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 Act of 1934
Date
of Report (Date of earliest event reported): November 21, 2019
Synthesis
Energy Systems, Inc.
(Exact
name of registrant as specified in its charter)
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Delaware
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001-33522
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20-2110031
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(State
or other jurisdiction
of
incorporation)
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(Commission
File
Number)
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(I.R.S.
Employer
Identification
No.)
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One
Riverway, Suite 1700
Houston,
Texas
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77056
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(Address
of principal executive offices)
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(Zip
Code)
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(713)
579-0600
(Registrant’s
telephone number, including area code)
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):
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[X]
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
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[ ]
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
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[ ]
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14-2(b))
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[ ]
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CRF 240.133-4(c))
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Securities registered
pursuant to Section 12(b) of the Act:
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Title
of each class
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Ticker
Symbol
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Name
of each exchange on which registered
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Common
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SES
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Nasdaq
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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 3.01 Notice of Delisting or Failure to Satisfy a Continued Listing Rule or Standard; Transfer of Listing.
On
November 21, 2019, Synthesis Energy Systems, Inc. ( the “Company”) received an additional delinquency notification
letter from the Listing Qualifications Staff (the “Staff”) of The Nasdaq Stock Market LLC (“Nasdaq”) due
to the Company’s continued non-compliance with Nasdaq Listing Rule 5250(c)(1) (the “Rule”) as a result of the
Company’s failure to timely file its Quarterly Report on Form 10-Q for the quarter ended September 30, 2019 (the “Form
10-Q”). As previously disclosed, the Company earlier received notice from the Staff regarding its non-compliance with the
Rule following the Company’s delay in the filing of its Annual Report on Form 10-K for the fiscal year ended June 30, 2019
(the “Form 10-K) and its non-compliance with the minimum stockholders’ equity requirement under Nasdaq Listing Rule
5550(b)(1).
The
Company has requested a hearing before the Nasdaq Hearings Panel. The hearing request automatically stayed any suspension/delisting
action through December 5, 2019. In connection with the hearing request, as permitted under the Nasdaq Listing Rules, the Company
requested that the Panel extend the stay through the hearing and the expiration of any extension period granted by the Panel following
the hearing. However, there can be no assurance that the Panel will grant the extended stay or that the Panel will grant the Company
an extension to enable it to complete the planned merger transaction and thereby demonstrate compliance with all applicable requirements
for listing on The Nasdaq Capital Market. The Company’s management continues to work diligently to complete the Form 10-K,
as well as the Form 10-Q, and to file the Form S-4 in connection with the merger transaction with Australian Future Energy Pty
Ltd, and intends to file the documents with the SEC as soon as practicable.
In
addition, on November 22, 2019, the Company issued a press release related to the Nasdaq notice. A copy of the press release is
attached hereto as Exhibit 99.1.
Item 9.01 Financial Statements and Exhibits.
Forward-Looking
Statements
This
current report contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended
(the “Securities Act”), and Section 21E of the Securities and Exchange Act of 1934, as amended (the “Exchange
Act”). Statements that are not strictly historical statements constitute forward-looking statements and may often, but not
always, be identified by the use of words such as “expects,” “believes,” “intends,” “anticipates,”
“plans,” “estimates,” “potential,” “possible,” or “probable” or statements
that certain actions, events or results “may,” “will,” “should,” or “could” be
taken, occur or be achieved. The forward-looking statements include statements about future operations and the anticipated timing
for closing the proposed merger. Forward-looking statements are based on current expectations and assumptions and analyses made
by the Company and AFE in light of experience and perception of historical trends, current conditions and expected future developments,
as well as other factors appropriate under the circumstances. However, whether actual results and developments will conform with
expectations is subject to a number of risks and uncertainties, including but not limited to the possibility that the companies
may be unable to obtain stockholder approval or satisfy the other conditions to closing. The Company’s annual report on
Form 10-K for the year ended June 30, 2018, recent current reports on Form 8-K, and other SEC filings discuss some of the important
risk factors identified that may affect its business, results of operations, and financial condition. The Company and AFE undertake
no obligation to revise or update publicly any forward-looking statements, except as required by law.
