Form 8-K - Current report

 

 

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 EXCHANGE ACT OF 1934

 

Date of Report (Date of earliest event reported): October 16, 2024

 

WORKHORSE GROUP INC.

(Exact name of registrant as specified in its charter)

 

Nevada		001-37673		26-1394771
(State or Other Jurisdiction of Incorporation)		(Commission File Number)		(IRS Employer Identification Number)

 

3600 Park 42 Drive, Suite 160E, Sharonville, Ohio 45241

(Address of principal executive offices) (zip code)

 

1 [phone]

(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):

 

☐	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))

 

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. ☐

 

Securities registered pursuant to Section 12(b) of the Act:

 

Title of each class		Trading Symbol(s)		Name of each exchange on which registered
Common Stock, $0.001 par value per share		WKHS		The Nasdaq Capital Market

 

 

 

 

 

Item 1.01. Entry into a Material Definitive Agreement.

 

Securities Purchase Agreement

 

As previously disclosed, on March 15, 2024, Workhorse Group Inc. (the “Company”) entered into a securities purchase agreement (the “Securities Purchase Agreement”) with an institutional investor (the “Investor”) under which the Company agreed to issue and sell, in one or more registered public offerings by the Company directly to the Investor, (i) senior secured convertible notes for up to an aggregate principal amount of $139,000,000 (the “Notes”) that will be convertible into shares of the Company’s common stock, par value of $0.001 per share (the “Common Stock”) and (ii) warrants (the “Warrants”) to purchase shares of Common Stock in multiple tranches over a period beginning on March 15, 2024. Pursuant to the Securities Purchase Agreement, on October 16, 2024 (the “Closing Date”), the Company issued and sold to the Investor a Note in the original principal amount of $1,200,000 (the “Sixth Additional Note”). The Investor has waived its right to receive Warrants in connection with the issuance of the Sixth Additional Note. Refer to the Company’s Current Report on Form 8-K filed on March 15, 2024 for additional information related to the Securities Purchase Agreement, the Notes, and the Warrants. The Sixth Additional Note was issued pursuant to the Company’s Indenture between the Company and U.S. Bank Trust Company, National Association, as trustee (the “Trustee”), dated December 27, 2023 (the “Base Indenture”), and a Eighth Supplemental Indenture, dated October 16, 2024, entered into between the Company and the Trustee (together with the Base Indenture, the “Indenture”).

 

As previously disclosed, the Company has issued and sold to the Investor (i) Notes in aggregate original principal amount of $32,285,714 (the “Prior Notes”) and (ii) Warrants to purchase up to 15,640,900 shares of Common Stock (the “Prior Warrants”) pursuant to the Securities Purchase Agreement (following adjustment in connection with the Company’s 1-for-20 reverse stock split, which became effective on June 17, 2024). As of October 15, 2024, $8,950,000 aggregate principal amount remained outstanding under the Notes, and no shares had been issued pursuant to the Warrants. Upon our filing of one or more additional prospectus supplements, and our satisfaction of certain other conditions, the Securities Purchase Agreement contemplates additional closings of up to $105,514,286 in aggregate principal amount of additional Notes and a corresponding Warrant pursuant to the Securities Purchase Agreement as further described in our Current Report on Form 8-K filed on March 15, 2024. The description of the Securities Purchase Agreement, form of Note, form of Warrant, Indenture, Security Agreement and Subsidiary Guarantee contained therein is hereby incorporated by reference herein in its entirety.

 

No Note may be converted and no Warrant may be exercised to the extent that such conversion or exercise would cause the then holder of such Note or Warrant to become the beneficial owner of more than 4.99%, or, at the option of such holder, 9.99% of the Company’s then outstanding Common Stock, after giving effect to such conversion or exercise (the “Beneficial Ownership Cap”). On September 4, 2024, the Investor exercised its option to increase the Beneficial Ownership Cap to 9.99%, which will become effective on November 4, 2024.

