UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

 

FORM 8-K

 

CURRENT REPORT

Pursuant t o Section 13 or 15(d)

of the Securities Exchange Act of 1934

 

Date of Report (Date of earliest event reported): August 15 , 2019

 

 

Gevo, Inc.

(Exact name of registrant as specified in its charter)

 

 

Delaware

001-35073

87-0747704

(State or other jurisdiction

(Commission File Number)

(IRS Employer

of incorporation)

 

Identification No.)

 

345 Inverness Drive South, Building C, Suite 3 1 0 Englewood, CO 80112

(Address of principal executive offices)(Zip Code)

 

Registrant’s telephone number, including area code: (303) 858-8358

 

N/A

(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:

 

Title of each class

 

Trading symbol

 

Name of exchange on which registered

Common Stock, par value $0.01 per share

 

GEVO

 

Nasdaq Capital Market

 

Indicate by check mark whether the registrant is an emerging growth company as defined in 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.

 

On August 15, 2019, Gevo, Inc. (the “Company”) entered into an amendment (the “Amendment”) to the At-The-Market Offering Agreement, dated February 13, 2018, as amended on June 20, 2018, June 25, 2018, June 28, 2018 and August 15, 2019 (as amended, the “Sales Agreement”), with H.C. Wainwright & Co., LLC (the “Agent”), which provides for the sale and issuance from time to time of common stock of the Company in an “at-the-market” offering (the “ATM Offering”). The Sales Agreement, among other things, provides for the issuance and sale under the ATM Offering of up to $89,895,000 of shares of common stock (the “Shares”) of which $10,700,000 is registered pursuant to the prospectus supplement, dated August 15, 2019.

 

The Shares have been registered under the Securities Act of 1933, as amended (the “Securities Act”), pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-226686), declared effective by the Securities and Exchange Commission (the “Commission”) on August 28, 2018 (the “Registration Statement”), and a prospectus, which consists of a base prospectus filed with the Registration Statement, and a prospectus supplement, dated August 15, 2019. Sales of the Shares, if any, may be made by any method permitted by law deemed to be an “at-the-market offering” as defined in Rule 415(a)(4) of the Securities Act, including sales made directly on or through the Nasdaq Capital Market or any other existing trading market for the Shares, in negotiated transactions at market prices prevailing at the time of sale or at prices related to such prevailing market prices and/or any other method permitted by law. If the Company and the Agent agree on any method of distribution other than sales of shares of the Company’s common stock into the Nasdaq Capital Market or another existing trading market in the United States at market prices, the Company will file a further prospectus supplement providing all information about such offering as required by Rule 424(b) under the Securities Act.

 

The Company intends to use the net proceeds from this offering to fund working capital and for other general corporate purposes, which may include the repayment of outstanding indebtedness.

 

The Sales Agreement contains customary representations, warranties and agreements by the Company, including obligations of the Company to indemnify the Agent for certain liabilities under the Securities Act. Under the terms of the Sales Agreement, the Company will pay the Agent a commission of up to 3.0% of the gross proceeds from sales of the Shares.

 

This Current Report on Form 8-K shall not constitute an offer to sell or a solicitation of an offer to buy, nor shall there be any sale of the Company’s 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 any such state.

 

The foregoing description of the Sales Agreement and the Amendment does not purport to be complete and is qualified in its entirety by reference to the full text of the Sales Agreement and its amendments (including the Amendment), copies of which are incorporated by reference or filed herewith as Exhibits 1.1, 1.2, 1.3, 1.4 and 1.5, and are incorporated herein by reference. A legal opinion relating to the Shares is filed herewith as Exhibit 5.1.

 

Item 9.01.     Financial Statements and Exhibits.

 

(d)  Exhibits.

 

Exhibit

 No.

 

Description

 

 

 

1.1

 

At-The-Market Offering Agreement, dated February 13, 2018, between Gevo, Inc. and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 1.1 of the Current Report on Form 8-K filed on February 13, 2018).

1.2

 

Amendment to At-The-Market Offering Agreement and Engagement Agreement, dated June 20, 2018, between Gevo, Inc. and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 1.2 of the Current Report on Form 8-K filed on June 20, 2018).

