0001354488-11-003484.txt : 20110920 0001354488-11-003484.hdr.sgml : 20110920 20110919174901 ACCESSION NUMBER: 0001354488-11-003484 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20110920 DATE AS OF CHANGE: 20110919 GROUP MEMBERS: BORIS ZINGAREVICH GROUP MEMBERS: BZINFIN S.A. GROUP MEMBERS: ENER1 GROUP, INC. FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: ZINGAREVICH BORIS CENTRAL INDEX KEY: 0001273486 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: ENER1 STREET 2: 550 W. CYPRESS CREEK ROAD,SUITE 120 CITY: FT. LAUDERDALE STATE: FL ZIP: 33309 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: ENER1 INC CENTRAL INDEX KEY: 0000895642 STANDARD INDUSTRIAL CLASSIFICATION: MISCELLANEOUS ELECTRICAL MACHINERY, EQUIPMENT & SUPPLIES [3690] IRS NUMBER: 592479377 STATE OF INCORPORATION: FL FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-44581 FILM NUMBER: 111098105 BUSINESS ADDRESS: STREET 1: 1540 BROADWAY, SUITE 25C CITY: NEW YORK STATE: NY ZIP: 10036 BUSINESS PHONE: 212 920-3500 MAIL ADDRESS: STREET 1: 1540 BROADWAY, SUITE 25C CITY: NEW YORK STATE: NY ZIP: 10036 FORMER COMPANY: FORMER CONFORMED NAME: ENER 1 INC DATE OF NAME CHANGE: 20021028 FORMER COMPANY: FORMER CONFORMED NAME: INPRIMIS INC DATE OF NAME CHANGE: 20001128 FORMER COMPANY: FORMER CONFORMED NAME: BOCA RESEARCH INC DATE OF NAME CHANGE: 19940408 SC 13D/A 1 hev_13d.htm AMENDMENT NO. 8 hev_13d.htm
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
SCHEDULE 13D
 
Under the Securities Exchange Act of 1934 (Amendment No. 8)
 
Ener1, Inc.
(Name of Issuer)

Common Stock, par value $0.01 per share
(Title of Class of Securities)
 
29267A203
(CUSIP Number)
 
Anthony Castano
Ener1 Group, Inc.
1540 Broadway, Suite 40D
New York, New York  10036
(212) 920-3500
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
 
September 12, 2011
(Date of Event Which Requires Filing of This Statement)
 
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
 
Note:  Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See § 240.13d-7(b) for other parties to whom copies are to be sent.
 
*    The remainder of this cover page shall be filled out for a reporting person’s initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter the disclosures provided in a prior cover page.
 
The information required on the remainder of this cover page shall not be deemed to be “filed” for the purpose of Section 18 of the Securities Exchange Act of 1934 (“Act”) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
 
 
 
 
 
CUSIP No. 29267A203  
 
(1) Names of reporting person:  Boris Zingarevich
 
(2) Check the appropriate box if a member of a group (see instructions)
(a) þ
(b) o
 
(3) SEC use only
 
(4) Source of funds (see instructions):
 
(5) Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):  o
 
(6) Citizenship or place of organization:  Russia
 
Number of
Shares
Beneficially
Owned
by each
reporting
person with:
(7) Sole Voting Power:  -0-
 
(8) Shared Voting Power: 105,661,995(1)(2)
 
(9) Sole Dispositive Power:  -0-
 
(10) Shared Dispositive Power: 105,661,995(1)(2)
 
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 105,661,995(1)(2)
 
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
 
(13) Percent of Class Represented by Amount in Row (11):  48.0%(3)
 
(14) Type of Reporting Person: IN
 

 
2
 
 
CUSIP No. 29267A203  
 
(1) Names of reporting person:  Ener1 Group, Inc.
 
(2) Check the appropriate box if a member of a group (see instructions)
(a) þ
(b) o
 
(3) SEC use only
 
(4) Source of funds (see instructions):
 
(5) Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):  o
 
(6) Citizenship or place of organization:  Florida
 
Number of
Shares
Beneficially
Owned
by each
reporting
person with:
(7) Sole Voting Power:  -0-
 
(8) Shared Voting Power: 90,650,223(1)
 
(9) Sole Dispositive Power:  -0-
 
(10) Shared Dispositive Power: 90,650,223(1)
 
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 90,650,223(1)
 
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
 
(13) Percent of Class Represented by Amount in Row (11):  42.2%(3)
 
(14) Type of Reporting Person: CO
 

 
3
 
 
CUSIP No. 29267A203  
 
(1) Names of reporting person:  Bzinfin S.A.
 