 

The issuance and sale of the Sixth Additional Note was made in connection with, and were conditioned upon, the Company’s and the Investor’s entry into a Limited Waiver (the “Waiver”) of certain provisions of the Securities Purchase Agreement affecting the Notes and the Warrants and a related amendment to the asset purchase agreement pursuant to which the Company made its previously disclosed divestiture of its aero business (the “Aero APA”). Pursuant to the Waiver and related amendment: (i) the Investor has waived its right to receive Warrants in connection with the issuance and sale of the Sixth Additional Note, (ii) the Investor has waived its right to receive Warrants in connection with the issuance and sale, if any, of additional Notes in the aggregate principal amount of up to $14.8 million, (iii) for the period commencing on the Closing Date and ending on and including October 16, 2025, the Investor has waived certain provisions of the Securities Purchase Agreement to permit the Company to sell up to $5 million in shares of Common Stock pursuant to an at-the-market offering program without a price floor and without application of certain anti-dilution and participation provisions in the Notes and the Warrants, and (iv) the Company has waived the obligation of an affiliate of the Investor to make certain ongoing lease payments under the Aero APA.

 

Notes

 

Like the Prior Notes, the Sixth Additional Note was issued with original issue discount of 12.5%, resulting in $1,050,000 of proceeds to the Company before fees and expenses. The Sixth Additional Note is a senior, secured obligation of the Company, ranking senior to all other unsecured indebtedness, subject to certain limitations and is unconditionally guaranteed by each of the Company’s subsidiaries, pursuant to the terms of a certain security agreement and subsidiary guarantee.

 

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Like the Prior Notes, the Sixth Additional Note bears interest at a rate of 9.0% per annum, payable in arrears on the first trading day of each calendar quarter, at the Company’s option, either in cash or in-kind by compounding and becoming additional principal. Upon the occurrence and during the continuance of an event of default, the interest rate will increase to 18.0% per annum. Unless earlier converted or redeemed, the Sixth Additional Note will mature on the one-year anniversary of the date hereof, subject to extension at the option of the holders in certain circumstances as provided in the Sixth Additional Note.

 

Like the Prior Notes, all amounts due under the Sixth Additional Note are convertible at any time, in whole or in part, and subject to the Beneficial Ownership Cap, at the option of the holders into shares of Common Stock at a conversion price equal to the lower of $0.5983 (the “Reference Price”) or (b) the greater of (x) $0.1611 (the “Floor Price”) and (y) 87.5% of the volume weighted average price of the Common Stock during the ten trading days ending and including the trading day immediately preceding the delivery or deemed delivery of the applicable conversion notice, as elected by the converting holder. The Reference Price and Floor Price are subject to customary adjustments upon any stock split, stock dividend, stock combination, recapitalization or similar event. The Reference Price is also subject to full-ratchet adjustment in connection with a subsequent offering at a per share price less than the Reference Price then in effect. Subject to the rules and regulations of Nasdaq, we have the right, at any time, with the written consent of the Investor, to lower the reference price to any amount and for any period of time deemed appropriate by our board of directors. Upon the satisfaction of certain conditions, we may prepay the Sixth Additional Note upon 15 business days’ written notice by paying an amount equal to the greater of (i) the face value of the Sixth Additional Note at premium of 25% (or 75% premium, during the occurrence and continuance of an event of default, or in the event certain redemption conditions are not satisfied) and (ii) the equity value of the shares of Common Stock underlying the Sixth Additional Note. The equity value of the Common Stock underlying the Sixth Additional Note is calculated using the two greatest volume weighted average prices of our Common Stock during the period immediately preceding the date of such redemption and ending on the date we make the required payment.

 

Like the Prior Notes, the Sixth Additional Note contains customary affirmative and negative covenants, including certain limitations on debt, liens, restricted payments, asset transfers, changes in the business and transactions with affiliates. It also requires the Company to maintain minimum liquidity on the last day of each fiscal quarter in the amount of either (i) $1,500,000 if the sale leaseback transaction of Company’s manufacturing facility in Union City, Indiana (the “Sale Leaseback”) has not been consummated and (ii) $4,000,000 if the Sale Leaseback has been consummated, subject to certain conditions. The Sixth Additional Note also contains customary events of default.