1.3

 

Amendment to At-The-Market Offering Agreement, dated June 25, 2018, between Gevo, Inc. and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 1.3 of the Current Report on Form 8-K filed on June 25, 2018).

1.4

 

Amendment to At-The-Market Offering Agreement and Engagement Agreement, dated June 28, 2018, between Gevo, Inc. and H.C. Wainwright & Co., LLC (incorporated by reference to Exhibit 1.4 of the Current Report on Form 8-K filed on June 28, 2018).

1.5

 

Amendment to At-The-Market Offering Agreement and Engagement Agreement, dated August 15, 2019, between Gevo, Inc. and H.C. Wainwright & Co., LLC

5.1

 

Opinion of Perkins Coie LLP, with respect to the legality of the securities being registered.

23.1

 

Consent of Perkins Coie LLP (contained in Exhibit 5.1 hereto).

 

 
 

 

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.

 

 

GEVO, INC.

 

 

 

Dated: August 15, 2019

By:

/s/ Geoffrey T. Williams, Jr.

 

 

Geoffrey T. Williams, Jr.

 

 

General Counsel and Secretary

 

 

 

 

Exhibit 1.5

 

August 15, 2019

 

 

Gevo, Inc.

345 Inverness Drive South

Building C, Suite 310

Englewood, Colorado 80112

Attention: Patrick R. Gruber, Chief Executive Officer

 

Dear Mr. Gruber:

 

Reference is made to the At The Market Offering Agreement, dated as of February 13, 2018 and as amended on June 20, 2018, June 25, 2018, and June 28, 2018 (the “ ATM Agreement ”), between Gevo, Inc. (the “ Company ”) and H.C. Wainwright & Co., LLC (“ Wainwright ”) and to the Engagement Agreement, dated May 31, 2018, as amended on June 20, 2018 and June 28, 2018 (the “ Engagement Agreement ”), between the Company and Wainwright. This letter (the “ Amendment ”) constitutes an agreement between the Company and Wainwright to amend each of the ATM Agreement and the Engagement Agreement as set forth herein. Defined terms that are used but not defined herein shall have the meanings ascribed to such terms in the ATM Agreement.

 

1.     The defined term “Agreement” in the ATM Agreement is amended to mean the ATM Agreement as amended by this Amendment.

 

2.     Section 1 of the ATM Agreement is hereby amended by amending and restating the terms “Prospectus Supplement” and “Registration Statement” in their entirety as follows:

 

“ Prospectus Supplement ” shall mean the prospectus supplement or supplements relating to the Shares prepared and filed pursuant to Rule 424(b) from time to time.

 

“ Registration Statement ” shall mean, collectively, (i) for the period from February 13, 2018 until August 2, 2019, the shelf registration statement (File Number 333-211370) on Form S-3 that was initially declared effective by the Commission on August 2, 2016 and (ii) for the period from August 15, 2019 and thereafter, the shelf registration statement (File Number 333-226686) on Form S-3 that was declared effective by the Commission on August 28, 2018, including exhibits and financial statements and any prospectus supplement relating to the Shares that is filed with the Commission pursuant to Rule 424(b) and deemed part of such registration statement pursuant to Rule 430B, as amended on each Effective Date and, in the event any post-effective amendment thereto becomes effective, shall also mean such registration statement as so amended.

 

 
 

 

3.     The first sentence of Section 2(b)(v) of the ATM Agreement is hereby amended and restated as follows:

 

“The compensation to the Manager for sales of the Shares under this Section 2(b) shall be a placement fee of up to 3.0% of the gross sales price of the Shares sold pursuant to this Section 2(b) (“ Broker Fee ”).”

 

4.     The defined term “Engagement Agreement” in the ATM Agreement is amended to mean the Engagement Agreement as amended by this Amendment.

 

5.     The first sentence of Section B of the Engagement Agreement is hereby amended and restated as follows:

 

“ Term and Termination of Engagement; Exclusivity . The term of Wainwright’s exclusive engagement will begin on the date hereof and end on June 29, 2020 (the “ Term ”) .”

 

6.     The defined term “Securities” in the Engagement Agreement is amended and restated and shall have the following meaning for all purposes of the Engagement Agreement:

 

“ Securities ” shall mean equity and/or equity-linked securities of the Company and, for avoidance of doubt, shall exclude any convertible notes of the Company.