(2) Check the appropriate box if a member of a group (see instructions)
(a) þ
(b) o
 
(3) SEC use only
 
(4) Source of funds (see instructions):
 
(5) Check if disclosure of legal proceedings is required pursuant to Items 2(d) or 2(e):  o
 
(6) Citizenship or place of organization:  British Virgin Islands
 
Number of
Shares
Beneficially
Owned
by each
reporting
person with:
(7) Sole Voting Power:  -0-
 
(8) Shared Voting Power: 105,661,995(2)
 
(9) Sole Dispositive Power:  -0-
 
(10) Shared Dispositive Power: 105,661,995(2)
 
(11) Aggregate Amount Beneficially Owned by Each Reporting Person: 105,661,995(2)
 
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions):
 
(13) Percent of Class Represented by Amount in Row (11):  48.0%(3)
 
(14) Type of Reporting Person: CO
 

 
4
 
 
This Amendment No. 8 to Schedule 13D (this “Amendment No. 8”) is filed by (i) Boris Zingarevich (“BZ”), (ii)  Ener1 Group, Inc. (“Ener1 Group”) and (iii) Bzinfin S.A. (“Bzinfin” and together with BZ and Ener1 Group, the “Reporting Persons”) with respect to the common stock, par value $0.01 per share (the “Common Stock”), of Ener1, Inc., a Florida corporation (the “Company”).  This Amendment No. 8 amends and supplements Amendment No. 1 to Schedule 13D dated January 3, 2002 filed by the Reporting Persons (which amended and superseded in its entirety the Schedule 13D dated January 3, 2002 filed by the Reporting Persons), as amended by Amendment No. 2 to Schedule 13D dated March 15, 2002 filed by the Reporting Persons, as amended by Amendment No. 3 to Schedule 13D dated September 6, 2002 filed by the Reporting Persons, as amended by Amendment No. 4 to Schedule 13D dated August 3, 2010 filed by the Reporting Persons, as amended by Amendment No. 5 to Schedule 13D dated October 1, 2010 filed by the Reporting Persons, as amended by Amendment No. 6 to Schedule 13D dated February 8, 2011 filed by the Reporting Persons and as amended by Amendment No. 7 to Schedule 13D dated June 29 , 2011 filed by the Reporting Persons (as amended, the “Statement”).  From and after the date hereof, all references in the Statement to the Statement or terms of similar import shall be deemed to refer to the Statement as amended by this Amendment No. 8.  All capitalized terms used but not defined herein have the respective meanings ascribed to such terms in the Statement.

The Reporting Persons have entered into a Joint Filing Agreement, dated June 18, 2010, a copy of which has been filed as Exhibit 99.1 to the Statement, and which is incorporated herein by reference.

Items 2, 5, 6 and 7 of the Statement are hereby amended to the extent hereinafter expressly set forth.

Item 2. Identity and Background.

Item 2 of the Statement is hereby amended as to Schedule A and paragraphs (b) through (f) to add the following information:

Schedule A, (b), (c), (d), (e) and (f).  Boris Vaynzikher is a director of Ener1 Group, his principal business is serving as a managing director of  Z1 Investment Group, an independent investment company, he is a citizen of Russia and his principal business address is Building 1, 19 Lyalin Lane, Moscow 105062, Russia. To the best of each of the Reporting Person’s knowledge, Mr. Vaynzikher  has neither, during the last five years, been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction that resulted in a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws.
 
 
5
 

Item 5. Interest in Securities of the Issuer.

Item 5 of the Statement is hereby amended and restated in its entirety as to paragraphs (a) and (b) and amended as to paragraph (c) to add the following information:

(a)
(1)
BZ
   
Number of shares:  105,661,995(1)(2)
   
Percentage of shares:  48.0%(3)
     
 
(2)
Ener1 Group
   
Number of shares:  90,650,223(1)
   
Percentage of shares:  42.2%(3)
     
 
(3)
Bzinfin
   
Number of shares:  105,661,995(2)
   
Percentage of shares:  48.0%(3)

(b)
(1)
BZ
   
Sole power to vote or direct the vote:  -0-
   
Shared power to vote or direct the vote: 105,661,995 (1)(2)
   
Sole power to dispose or to direct the disposition:  -0-
   
Shared power to dispose or direct the disposition: 105,661,995 (1)(2)
     
 
(2)
Ener1 Group
   
Sole power to vote or direct the vote:  -0-
   
Shared power to vote or direct the vote:  90,650,223 (1)
   
Sole power to dispose or to direct the disposition:  -0-
   
Shared power to dispose or direct the disposition:  90,650,223 (1)
     
 
(3)
Bzinfin
   
Sole power to vote or direct the vote:  -0-
   
Shared power to vote or direct the vote: 105,661,995 (1)(2)
   
Sole power to dispose or to direct the disposition:  -0-
   
Shared power to dispose or direct the disposition: 105,661,995 (1)(2)
 
The Reporting Persons’ beneficial ownership in paragraphs (a) and (b) of this Item 5 is hereby amended to reflect the following since filing Amendment No. 7 to the Statement on July 6, 2011: (x) the expiration of derivative securities previously held by Bzinfin that were exercisable into 200,000 shares of Common Stock and (y) the increase in the number of outstanding shares of Common Stock.
 
