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): March 28, 2017
HYPERDYNAMICS CORPORATION
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
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001-32490 |
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87-0400335 |
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(Commission File Number) |
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(IRS Employer Identification
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12012 Wickchester Lane, Suite 475
Houston, Texas 77079
(Address of principal executive offices,
including Zip Code)
(713) 353-9400
(Registrant’s telephone number,
including area code)
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 ( see General Instruction A.2. below):
o Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
o Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
o Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
o Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
FORWARD LOOKING STATEMENTS
This Current Report on Form 8-K contains express or implied forward-looking statements that are based on our management’s belief and assumptions and on information currently available to our management. Although we believe that the expectations reflected in these forward-looking statements are reasonable, these statements relate to future events or our future operational or financial performance, and involve known and unknown risks, uncertainties and other factors that may cause our actual results, performance or achievements to be materially different from any future results, performance or achievements expressed or implied by these forward-looking statements. In some cases, forward-looking statements can be identified by terminology such as “may,” “should,” “could,” “expects,” “intends,” “plans,” “anticipates,” “future,” “believes,” “estimates,” “predicts,” “pro-forma,” “potential,” “attempt,” “develop,” “continue” or the negative of these terms or other comparable terminology.
These statements are only predictions. You should not place undue reliance on forward-looking statements because they involve known and unknown risks, uncertainties and other factors, which are, in some cases, beyond our control and which could materially affect results. These factors include, without limitation, our ability to raise additional funding as required to execute our exploration and development program, our dependence on a single exploration asset, our lack of proved reserves, our lack of operating revenue, dependence on joint development partners, the high operating risks of developing oil and gas resources, weather conditions and natural disasters, political conditions in the regions in which we operate or propose to operate, fluctuations in prices of oil and natural gas, the threats of terrorism, and general economic conditions.
You should read this Report and the documents that we reference in this Report and have filed with the Securities and Exchange Commission (the “SEC”) as exhibits hereto completely and with the understanding that our actual future results may be materially different from any future results expressed or implied by these forward-looking statements. The forward-looking statements in this Report represent our views as of the date of this Report.
We anticipate that subsequent events and developments will cause our views to change. However, while we may elect to update these forward-looking statements at some point in the future, we have no current intention of doing so except to the extent required by applicable law. You should therefore not rely on these forward-looking statements as representing our views as of any date subsequent to the date of this Report. Investors should carefully review the risk factors disclosures and other information, including our financial statements and the notes thereto, set forth in the reports and other documents we file with the SEC and available at www.sec.gov.
Item 1.01. Entry into a Material Definitive Agreement.
On March 28, 2017, Hyperdynamics Corporation, a Delaware corporation (the “Company,” “we,” “us” or “our”) consummated a second closing of a private placement offering (the “Offering”) and issued and sold an additional 511 Units of its securities, at a purchase price of $1,000 per Unit. Each “Unit” consisted of (i) one share of the Company’s 1% Series A Convertible Preferred Stock, par value $0.001 per share, with a Stated Value of $1,040 per share (the “Series A Preferred Stock”), and (ii) a warrant (the “Investor Warrant”) to purchase 223 shares of the Company’s common stock, par value $0.001 per share (“Common Stock”), exercisable from issuance until two years after the date of the closing, at an exercise price of $3.50 per share (subject to adjustment in certain circumstances). At this closing, we issued to the Subscribers (as defined below) an aggregate of (i) 511 shares of Series A Preferred Stock and (ii) Investor Warrants to purchase an aggregate of 113,953 shares of Common Stock.
We entered into subscription agreements for the Units (the “Subscription Agreements”) with certain accredited investors (as such term is defined in the Rule 501 under the Securities Act of 1933, as amended (the “Securities Act”)) (the “Subscribers”).
On March 28, 2017, we also entered into an amendment to the Subscription Agreements (the “Amendment”) with Subscribers that purchased the Units in the initial closing of the Offering on March 17, 2017, and with the Subscribers in this closing, to expand the scope of a right of first refusal contained in the Subscription Agreement. As so amended, the Subscription Agreement provides that if, following the termination of the Offering and prior to December 17, 2017, the Company determines to offer for sale or to accept an offer to purchase any additional shares of common stock or securities convertible into or exercisable or exchangeable for shares of common stock (subject to certain limitations and adjustments described therein) for consideration consisting of cash and/or outstanding debt of the Company, each Subscriber who previously purchased Units in the Offering will have an option to purchase such Subscriber’s pro rata share of such securities on the same terms and conditions on which such securities are proposed to be issued, exercisable on the terms set forth in the Subscription Agreement.
