EVO Transportation & Energy Services, Inc. (Form: 8-K, Received: 08/17/2022 13:45:32)

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, D.C. 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): August 11, 2022

EVO Transportation & Energy Services, Inc.

(Exact name of Registrant as Specified in Its Charter)


Delaware	000-54218	37-1615850
(State or Other Jurisdiction of Incorporation)	(Commission File Number)	(IRS Employer Identification No.)

2075 West Pinnacle Peak Rd. Suite 130, Phoenix, AZ		85027
(Address of Principal Executive Offices)		(Zip Code)

Registrant’s Telephone Number, Including Area Code: 877-973-9191

Not Applicable

(Former Name or Former Address, if Changed Since Last Report)

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:


☐	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))

Securities registered pursuant to Section 12(b) of the Act: None

Title of each class

Trading
Symbol(s)

Name of each exchange on which registered

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§ 230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§ 240.12b-2 of this chapter).

Emerging growth company ☒

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act. ☐

Item 1.01 Entry into a Material Definitive Agreement.

Loan Extension Agreements

On August 12, 2022, EVO Transportation & Energy Services, Inc. (the “Company”) and certain subsidiary guarantors of the Company entered into a Fifth Loan Extension Agreement (the "Fifth Extension Agreement") with Antara Capital Master Fund LP ("Antara") and each of Thomas J. Abood, the Company's chief executive officer, Damon R. Cuzick, the Company's chief operating officer, Bridgewest Growth Fund LLC, an entity affiliated with Billy (Trey) Peck Jr., the Company's executive vice president - business development, and Batuta Capital Advisors LLC ("Batuta" and together with Mr. Abood, Mr. Cuzick, and Bridgewest Growth Fund LLC, the "Executive Lenders"), an entity affiliated with Alexandre Zyngier, a member of the Company's board of directors. Pursuant to the Fifth Extension Agreement, (i) the maturity date of the loan from Antara to the Company pursuant to the Senior Secured Loan and Executive Loan Agreement dated March 11, 2022 (the "Bridge Loan Agreement"), was extended from August 15, 2022 to September 15, 2022; and (ii) the maturity date of the loans from the Executive Lenders to the Company pursuant to the Bridge Loan Agreement was extended from August 22, 2022 to September 22, 2022.

The foregoing summary of the material terms of the Fifth Extension Agreement does not purport to be complete and is qualified in its entirety by reference to the full text of the Fifth Extension Agreement, which is filed as an exhibit to this Current Report on Form 8-K and incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory
Arrangements of Certain Officers.

Appointment of Interim Chief Financial Officer

On August 11, 2022, the Company appointed Raj Kapur, the Company's SVP and Chief Accounting Officer, as Interim Chief Financial Officer, effective at the close of business on August 19, 2022. Mr. Kapur will serve as the Company's principal financial officer, in addition to continuing to serve as the Company's Chief Accounting Officer and principal accounting officer.

There are no arrangements or understandings between Mr. Kapur and any other person pursuant to which Mr. Kapur was appointed to serve as Interim Chief Financial Officer of the Company. There are no family relationships between Mr. Kapur and any director or executive officer of the Company, and Mr. Kapur has no direct or indirect material interest in any “related party” transaction required to be disclosed pursuant to Item 404(a) of Regulation S-K.

Item 9.01 Financial Statements and Exhibits.


Exhibit No.		Description
4.1		Fifth Loan Extension Agreement dated August 12, 2022 between and among EVO Transportation & Energy Services, Inc., certain of its subsidiaries as guarantors, Antara Capital Master Fund LP, Thomas J. Abood, Damon R. Cuzick, Bridgewest Growth Fund LLC, and Batuta Capital Advisors LLC

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.


Dated: August 17, 2022	By:	/s/ Thomas J. Abood
	Its:	Chief Executive Officer

Exhibit 4.1

FIFTH LOAN EXTENSION AGREEMENT

This FIFTH LOAN EXTENSION AGREEMENT (this “Agreement”) is made as of August 12, 2022, by and among (i) EVO TRANSPORTATION & ENERGY SERVICES, INC., a Delaware corporation having its principal office at 2075 West Pinnacle Peak Rd., Suite 130, Phoenix AZ 85027 (“Borrower”), and each subsidiary of Borrower listed on the signature pages hereto or that after the date hereof delivers such a signature page (each a “Guarantor”, collectively, the “Guarantors” and, together with Borrower, the “Loan Parties” and each a “Loan Party”), (ii) ANTARA CAPITAL MASTER FUND LP and/or one or more managed funds or accounts (the “Lender”), and (iii) each lender listed on Schedule I of the Loan Agreement (as defined below) (each, an “Executive Lender” and together, the “Executive Lenders”). Capitalized terms used but not defined in this Agreement shall have the meanings given to them in the Loan Agreement.

W I T N E S S E T H:

WHEREAS, the Loan Parties are indebted to the Lender and the Executive Lenders pursuant to that certain Senior Secured Loan and Executive Loan Agreement dated as of March 11, 2022 (the “Original Loan Agreement”), as amended by the Loan Extension Agreement dated May 31, 2022 (the “First Loan Extension Agreement”); the Second Loan Extension Agreement dated June 30, 2022 (the “Second Loan Extension Agreement”); the Third Loan Extension Agreement dated July 8, 2022 (the “Third Loan Extension Agreement”); and the Fourth Loan Extension Agreement dated July 15, 2022 (the “Fourth Loan Extension Agreement”, and the Original Loan Agreement as amended by the First Loan Extension Agreement, the Second Loan Extension Agreement, the Third Loan Extension Agreement and the Fourth Loan Extension Agreement, the “Loan Agreement”).