 
(c)
Other than as reported in Item 6 hereof, none of the Reporting Persons has engaged in any transactions in the shares of Common Stock during the past sixty days. The transactions reported in Item 6 hereof pertain to derivative securities of the Company, none of which currently affect the Reporting Persons’ beneficial ownership disclosed herein.

Item 6.  Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the Issuer.

Item 6 of the Statement is hereby amended to add the following information:
 
On September 9, 2011, the Company entered into a Waiver, Amendment and Exchange Agreement (the “Exchange Agreement”) with funds managed by Goldman Sachs Asset Management, L.P. and certain other investors (collectively, the “Investors”).  Pursuant to the Exchange Agreement, the Investors exchanged an aggregate $58,500,000 of the Company’s outstanding 8.25% Senior Notes held by them for $29,250,000 of the Company’s new Tranche A 8.25% Senior Notes, $29,250,000 of the Company’s new Tranche B 8.25% Senior Notes (and together with the new Tranche A 8.25% Senior Notes, the “Senior Indebtedness”), and Company Warrants to purchase up to 1,400,000 shares of Common Stock.  Reference is made to the Company’s Current Report on Form 8-K dated September 9, 2011, as filed with the Securities and Exchange Commission on September 12, 2011, for more information regarding the Exchange Agreement and the Senior Indebtedness.
 
 In connection with the Exchange Agreement, Bzinfin and the Company entered into an Amendment to the LOC Agreement (the “LOC Amendment”), Bzinfin and the Company, as the agent of the Investors, entered into a Subordination Agreement (the “Subordination Agreement”) and Bzinfin, Ener1 Group and the Company, as the agent of the Investors, entered into a Lock-Up Agreement (the “Lock-Up Agreement”), each of which is described below.
 
 
6
 
 
Under terms of the LOC Amendment, (i) the Maturity Date for the repayment of all advances under the LOC Agreement and all unpaid accrued interest thereon was extended to July 2, 2013, (ii) the interest rate at which all outstanding advances shall bear interest from and after September 12, 2011 was increased to 15% per year, (iii) all interest accrued on the outstanding advances through and including September 12, 2011 and accruing thereafter prior to the Maturity Date has become payable in cash on a quarterly basis during such period of extension and in full on the Maturity Date; provided, however, so long as the Subordination Agreement is in effect, such quarterly interest payments may be made solely in newly issued shares of  Common Stock determined by dividing the dollar amount of each such quarterly interest payment by the greater of (x) the closing price of the Common Stock on the trading day immediately preceding the date of such quarterly interest payment or (y) the Book Value (as defined in the LOC Agreement) of the Common Stock on the trading day immediately preceding the date of such quarterly interest payment, if prior to the due date of each such quarterly interest payment Bzinfin directs the Company in writing to make  such quarterly interest payment in newly issued shares of Common Stock, provided, however, that no such quarterly interest payment can be made in shares of Common Stock if to do so would violate the Subordination Agreement.  If any such quarterly interest payment is not made (in either cash or shares of Common Stock) for any reason whatsoever then such quarterly interest payment shall be added to the principal amount of the outstanding advances and accrue interest at the then interest rate for all outstanding advances until paid in full; (iv) if Bzinfin elects to convert all or any portion of the unpaid principal amount of the advances and unpaid accrued interest thereon outstanding under the LOC Agreement into shares of Common Stock in accordance with the LOC Agreement then the amount of indebtedness subject to such conversion shall, immediately prior to being converted, be increased by an amount equal to the amount of additional interest that would have accrued on such indebtedness being converted if held through and including the Maturity Date then in effect so that the amount of shares of Common Stock issued upon conversion is increased for such additional interest; and  (v) the Company is not permitted to draw down any additional advances under the LOC Agreement.  The outstanding aggregate principal amount of advances and accrued and unpaid interest thereon was $11,430,902.00 as of September 12, 2011.
 
Under the terms of the Subordination Agreement, the indebtedness outstanding under the LOC Agreement (the “LOC Indebtedness”) is subordinate in right of payment to the Senior Indebtedness and no payment can be made on the LOC Indebtedness until the Senior Indebtedness has been indefeasibly paid in full, provided, however, that Bzinfin is entitled to (i) exercise its rights of conversion of the LOC Indebtedness, in accordance with the terms and conditions of the LOC Agreement, into shares of Common Stock and/or (ii) be paid quarterly interest on the LOC Indebtedness under the LOC Agreement, in accordance with the terms and conditions of the LOC Agreement, in shares of Common Stock, in each case, subject to and conditional upon (x) effectiveness of the Charter Amendment (as defined below) and (y) no Event of Default (as such term is defined in the Senior Indebtedness) having occurred.  The Subordination Agreement contains other customary provisions.
 
