Item 1.01 Entry into a Material Definitive Agreement.
On April 28, 2022, Eos Energy Enterprises, Inc. (the "Company") entered into a
Standby Equity Purchase Agreement (the "SEPA") with YA II PN, Ltd.
("Yorkville"). Pursuant to the SEPA, the Company shall have the right, but not
the obligation, to sell to Yorkville up to $200,000,000 of its shares of common
stock, par value $0.0001 per share, at the Company's request any time during the
commitment period commencing on April 28, 2022 and terminating on the earliest
of (i) the first day of the month following the 24-month anniversary of the SEPA
and (ii) the date on which Yorkville shall have made payment of any advances
requested pursuant to the SEPA for shares of the Company's common stock equal to
the commitment amount of $200,000,000. Each sale the Company requests under the
SEPA (an "Advance") may be for a number of shares of common stock with an
aggregate value of up to $20,000,000. The shares would be purchased at 97.0% of
the Market Price (as defined below) and would be subject to certain limitations,
including that Yorkville could not purchase any shares that would result in it
owning more than 9.99% of the Company's outstanding common stock at the time of
an Advance (the "Ownership Limitation") or 19.99% of the Company's outstanding
common stock as of the date of the SEPA (the "Exchange Cap"). The Exchange Cap
will not apply under certain circumstances, including to any sales of common
stock under the SEPA that equal or exceed the Minimum Price (as defined in
Nasdaq Listing Rule 5635(d)). "Market Price" is defined in the SEPA as the
average of the VWAPs (as defined below) during each of the three consecutive
trading days commencing on the trading day following the Company's submission of
an Advance notice to Yorkville. "VWAP" is defined in the SEPA to mean, for any
trading day, the daily volume weighted average price of the Company's common
stock for such date on the Nasdaq Capital Market as reported by Bloomberg L.P.
during regular trading hours.
In addition to the Company's right to request Advances, subject to the mutual
consent of the Company and Yorkville, the Company may also request one or more
pre-advance loans (each, a "Pre-Advance Loan") from Yorkville, each request not
to exceed $50,000,000 and pursuant to the terms and conditions set forth in the
SEPA and the accompanying promissory note attached thereto. Pre-Advance Loans
may be repaid with the proceeds of an Advance or repaid in cash.
In connection with the execution of the SEPA, the Company agreed to issue an
aggregate of 465,117 shares of the Company's common stock to Yorkville as
consideration for its irrevocable commitment to purchase the Common Shares upon
the terms and subject to the satisfaction of the conditions set forth in the
Purchase Agreement.
The Company has filed with the Securities and Exchange Commission a prospectus
supplement to the Company's prospectus, dated April 25, 2022, filed as part of
the Company's effective shelf registration statement on Form S-3, File No.
333-263298, registering the shares of common stock that are to be offered and
sold to Yorkville pursuant to the SEPA.
The foregoing is a summary description of certain terms of the SEPA. For a full
description of all terms, please refer to the copy of the SEPA that is filed
herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated
herein by reference.
This Current Report on Form 8-K shall not constitute an offer to sell or a
solicitation of an offer to buy any shares of common stock, nor shall there be
any sale of shares of common stock in any state or jurisdiction in which such an
offer, solicitation or sale would be unlawful prior to registration or
qualification under the securities laws of any such state or other jurisdiction.
Item 8.01 Other Events.
On April 28, 2022, the Company issued a press release announcing its entering
into the SEPA. A copy of the press release is filed as Exhibit 99.1 hereto.
Item 9.01 Financial Statement and Exhibits.
(d) Exhibits
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Exhibit
Number Description of Document
5.1 Opinion of Davis Polk & Wardwell LLP
10.1*# Standby Equity Purchase Agreement, dated April 28 , 2022 , by
and between Eos Energy Enterprises, Inc. and YA II PN, Ltd.
23.1 Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
99.1 Press release, dated April 28, 2022
104 Cover page of this Current Report on Form 8-K formatted in Inline XBRL
* Portions of this exhibit have been omitted pursuant to Item 601(b)(10) because
they are both (i) not material and (ii) contain personal information.
# Certain exhibits and schedules have been omitted pursuant to Item 601(b)(10)
of Regulation S-K. The registrant hereby undertakes to furnish supplementally a
copy of any omitted exhibit or schedule upon request by the Securities and
Exchange Commission.
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