Item 1.01. Entry into a Material Definitive Agreement.
Warrant to Purchase Common Stock
In a Current Report on Form 8-K filed with the Securities Exchange Commission on
June 25, 2020, Abraxas Petroleum Corporation ("Abraxas") (NASDAQ:AXAS), reported
that it had entered into (a) a Waiver and Second Amendment to Term Loan Credit
Agreement, dated June 25, 2020 (the "2L Amendment"), with Angelo Gordon Energy
Servicer, LLC ("Angelo Gordon") and certain lenders thereto; and (b) a Fee
Letter, dated June 25, 2020 (the "Fee Letter") with Angelo Gordon and certain
lenders thereto, pursuant to which Abraxas would, among other things, (i) grant
warrants having an exercise price of $0.01 in an amount equal to 19.9% of the
fully diluted common equity of Abraxas to Angelo Gordon and the lenders; and
(ii) take such reasonable steps as necessary to grant the lenders either (1) the
right to appoint one member to Abraxas' Board of Directors (the "Board"), or (2)
Board observation rights reasonably satisfactory to the administrative agent.
In accordance with the terms of the 2L Amendment and the Fee Letter, on August
11, 2020, Abraxas granted the warrants having an exercise price of $0.01 in an
amount equal to 33,445,792 shares of common equity of Abraxas to Angelo Gordon's
designee, AG Energy Funding, LLC on behalf of Series 17 and Series 20 ("AGEF"),
by executing the Warrant to Purchase Common Stock (the "Warrant"). The Warrant
was granted in connection with, and to induce Angelo Gordon and the lenders to
enter into, the 2L Amendment and the Fee Letter.
The foregoing summary of the Warrant does not purport to be complete and is
subject to, and qualified in its entirety by, the full text of the Warrant filed
as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by
reference.
Registration Rights Agreement
In accordance with the terms of the 2L Amendment and the Fee Letter, on August
11, 2020, Abraxas entered into the Registration Rights Agreement (the "Rights
Agreement") by and between Abraxas and AGEF, pursuant to which the parties
agreed to customary demand and piggyback registration rights, anti-dilution
provisions, and other protective rights pertaining to the Warrant.
The foregoing summary of the Rights Agreement does not purport to be complete
and is subject to, and qualified in its entirety by, the full text of the Rights
Agreement filed as Exhibit 10.2 to this Current Report on Form 8-K and
incorporated herein by reference.
Governance Agreement
In accordance with the terms of the 2L Amendment and the Fee Letter, on August
11, 2020, Abraxas entered into the Governance Agreement (the "Governance
Agreement"), by and between Abraxas and AGEF, pursuant to which Abraxas agreed
to appoint a designee of AGEF to Abraxas' Board. Pursuant to the Governance
Agreement, AGEF has designated Todd Dittmann to be a director on Abraxas' Board.
Mr. Dittmann joined AGEF in 2013 to lead its energy strategy. He is a Managing
Director and a member of the AGEF's executive committee, and has spent more than
25 years in energy finance with investing and board experience in both public
and private companies. If during the term of the Governance Agreement no
Director is serving on the Board as designated by AGEF, then AGEF shall have the
right to designate an individual to be appointed as a non-voting observer to
Abraxas' Board. The Governance Agreement will terminate upon the earliest of:
(a) the first date on which (1) AGEF or any of its Affiliates (as defined in the
Governance Agreement) cease to beneficially own greater than 5% of Abraxas'
common stock (on an as converted basis and taking into account any adjustments
pursuant to Section 4 of the Warrant) outstanding or (2) the Exercise Period (as
defined in the Warrant) has expired without any of the holders thereof having
exercised any Warrant; and (b) the agreement of AGEF in writing.
The foregoing summary of the Governance Agreement does not purport to be
complete and is subject to, and qualified in its entirety by, the full text of
the Governance Agreement filed as Exhibit 10.3 to this Current Report on Form
8-K and incorporated herein by reference.
Non-Reliance on Representations and Warranties of Agreements
The Warrant, the Registration Agreement, and the Governance Agreement contain
representations and warranties that Abraxas made as of specific dates. Except
for their status as contractual documents that establish and govern the legal
relations among the parties, none of Warrant, the Registration Agreement, and
the Governance Agreement are intended to be a source of factual, business, or
operational information about any of the parties thereto. The representations
and warranties were made as of specific dates, only for purposes of the proposed
transactions, and solely for the respective benefit of the parties to the
Warrant, the Registration Agreement, and the Governance Agreement. These
representations and warranties may be subject to limitations agreed between the
parties, including being qualified by disclosures between the parties. The
representations and warranties may have been made to allocate risks among the
parties, including where the parties do not have complete knowledge of all
facts, instead of establishing matters as facts. Furthermore, those
representations and warranties may be subject to standards of materiality
applicable to the contracting parties that differ from those applicable to
investors. Accordingly, investors and security holders should not rely on such
representations and warranties as characterizations of the actual state of facts
or circumstances, since they were only made as of the date of the Warrant, the
Registration Agreement, and the Governance Agreement. Moreover, information
concerning the subject matter of such representations and warranties may change
after the date of these representations and warranties, which may or may not be
fully reflected in the parties' public disclosures.
Item 3.02. Unregistered Sales of Equity Securities.
See the disclosure in Item 1.01 of this Current Report on Form 8-K as it relates
to the Warrant.
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Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On August 5, 2020, Abraxas' Board voted to increase the size of the Board to
four, and Todd Dittmann was appointed, effective as of August 11, as a member of
Abraxas' Board to fill the vacancy and to serve until he or his successor shall
be duly elected and qualified at the 2020 annual meeting of Company's
stockholders or until his earlier death, resignation, retirement,
disqualification, removal, or until such date as the Governance Agreement is
terminated in accordance with its terms. There are no related-party transactions
that would be required to be disclosed under Item 404(a) of Regulation S-K with
respect to Mr. Dittmann.
Mr. Dittmann is an executive of Angelo Gordon, and upon effectiveness of
appointment to Abraxas' Board, Mr. Dittmann will become subject to Section 16 of
Securities Exchange Act of 1934.
Item 9.01. Financial Statements and Exhibits.
D. Exhibits.
Exhibit No. Description
Exhibit 10.1 Warrant to Purchase Common Stock.
Exhibit 10.2 Registration Rights Agreement .
Exhibit 10.3 Governance Agreement.
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