Under the terms of the Lock-Up Agreement,  Bzinfin and Ener1 Group agreed that neither of them will (i) exercise, in whole or in part, any of the warrants beneficially owned by them to purchase Common Stock or (ii) convert, in whole or in part, any of the LOC Indebtedness, until such time as the Company has amended its charter to increase the authorized Common Stock from 300,000,000 shares to 430,000,000 shares (the “Charter Amendment”).
 
The foregoing description of the LOC Amendment, the Subordination Agreement and the Lock-Up Agreement does not purport to be complete and is qualified in its entirety by the full text of the LOC Amendment, the Subordination Agreement and the Lock-Up Agreement, copies of which are filed herewith as Exhibits 99.60, 99.61 and 99.62, respectively,  and are incorporated herein by reference.
 
 
7
 
 
Item 7.  Material to be Filed as Exhibits.

Item 7 of the Statement is hereby amended to add the following information:

Exhibit 99.60
Amendment dated September 12, 2011 by and between Ener1, Inc. and Bzinfin, S.A. to Line of Credit Agreement dated June 29, 2011*
Exhibit 99.61
Subordination Agreement dated September 12, 2011 by and between Bzinfin, S.A. and Ener1, Inc., as the authorized agent of the Senior Lenders (as defined therein)*
Exhibit 99.62
Lock-Up Agreement dated September 9, 2011 by and among Bzinfin S.A., Ener1 Group, Inc. and Ener1, Inc., as the authorized agent of the Holders (as defined therein)*
 
*Filed herewith.
 
__________________________

Footnotes:

(1)  
Ener1 Group’s ownership consists of: (i) 70,654,430 shares of Common Stock and (ii) 20,195,793 shares of Common stock underlying presently exercisable derivative securities issued by the Company to Ener1 Group.

(2)  
Bzinfin’s ownership consists of: (i) 10,053,209 shares of Common Stock and (ii) 4,758,563 shares of Common Stock underlying presently exercisable derivative securities issued by the Company to Bzinfin.  In addition to such foregoing shares of Common Stock, Bzinfin may be deemed to beneficially own the 90,850,223 shares of Common Stock owned by Ener1 Group as reported in above Footnote 1 by reason of owning and controlling Ener1 Group.   As reported in the Statement, Bzinfin has the right to purchase from Ener1 Group up to 72,907,867 of such 90,850,223 shares of Common Stock, as the 72,907,867 shares underlie presently exercisable derivative securities issued by Ener1 Group to Bzinfin. However, in order to avoid duplicity, these 72,907,867 shares of Common Stock are not included within Bzinfin’s ownership stated in the first sentence of this Footnote 2.

(3)  
Based on 195,273,025 outstanding shares of Common Stock as of September 14, 2011.  The beneficial ownership percentages were calculated on an “as-exercised” and “as-converted” basis for derivative securities that are presently exercisable or exercisable within 60 days of the date hereof in accordance with Rule 13d-3(d)(1) of the Exchange Act.
 
 
8
 
 
SIGNATURES

After reasonable inquiry and to the best of their knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
 
  BORIS ZINGAREVICH  
       
Date: September 19, 2011
By:
/s/ Boris Zingarevich  
    Boris Zingarevich  
 
 
  ENER1 GROUP, INC.  
       
Date: September 19, 2011
By:
/s/ Anthony Castano  
    Anthony Castano,  
    Chief Financial Officer  
 
 
  BZINFIN S.A.  
       
Date: September 19, 2011
By:
/s/ Patrick T. Bittel  
   
Patrick T. Bittel,
Attorney-in-Fact
  
 
 
9
 EX-99.60 2 hev_ex9960.htm AMENDMENT TO LINE OF CREDIT AGREEMENT hev_ex9960.htm
EXHIBIT 99.60


September 12, 2011

Ener1, Inc.
1540 Broadway, Suite 40D
New York, New York 10036

Attention: Jeffrey Seidel, Chief Financial Officer

Dear Mr. Seidel,

Reference is made to that certain Line of Credit Agreement dated June 29, 2011 (the “LOC Agreement”) by and between Ener1, Inc. (the “Company”) and Bzinfin S.A. (“Bzinfin”), whereby Bzinfin established a line of credit for the Company in the aggregate principal amount of US$15,000,000.  All capitalized terms used in this Letter Agreement, but not otherwise defined herein, shall have the meanings ascribed to them in the LOC Agreement.
 
As of the date hereof, the outstanding aggregate principal amount of Advances and accrued interest and unpaid interest thereon is $11,430,902.00.
 
The purpose of this Letter Agreement is to amend the LOC Agreement as expressly set forth herein in consideration of Bzinfin executing and delivering that certain Subordination Agreement of even date herewith to the holders under those certain Waiver, Amendment and Exchange Agreements dated as of September 9, 2011 with the Company pertaining to the subject matter specified in such Subordination Agreement (the “Subordination Agreement”).
 
