Unassociated Document
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): March 6,
2009
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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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71-00659511
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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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(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 March
6, 2009, we entered into Securities Purchase Agreements (the “March Agreements”)
with Empire Capital Partners, LP, Empire Capital Partners, Ltd, and Empire
Capital Partners Enhanced Master Fund, Ltd (collectively, “Empire”), pursuant to
which we issued to Empire an aggregate of 1,428,577 shares of our Common Stock
at a purchase price of $0.35 per share, together with warrants for the purchase
of an aggregate of 614,286 additional shares of our Common Stock at an exercise
price of $0.525 per share.
The March
Agreements contain conventional representations, warranties and covenants,
including an undertaking by us to file with the Securities and Exchange
Commission, within 120 days after closing, a registration statement covering
resale of all of the shares of our Common Stock issued to Empire pursuant to the
March Agreements and all shares of our Common Stock issuable upon exercise of
the warrants issued to Empire pursuant to the March
Agreements. The March Agreements also grant to Empire a right
of first refusal to participate, on a pro rata basis, in any future
financings (with certain enumerated exceptions) we undertake prior to the second
anniversary of the closing. The warrants issued to Empire pursuant to
the March Agreements may be exercised at any time on or before March 5, 2014,
subject to our right to accelerate the expiration date in the event the closing
price of our Common Stock equals of exceed 300% of the warrant exercise price
for 30 consecutive trading days.
On April
27, 2009, we entered into a Securities Purchase Agreement (the “April
Agreement”) with Empire and two individuals affiliated with Empire (the “April
Investors”), pursuant to which we issued to the April Investors an aggregate of
$500,000 face amount of our 10% Convertible Promissory Notes due October 31,
2009 (the “Notes”) and warrants to purchase an aggregate of 2,500,000 shares of
our Common Stock at an exercise price of $0.55 per share. The
principal of, and interest on, the Notes are convertible at any time into shares
of the our Common Stock at a conversion price of $0.40 per share. The
warrants issued to the April Investors pursuant to the April Agreement are
identical in form to the warrants issued to Empire pursuant to the March
Agreements, except that the exercise price is $0.55 per share and the expiration
date is April 30, 2014. The April Agreement contains conventional
representations, warranties and covenants, including a right of first refusal
similar to that contained in the March Agreement and an undertaking to file a
registration statement similar to that contained in the March Agreement covering
resale of all of the shares of our Common Stock issuable upon conversion of the
Notes or upon exercise of the warrants issued to the April Investors pursuant to
the April Agreement.
The form
of the March Agreements, the form of warrant issued pursuant to the March
Agreements, the April Agreement, the form of Note and the form of warrant issued
pursuant to the April Agreement are filed as Exhibits 10.1, 4.1, 10.2, 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 March Agreements described in Item 1.01 above, on March 6, 2009 we issued
to Empire an aggregate of 1,428,577 shares of our Common Stock at a purchase
price of $0.35 per share and warrants for the purchase of an aggregate of
614,286 additional shares of our Common Stock at an exercise price of $0.525 per
share.
In the
March Agreements, Empire represented to us that each of them is an “accredited
investor” (as such term is defined in Rule 501 of Regulation D promulgated under
the Securities Act of 1933) and a “qualified institutional buyer” (as such term
is defined in Rule 144A under the Securities Act of 1933) and that each of them
was acquiring the shares of our Common Stock and the warrant for its own
account, for investment purposes, and without a view toward distribution or
resale of such securities. The shares of our Common
Stock and the warrants were issued to Empire 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.
Pursuant
to the April Agreement described in Item 1.01 above, on April 27, 2009 we issued
to the April Investors an aggregate of $500,000 face amount of Notes and
warrants to purchase an aggregate of 2,500,000 shares of our Common Stock at an
exercise price of $0.55 per share.
In the
April Agreement, the April Investors represented to us that each of them is an
“accredited investor” (as such term is defined in Rule 501 of Regulation D
promulgated under the Securities Act of 1933) and a “qualified institutional
buyer” (as such term is defined in Rule 144A under the Securities Act of 1933)
and that each of them was acquiring the Notes 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 Notes and the
warrants were issued to the April Investors 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 shares of our Common Stock, the Notes
and the warrants pursuant to the March Agreements and the April Agreement for
working capital purposes, to purchase fixed assets used in the development or
production of our products, and for investment in new technologies related to
our business.
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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 Securities Purchase
Agreement dated as of March 6, 2009
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4.2
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Form
of 10% Convertible Promissory Note due October 31, 2009 issued pursuant to
Securities Purchase Agreement dated as of April 27,
2009
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4.3
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Form
of Common Stock Purchase Warrant issued pursuant to Securities Purchase
Agreement dated as of April 27, 2009
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10.1
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Form
of Securities Purchase Agreement dated as of March 6, 2009 by and between
ThermoEnergy Corporation and each of the Investors party
thereto
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10.2
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Securities
Purchase Agreement dated as of April 27, 2009 by and between ThermoEnergy
Corporation and the Investors party
thereto
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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:
April 28, 2009
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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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Financial
Officer
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