UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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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 1.01 | Entry into a Materially Definitive Agreement. |
As previously disclosed, on April 1, 2020, U.S. Well Services, Inc. (the “Company”) entered into a Registration Rights Agreement (as subsequently amended, the “Registration Rights Agreement”), by and among the Company and the holders of Registrable Securities (as defined in the Registration Rights Agreement) of the Company party thereto (the “Holders”).
In connection with the filing of the Certificate of Designations Amendment (defined below), on September 14, 2021 the Company entered into a Second Amendment to the Registration Rights Agreement (the “Registration Rights Amendment”) with the holders of a majority of the outstanding Registrable Securities. The Registration Rights Amendment provides that the Company will file an additional resale registration statement on or before November 30, 2021 in order to register the Additional Conversion Shares (defined below) not covered for resale on the Company’s registration statement on Form S-3, which was declared effective by the Securities Exchange Commission on August 28, 2020.
The foregoing description of the Registration Rights Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the Registration Rights Amendment, which is filed herewith as Exhibit 4.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 3.03 | Material Modification to Rights of Security Holders. |
On September 14, 2021, the Company filed with the Secretary of State of the State of Delaware an amendment (the “Certificate of Designations Amendment”) to that certain Certificate of Designations (the “Certificate of Designations”) of the Series B Redeemable Convertible Preferred Stock (the “Series B Preferred Stock”), which provides that the Company can, subject to certain conditions, convert all, but not less than all, of the outstanding shares of the Series B Preferred Stock into shares of the Company’s Class A common stock, par value $0.0001 per share (the “Class A Common Stock”). Upon a conversion pursuant to the Certificate of Designations Amendment, each holder of Series B Preferred Stock will receive a number of shares of Class A Common Stock equal to the aggregate amount of Series B Preferred Stock dividends that such holder’s converted shares of Series B Preferred Stock would have accrued if such shares were converted as of April 1, 2022, divided by the conversion price set forth in the Certificate of Designations (the “Additional Conversion Shares”). On September 17, 2021, the Company converted all of the outstanding shares of the Series B Preferred Stock pursuant to the Certificate of Designations Amendment, resulting in the issuance of an aggregate of 89,479,972 shares of Class A Common Stock to the holders of the Series B Preferred Stock.
The foregoing description of the Certificate of Designations Amendment does not purport to be complete and is qualified in its entirety by reference to the complete text of the Certificate of Designations Amendment, which is filed herewith as Exhibit 3.1 to this Current Report on Form 8-K and is incorporated herein by reference.
| Item 5.03 | Amendments to Articles of Incorporation or Bylaws; Change in Fiscal Year. |
The information regarding the Certificate of Designations Amendment set forth in Item 3.03 of this Current Report on Form 8-K is incorporated by reference into this Item 5.03.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit Number |
Description | |
| 3.1 | First Amendment to Certificate of Designations of the Series B Redeemable Convertible Preferred Stock, dated September 14, 2021. | |
| 4.1 | Second Amendment to Amended and Restated Registration Rights Agreement, by and among the Company and the Holders party thereto, dated September 14, 2021. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). | |
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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.
| U.S. WELL SERVICES, INC. | ||
| By: | /s/ Kyle O’Neill | |
| Name: | Kyle O’Neill | |
| Title: | Chief Financial Officer | |
September 17, 2021
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Exhibit 3.1
U.S. WELL SERVICES, INC.