The LOC Agreement is hereby amended as follows as of the Effective Date (as defined below):
 
1.  The Maturity Date for the repayment of all Advances and all unpaid accrued interest thereon is extended to July 2, 2013;
 
2.  The Stated Rate at which all Subsequent Advances outstanding at the Effective Date shall bear interest from and after the Effective Date is increased to fifteen percent (15.0%) per year;
 
3.  All interest accrued on the Advances through and including the Effective Date and accruing thereafter prior to the Maturity Date as extended above shall be payable in cash on a quarterly basis during such period of extension and in full on the Maturity Date; provided, however, so long as the Subordination Agreement is in effect, such quarterly interest payments may be made solely in newly issued shares of Borrower Common Stock determined by dividing the dollar amount of each such quarterly interest payment by the greater of (i) the Closing Price on the Trading Day immediately preceding the date of such quarterly interest payment or (ii) the Book Value on the Trading Day immediately preceding the date of such quarterly interest payment, if prior to the due date of each such quarterly interest payment Bzinfin directs the Company in writing to make  such quarterly interest payment in newly issued shares of Borrower Common Stock, provided, however, that no such quarterly interest payment shall be made in shares of Borrower Common Stock if to do so would violate the Subordination Agreement.  If any such quarterly interest payment is not made (in either cash or shares of Borrower Common Stock) for any reason whatsoever then such quarterly interest payment shall be added to the principal amount of the outstanding Advances and accrue interest at the Stated Rate for all outstanding Advances until paid in full;
 
 
1
 
 
4.  If Bzinfin elects to convert all or any portion of the unpaid principal amount of the Advances and unpaid accrued interest thereon outstanding under the Credit Line into shares of Borrower Common Stock in accordance with Section 9 of the LOC Agreement then the amount of indebtedness subject to such conversion shall, immediately prior to being converted, be increased by an amount equal to the amount of additional interest that would have accrued on such indebtedness being converted if held through and including the Maturity Date then in effect so that the amount of Conversion Shares issued upon conversion is increased for such additional interest.  By way of example and without limitation, if Bzinfin elects to convert $5.0 million of indebtedness outstanding under the Credit Line into shares of Borrower Common Stock in accordance with Section 9 of the LOC Agreement on July 2, 2012 and the Maturity Date then in effect is July 2, 2013 then such $5.0 million of indebtedness, prior to being converted into shares of Borrower Common Stock, shall be increased by an amount equal to the amount of interest that would have accrued on such $5.0 million of indebtedness from July 2, 2012 through and including the Maturity Date of July 2, 2013 and the amount of Conversion Shares issued upon conversion shall be increased for such additional interest; and    
 
5.  The Draw Down Period is terminated.
 
This Letter Agreement shall not become effective unless and until the Subordination Agreement becomes effective. The date on which Subordination Agreement becomes effective in accordance with the preceding sentence is referred to herein as the “Effective Date.”
 
Except as expressly amended by this Letter Agreement as of the Effective Date, the LOC Agreement shall remain in full force and effect and is hereby ratified and confirmed in all respects.   The terms of the Letter Agreement cannot be amended, modified or waived, and  the terms of the LOC Agreement cannot be further amended, modified or waived, without the consent of the Senior Lenders (as defined in the Subordination Agreement) while the Subordination Agreement is in effect. The Company hereby represents and warrants to Bzinfin that the disinterested members of the Company’s Board of Directors (or a committee thereof comprised solely of independent members) has approved this Letter Agreement (including its terms and conditions) and the Company’s execution, delivery and performance of this Letter Agreement.
 
The Senior Lenders are third party beneficiaries of the Letter Agreement.  This Letter Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written understandings and agreements between the parties hereto with respect to the subject matter hereof. This Letter Agreement may be executed and delivered (by facsimile, e-mail or other electronic transmission) in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. This Letter Agreement shall be governed by and construed under the laws of the State of New York applicable to contracts made and to be performed entirely within the State of New York.  Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City and County of New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.  In the event of a dispute between the parties, the prevailing party shall be entitled to all reasonable attorneys' fees and costs incurred in connection with any trial, arbitration, or other proceeding as well as all other relief granted in any suit or other proceeding.
 
[INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
 
 
2
 
 
If the foregoing correctly sets forth our understanding, please countersign this Letter Agreement in the space provided below and return a countersigned copy to us by e-mail (aeb@gtlaw.com).
 
  Sincerely,  
     
  Bzinfin S.A.  
       
 
By:
/s/ Patrick T. Bittel  
    Name: Patrick T. Bittel,  
    Title: Attorney-in-Fact  
 
Acknowledged and Agreed to this 14th day of September 2011
 
  Ener1, Inc.  
       