The Company received an aggregate of $511,000 in gross cash proceeds, before deducting placement agent fees and expenses, and legal, accounting and other fees and expenses, in connection with the sale of the Units. The Company expects to use the net proceeds of $442,634 from the sale of the Units for general corporate purposes and to further its business interests in the Republic of Guinea, including, but not limited to, the drilling of an exploration well on the Company’s offshore Concession.
We paid Katalyst Securities, LLC (the “Placement Agent”), a U.S. registered broker-dealer, engaged by the Company as placement agent for the Offering, on a reasonable best efforts basis, $45,990 of cash fees and issued to the Placement Agent or its designees Placement Agent Warrants to purchase an aggregate of 13,528 shares of Common Stock. The Placement Agency Agreement between the Company and the Placement Agent contains customary representations, warranties and covenants of and indemnifications by the parties.
Reference is made to Item 1.01 of the Company’s Current Report on Form 8-K filed with the SEC on March 23, 2017, for descriptions of certain other terms of the Subscription Agreement, the Series A Preferred Stock, the Investor Warrants and the Placement Agent Warrants, and of the Registration Rights Agreement entered into between the Company and the Subscribers and holders of Placement Agent Warrants, which descriptions are incorporated herein by reference. All such descriptions of the Certificate of Designations for the Series A Preferred Stock, the Investor Warrant, the Placement Agent Warrant, the Subscription Agreement, the Amendment and the Registration Rights Agreement do not purport to be complete and are qualified in their entirety by reference to the text of each such document filed as Exhibits 3.1, 4.1, 4.2, 10.1, 10.2 and 10.3, respectively, hereto.
The foregoing agreements and documents are not intended to be, and should not be relied upon as, making disclosures regarding any facts and circumstances relating to the Company. These agreements and documents are described in this Report and filed as exhibits hereto only to provide investors with information regarding the terms and conditions of those agreements that establish and govern the legal relationship among the parties thereto, and are not intended to provide any other factual information regarding the Company or the actual conduct of its business, or to modify or supplement any factual disclosures about the Company contained in any of the Company’s public reports filed with the SEC.
The representations and warranties contained in those agreements were made as of specific dates and only for purposes of those agreements, not for the benefit of any investors or other persons (other than the Subscribers), and are subject to important exceptions and limitations. The parties reserve the right to, but are not obligated to, amend or revise these agreements. Accordingly, investors should not rely on representations and warranties as characterizations of the actual state of facts, or for any other purpose, at the time they were made or otherwise.
Item 3.02. Unregistered Sales of Equity Securities.
The information set forth above in Item 1.01 is hereby incorporated by reference into this Item 3.02.
The Units, the shares of Series A Preferred Stock, the Investor Warrants, the Placement Agent Warrants, and the shares of Common Stock issuable upon conversion or exercise of the Series A Preferred Stock, the Investor Warrants and the Placement Agent Warrants are being issued in reliance upon the exemption from registration provided by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D promulgated by the SEC thereunder. All of the Subscribers were persons who represented themselves to be accredited investors as defined in Regulation D.
This current report on Form 8-K is issued in accordance with Rule 135c under the Securities Act, and is neither an offer to sell any securities, nor a solicitation of an offer to buy, nor shall there be any sale of any such securities in any state or jurisdiction in which such offer, solicitation or sale would be unlawful prior to registration or qualification under the securities laws of any such state or jurisdiction.
Item 9.01. Financial Statements and Exhibits.
(d) Exhibits.
The following exhibits are filed with this Report:
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Exhibit
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Description |
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3.1 |
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Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock ( Filed as Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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4.1 |
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Form of Investor Warrant ( Filed as Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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4.2 |
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Form of Placement Agent Warrant ( Filed as Exhibit 10.3 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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10.1 |
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Form of Subscription Agreement between the Registrant and the Subscribers party thereto ( Filed as Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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10.2* |
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Form of Amendment No. 1 to the Subscription Agreement, dated March 28, 2017, between the Registrant and the Subscribers party thereto |
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10.3 |
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Form of Registration Rights Agreement ( Filed as Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
* Filed herewith
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.