 

Under certain circumstances, including a change of control, the holder may cause us to redeem all or a portion of the then-outstanding amount of principal and interest on the Sixth Additional Note in cash at the greater of (i) the face value of the amount of the Sixth Additional Note to be redeemed at a 25% premium (or at a 75% premium, if certain redemption conditions are not satisfied or during the occurrence and continuance of an event of default), (ii) the equity value of our Common Stock underlying such amount of the Sixth Additional Note to be redeemed and (iii) the equity value of the change of control consideration payable to the holder of our Common Stock underlying the Sixth Additional Note.

 

In addition, during an event of default, the holder may require us to redeem in cash all, or any portion, of the Sixth Additional Note at the greater of (i) the face value of our Common Stock underlying the Sixth Additional Note at a 75% premium and (ii) the equity value of our Common Stock underlying the Sixth Additional Note. In addition, during a bankruptcy event of default, we shall immediately redeem in cash all amounts due under the Sixth Additional Note at a 75% premium unless the holder of the Sixth Additional Note waives such right to receive payment. Further, upon the sale of certain assets, the holder may cause a redemption at a premium, including upon consummation of the Sale Leaseback if the redemption conditions are not satisfied. The Sixth Additional Note also provides for purchase and participation rights in the event of a dividend or other purchase right being granted to the holders of Common Stock.

 

The issuance of the Sixth Additional Note and the shares of Common Stock issuable upon conversion have been registered pursuant to the Company’s effective shelf registration statement on Form S-3 (File No. 333-273357) (the “Registration Statement”), and the related base prospectus included in the Registration Statement, as further supplemented by a prospectus supplement filed on October 16, 2024.

 

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The description of the terms and conditions of the Securities Purchase Agreement, the Notes, the Warrants and the Base Indenture do not purport to be complete and is qualified in its entirety by the full text of Securities Purchase Agreement, the Notes, the Warrants and the Base Indenture, which are filed as exhibits to the Company’s Current Report on Form 8-K filed on March 15, 2024.

 

Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.

 

The information set forth under Item 1.01 of this Current Report on Form 8-K is hereby incorporated by reference in its entirety.

 

Forward-Looking Statements

 

Certain statements in this Current Report on Form 8-K are forward-looking statements that involve a number of risks and uncertainties. For such statements, the Company claims the protection of the Private Securities Litigation Reform Act of 1995. Actual events or results may differ materially from the Company’s expectations. Additional factors that could cause actual results to differ materially from those stated or implied by the Company’s forward-looking statements are disclosed in the Company’s reports filed with the Securities and Exchange Commission.

 

Item 9.01. Exhibits.

 

Exhibit No.		Description
10.1		Eighth Supplemental Indenture.
10.2		Limited Waiver
104		Cover page from this Current Report on Form 8-K, formatted as Inline XBRL.

 

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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.

 

	WORKHORSE GROUP INC.
Date: October 16, 2024	By:	/s/ James D. Harrington
	Name:	James D. Harrington
	Title:	General Counsel, Chief Compliance Officer and Secretary

 

 

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Exhibit 10.1

 

[Certain portions of this document have been omitted pursuant to Item 601(b)(10) of Regulation S-K and, where applicable, have been marked with “[*]” to indicate where omissions have been made. The marked information has been omitted because it is (i) not material and (ii) is the type that the registrant treats as private or confidential.]

 

 

 

WORKHORSE GROUP INC.
TO

 

 

 

EIGHTH SUPPLEMENTAL INDENTURE TO
INDENTURE DATED DECEMBER 27, 2023
 

Dated as of October 16, 2024

 

U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION,

 

as Trustee

 

 

 

Series A-8 Senior Secured Convertible Note Due 2025

 

 

 

 

 

 

WORKHORSE GROUP INC.

 

EIGHTH SUPPLEMENTAL INDENTURE TO
INDENTURE DATED DECEMBER 27, 2023

 

Series A-8 Senior Convertible Note Due 2025

 

EIGHTH SUPPLEMENTAL INDENTURE, dated as of October 16, 2024 (this “Eighth Supplemental Indenture”), between WORKHORSE GROUP INC., a Nevada corporation (the “Company”), and U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee (the “Trustee”).

