
Preferred Stock (as reported in Item 3.02 below); (iii) we issued to the
Noteholders warrants for the purchase of an aggregate of 17,585,127 shares of
our Common Stock at an exercise price of $0.40 per share (the “$0.40 Warrants”)
and an aggregate of 6,018,065 shares of our Common Stock at an exercise price of
$0.30 per share (the “$0.30 Warrants” and, together with the $0.40 Warrants, the
“Warrants”); (iv) we amended and restated the Old Notes to read in the form of
Amended and Restated Promissory Notes due February 29, 2012 (the “Restated
Notes” and, with the Old Notes, the “Notes”); (v) we made additional cash
payments to the Noteholders in the aggregate amount of $37,913.81; and (vi) the
Noteholders agreed, subject to certain conditions set forth in the Note
Amendment and Forbearance Agreements, to forbear until February 29, 2012, from
exercising their rights and remedies under the Restated Notes or under the Stock
Pledge Agreement dated as of July 2, 2007 made by ThermoEnergy in favor of
Spencer Trask Specialty Group, LLC, as agent for itself and the other
Noteholders, pursuant to which we have pledged our ownership interest in CASTion
as security for our obligations under the Notes.
The
Restated Notes bear interest at the rate of 10% per annum (with penalty interest
at the rate of 18% per annum following maturity or an event of default).
Installment payments (based on a 10-year amortization schedule) are due on the
last day of each month beginning January 31, 2011 and continuing through
February 29, 2012, at which time the entire unpaid principal amount of, and
accrued interest on, the Restated Notes shall be due and payable. The Restated
Notes are convertible, in whole or in part, at any time at the election of the
Noteholders, into shares of our Series B Convertible Preferred Stock at the rate
of $2.40 per share. We may prepay the Restated Notes at any time, upon 15 days’
prior written notice, without premium or penalty. In the event, on or before
July 5, 2011, we make any payments of principal or accrued interest on the
Restated Notes, then simultaneously with the making of such payment a portion of
the remaining principal and accrued and unpaid interest on the Restated Notes in
an amount equal to the amount of such payment shall automatically convert into
shares of our Series B Convertible Preferred Stock at the rate of $2.40 per
share. In the event that (i) the closing price of our Common Stock for 20
consecutive trading days equals or exceeds $0.72 per share and (ii) the daily
average trading volume of our Common Stock exceeds 30,000 shares for 20
consecutive trading days, then upon notice from us to the Noteholders, given at
any time thereafter, the entire principal amount of the Restated Notes then
outstanding, plus all accrued and unpaid interest thereon, shall automatically
convert into shares of our Series B Convertible Preferred Stock at the rate of
$2.40 per share. We have agreed that, upon conversion of all or any portion of
the Restated Notes, we will issue to the converting Noteholder a five-year
warrant in the same form as the $0.30 Warrants for the purchase, at an
exercise price of $0.30 per share, of that number of shares of our Common Stock
determined by dividing (i) 200% of the amount of principal and interest so
converted by (ii) $0.30. The Restated Notes contain other conventional terms,
including events of default upon the occurrence of which the Restated Notes
become immediately due and payable.
The forms
of the Note Amendment and Forbearance Agreements and of the Restated Notes are
filed as Exhibits 10.1 and 10.2, respectively, to this Current Report on Form
8-K, and the foregoing description is qualified in its entirety by reference to
such Exhibits.
Item
3.02 — Unregistered Sales of Equity Securities.
Pursuant
to the Note Amendment and Forbearance Agreements reported in Item 1.01 above, on
January 7, 2011, we issued and sold to the each of the following Noteholders (i)
the number of shares of our Series B Convertible Preferred Stock set forth
opposite its name under the heading “Series B Shares” below; (ii) warrants for
the purchase, at an exercise price of $0.30 per share, of the number of shares
of our Common Stock set forth opposite its name under the heading “$0.30 Warrant
Shares” below; and (iii) warrants for the purchase, at an exercise price of
$0.40 per share, of the number of shares of our Common Stock set forth opposite
its name under the heading “$0.40 Warrant Shares” below:
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Investor
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Series B Shares
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$0.30 Warrant Shares
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$0.40 Warrant Shares
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|||
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BancBoston
Ventures Inc.