WHEREAS, the Loan Parties and the Lender wish to extend the “Maturity Date” (as defined in the Loan Agreement) of the Loan from August 15, 2022 to September 15, 2022 upon satisfaction of the terms and conditions set forth in this Agreement.

WHEREAS, the Loan Parties and the Executive Lenders wish to extend the “Executive Loan Maturity Date” (as defined in the Loan Agreement) of the Executive Loans from August 22, 2022 to September 22, 2022 upon satisfaction of the terms and conditions set forth in this Agreement.

WHEREAS, the parties to this Agreement (the “Parties”) desire to memorialize the aforementioned extensions as hereinafter set forth.

NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants and agreements hereinafter set forth, the Parties hereby agree as follows:

Extension of the Loan Maturity Date. Effective upon the date of this Agreement, the Loan Agreement is amended to extend the “Maturity Date” from (i) the earlier of (a) demand by the Lender on any day prior to the Collateral Pledge Effective Date and (b) August 15,

2022 to (ii) the earlier of (a) demand by the Lender on any day prior to the Collateral Pledge Effective Date and (b) September 15, 2022.

Extension of each Executive Loan Maturity Date. Effective upon the date of this Agreement, the Loan Agreement is amended to extend each “Executive Loan Maturity Date” from August 22, 2022 to September 22, 2022.

Representations. The Loan Parties hereby represent and warrant to Lender and each Executive Lender as of the date hereof that each of the representations and warranties made by any Loan Party in the Original Loan Agreement have been and remain true and correct in all material respects as if remade on the date hereof, subject to changes to such representations and warranties set forth on Exhibit A attached hereto (the “Representation Updates”). None of the Representation Updates are the result of any breach of a covenant of any Loan Party under the Loan Agreement, nor do they result from or in any Event of Default. Neither the execution, delivery or performance of this Agreement nor any other agreement or instrument contemplated hereby will (a) violate any applicable law in any material respect, (b) violate the organizational documents of any Loan Party, or (c) breach, violate or result in a default, or give rise to a termination, cancellation, acceleration or other right or remedy, under any material agreement, instrument or other contractual obligation of any Loan Party.

Full Force and Effect. Except as specifically set forth herein, all of the terms and conditions of the Loan Agreement are unmodified and remain in full force and effect.

No Novation. The Parties do not intend the terms of this Agreement to be construed as a novation of any of the obligations owing by the Loan Parties under or in connection with the Loan or the Executive Loans.

Ratification and Affirmation of Guaranties and Indemnities. By the execution hereof, each Guarantor hereby acknowledges and agrees and consents to the terms of this Agreement and that, except as expressly provided in Section 1 and Section 2 of this Agreement, nothing contained herein shall modify, affect or otherwise diminish the obligations of Guarantor under the Loan Agreement applicable to such Guarantor, and each Guarantor hereby certifies, reaffirms and ratifies its obligations under the Loan Agreement.

Release of Lender Liability. TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW FROM TIME TO TIME IN EFFECT, EACH LOAN PARTY HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY (AND AFTER IT HAS CONSULTED WITH ITS OWN COUNSEL) IRREVOCABLY AND UNCONDITIONALLY AGREES THAT NO CLAIM MAY BE MADE BY SUCH LOAN PARTY AGAINST THE LENDER OR ANY OF THE LENDER’S DIRECTORS, OFFICERS, EMPLOYEES, ATTORNEYS, ACCOUNTANTS, AGENTS OR INSURERS, OR ANY OF ITS OR THEIR SUCCESSORS AND ASSIGNS, FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES IN RESPECT OF ANY BREACH OR WRONGFUL CONDUCT (WHETHER THE CLAIM IS BASED ON CONTRACT OR TORT OR DUTY IMPOSED BY LAW) ARISING OUT OF, OR RELATED TO, THE TRANSACTIONS CONTEMPLATED BY ANY OF THIS

AGREEMENT OR THE LOAN AGREEMENT, OR ANY ACT, OMISSION, OR EVENT OCCURRING IN CONNECTION HEREWITH OR THEREWITH. IN FURTHERANCE OF THE FOREGOING, EACH LOAN PARTY HEREBY WAIVES, RELEASES AND AGREES NOT TO SUE UPON ANY CLAIM FOR ANY SUCH DAMAGES, WHETHER OR NOT ACCRUED AND WHETHER OR NOT KNOWN OR SUSPECTED TO EXIST IN ITS FAVOR.

Counterparts. This Agreement may be executed in any number of counterparts (which may be electronic, including PDF) and by the different parties hereto in separate counterparts, each of which when executed shall be deemed to be an original and shall be binding upon all parties and their respective permitted successors and assigns, and all of which taken together shall constitute one and the same agreement.

Governing Law. This Agreement shall be governed in accordance with the terms and provisions of Section 25 and Section 26 of the Original Loan Agreement, except, for purposes of this Agreement, references to “Loan Agreement” shall be deemed to refer to the Original Loan Agreement as modified by the First Loan Extension Agreement and the Second Loan Extension Agreement and as further modified by this Agreement.

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Exhibit 4.1

IN WITNESS WHEREOF, each Loan Party has caused this Agreement to be duly executed as of the date set forth above.

EVO TRANSPORTATION & ENERGY SERVICES, INC., as Borrower