 

7.     The defined term “Agreement” in the Engagement Agreement is amended to mean the Engagement Agreement as amended by this Amendment.     

 

8.     In connection with this Amendment, the Company shall reimburse Wainwright for its expenses in the amount of $20,000, which shall be paid on the date hereof.

 

9.     Except as expressly set forth herein, all of the terms and conditions of the ATM Agreement and the Engagement Agreement shall continue in full force and effect after the execution of this Amendment and shall not be in any way changed, modified or superseded by the terms set forth herein.

 

10.     This Amendment may be executed in two or more counterparts and by facsimile or “.pdf” signature or otherwise, and each of such counterparts shall be deemed an original and all of such counterparts together shall constitute one and the same agreement.

 

 

[ remainder of page intentionally left blank ]

 

 
 

 

In acknowledgment that the foregoing correctly sets forth the understanding reached by the Company and Wainwright, please sign in the space provided below, whereupon this Amendment shall constitute a binding amendment to the ATM Agreement and the Engagement Agreement as of the date indicated above.

 

 

 

 

Very truly yours,

 

H.C. WAINWRIGHT & CO., LLC

 

 

 

 

 

 

 

 

 

 

By:

/s/  Edward D. Silvera

 

 

Name:

Edward D. Silvera

 

 

Title:

Chief Operating Officer

 

 

 

 

Accepted and Agreed:

 

G EVO, INC.

 

By: /s/ Geoffrey T Williams, Jr.                         

Name: Geoffrey T. Williams, Jr.

Title: General Counsel & Secretary

 

 

 

 

 

[ signature page to GEVO Amendment to atm agreement AND ENGAGEMENT AGREEMENT ]

 

Exhibit 5.1

 

 

 

 

August 15, 2019

 

Gevo, Inc.

345 Inverness Drive South

Building C, Suite 310

Englewood, Colorado 80112

 

Re:

Gevo , Inc. - Registration Statement on Form S-3 (File No. 333- 226686 )

 

Ladies and Gentlemen:

 

We have acted as counsel to Gevo, Inc., a Delaware corporation (the “ Company ”), in connection with the issuance and sale from time to time of up to $10,700,000 of shares of common stock of the Company, $0.01 par value per share (the “ Shares ”), pursuant to the At-The-Market Offering Agreement, dated February 13, 2018, as amended on June 20, 2018, June 25, 2018 and June 28, 2018, and as further amended on August 15, 2019 (as amended, the “ Sales Agreement ”), between the Company and H.C. Wainwright & Co., LLC. The Shares will be issued pursuant to the Company’s Registration Statement on Form S-3 (File No. 333-226686), declared effective by the Securities and Exchange Commission (the “ Commission ”) on August 28, 2018 (the “ Registration Statement ”) under the Securities Act of 1933, as amended (the “ Securities Act ”), and the base prospectus filed as part of the Registration Statement, and the related prospectus supplement dated August 1, 2019 (collectively, the “ Prospectus ”).

 

We have examined the Registration Statement, the Prospectus, the Sales Agreement and such documents and records of the Company and other documents as we have deemed necessary for the purposes of this opinion. In such examination, we have assumed the following: (i) the authenticity of original documents and the genuineness of all signatures; (ii) the conformity to the originals of all documents submitted to us as copies; and (iii) the truth, accuracy and completeness of the information, representations and warranties contained in the records, documents, instruments and certificates we have reviewed.

 

Based upon the foregoing, it is our opinion that the Shares have been duly authorized by all necessary corporate action of the Company and, upon (i) the due execution by the Company and registration by its registrar of the Shares, (ii) the offering and sale of the Shares in accordance with the Sales Agreement and the Prospectus, and (iii) receipt by the Company of the consideration therefor in accordance with the terms of the Sales Agreement, the Shares will be validly issued, fully paid and non-assessable.

 

We hereby consent to the filing of this opinion as Exhibit 5.1 to the Company’s Current Report on Form 8-K filed with the Commission on or about the date hereof, to the incorporation by reference of this opinion into the Registration Statement and any amendments thereto, including any and all post-effective amendments, and to the reference to us under the headings “Legal Matters” in the Prospectus. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act or related rules and regulations of the Commission issued thereunder.

 

Very truly yours,

 

/s/ PERKINS COIE LLP