EOS ENERGY ENTERPRISES, INC. : entering into a material definitive agreement, creating a direct financial obligation or an obligation under an off-balance sheet arrangement of a registrant, disclosure of settlement FD, other events, financial statements and exhibits (Form 8- K)

Section 1.01 Entering into a Material Definitive Agreement.

Senior Secured Term Credit Agreement

As stated earlier, on July 29, 2022 (the “Closing Date”), Eos Energy Enterprises, Inc.a Delaware company (the “Company”), has entered into a senior secured term credit agreement (the “Credit Agreement”) with ACP Post Oak Credit I LLC, as lender, administrative agent and collateral agent (“Atlas”), and the lenders who are sometimes parties thereto (collectively with Atlas, the “Lenders”). The credit agreement provides for a $85.1 million term loan (the “Term Loan”), all of which has been funded as of the closing date. The credit agreement also allows the company to make a single request for an additional commitment of up to $14.9 millionwith financing of this commitment at the sole discretion of the lenders, in certain circumstances and on the same conditions as the term loan.

On August 4, 2022, the Company has entered into a Covenant Increase Agreement (the “Covenant Increase Agreement”) by and between the Company, each of the Company’s subsidiaries, as guarantors, and the Lenders. Pursuant to the Commitment Increase Agreement, the Company has requested and the lenders have agreed to fund an additional commitment of $9.6 million under the credit agreement. The additional commitment was funded from August 4, 2022and the terms of the additional commitment are consistent with those of the term loan.

The information set forth in item 1.01 of the company’s current report on Form 8-K filed on August 1, 2022which provides a description of the Credit Agreement and other material terms of the Supplemental Commitment, is incorporated herein by reference.

The foregoing is a summary description of certain terms of the Commitment Increase Agreement. For a complete description of all terms, please refer to the copy of the Commitment Increase Agreement which is filed herewith as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein. by reference.

Sales agreement

On August 5, 2022the Company has entered into an agreement of sale (the “Agreement of Sale”) with Cowen and Company, LLC (“Cowen”), in connection with a market offering program under which the Company may offer and sell, from time to time, at its sole discretion, shares of its common stock, par value
$0.0001 per share (the “Common Shares”), having an aggregate offering price of up to $100,000,000 (the “Placement Shares”) through Cowen as sales agent and/or principal.

Under the Sale Agreement, the Company will set the parameters for the sale of Placement Shares, including the number of Placement Shares to be issued, the period during which sales are requested, limits on the number of Placement Shares that can be sold during the same trading day and any minimum price below which sales cannot be made. Subject to the terms and conditions of the sale agreement, Cowen may sell the investment shares by methods deemed to be a “market offering” as defined in Rule 415 enacted under the Securities Act of 1933 , as amended, including sales made through The Nasdaq Capital Market (“Nasdaq”), on any other existing trading market for common stock. In conducting such sales activities, Cowen will use its commercially reasonable efforts in accordance with its normal business and business practices and applicable state and federal laws, rules and regulations and Nasdaq rules. The Company will pay Cowen a commission equal to 3.0% of the gross proceeds from the sale of all Investment Shares sold through Cowen pursuant to the Sale Agreement, and has provided Cowen with indemnification rights and usual contributions. The Company will also reimburse Cowen for certain expenses incurred in connection with the sale agreement. The Sale Agreement will terminate upon the earlier of: (i) the sale of all Investment Shares subject to the Sale Agreement or (ii) the termination of the Sale Agreement in accordance with the terms and conditions set forth therein.

The Company is not obligated to sell, and Cowen is not obligated to buy or sell, any Placement Shares under the Sale Agreement. No assurance can be given that the Company will sell Investment Shares under the Sale Agreement, or, if so, as to the price or amount of Investment Shares it sells or the dates on which such sales will take place.

All shares to be offered and sold under the Agreement of Sale will be issued and sold pursuant to the Company’s registration statement on Form S-3 (File No. 333-263298), which has been filed with the Security and Exchange Commission (“SEC”) on March 4, 2022 and which entered into force on April 25, 2022 (the “Registration Statement”). The Company intends to file a Prospectus Supplement with the SECOND on
August 5, 2022 in connection with the offer and sale of the Shares in accordance with the Sales Agreement.

The foregoing is a summary description of certain terms of the Sales Agreement. For a complete description of all terms, please see the copy of the Sales Agreement filed herewith as Exhibit 10.2 to this Current Report on Form 8-K and incorporated herein by reference.

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This current report on Form 8-K does not constitute an offer to sell or a solicitation of an offer to buy common stock, and there will be no sale of common stock in any state or jurisdiction in which a such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of such state or other jurisdiction.

Item 2.03 Creation of a Direct Financial Obligation or Obligation Under an Off-Balance Sheet Arrangement of a Registrant.

The information set forth in the section entitled “Senior Secured Term Credit Agreement” under Section 1.01 of this Current Report on Form 8-K relating to the Covenant Increase Agreement is incorporated herein by reference.

Section 7.01 Disclosure of FD Rules.

On August 5, 2022, the Company issued a press release announcing that it had received an additional undertaking from the Lenders pursuant to the Credit Agreement. A copy of the press release is provided as Exhibit 99.1 to this current report and is incorporated by reference herein.

The information included in Item 7.01 (including Exhibit 99.1) is provided pursuant to Item 7.01 and is not deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (“Exchange Act”). ), or otherwise be subject to the responsibilities of this section, nor shall it be deemed to be incorporated by reference in any filing under the Securities Act or the Exchange Act, whether made before or after the date hereof and regardless of any language of general incorporation in this repository.

Section 8.01 Other Events.

A copy of the notice of Davis Polk & Wardwell LLP relating to the validity of the Common Shares salable under the Agreement of Sale is filed herewith as Exhibit 5.1 to this Current Report on Form 8-K and is incorporated herein by reference.

Item 9.01 Financial statement and supporting documents.

(d) Exhibits

Exhibit
Number               Description of Document

5.1                    Opinion of Davis Polk & Wardwell LLP
10.1                   Commitment Increase Agreement, dated as of August     4    , 2022, by and
                     among Eos Energy Enterprises, Inc., the guarantors party thereto, ACP Post Oak
                     Credit I LLC, as administrative agent and lender, and certain other lenders
                     party thereto
10.2                   Sales Agreement, dated August 5, 2022, by and between Eos Energy Enterprises,
                     Inc. and Cowen and Company, LLC
23.1                 Consent of Davis Polk & Wardwell LLP (included in Exhibit 5.1)
99.1                   Press release, dated August 5, 2022 (furnished pursuant to Item 7.01)
104                  Cover page of this Current Report on Form 8-K formatted in Inline XBRL


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