Item 1.01 Entry into a Material Definitive Agreement.
Pre-Paid Advance Agreement
On
Pursuant to the PPA, the Company shall, among other things, (i) maintain its
shelf registration statement on Form S-3 (the "Registration Statement"),
(ii) register the shares of Common Stock that are to be offered and sold to
Yorkville pursuant to the PPA, (iii) use the net proceeds for purposes disclosed
in the respective prospectus supplement, and (iv) except as permitted under the
PPA, not enter into any variable rate transactions. As consideration, upon
execution of the PPA, the Company paid Yorkville's structuring and due diligence
fees of
The shares of Common Stock to be issued under the PPA will be issued pursuant to
the Company's shelf registration statement on Form S-3 (File No. 333-264842).
Concurrently with the filing of this Current Report on Form 8-K, the Company is
filing a prospectus supplement (the "Prospectus Supplement") with the
This Current Report on Form 8-K shall not constitute an offer to sell or the solicitation of any offer to buy the shares of Common Stock, nor shall there be an offer, solicitation or sale of the shares of Common Stock in any state in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state.
The foregoing description of the PPA is qualified in its entirety by reference to the PPA, a copy of which is attached hereto as Exhibit 10.1 and is incorporated herein by reference.
Attached to this Current Report on Form 8-K as Exhibit 5.1, is the opinion of
Side Letter to Standby Equity Purchase Agreement
The PPA is the second equity investment made by Yorkville, which is also party
to the previously disclosed Standby Equity Purchase Agreement, dated as of
Concurrently with the PPA, the Company entered into the Side Letter to the Standby Equity Purchase Agreement (the "Side Letter"). Pursuant to the Side Letter, the Company may not request any advances or pre-advance loans under the SEPA without the written consent of Yorkville while there are Pre-Paid Advances pursuant to the PPA outstanding, unless the Common Stock is trading below the Floor Price.
The foregoing description of the Side Letter is qualified in its entirety by reference to the Side Letter, a copy of which is attached hereto as Exhibit 10.2 and is incorporated herein by reference.
Forward Looking Statements
The information in this Form 8-K includes "forward-looking statements" within
the meaning of the "safe harbor" provisions of the United States Private
Securities Litigation Reform Act of 1995. Forward-looking statements may be
identified by the use of words such as "estimate," "plan," "project,"
"forecast," "intend," "will," "expect," "anticipate," "believe," "seek,"
"target" or other similar expressions that predict or indicate future events or
trends or that are not statements of historical matters. These forward-looking
statements include, but are not limited to, statements regarding the amount of
Pre-Paid Advances the Company may request from Yorkville, if any, the amount of
shares of Common Stock the Company may issue to Yorkville, estimates and
forecasts of financial and performance metrics, expectations and timing related
to commercial product launches and achievement of operational milestones,
including the ability to meet and/or accelerate anticipated production timelines
and delivery, and the Company's ability to capitalize on commercial
opportunities and anticipated customer orders. These statements are based on
various assumptions, whether or not identified in this document, and on the
current expectations of the Company's management and are not predictions of
actual performance. These forward-looking statements are provided for
illustrative purposes only and are not intended to serve as, and must not be
relied on by any investor as, a guarantee, an assurance, a prediction or a
definitive statement of fact or probability. Actual events and circumstances are
difficult or impossible to predict and will differ from assumptions. Many actual
events and circumstances are beyond the Company's control. These forward-looking
statements are subject to a number of risks and uncertainties, including the
Company's ability to continue as a going concern; ability to access future
capital; changes in domestic and foreign business, market, financial, political
and legal conditions; the rollout of the Company's business and the timing of
expected business milestones and commercial launch; future market adoption of
the Company's offerings; risks related to the Company's go-to-market strategy
and manufacturing strategy; the effects of competition on the Company's future
business; and those factors discussed under the captions "Risk Factors" in the
Company's Annual Report on Form 10-K for the fiscal year ended
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits. Exhibit No. Description 5.1 Opinion ofKirkland & Ellis LLP . 10.1* Pre-Paid Advance Agreement, datedJuly 20, 2022 , by and betweenCanoo Inc. andYA II PN, Ltd. 10.2 Side Letter to Standby Equity Purchase Agreement, datedJuly 20, 2022 , by and betweenCanoo Inc. andYA PN, Ltd. 23.1 Consent ofKirkland & Ellis LLP (included in Exhibit 5.1). 104 Cover Page Interactive Data File (embedded within the Inline XBRL document). * Exhibits and schedules have been omitted pursuant to Item 601(a)(5) of Regulation S-K and will be provided on a supplemental basis to theSecurities and Exchange Commission upon request.
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