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HYPERDYNAMICS CORPORATION |
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Date: April 3, 2017 |
By: |
/s/ David G. Gullickson |
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Name: |
David G. Gullickson |
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Title: |
Vice President of Finance, Treasurer, and |
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Principal Financial and Accounting Officer |
Exhibit Index
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Exhibit
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Description |
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3.1 |
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Certificate of Designations, Preferences and Rights of Series A Convertible Preferred Stock ( Filed as Exhibit 3.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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4.1 |
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Form of Investor Warrant ( Filed as Exhibit 4.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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4.2 |
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Form of Placement Agent Warrant ( Filed as Exhibit 10.3 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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10.1 |
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Form of Subscription Agreement between the Registrant and the Subscribers party thereto. ( Filed as Exhibit 10.1 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
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10.2** |
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Form of Amendment No. 1 to the Subscription Agreement, dated March 28, 2017, between the Registrant and the Subscribers party thereto |
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10.3 |
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Form of Registration Rights Agreement ( Filed as Exhibit 10.2 to the Current Report on Form 8-K filed with the SEC on March 23, 2017, and incorporated herein by reference.) |
** Filed herewith.
Exhibit 10.2
AMENDMENT NO. 1 TO
SUBSCRIPTION AGREEMENT
THIS AMENDMENT NO. 1 TO SUBSCRIPTION AGREEMENT (this “ Amendment ”) is made as of March 28, 2017, by and between Hyperdynamics Corporation., a Delaware corporation (the “ Company ”) and the subscriber set forth on the signature page hereto (the “ Subscriber ”),
W I T N E S S E T H :
WHEREAS , the Company has heretofore entered into a subscription agreement with Subscriber (the “ Subscription Agreement ”) in connection with the initial closing on March 17, 2017 (the “ Initial Closing ”) of the Company’s private placement Offering of Units consisting of (i) one share of the Company’s Series Preferred Stock, and (ii) a Warrant to purchase 223 shares of the Company’s Common Stock; and
WHEREAS , the Company wishes to amend the Subscription Agreement to expand the right of first refusal with respect to certain future issuances of the Company’s securities set forth in Section 23 of the Subscription Agreement for all past and future Subscribers in the Offering, including each Subscriber who purchased the Units in the Initial Closing;
NOW, THEREFORE , the parties hereto, in consideration of the mutual promises herein contained and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree to amend the Subscription Agreement as follows:
1. Definitions; References; Continuation of Agreement . Unless otherwise specified herein, each capitalized term used herein that is defined in the Subscription Agreement shall have the meaning assigned to such term in the Subscription Agreement. Each reference to “hereof,” “hereto,” “hereunder,” “herein” and “hereby” and each other similar reference, and each other similar reference, contained in the Subscription Agreement shall from and after the date hereof refer to the Subscription Agreement as amended hereby. Except as amended and supplemented hereby, all terms and the remaining provisions of the Subscription Agreement shall continue unmodified and remain in full force and effect.
2. Amendment of Section 23 of the Subscription Agreement
The parties hereto hereby agree that Section 23 of the Subscription Agreement shall be deleted and replaced in its entirety by the following:
a. In the event that, after the Offering Termination Date and prior to the date that is nine (9) months following the initial Closing, the Company determines to offer for sale or to accept an offer to purchase any Additional Shares of Common Stock for consideration consisting solely of cash and/or outstanding debt of the Company, each Subscriber who previously purchased Units in the Offering (a “ ROFR Holder ”) shall have an option to purchase such ROFR Option Holder’s pro rata share of Additional Series A Preferred Stock on the same terms and conditions on which the Additional Shares of Common Stock are proposed to be issued, as set forth in this Section (the “ ROFR ”).
