UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
WASHINGTON,
DC 20549
FORM
8-K/A
AMENDMENT
NO. 1 TO
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
15, 2008
(Exact
name of registrant as specified in its charter)
(State or
other jurisdiction of incorporation)
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33-46104-FW
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71-00659511
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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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(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):
o Written communications
pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material
pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
o Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
Explanatory
Note
We are
filing this Amendment No. 1 to our Current Report on Form 8-K, originally filed
with the Securities and Exchange Commission on September 17, 2008, to correct
certain typographical errors in the text of the Report and in the Securities
Purchase Agreement dated as of September 15, 2008, which was filed as Exhibit
10.1 to the Report. In addition to correcting an erroneous reference
to 2007 instead of 2008, this Amendment No. 1 corrects a miscalculation of the
number of shares of our Common Stock issuable upon exercise of warrants issued,
or to be issued, pursuant to the Securities Purchase Agreement.
Item
1.01 — Entry into a Material Definitive
Agreement.
On
September 15, 2008, we entered into a Securities Purchase Agreement with The
Quercus Trust (“Quercus”), pursuant to which we have agreed to issue to Quercus
up to $7,500,000 face amount of our 10% Convertible Promissory Notes (“Notes”)
and Common Stock Purchase Warrants (“Warrants”) entitling the holder to purchase
up to 14,000,000 shares of our Common Stock.
Pursuant
to the Agreement, at an initial closing on September 15, 2008, we issued and
sold to Quercus, for an aggregate purchase price of $2,000,000, a Note, due
September 30, 2013, in the original principal amount of $2,000,000 and a Warrant
for the purchase of 4,000,000 shares of Common Stock.
Quercus
may elect to convert the Note at any time into shares of our common stock at a
price of $0.75 per share (the “Conversion Price”), which represents a discount
of approximately 6.25% off the closing price for our common stock on September
12, 2008. Interest on the Note is payable quarterly in arrears; at
our election, all or any portion of the interest may be paid by the issuance of
shares of our Common Stock valued at 90% of the volume weighted average trading
price per share of our Common Stock for the ten trading days immediately
preceding the respective interest payment date. We may not
pre-pay the Note without the prior written consent of the
holder.
The
Warrant permits the holder to purchase, at any time on or before September 30,
2013, up to 4,000,000 shares of our Common Stock at a purchase price of $1.25
per share, which represents a premium of approximately 56.25% over the closing
price for our common stock on September 12, 2008. The Warrant
contains conventional anti-dilution provisions for the adjustment of the
exercise price in the event we issue additional shares of our common stock or
securities convertible into common stock (subject to certain specified
exclusions) at a price per share less than $0.80 per share (the closing price
for our common stock on September 12, 2008). The Warrant also
includes conventional provisions permitting “cashless” exercise under certain
specified circumstances.
The
Agreement provides that Quercus will purchase an additional Note (in form
substantially identical to the Note issued at the initial closing) in the
original principal amount of $5,000,000 and an additional Warrant (in form
substantially identical to the Warrant issued at the initial closing) for the
purchase of 10,000,000 shares of our Common Stock upon the satisfaction of
certain conditions set forth in the Agreement.
Pursuant
to the Agreement, we amended the Common Stock Purchase Warrant issued to Quercus
on December 18, 2007 (the “2007 Warrant”) to reduce the exercise price of such
warrant from $1.50 to $1.25 per share.
In the
Agreement, we agreed to file one or more registration statements under the
Securities Act of 1933 covering the resale by Quercus of the shares of our
Common Stock issuable in payment of interest on the notes, upon conversion of
the Notes or upon exercise of the Warrants. The registration rights
provisions of the Agreement contain conventional terms including indemnification
and contribution undertakings and a provision for liquidated damages in the
event the required registration statements are not filed or are not declared
effective prior to deadlines set forth in the Agreement.
The
Agreement also grants to Quercus a right of first refusal to participate in any
subsequent financing we undertake prior to the earlier of (i) the date on which
we first report results of operations reflecting a positive cash flow in each of
two successive fiscal quarters or (ii) September 15, 2010 (subject to certain
conventional exceptions) in order to permit Quercus to maintain its
fully-diluted ownership interest in our Common Stock.
Quercus
is a trust for the benefit of the family of David Gelbaum. Mr.
Gelbaum, the trustee of Quercus, is a member of our Board of
Directors.
The
Agreement, the form of Warrant, the form of Note and the amendment to the 2007
Warrant are filed as Exhibits 10.1, 4.1, 4.2 and 4.3, respectively, to this
Current Report on Form 8-K, and the foregoing descriptions are qualified in
their entirety by reference to such Exhibits.
Item
3.02 — Unregistered Sales of Equity
Securities.
Pursuant
to the Securities Purchase Agreement described in Item 1.01 above, on September
15, 2008 we issued to The Quercus Trust a Note in the original principal amount
of $2,000,000 and a Warrant for the purchase (on or before September 30, 2013)
of up to 4,000,000 shares of our Common Stock. The Note is
convertible, at any time on or before September 30, 2013, into shares of our
Common Stock at the rate of $0.75 per share.
In the
Agreement, Quercus 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 an a “qualified institutional buyer” (as such term
is defined in Rule 144A under the Securities Act of 1933) and that it was
acquiring the Note and the Warrant for its own account, for investment purposes,
and without a view toward distribution or resale of such securities
.. The Note and Warrant were issued to Quercus 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. We intend to use the proceeds from the sale of the Note and
Warrant for working capital purposes, to purchase fixed assets used in the
development or production of the Company’s products, and for investment in new
technologies related to the Company’s business.
For its
services in connection with our sale of the Note and the Warrant to Quercus, we
paid Merriman Curhan Ford a placement fee of $160,000 and issued to that firm a
Warrant (in form substantially identical to the Warrant issued to Quercus) for
the purchase of 453,334 shares of our Common Stock. The Warrant was
issued to Merriman Curhan Ford 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.
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Item
9.01
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Financial
Statements and 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 Warrant issued pursuant to the Securities
Purchase Agreement dated as of September 15, 2008 between ThermoEnergy
Corporation and The Quercus Trust *
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4.2
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Form
of 10% Convertible Promissory Note issued pursuant to the Securities
Purchase Agreement dated as of September 15, 2008 between ThermoEnergy
Corporation and The Quercus Trust *
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4.3
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Amendment
No. 1 to Common Stock Purchase Warrant No.
2007-12-1 *
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10.1
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Securities
Purchase Agreement dated as of September 15, 2008 between ThermoEnergy
Corporation and The Quercus Trust †
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*
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Previously
filed
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†
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Filed
herewith
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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 13, 2009
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ThermoEnergy Corporation
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(Registrant)
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By:
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/s/
Andrew T. Melton
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Name:
Andrew T. Melton
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Title:
Executive Vice President and Chief
Financial
Officer
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