Additional
Information about the Transaction
In
connection with the proposed transaction, the Company intends to file with the SEC a registration statement on Form S-4 that will
include a proxy statement of the Company that also constitutes a prospectus of the Company relating to the Common Stock to be
issued pursuant to the Merger. The proxy statement/prospectus will include important information about both the Company and AFE.
The Company also plans to file other relevant documents with the SEC regarding the proposed transaction. INVESTORS AND SECURITY
HOLDERS ARE URGED TO CAREFULLY READ THE REGISTRATION STATEMENT, THE PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED
WITH THE SEC IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, AFE AND THE
PROPOSED TRANSACTION. Investors and security holders may obtain these documents when available free of charge at the SEC’s
website at www.sec.gov. In addition, the documents filed with the SEC by the Company can be obtained free of charge from the Company’s
website at www.synthesisenergysystems.com.
Participants
in Solicitation
The
Company and its executive officers and directors may be deemed to be participants in the solicitation of proxies from the shareholders
of the Company in respect of the proposed transaction. Information regarding the Company’s directors and executive officers
is available in its annual report on Form 10-K for the year ended June 30, 2018, which was filed with the SEC on November 14,
2018, and its proxy statement for its 2018 annual meeting of shareholders, which was filed with the SEC on April 29, 2019. Other
information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by
security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be filed with
the SEC when they become available.
SIGNATURE
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 thereunto duly authorized.
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Synthesis
Energy Systems, Inc.
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Dated:
November 22, 2019
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/s/
Robert Rigdon
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Robert
Rigdon
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President
and Chief Executive Officer
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SYNTHESIS
ENERGY SYSTEMS ANNOUNCES RECEIPT OF ANTICIPATED NASDAQ NOTICE OF ADDITIONAL DELIQUENCY
HOUSTON,
November 22, 2019 – Synthesis Energy Systems, Inc. (SES) (Nasdaq: SES) today
announced that, as expected, the Company received an additional delinquency notification letter from the Listing Qualifications
Staff (the Staff) of The Nasdaq Stock Market LLC due to the Company’s continued non-compliance with Nasdaq Listing Rule
5250(c)(1), (the Rule) as a result of the Company’s failure to timely file its Quarterly Report on Form 10-Q for the quarter
ended September 30, 2019. As previously disclosed, the Company earlier received notice from the Staff regarding its non-compliance
with the Rule following the Company’s delay in the filing of its Annual Report on Form 10-K for the fiscal year ended June
30, 2019 and its non-compliance with the minimum stockholders’ equity requirement under Nasdaq Listing Rule 5550(b)(1).
The
Company has requested a hearing before the Nasdaq Hearings Panel. The hearing request automatically stayed any suspension/delisting
action through December 5, 2019. In connection with the hearing request, as permitted under the Nasdaq Listing Rules, the Company
requested that the Panel extend the stay through the hearing and the expiration of any extension period granted by the Panel following
the hearing. However, there can be no assurance that the Panel will grant the extended stay or that the Panel will grant the Company
an extension to enable it to complete the planned merger transaction and, thereby, demonstrate compliance with all applicable
requirements for listing on The Nasdaq Capital Market. The Company’s management continues to work diligently to complete
the Form 10-K, as well as the Form 10-Q, and to file the Form S-4 in connection with the merger transaction with Australian Future
Energy Pty Ltd, and intends to file the documents with the SEC as soon as practicable.
Robert
Rigdon, the Company’s CEO, commented: “On October 10, 2019, we announced an important merger transaction with AFE
and acquisition of additional ownership in Batchfire Resources. We believe these transactions, now underway, have the potential
to bring growth and value to the Company’s shareholders and debenture holders. The late filing of our Form 10-K for the
year ended June 30, 2019 and the anticipated late filing of our Form 10-Q for the quarter ended September 30, 2019 are the result
of audit delays caused by the merger-related restructuring activities undertaken by the Company, prior to signing the merger agreement
with AFE. With preparations for the merger now underway, the Company is working with our auditors, with AFE and with all of our
advisors to work in the most expeditious manner possible to complete these late filings related to the audit, and to timely complete
all of the additional required filings necessary for the closing of the merger.”