b. For purposes of this Section, “ Additional Shares of Common Stock ” means shares of Common Stock and Common Stock Equivalents, other than: (a) shares of Common Stock issued or issuable upon conversion or exchange of any Common Stock Equivalent outstanding immediately prior to the Initial Issuance Date; (b) shares of Common Stock issuable upon conversion of shares of Series A Preferred Stock or upon exercise of warrants issued to purchasers and/or placement agents in connection with the issuance of Series A
Preferred Stock; (c) securities issued or issuable pursuant to the acquisition of another entity or business by the Company by merger, purchase of substantially all of the assets or other reorganization, but not including a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; (d) shares of Common Stock or Common Stock Equivalents issued or issuable by reason of a dividend, stock split, split-up or other distribution on shares of Common Stock relating to any recapitalization, reclassification or reorganization of the capital stock, or any consolidation or merger with another corporation, or the sale of all or substantially all of its assets or other transaction effected in such a way that there is no change of control; (e) shares of Common Stock or Common Stock Equivalents issued in a registered public offering under the Securities Act; (f) shares of Common Stock or Common Stock Equivalents issued or issuable pursuant to the acquisition of another entity or business by the Company by merger, purchase of substantially all of the assets or other reorganization or pursuant to a joint venture or technology license agreement, but not including a transaction in which the Company is issuing securities primarily for the purpose of raising capital or to an entity whose primary business is investing in securities; (g) shares of Common Stock or Common Stock Equivalents issued or issuable to officers, directors and employees of, or consultants to, the Company pursuant to stock grants, option plans, purchase plans or other employee stock incentive programs or arrangements approved by the Board of Directors, or upon exercise of options or warrants granted to such parties pursuant to any such plan or arrangement; and (h) securities issued to financial institutions, institutional investors or lessors in connection with credit arrangements, equipment financings, lease arrangements or similar transactions, in the aggregate no exceeding ten percent (10%) of the number of shares of Common Stock outstanding at any time. “ Common Stock Equivalents ” means any securities of the Company which would entitle the holder thereof to acquire at any time Common Stock, including without limitation, any debt, preferred stock, rights, options, warrants or other instrument that is at any time convertible into or exchangeable for, or otherwise entitles the holder thereof to receive, Common Stock.
c. The Company shall send to each ROFR Holder a written notice (the “ First ROFR Notice ”). The First ROFR Notice shall set forth the material terms of the proposed sale of Additional Series A Preferred Stock and the number of Additional Series A Preferred Stock such ROFR Holder has the ROFR to purchase (such ROFR Holder’s “ Initial ROFR Amount ”), which shall be a percentage of the total number of Additional Series A Preferred Stock proposed to be sold equal to (i) the total number of Units previously purchased by such ROFR Holder divided by (ii) the total number of Units previously sold by the Company; and the First ROFR Notice shall include a copy of this Section. Each ROFR Holder wishing to exercise its ROFR on all or part of its Initial ROFR Amount shall so notify the Company in writing within ten (10) Business Days after the Company’s transmittal of the First ROFR Notice (a “ First ROFR Exercise Notice ”). If First ROFR Exercise Notices for fewer that the total number of Additional Series A Preferred Stock are received by the Company, it shall within three (3) Business Days after receipt of all First ROFR Exercise Notices send to each ROFR Holder that theretofore submitted a First ROFR Exercise Notice a second written notice (the “ Second ROFR Notice ”) setting forth the number of Additional Series A Preferred Stock such ROFR Holder has the ROFR to purchase in addition to the number of Units elected in such Subscriber’s First ROFR Exercise Notice (such ROFR Holder’s “ Second ROFR Amount ”), which shall be a percentage of the total number of Additional Series A Preferred Stock that were not elected to be purchased in all First ROFR Exercise Notices equal to (i) the total number of Units previously purchased by such ROFR Holder plus the number of shares of Additional Series A Preferred Stock such ROFR Holder elected to purchase in its First ROFR Exercise Notice divided by (ii) the total number of Units previously sold by the Company plus the number of shares of Additional Series A Preferred Stock elected to be purchased in all First ROFR Exercise Notices. Each ROFR Holder receiving a Second ROFR Notice wishing to exercise its ROFR on all or part of his Second ROFR Amount shall so notify the
Company in writing within five (5) Business Days after the Company’s transmittal of the Second ROFR Notice (a “ Second ROFR Exercise Notice ”).
d. If the total shares of Additional Series A Preferred Stock elected to be purchased in all First ROFR Exercise Notices and all Second ROFR Exercise Notices is less than the total number set forth in the First ROFR Notice, the Company may sell the excess shares to persons other than ROFR Holders, but only on substantially the same terms as set forth in the First ROFR Notice. ROFR Holders who have elected to purchase shares of Additional Series A Preferred Stock shall execute the subscription and other related agreements for the sale of the Additional Series A Preferred Stock, the closing of which shall occur as provided in such documents.
3. Counterparts . This Amendment may be executed in two or more counterparts, all of which when taken together shall be considered one and the same agreement and shall become effective when counterparts have been signed by each party and delivered to the other party, it being understood that both parties need not sign the same counterpart. In the event that any signature is delivered by facsimile transmission or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
4. Governing Law . This Amendment shall be governed by and construed in accordance with the laws of the State of New York.
(Signature page follows)
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed on the date first above written.