 

RECITALS

 

A. The Company filed a registration statement on Form S-3 on July 20, 2023 (File Number 333-273357) (the “Registration Statement”) with the Securities and Exchange Commission (the “SEC”) pursuant to Rule 415 under the Securities Act of 1933, as amended (the “Securities Act”) and the Registration Statement has been declared effective by the SEC on July 28, 2023.

 

B. The Company has heretofore executed and delivered to the Trustee an Indenture, dated as of December 27, 2023, substantially in the form filed as an exhibit to the Registration Statement (the “Base Indenture”), the Supplemental Indenture, dated as of December 27, 2023 (the “First Supplemental Indenture”), the Second Supplemental Indenture, dated as of March 15, 2024 (the “Second Supplemental Indenture”), the Third Supplemental Indenture, dated as of May 10, 2024 (the “Third Supplemental Indenture”), the Fourth Supplemental Indenture, dated as of May 29, 2024 (the “Fourth Supplemental Indenture”), the Fifth Supplemental Indenture, dated as of July 18, 2024 (the “Fifth Supplemental Indenture”), the Sixth Supplemental Indenture, dated as of August 23, 2024 (the “Sixth Supplemental Indenture”) and the Seventh Supplemental Indenture, dated as of September 30, 2024 (the “Seventh Supplemental Indenture”, and collectively with the Base Indenture, the First Supplemental Indenture, the Second Supplemental Indenture, the Third Supplemental Indenture, the Fourth Supplemental Indenture, the Fifth Supplemental Indenture and the Sixth Supplemental Indenture, the “Indenture”), providing for the issuance from time to time of Securities (as defined in the Indenture) by the Company.

 

C. The Indenture has been qualified under the Trust Indenture Act of 1939, as amended (the “Trust Indenture Act”).

 

D. Section 2 of the Indenture provides for various matters with respect to any series of Securities issued under the Indenture to be established in an indenture supplemental to the Indenture.

 

E. Section 9.01 of the Indenture provides that, without the consent of the Holders, the Company and the Trustee may enter into an indenture supplemental to the Indenture to establish the form or terms of Securities of any series as provided by Section 2 of the Indenture.

 

 

 

 

F. In accordance with that certain Securities Purchase Agreement, dated March 15, 2024 (the “Securities Purchase Agreement”), by and among the Company and the investors party thereto (the “Investors”), at the applicable Closing (as defined in the Securities Purchase Agreement) related to this Eighth Supplemental Indenture, the Company has agreed to sell to the Investors, and the Investors have agreed to purchase from the Company, up to $1,200,000 in aggregate principal amount of Notes (in one or more tranches, in accordance with the terms of the Securities Purchase Agreement), subject to the satisfaction of certain terms and conditions set forth in the Securities Purchase Agreement, in each case, pursuant to (i) the Indenture, (ii) this Eighth Supplemental Indenture, (iii) the Securities Purchase Agreement, (iv) the Security Agreement (defined below), (v) Subsidiary Guarantee (defined below) and (vi) the Registration Statement.

 

G. In connection with the Securities Purchase Agreement, the Company and each other Grantor (as defined in the Security Agreement) (together with the Company, each a “Grantor”, and collectively, the “Grantors”) and the Agent (as defined below), have entered into that certain Security Agreement, dated as of March 15, 2024, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Security Agreement”), pursuant to which each Grantor granted a first priority security interest in such Grantor’s right, title and interest in the Collateral (as defined in the Security Agreement) to [*], as collateral agent for the Investors (in such capacity, the “Agent”), to secure all obligations owed to the Agent and the Investors under the Transaction Documents (as defined in the Securities Purchase Agreement).

 

H. In connection with the Securities Purchase Agreement, that certain Mortgage, Assignment of Leases and Rents, Security Agreement and Fixture Filing dated as of March 15, 2024 (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Mortgage”) was made by Workhorse Motor Works Inc. in favor of the Agent, to secure all obligations owed to the Agent and the Investors under the Transaction Documents (as defined in the Securities Purchase Agreement).