FIRST AMENDMENT TO THE
CERTIFICATE OF DESIGNATIONS
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
SERIES B REDEEMABLE CONVERTIBLE PREFERRED STOCK
(Par Value $0.0001 Per Share)
U.S. Well Services, Inc. (the “Corporation”), a corporation organized and existing under and by virtue of the provisions of the General Corporation Law of the State of Delaware (the “General Corporation Law”), hereby certifies that, pursuant to the authority expressly granted to and vested in the Board of Directors of the Corporation (the “Board of Directors”) by the Second Amended and Restated Certificate of Incorporation of the Corporation (as amended from time to time in accordance with its terms and the General Corporation Law, the “Certificate of Incorporation”), which authorizes the Board of Directors, by resolution, to provide out of the unissued shares of the preferred stock (the “Preferred Stock”) for one or more series of Preferred Stock and to establish from time to time the number of shares to be included in each such series and to fix the voting rights (if any), designations, powers, preferences and relative, participating, optional, special and other rights (if any) of each such series and any qualifications, limitations and restrictions thereof, and in accordance with the provisions of Section 242 of the General Corporation Law, the Board of Directors duly adopted on June 24, 2021 the following recitals and resolutions:
WHEREAS, the Board of Directors previously fixed the rights, preferences, restrictions and other matters relating to a Series B Redeemable Convertible Preferred Stock (hereinafter referred to as the “Series B Preferred Stock”), consisting of up to 22,050 shares of the Series B Preferred Stock which the Corporation has the authority to issue, as set forth in that certain Certificate of Designations of the Series B Preferred Stock dated March 31, 2020 (the “Certificate of Designations”); and
WHEREAS, the Board of Directors wishes to amend the Certificate of Designations in accordance with the General Corporation Law.
NOW, THEREFORE, BE IT RESOLVED, that the Board of Directors does hereby amend the Certificate of Designations and the rights, preferences, restrictions and other matters relating to the Series B Preferred Stock as follows:
| 1. | Conversion. The Certificate of Designations is hereby amended by adding a new Section 7(c) as follows: |
(c) From June 24, 2021 until December 31, 2021, if the closing price of the Class A Common Stock reported by the National Securities Exchange is greater
than the Conversion Price for the twenty (20) trading days during any (30) consecutive trading day period (including the last trading day of such period) ending on, and including, the trading day immediately preceding the date on which the Corporation provides the Issuer Conversion Notice as set forth below, then the Corporation shall have the option from time to time, exercisable by delivery of an Issuer Conversion Notice to convert all and not less than all of the outstanding shares of Series B Preferred Stock into Class A Common Stock at the Conversion Ratio on a date specified in the Issuer Conversion Notice that is no later than the second Business Day following the delivery of such Issuer Conversion Notice; provided that, in connection with any conversion under this Section 7(c), each holder of Series B Preferred Stock shall receive upon such conversion an additional number of shares of Class A Common Stock equal to (A) the aggregate amount of Series B Dividends that such holder’s converted shares of Series B Preferred Stock would have accrued if such shares were converted as of April 1, 2022 divided by (B) the Conversion Price (“Section 7(c) Shares”). The Corporation shall deliver, no later than two Business Days following the conversion date, a number of shares of Class A Common Stock equal to the Conversion Ratio plus the Section 7(c) Shares.
| 2. | Redemption. The phrase “Following eighteen (18) months after the Issuance Date” in the first sentence of Section 8(a) of the Certificate of Designations is hereby amended and restated as follows: “Following April 1, 2022”. |
| 3. | Effective Date. |
This First Amendment to the Certificate of Designations shall become effective on September 14, 2021.
[The Remainder of this Page Intentionally Left Blank]
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IN WITNESS WHEREOF, U.S. Well Services, Inc. has caused this First Amendment to the Certificate of Designations to be duly executed this 14th day of September, 2021.
| U.S. WELL SERVICES, INC. | ||
| By: | /s/ Joel Broussard | |
| Name: | Joel Broussard | |
| Title: | President & Chief Executive Officer | |
[Signature Page to Certificate of Designations]
Exhibit 4.1
SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT
THIS SECOND AMENDMENT (the “Second Amendment”) TO REGISTRATION RIGHTS AGREEMENT is made and entered into as of this 14 day of September 2021, by and among U.S. Well Services, Inc., a Delaware corporation (the “Company”), and the holders of a majority of the outstanding Registrable Securities (as defined in the Registration Rights Agreement) of the Company (the “Holders”) listed on the signature pages hereto.