 
By:
/s/ Jeffrey Seidel  
    Name: Jeffrey Seidel,  
    Title: Chief Financial Officer  
 
 
3
 EX-99.61 3 hev_ex9961.htm SUBORDINATION AGREEMENT hev_ex9961.htm
EXHIBIT 99.61



September 12, 2011
 
To each of the Holders named in those certain Waiver,
 
Amendment and Exchange Agreements dated as
 
of September 9, 2011 with Ener1, Inc.
 
(collectively, the “Senior Lenders”)
 
Dear Sirs,
 
The undersigned hereby delivers this Letter Agreement in connection with the above Waiver, Amendment and Exchange Agreements dated as of September 9, 2011 (collectively, the “Waiver Agreement”) with Ener1, Inc. (the Company”).
 
The undersigned (together with anyone acting on its behalf or any purported assignee, collectively “Bzinfin”) hereby agrees as follows:
 
1.              No later than the date hereof it shall extend the maturity date for repayment of the indebtedness outstanding under the Credit Line to July 2, 2013. As used herein, (x) “Credit Line” means all principal, premium, interest, fees, attorneys’ fees, costs, charges, expenses, reimbursement obligations, indemnities, guarantees, and all other amounts payable under that certain Line of Credit Agreement dated June 29, 2011 by and between it and the Company or in respect thereof (including, in each case, all amounts accruing on or after the commencement of any Insolvency Proceeding relating to any obligor or any other person, or that would have accrued or become due thereunder but for the effect of the Insolvency Proceeding or other applicable law, and irrespective of whether a claim for all or any portion of such amounts is allowable or allowed in any Insolvency Proceeding) and (y) “Insolvency Proceeding” means any proceeding commenced by or against any person under any provision of the United States Bankruptcy Code, 11 U.S.C. § 101, et seq., as amended (the “Bankruptcy Code”), and any successor statute to the Bankruptcy Code and any other liquidation, conservatorship, bankruptcy, assignment for the benefit of creditors, moratorium, rearrangement, receivership, insolvency, reorganization, or similar debtor relief law of the United States or other applicable jurisdiction from time to time in effect.
 
2.              The indebtedness in (1) above is hereby made subordinate in right of payment to the Senior Indebtedness; the indebtedness outstanding under the Credit Line on the date hereof including accrued interest is $11,430,902.00 (the “Subordinated Debt”). Any other indebtedness of the Company and its consolidated subsidiaries to Bzinfin shall be subject to this Agreement but to the extent of the first five million dollars ($5,000,000) over the amounts outstanding on the date hereof under the Credit Line (but not including accrued interest on the Subordinated Debt payable in Common Stock (as defined below)), such amounts shall be pari passu by way of payment.  As used herein, “Senior Indebtedness” means the obligations evidenced by the Exchanged Notes (as defined in the Waiver Agreement) as amended, restated, modified, renewed, refunded, replaced, or refinanced in whole or in part from time to time, and any other agreement extending the maturity of, consolidating, otherwise restructuring (including adding subsidiaries or affiliates of any obligor or any other persons as parties thereto), renewing, replacing or refinancing all or any portion of the obligations evidenced by the Exchanged Notes or all or any portion of the amounts owed under any other agreement with respect to such obligations (provided, however, any such amendment, restatement, modification, renewal, refinancing, restructuring or any other foregoing action shall not contravene the provisions of this Letter Agreement).  All terms of this Letter Agreement, including, without limitation, the subordination of the Subordinated Debt are intended to be enforceable as a subordination agreement under insolvency and/or bankruptcy laws notwithstanding the commencement of any Insolvency Proceeding.
 
 
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3.      There shall be no payment made to it under the any documents evidencing the Subordinated Debt or otherwise to it or on account of any obligations evidenced by such documents until the Senior Indebtedness has been indefeasibly paid in full as more fully provided herein; provided, however that in the event any payment, prepayment of any sort (including any distribution of reorganization securities in connection with any Insolvency Proceeding) whether in cash securities, assets, by set-off, or otherwise is made to it on account of the Subordinated Debt at any time it will be segregated, held in trust by it and immediately turned over to the Senior Lenders on a pro rata basis based on the aggregate principal amount of Senior Indebtedness then outstanding (it being understood that, to the extent applicable, it will so direct any trustee, receiver or otherwise to make such payments to the Senior Lenders).  Notwithstanding anything to the contrary in this Section 3 or elsewhere in this Letter Agreement, it shall be entitled to (i) exercise its rights of conversion of the Subordinated Debt, in accordance with the terms and conditions thereof, into shares of the Company’s common stock, par value $0.01 (the “Common Stock”) and/or (ii) be paid quarterly interest under the Subordinated Debt, in accordance with the terms and conditions thereof, in shares of Common Stock, in each case, subject to and conditional upon (x) effectiveness of the Charter Amendment (as defined below) and (y) no Event of Default (as such term is defined in the Senior Indebtedness) having occurred. As used herein, “Charter Amendment” means the amendment to the Company’s charter wherein the authorized shares of Common Stock have been increased to 430,000,000 shares from 300,000,000 (as adjusted for any stock splits, stock dividends, reverse stock splits or similar events).
 