 

I. In connection with the Securities Purchase Agreement, certain affiliates and subsidiaries of the Company (each, a “Guarantor”, and collectively, the “Guarantors”), have entered into that certain Subsidiary Guarantee, dated as of March 15, 2024, (as it may be amended, restated, amended and restated, supplemented or otherwise modified from time to time, the “Subsidiary Guarantee”), pursuant to which each Guarantor has guaranteed the obligations owed to the Agent and the Investors under the Transaction Documents (as defined in the Securities Purchase Agreement).

 

J. The Company hereby desires to supplement the Indenture pursuant to this Eighth Supplemental Indenture to set forth the terms and conditions of the Notes to be issued in accordance herewith.

 

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NOW, THEREFORE, THIS EIGHTH SUPPLEMENTAL INDENTURE WITNESSETH, for and in consideration of the premises and the issuance of the series of Securities provided for herein, it is mutually agreed, for the equal and proportionate benefit of all Holders of the Securities of such series, as follows:

 

ARTICLE I

 

Relation to Indenture; Definitions

 

Section 1.1. RELATION TO INDENTURE. This Eighth Supplemental Indenture constitutes an integral part of the Indenture.

 

Section 1.2. DEFINITIONS. For all purposes of this Eighth Supplemental Indenture:

 

(a) Capitalized terms used herein without definition shall have the meanings specified in the Indenture or in the Notes, as applicable;

 

(b) All references herein to Articles and Sections, unless otherwise specified, refer to the corresponding Articles and Sections of this Eighth Supplemental Indenture; and

 

(c) The terms “herein,” “hereof,” “hereunder” and other words of similar import refer to this Eighth Supplemental Indenture.

 

ARTICLE II

The Series of Securities

 

Section 2.1. TITLE. There shall be a series of Securities designated the “Series A-8 Senior Secured Convertible Notes Due 2025” (the “Notes”).

 

Section 2.2. LIMITATION ON AGGREGATE PRINCIPAL AMOUNT. The aggregate principal amount of the Notes to be sold pursuant to the Securities Purchase Agreement and to be issued pursuant to this Eighth Supplemental Indenture on the date hereof shall be $1,200,000.

 

Section 2.3. PRINCIPAL PAYMENT DATE. The principal amount of the Notes outstanding (together with any accrued and unpaid interest and other amounts) shall be payable in accordance with the terms and conditions set forth in the Notes on each Conversion Date, Alternate Conversion Date, redemption date and on the Maturity Date, in each case as defined in the Notes.

 

Section 2.4. INTEREST AND INTEREST RATES. Interest shall accrue and shall be payable at such times and in the manner set forth in the Notes.

 

Section 2.5. PLACE OF PAYMENT. Except as otherwise provided by the Notes, the place of payment where the Notes may be presented or surrendered for payment, where the Notes may be surrendered for registration of transfer or exchange (to the extent required or permitted, as applicable, by the terms of the Notes) and where notices and demand to or upon the Trustee in respect of the Notes and the Indenture may be served shall be: U.S. Bank Trust Company, National Association, CN-OH-W6CT; 425 Walnut Street, Cincinnati, OH 45202, Attn.: Corporate Trust - Workhorse Group Inc.; Telephone: [phone]; Email: [e-mail].

 

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Section 2.6. REDEMPTION. The Company may redeem the Notes, in whole or in part, at such times and in the manner set forth in the Notes.

 

Section 2.7. DENOMINATION. The Notes shall be issuable only in registered form without coupons and in minimum denominations of $1,000 and integral multiples in excess thereof.

 

Section 2.8. CURRENCY. Principal and interest and any other amounts payable, from time to time, on the Notes shall be payable in such coin or currency of the United States of America that at the time of payment is legal tender for payment of public and private debts in accordance with Section 26(b) of the Notes.

 

Section 2.9. FORM OF SECURITIES. The Notes shall be issued in the form attached hereto as Exhibit A. Exhibit A also includes the form of Trustee’s certificate of authentication for the Notes. The Company has elected to issue only definitive Securities and shall not issue any global Securities hereunder.