RECITALS:
WHEREAS, pursuant to Section 3.12 of the Registration Rights Agreement dated as of April 1, 2020 (as previously amended, the “Registration Rights Agreement”), by and among the Company and the holders of the Registrable Securities, the Registration Rights Agreement may be amended or modified by the Company and the holders of a majority of the Registrable Securities;
WHEREAS, the Company will file that certain First Amendment to the Certificate of Designations of its Series B Redeemable Convertible Preferred Stock, par value $0.0001 per share (the “Series B Preferred Stock”), which will provide that the Company can, subject to certain conditions, covert all of the outstanding shares of Series B Preferred Stock into shares of the Company’s Class A common stock including additional PIK interest shares as if the conversion occurred as of April 1, 2022 (the “Additional Conversion Shares”);
WHEREAS, the Additional Conversion Shares are not registered for resale on the initial Registration Statement filed pursuant to the Registration Rights Agreement; and
WHEREAS, the Holders and the Company desire to enter into the Second Amendment to provide that the Company will file an additional Registration Statement to register the Additional Conversion Shares for resale.
NOW, THEREFORE, the parties hereto agree to amend the Registration Rights Agreement as follows:
| I. | Amendment to the Registration Rights Agreement: |
1. Section 1.1 of the Registration Rights Agreement is hereby amended to add the following definition:
“Additional Shares” means the shares of Class A Common Stock issued upon conversion of the Series B Preferred Stock that are not covered for resale on the Company’s registration statement on Form S-3, which was declared effective by the Commission on August 28, 2020.
2. The definition of “Shelf Registration Filing Deadline” set forth in Section 1.1 of the Registration Rights Agreement is hereby amended and restated in its entirety and replaced with the following:
“Shelf Registration Filing Deadline” means, prior to a Going Dark Period, August 17, 2020, and, following a Going Dark Period, four months after the first day on which USWS becomes subject to Section 13 or 15(d) of the Exchange Act after a Going Dark Period; or, with respect to the additional Registration Statement covering the Additional Shares, November 30, 2021.
3. Section 2.1(a) of the Registration statement is hereby amended and restated in its entirety and replaced with the following:
Shelf Registration. USWS shall use its commercially reasonable efforts to prepare and file an initial Shelf Registration Statement under the Securities Act covering 77,120,531 shares of the Registrable Securities and an additional Shelf Registration Statement covering the Additional Shares, in each case, on or before the applicable Shelf Registration Filing Deadline. The initial Shelf Registration Statement shall allocate such Registrable Securities among the Holders on a pro rata basis. USWS shall use its commercially reasonable efforts to cause such initial Shelf Registration Statement and additional Shelf Registration Statement to become effective no later than four months following the initial filing of the applicable Shelf Registration Statement. USWS will use its commercially reasonable efforts to cause such initial Shelf Registration Statement and additional Shelf Registration Statement filed pursuant to this Section 2.1(a) to be continuously effective under the Securities Act until the earliest of (i) all Registrable Securities covered by the Shelf Registration Statement have been distributed in the manner set forth and as contemplated in such Shelf Registration Statement, and (ii) there are no longer any Registrable Securities outstanding (the “Effectiveness Period”). Any Holder or Holders shall have the option and right from time to time, exercisable by delivering a written notice to USWS (a “Demand Notice”), to require registration of a minimum of $10 million of additional Registrable Securities not covered by a Shelf Registration Statement at the time of the Demand Notice. USWS shall use its commercially reasonable efforts to amend the initial Shelf Registration Statement or file a new Shelf Registration Statement, within 10 Business Days of the Demand Notice to include such additional Registrable Securities. USWS will use its commercially reasonable efforts to cause such amendment to the initial Shelf Registration Statement or subsequent Shelf Registration Statement, as applicable, to be continuously effective under the Securities Act during the Effectiveness Period. A Shelf Registration Statement filed pursuant to this Section 2.1(a) shall be on such appropriate registration form of the Commission as shall be selected by USWS. A Shelf Registration Statement when declared effective (including the documents incorporated therein by reference) will comply as to form in
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all material respects with all applicable requirements of the Securities Act and the Exchange Act and will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading (in the case of any prospectus contained in such Shelf Registration Statement, in the light of the circumstances under which a statement is made). As soon as practicable following the date that a Shelf Registration Statement becomes effective, but in any event within five (5) Business Days of such date, USWS shall provide the Holders with written notice of the effectiveness of a Shelf Registration Statement.