4.              In the event of an Insolvency Proceeding of the Company, it will not seek to disallow, subordinate, set off or otherwise challenge any obligations of the Company under the Senior Indebtedness.
 
5.              Notwithstanding anything to the contrary set forth in this Letter Agreement, (but without limiting the obligation of Bzinfin to turn over any amounts received in the event of any Insolvency Proceeding to the Senior Lenders, other than Common Stock received by Bzinfin in accordance with the provisions of Section 3 above) it may if an Insolvency Proceeding has been commenced by or against the Company (a) file a claim or statement of interest with respect to the Subordinated Debt, (b) file any necessary responsive or defensive pleadings in opposition to any motion, claim, adversary proceeding, or other pleading made by any person objecting to or otherwise seeking the disallowance of its claims relating to the Subordinated Debt and (c) vote on any plan of reorganization and make any filings and motions with respect to the Subordinated Debt that are, in each case, in accordance with the terms of this Letter Agreement.
 
 
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6.      In the event any Senior Indebtedness is paid in whole or in part and thereafter such payment is required to be returned to the estate or any other person for any reason, the Senior Indebtedness shall be reinstated to the extent of any amount so returned for all purposes as it relates to the subordination provisions hereunder and any payment received by it shall be turned over to the Senior Lenders on a pro rata basis based on the aggregate principal amount of Senior Indebtedness then outstanding as payment for its debt as so reinstated.  If this Letter Agreement shall have been terminated prior to such return, this Letter Agreement shall be reinstated in full force and effect, and such prior termination shall not diminish, release, discharge, impair, or otherwise affect the obligations of the parties hereto from such date of reinstatement.  In addition, the Senior Indebtedness shall remain in full force and effect irrespective of (i) any lack of validity or enforceability of any senior loan document; (ii) any change in the time, place or manner of payment of, or in any other term of, all or any portion of the Senior Indebtedness, or any amendment, waiver or other modification, whether by course of conduct or otherwise, or any refinancing, replacement, refunding or restatement of any senior loan document or (iii) any exercise or delay in or refrain from exercising any right or remedy, as well as any other circumstances that otherwise might constitute a defense available to, or a discharge of, any obligor in respect of the Senior Indebtedness.
 
7.      It shall not in its capacity as  the holder of the Subordinated Debt: (i) propose any plan of reorganization or file any motion or pleading in support of any motion or plan that is not supported by the Senior Lenders; (ii) directly or indirectly oppose any relief requested or supported by any Senior Lender in connection with any sale or other disposition under Bankruptcy Code or any other similar provision of applicable law; (iii) oppose or otherwise interfere with the confirmation of any plan filed or supported by the Senior Lenders; or (iv) convert or dismiss any bankruptcy case or other insolvency proceeding of the Company to the extent such motion is supported by the Senior Lenders.  For the avoidance of doubt and ambiguity, neither this provision nor any other provision herein shall be deemed to apply to it in its capacity as an equity holder of the Company.
 
8.      Until the Senior Indebtedness is indefeasibly paid in full, it will not (a) take any action to accelerate any of the Subordinated Debt, (b) commence any legal proceedings to collect or enforce the Subordinated Debt or (c) exercise any other rights, remedies, powers or privileges with respect to the Subordinated Debt (except as to clauses (b) or (c) above, subject to the penultimate sentence in Section 3 beginning with “Notwithstanding” and Section 5 hereof).
 
9.      It will not assign its rights under the Subordinated Debt or this Letter Agreement without the prior written consent of the Senior Lenders (it being understood that the Senior Lenders shall be under no obligation to agree to the same terms contained herein with a proposed assignee); any assignment in violation of this provision shall be null and void and have no further effect.
 
10.    It (and its attorney in fact that is signatory hereto) hereby represents that it is authorized to enter into this Letter Agreement under its constituent documents and under applicable law including the jurisdiction of its formation and that the attorney in fact is duly authorized to execute and deliver this Letter Agreement on behalf of it. It further acknowledges that (x) it has no collateral for the Subordinated Debt and all other debt obligations of the Company to it have been fully disclosed in writing to the Senior Lenders.
 
 
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Notwithstanding anything to the contrary set forth herein, this Letter Agreement shall become null and void upon the earlier of (xx) the date on which the Senior Indebtedness ceases to be outstanding as a result of conversion or otherwise (unless subject to reinstatement as provided above) or (yy) the date of termination of the Waiver Agreement without consummation of the transactions contemplated thereby (it being understood, that this sentence shall have no applicability if there is an Insolvency Proceeding commenced with respect to the Company).