Forward-Looking
Statements
This
press release includes “forward-looking statements” within the meaning of Section 27A of the Securities Act of 1933,
as amended, and Section 21E of the Exchange Act. All statements other than statements of historical fact are forward-looking statements
and are subject to certain risks, trends and uncertainties that could cause actual results to differ materially from those projected.
Among those risks, trends and uncertainties are the possibility that the companies may be unable to obtain stockholder approval
or satisfy the other conditions to closing, the ability of Batchfire Resources Pty Ltd, and Australian Future Energy Pty Ltd management
to successfully grow and develop their Australian assets and operations, including Callide, Pentland, and the Gladstone Energy
and Ammonia Project; the ability of Batchfire to produce earnings and pay dividends; the ability of SES EnCoal Energy sp. z o.
o. management to successfully grow and develop projects, assets and operations in Poland; our ability to raise additional capital;
our indebtedness and the amount of cash required to service our indebtedness; our ability to develop our power business unit and
our other business verticals, including DRI steel, through our marketing arrangement with Midrex Technologies; our ability to
successfully develop our licensing business; the ability of our project with Yima to produce earnings and pay dividends; the economic
conditions of countries where we are operating; events or circumstances which result in an impairment of our assets; our ability
to reduce operating costs; our ability to make distributions and repatriate earnings from our Chinese operations; our ability
to maintain our listing on The Nasdaq Stock Market; our ability to successfully commercialize our technology at a larger scale
and higher pressures; commodity prices, including in particular natural gas, crude oil, methanol and power; the availability and
terms of financing; our customers’ and/or our ability to obtain the necessary approvals and permits for future projects;
our ability to estimate the sufficiency of existing capital resources; the sufficiency of internal controls and procedures; and
our results of operations in countries outside of the U.S., where we are continuing to pursue and develop projects. Although we
believe that in making such forward-looking statements our expectations are based upon reasonable assumptions, such statements
may be influenced by factors that could cause actual outcomes and results to be materially different from those projected by us.
We cannot assure you that the assumptions upon which such forward-looking statements are based will prove to be correct. Please
refer to our latest Form 10-K available on our website at www.synthesisenergy.com.
Additional
Information about the Transaction
In
connection with the proposed transaction, the Company intends to file with the SEC a registration statement on Form S-4 that will
include a proxy statement of the Company that also constitutes a prospectus of the Company relating to the Common Stock to be
issued pursuant to the Merger. The proxy statement/prospectus will include important information about both the Company and AFE.
The Company also plans to file other relevant documents with the SEC regarding the proposed transaction. INVESTORS AND SECURITY
HOLDERS ARE URGED TO CAREFULLY READ THE REGISTRATION STATEMENT, THE PROXY STATEMENT/PROSPECTUS AND OTHER RELEVANT DOCUMENTS FILED
WITH THE SEC IF AND WHEN THEY BECOME AVAILABLE BECAUSE THEY WILL CONTAIN IMPORTANT INFORMATION ABOUT THE COMPANY, AFE AND THE
PROPOSED TRANSACTION. Investors and security holders may obtain these documents when available free of charge at the SEC’s
website at www.sec.gov. In addition, the documents filed with the SEC by the Company can be obtained free of charge from the Company’s
website at www.synthesisenergysystems.com.
Participants
in Solicitation
The
Company and its executive officers and directors may be deemed to be participants in the solicitation of proxies from the shareholders
of the Company in respect of the proposed transaction. Information regarding the Company’s directors and executive officers
is available in its annual report on Form 10-K for the year ended June 30, 2018, which was filed with the SEC on November 14,
2018, and its proxy statement for its 2018 annual meeting of shareholders, which was filed with the SEC on April 29, 2019. Other
information regarding the participants in the proxy solicitation and a description of their direct and indirect interests, by
security holdings or otherwise, will be contained in the proxy statement/prospectus and other relevant materials to be filed with
the SEC when they become available.
Contact:
MDC
Group
Investor
Relations:
David
Castaneda
Arsen
Mugurdumov
414.351.9758
IR@synthesisenergy.com
Media
Relations:
Susan
Roush
805.624.7624
PR@synthesisenergy.com
Australian
Future Energy
Mr.
Kerry Parker
Chief
Executive Officer
+61
417 731 014
k.parker@ausfutureenergy.com.au