 

Section 2.10. CONVERTIBLE SECURITIES. The Notes are convertible into shares of Common Stock (as defined in the Notes) of the Company upon the terms and conditions set forth in the Notes and all references to “Common Stock” in the Indenture shall be deemed to be references to Common Stock for all purposes thereunder. In connection with any conversion of any given Note into Common Stock, the Trustee may rely conclusively, without any independent investigation, on any Conversion Notice (as defined in the Notes) executed by the applicable Holder of such Note and an Acknowledgement (as defined in the Notes) signed by the Company (in each case, in the forms attached as Exhibits I and II to the Note), in lieu of the Company’s obligations to deliver an Officer’s Certificate, Board Resolution or an Opinion of Counsel pursuant to Article Two, Article Three, Section 7.02 or Section 7.07 of the Indenture in connection with any conversion of any Note. The applicable Conversion Notice and/or Acknowledgement (unless subsequently revoked or withdrawn) shall be deemed to be a joint instruction by the Company and such Holder to the Trustee to record on the register of the Notes such conversion and decrease in the principal amount of such Note by such aggregate principal amount of the Note converted, in each case, as set forth in such applicable Conversion Notice and/or Acknowledgement.

 

Section 2.11. REGISTRAR. The Trustee shall only serve initially as the Security Registrar and not as a paying agent and, in such capacity, shall maintain a register (the “Security Register”) in which the Trustee shall register the Notes and transfers of the Notes. The entries in the Security Register shall be conclusive and binding for all purposes absent manifest error. The initial Security Register shall be created by the Trustee in connection with the authentication of the initial Notes in the names and amounts detailed in the related Company Order. No Note may be transferred or exchanged except in compliance with the authentication procedures of the Trustee in accordance with this Eighth Supplemental Indenture. The Trustee shall not register a transfer, exchange, redemption, conversion, cancellation or any other action with respect to a Note unless instructed to do so in an Officer’s Certificate, the Company’s order for the authentication and delivery of such Note, Conversion Notice and/or Acknowledgement, as applicable. Each Officer’s Certificate, Company’s order for the authentication and delivery of such Note, Conversion Notice and/or Acknowledgement, as applicable, given to the Trustee in accordance with this Section 2.11 shall constitute a representation and warranty to the Trustee that the Trustee shall be fully indemnified in connection with any liability arising out of or related to any action taken by the Trustee in good faith reliance on such Officer’s Certificate, Company’s order for the authentication and delivery of such Note, Conversion Notice and/or Acknowledgement, as applicable.

 

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Section 2.12. SINKING FUND OBLIGATIONS. The Company has no obligation to redeem or purchase any Notes pursuant to any sinking fund or analogous requirement or upon the happening of a specified event or at the option of a Holder thereof.

 

Section 2.13. NO PAYING AGENT. Notwithstanding anything in Sections 3.02 or 4.03 of the Indenture to the contrary, the Company shall not be required to appoint and has not appointed any Paying Agent in respect of the Notes pursuant to the Indenture or any Supplemental Indenture and all amounts payable, from time to time, pursuant to the Notes shall, for so long as so long as no Paying Agent has been appointed, be paid directly by the Company to the applicable Holder. Unless or until notified otherwise, the Trustee may conclude all payments have been made when due including principal at maturity. The Company shall provide notification to the Trustee otherwise including any changes in principal prior to maturity in order for the Trustee to maintain accurate records as Security Register.

 

Section 2.14. EVENTS OF DEFAULT. The Company has elected that the provisions of Section 4 of the Notes shall govern all Events of Default in lieu of Section 6 of the Indenture.

 

Section 2.15. EXCLUDED DEFINITIONS. The Company has elected that none of the following definitions in the Indenture shall be applicable to the Notes and any analogous definitions set forth in the Notes shall govern in lieu thereof:

 

●

Definition of “Business Day” in Section 1.01;

 

●

Definition of “Event of Default” in Sections 1.01 or 6.01;

 

●

Definition of “Person” in Section 1.01; and

 

●

Definition of “Subsidiary” in Section 1.01.