Notwithstanding the foregoing, nothing in this Letter Agreement shall limit, restrict or otherwise impair any right of the Company including but not limited any rights under the United States Bankruptcy Code or any other Insolvency Proceeding.
 
All capitalized terms used in this Letter Agreement, but not otherwise defined herein, shall have the meanings ascribed to them in the Waiver Agreement. This Letter Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written understandings and agreements between the parties hereto with respect to the subject matter hereof.  This Letter Agreement may be executed and delivered (by facsimile, e-mail or other electronic transmission) in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. This Letter Agreement shall be governed by and construed under the laws of the State of New York applicable to contracts made and to be performed entirely within the State of New York.  Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City and County of New York for the adjudication of any dispute
 
 
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hereunder or in connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.  There shall be no third party beneficiaries to this Letter Agreement.
 
  Sincerely,  
     
  Bzinfin S.A.  
       
 
By:
/s/ Patrick T. Bittel  
    Name: Patrick T. Bittel,  
    Title: Attorney-in-Fact  
 
 
  Ener1, Inc.  
       
 
By:
/s/ Charles Gassenheimer  
    Name: Charles Gassenheimer,  
    Title: Chief Executive Officer  
 
ACKNOWLEDGED AND AGREED TO This 12th day of September 2011
 
 
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 EX-99.62 4 hev_ex9962.htm LOCK-UP AGREEMENT hev_ex9962.htm
EXHIBIT 99.62


September 9, 2011

To each of the Holders named in those certain Waiver,
Amendment  and Exchange Agreements dated as
of September 9, 2011 with Ener1, Inc.

Dear Sirs,

Each of the undersigned hereby delivers this Letter Agreement in connection with the above Waiver, Amendment and Exchange Agreements dated as of September 9, 2011 (collectively, the “Waiver Agreement”) with Ener1, Inc. (the “Company”) and agrees that (i) neither of the undersigned will exercise, in whole or in part, any of the warrants beneficially owned by them as of the date hereof to purchase Common Stock (as defined below) and (ii) neither it nor anyone acting on its behalf or any purported assignee thereof will convert, in whole or in part, any of the indebtedness (i.e., principal and interest) outstanding and payable by the Company to Bzinfin S.A. under their existing line of credit into shares of the Company’s common stock, par value $0.01 (the “Common Stock”), until such time as the Company has amended its charter to increase the authorized Common Stock from 300,000,000 shares to 430,000,000 shares (the “Charter Amendment”).
 
Notwithstanding anything to the contrary set forth herein, this Letter Agreement (including the obligations of the undersigned specified therein) shall become null and void upon the earliest of (x) the effective date of the Charter Amendment, (y) the date on which the Exchanged Notes and the Exchanged Warrants cease to be outstanding as a result of conversion or otherwise or (z) the date of termination of the Waiver Agreement without consummation of the transactions contemplated thereby.
 
All capitalized terms used in this Letter Agreement, but not otherwise defined herein, shall have the meanings ascribed to them in the Waiver Agreement. Each of the undersigned’s obligations under this Letter Agreement are several and not joint. This Letter Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and supersedes all prior oral or written understandings and agreements between the parties hereto with respect to the subject matter hereof. This Letter Agreement may be executed and delivered (by facsimile, e-mail or other electronic transmission) in one or more counterparts, each of which shall be deemed an original and all of which shall constitute one and the same agreement. This Letter Agreement shall be governed by and construed under the laws of the State of New York applicable to contracts made and to be performed entirely within the State of New York.  Each party hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts sitting in the City and County of New York for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby, and hereby irrevocably waives, and agrees not to assert in any suit, action or proceeding, any claim that it is not personally subject to the jurisdiction of any such court, that such suit, action or proceeding is brought in an inconvenient forum or that the venue of such suit, action or proceeding is improper.
 
[INTENTIONALLY LEFT BLANK; SIGNATURE PAGE FOLLOWS]
 
 
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If the foregoing correctly sets forth our understanding, please countersign this Letter Agreement as the authorized agent of the Holders under the Waiver Agreement in the space provided below and return a countersigned copy to us by e-mail (acastano@ener1.com).
 
  Sincerely,  
     
  Bzinfin S.A.  
       
 
By:
/s/ Patrick T. Bittel  
    Name: Patrick T. Bittel,  
    Title: Attorney-in-Fact  
 
 
  Ener1 Group, Inc.  
       
 
By:
/s/ Anthony Castano  
    Name: Anthony Castano,  
    Title: Chief Financial Officer  
 
ACKNOWLEDGED AND AGREED TO This 14th day of September 2011
 
  Ener1, Inc.  
       
 
By:
/s/ Charles Gassenheimer  
    Name: Charles Gassenheimer,  
    Title: Chief Executive Officer  
 
 
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