| II. | General Provisions |
1. In case of conflict between this Second Amendment and the Registration Rights Agreement, this Second Amendment shall control.
2. The Registration Rights Agreement, except as expressly amended hereby, shall remain in full force and effect.
3. The provisions of Section 3.8 of the Registration Rights Agreement captioned “Governing Law; Submission to Jurisdiction” and Section 3.9 of the Registration Rights Agreement captioned “Waiver of Jury Trial,” are incorporated herein by reference as though such provisions were fully set forth verbatim herein and shall apply to this Second Amendment mutatis mutandis.
4. Any provision of this Second Amendment which is prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent of such prohibition or unenforceability without invalidating the remaining provisions hereof or affecting or impairing the validity or enforceability of such provision in any other jurisdiction.
5. This Second Amendment may be executed in any number of counterparts (including by pdf or other electronic transmission) and by different parties hereto in separate counterparts, each of which counterparts, when so executed and delivered, shall be deemed to be an original and all of which counterparts, taken together, shall constitute but one and the same Agreement.
6. All references to instruments, documents, contracts and agreements are references to such instruments, documents, contracts and agreements as the same may be amended, supplemented and otherwise modified from time to time, unless otherwise specified. The word “including” shall mean “including but not limited to.” Whenever any determination, consent or approval is to be made or given by a Holder under this Agreement, such action shall be in such Holder’s sole discretion unless otherwise specified.
[Signatures appear on the following pages]
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IN WITNESS WHEREOF, the parties have executed this Second Amendment to Registration Rights Agreement as of the date first written above.
| COMPANY: | ||
| U.S. WELL SERVICES, INC. | ||
| By: | /s/ Kyle O’Neill | |
| Name: | Kyle O’Neill | |
| Title: | Chief Financial Officer | |
| HOLDERS: | ||
| CRESTVIEW III USWS, L.P. | ||
| By: | Crestview III USWS GenPar, LLC, | |
| its general partner | ||
| By: | /s/ Ross A. Oliver | |
| Name: | Ross A. Oliver | |
| Title: | General Counsel | |
| CRESTVIEW III USWS TE, LLC | ||
| By: | /s/ Ross A. Oliver | |
| Name: | Ross A. Oliver | |
| Title: | General Counsel | |
| LNV CORPORATION | ||
| By: |
| |
| Name: | Jacob Chemer | |
| Title: | Executive Vice President | |
[SIGNATURE PAGE TO SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT]
| LPP MORTGAGE, INC. | ||
| By: |
| |
| Name: | Jacob Chemer | |
| Title: | Executive Vice President | |
| REGIMENT CAPITAL SPECIAL SITUATIONS FUND V, L.P, | ||
| By: | /s/ Richard Miller | |
| Name: | Richard Miller | |
| Title: | Authorized Signatory | |
| DAVID J. MATLIN | ||
| By: | /s/ David J. Matlin | |
| Name: | David J. Matlin | |
| KEN CAMPBELL | ||
| By: | /s/ Ken Campbell | |
| Name: | Ken Campbell | |
| GREG ETHRIDGE | ||
| By: | /s/ Greg Ethridge | |
| Name: | Greg Ethridge | |
| DAVID TREADWELL | ||
| By: | /s/ David Treadwell | |
| Name: | David Treadwell | |
[SIGNATURE PAGE TO SECOND AMENDMENT TO REGISTRATION RIGHTS AGREEMENT]