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3,469
shares
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55,502
shares
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152,710
shares
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|||
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BCLF
Ventures I, LLC
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57,372
shares
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917,957
shares
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2,525,718
shares
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|||
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Essex
Regional Retirement Board
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1,743
shares
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27,752
shares
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76,357
shares
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|||
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Massachusetts
Technology Development Corporation
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105,220
shares
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1,683,521
shares
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4,632,132
shares
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|||
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Spencer
Trask Specialty Group, LLC
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208,333
shares
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3,333,333
shares
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10,198,210
shares
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Each
share of our Series B Convertible Preferred Stock is convertible, at any time at
the option of the holder thereof, into ten shares of our Common Stock resulting
in an effective purchase price of $0.24 per share of our Common
Stock.
The
Warrants entitle the holders thereof to purchase, at a purchase price of $0.40
per share and $0.30 per share, respectively. The Warrants may be
exercised at any time on or before January 4, 2016, subject to our right to
accelerate the expiration date in the event the closing price for our Common
Stock exceeds 200% of the closing price on January 4, 2011 for a period of 30
consecutive trading days.
The
Warrants contains other conventional terms, including provisions for cashless
exercise and for adjustment in the Exercise Price and/or the securities issuable
upon exercise in the event of certain specified extraordinary corporate events,
such as stock splits, combinations, and stock dividends.
The form
of Warrants is filed as Exhibit 4.1 to this Current Report on Form 8-K and the
foregoing description of the Warrants is qualified in its entirety by reference
to such Exhibit.
In the
Note Amendment and Forbearance Agreements, each Noteholder represented to us
that it is an “accredited investor” (as such term is defined in Rule 501 of
Regulation D promulgated under the Securities Act of 1933) and that it was
acquiring the shares of our Series B Convertible Preferred Stock and the
Warrants for its own account, for investment purposes, and without a view toward
distribution or resale of such securities. The shares of our Series B
Convertible Preferred Stock and the Warrants were issued to the Noteholders in a
transaction not involving a public offering and without registration under the
Securities Act of 1933 in reliance on the exemption from registration provided
by Section 4(2) of such Act.
In the
Note Amendment and Forbearance Agreements, we agreed that if we register
any shares of our Common Stock under the Securities Act of 1933 in connection
with the public offering of such shares (subject to certain conventional
exceptions) we will, at the request of the Noteholders, include in such
registration the shares of our Common Stock issuable upon conversion of the
shares of our Series B Convertible Preferred Stock issued or issuable upon
conversion of the Amended Notes or upon exercise of the Warrants. The
registration rights provisions of the Note Amendment and Forbearance Agreements
contain conventional terms including indemnification and contribution
undertakings.
Item
9.01 Financial Statements and
Exhibits
(c) Exhibits
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Exhibit
No.
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Description
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4.1
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Form
of Common Stock Purchase Warrants issued pursuant to the several Note
Amendment and Forbearance Agreements by and between ThermoEnergy
Corporation and the Noteholders identified above.
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10.1
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Form
of Note Amendment and Forbearance Agreements dated as of January 4, 2011
by and between ThermoEnergy Corporation and the Noteholders identified
above.
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10.2
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Form
of Convertible Promissory Notes due February 29, 2012, dated January 4, 2011, issued pursuant to the
several Note Amendment and Forbearance Agreements by and between
ThermoEnergy Corporation and the Noteholders identified
above.
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SIGNATURES
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.
Date:
January 14, 2011
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THERMOENERGY CORPORATION
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(Registrant)
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By:
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/s/ Teodor Klowan, Jr.
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Name:
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Teodor
Klowan, Jr. CPA
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Title:
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Executive
Vice President and Chief
Financial
Officer
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