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
):
August 9, 2012
ThermoEnergy
Corporation
(Exact name of registrant as specified in
its charter)
Delaware
(State or other jurisdiction of incorporation)
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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10 New Bond Street, Worcester, Massachusetts
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01606
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(Address of principal executive offices)
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(Zip Code)
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(508)
854-1628
(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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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
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Item 1.01 -- Entry into a Material Definitive Agreement.
On
August 9, 2012, we entered into separate Securities Purchase Agreements (the “Agreements”) with each of the individuals
and entities identified in Item 3.02 below (the “Investors”) pursuant to which we issued to the Investors an aggregate
of 8,287,500 shares of our Common Stock (the “Shares”) and Common Stock Purchase Warrants for the purchase of an additional
8,287,500 shares of our Common Stock (the “Warrants”). The aggregate purchase price for the Shares and Warrants was
$
828,750
.
The Warrants entitle the holders thereof to purchase, at any
time on or prior to July 11, 2017, shares of our Common Stock at an exercise price of $0.15 per share.
The
Agreements include a price protection provision pursuant to which,
in the event, and on each such occasion on or before
January 11, 2014, we issue and sell any shares of our Common Stock or securities convertible into or exchangeable for shares of
our Common Stock (“Convertible Securities”) (other than shares issued or issuable in certain transactions, including
upon exercise of employee stock options, upon conversion or exercise of currently-outstanding Convertible Securities, or in connection
with acquisitions or financing transactions) at a price less than $0.10 per share (a “Dilutive Transaction”), the purchase
price for the Shares shall automatically be reduced to a price equal to price at which such shares were issued and sold in the
Dilutive Issuance (the “Reduced Price”) and we will issue to the Investors, for no additional consideration, a sufficient
number of additional Shares so that the effective price per Share equals the Reduced Price.
The
Warrants include a similar price protection provision pursuant to which,
upon a Dilutive Transaction, the exercise price
of the Warrants shall automatically be reduced to a price equal to 150% of the Reduced Price. Upon such adjustment, the number
of Warrant Shares issuable upon exercise of a Warrant shall automatically be adjusted by multiplying the number of shares issuable
upon exercise of such Warrant immediately prior to the Dilutive Issuance by a fraction, (i) the numerator of which shall be the
exercise price immediately prior to the Dilutive Issuance and (ii) the denominator of which shall be the exercise price as adjusted.
Pursuant to the Agreements, we agreed
to
prepare and file with the Securities and Exchange Commission (the “Commission”) a Registration Statement
on Form S-1 (the “Registration Statement”) covering the Shares and the shares of our Common Stock issuable upon exercise
of the Warrants (the “Warrant Shares”) and to prepare and file with the Commission any amendments to the Registration
Statement and supplements to the prospectus contained therein (the “Prospectus”) as may be necessary to keep the Registration
Statement continuously effective and in compliance with the provisions of the Securities Act of 1933, as amended (the “Securities
Act”) applicable thereto so as to permit the Prospectus to be current and useable by the Investors for re-sales to the public
of the Shares and the Warrant Shares until such date as all such Shares and Warrant Shares have been sold (or, if earlier, with
respect to each Investor, until such Investor may resell all of the Shares and Warrant Shares held by him or it to the public without
registration in reliance on Rule 144 under the Securities Act without limitation as to volume and without the requirement of any
notice filing).
Each Warrant provides for cashless exercise if, on the date
on which it is exercised, all of the Warrant Shares issuable thereunder are not eligible for resale to the public pursuant to a
Registration Statement filed with the Commission and declared effective pursuant to the Securities Act.
The transactions effected pursuant to the Agreements constitute
the second closing of an offering of Shares and Warrants to accredited investors, as described more fully in Item 3.02, below.
The first closing of such offering occurred on July 11, 2012 and was reported on our Current Report on Form 8-K filed on July 17,
2012 (the “July Form 8-K”).
The forms of
the Agreements
and of the Warrants were
filed as Exhibits 10.1 and 10.2, respectively, to the July Form 8-K and are
filed as Exhibits to this Current Report on Form 8-K by reference to such Exhibits. The foregoing descriptions are qualified in
their entirety by reference to such Exhibits.
Item 3.02 — Unregistered Sales of Equity Securities.
On
August 9, 2012, pursuant to the Agreements reported in Item 1.01 of this Current Report on Form 8-K, we issued and sold to the
Investors identified below, for an aggregate purchase price of $
828,750,
the number of Shares and Warrants for the purchase of the number of Warrant Shares set forth opposite the names of such Investors:
Investor
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Number of Shares
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Number of Warrant Shares
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Ines Bahl, IRRL
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500,000
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500,000
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Frank J. Garofalo
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1,250,000
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1,250,000
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David Hawks
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150,000
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150,000
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Gregory A. Harrison
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312,500
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312,500
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Francis Howard
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1,250,000
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1,250,000
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IVM Productions, Inc.
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625,000
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625,000
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Timothy Stewart Clarke
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625,000
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625,000
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John J. Shaw
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625,000
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625,000
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Terence Edgar
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2,500,000
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2,500,000
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John and Yvonne Weatherord, JTWROS
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250,000
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250,000
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James Andrew Williams, IRA
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200,000
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200,000
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Each Investor has represented that he, she or it is
an “accredited investor” (as such term is defined in Rule 501 of Regulation D) and that he, she or it was acquiring
his, her or its Shares and Warrant and would acquire the Warrant Shares issuable upon exercise of such Warrant for investment for
his, her or its own account and not with a plan or present intention to distribute such shares.
The Shares and Warrants were issued to the Investors
in a series of transactions not involving a public offering and without registration under the Securities Act in reliance on the
exemption from registration provided by Section 4(2) of such Act. For its services in connection with these transactions, we paid
Dawson James Securities, Inc. (“Dawson James”), a registered broker-dealer, a fee of $82,875 and a non-accountable
expense allowance of $16,575. We have also agreed to issue to Dawson James two Common Stock Purchase Warrants, in form identical
to the Warrants issued to the Investors except that the cashless exercise provision will apply under all circumstances (the “Broker’s
Warrants”). One of the Broker’s Warrants entitles the holder to purchase up to 828,750 shares of our Common Stock
at an exercise price of $0.10 per share and the other Broker’s Warrant entitles the holder to purchase up to
828,750 shares of our Common Stock at an exercise price of $0.15 per share.
We intend to use the net proceeds from the sale of the
Shares and Warrants (after payment of fees and expenses) for general working capital purposes.
Item 9.01
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Financial Statements and Exhibits
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(c) Exhibits
Exhibit No.
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Description
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10.1
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Form of Securities Purchase Agreement dated as of August 9, 2012 by and between ThermoEnergy Corporation and each of the individuals and entities identified in Item 1.01 as “Investors” -- Incorporated by reference to Exhibit 10.1 to Current Report on Form 8-K filed July 17, 2012
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10.2
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Form of Common Stock Purchase Warrant issued pursuant to the Securities Purchase Agreements dated as of August 9, 2012 by and between ThermoEnergy Corporation and each of the individuals and entities identified in Item 1.01 as “Investors” -- Incorporated by reference to Exhibit 10.2 to Current Report on Form 8-K filed July 17, 2012
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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: August 15, 2012
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THERMOENERGY CORPORATION
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(Registrant)
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By:
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/s/ Cary G. Bullock
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Name:
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Cary G. Bullock
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Title:
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Chairman and Chief Executive Officer
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ThermoEnergy (CE) (USOTC:TMEN)
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