 

Section 2.16. EXCLUDED PROVISIONS. The Company has elected that none of the following provisions of the Indenture shall be applicable to the Notes and any analogous provisions (including definitions related thereto) of this Eighth Supplemental Indenture and/or the Notes shall govern in lieu thereof:

 

●

Section 2.03 (Denominations; Provisions for Payment)

 

●

Section 2.05 (Registration of Transfer and Exchange)

 

●

Section 2.06 (Temporary Securities)

 

●

Section 2.07 (Mutilated, Destroyed, Lost or Stolen Securities)

 

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●

Section 2.10 (Authenticating Agent)

 

●

Section 2.11 (Global Securities)

 

●

Article 3 (Redemption)

 

●

Section 4.03 (Paying Agents)

 

●

Article 6 (Remedies of the Trustee and Securityholders on Event of Default)

 

●

Section 9.01 (Without Consent of Holders)

 

●

Article 10 (Successor Entity)

 

●

Article 11 (Satisfaction and Discharge)

 

●

Article 12 (Immunity of Incorporators, Stockholders, Officers and Directors)

 

●

Section 13.05 (Governing Law; Jury Trial Waiver)

 

Section 2.17. COVENANTS. In addition to any covenants set forth in Article 4 of the Indenture, the Company shall comply with the additional covenants set forth in Section 15 of the Notes.

 

Section 2.18. IMMEDIATELY AVAILABLE FUNDS. All cash payments of principal and interest shall be made in U.S. dollars and immediately available funds.

 

Section 2.19. TRUSTEE MATTERS.

 

(a) Duties of Trustee. Notwithstanding anything in the Indenture to the contrary:

 

(i) the sole duty of the Trustee is to act as the Security Registrar unless otherwise agreed to by [*] (the “Required Holder”), the Trustee and the Company in an additional supplemental Indenture (other than this Eighth Supplemental Indenture) or as separately agreed to in a writing by the Trustee and the Required Holder;

 

(ii) the rights, privileges, protections, immunities and benefits given to the Trustee, including, without limitation, its right to be indemnified, are extended to, and shall be enforceable by, the Trustee in each of its capacities hereunder (including as Security Registrar), and to each agent, custodian, and any other such Persons employed to act hereunder;

 

(iii) the Trustee has no duty to make any calculations called for under the Notes, and shall be protected in conclusively relying without liability upon an Officer’s Certificate with respect thereto without independent verification;

 

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(iv) for the protection and enforcement of the provisions of the Indenture, this Eighth Supplemental Indenture and the Notes, the Trustee shall be entitled to such relief as can be given at either law or equity;

 

(v) in the event that the Holders of the Notes have waived any Event of Default with respect to this Eighth Supplemental Indenture or the Notes, the default covered thereby shall be deemed to be cured for all purposes hereunder and the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder, respectively, but no such waiver shall extend to any subsequent or other default to impair any right consequent thereon;

 

(vi) the Trustee makes no representation as to the validity or value of any securities or assets issued upon conversion of the Notes, and the Trustee shall not be responsible for the failure by the Company to comply with any provisions of the Notes;

 

(vii) the Trustee will not at any time be under any duty or responsibility to any Holder to determine the Conversion Price (as defined in the Notes) (or any adjustment thereto) or whether any facts exist that may require any adjustment to the Conversion Price, or with respect to the nature or extent or calculation of any such adjustment when made, or with respect to the method employed in the Indenture, this Eighth Supplemental Indenture, in any supplemental indenture or the Notes provided to be employed, in making the same;

 

(viii) the Trustee will not be accountable with respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any securities, cash or other property that may at any time be issued or delivered upon the conversion of any Note; and the Trustee makes any representations with respect thereto; and

 

(ix) the Trustee will not be responsible for any failure of the Company to issue, transfer or deliver any shares of Common Stock or stock certificates or other securities, cash or other property upon the surrender of any Note for the purpose of conversion or to comply with any of the duties, responsibilities or covenants of the Company with respect thereto.

 

(b) Additional Indemnification. In addition to any indemnification rights set forth in the Indenture, the Company agrees the Trustee may retain one separate counsel on behalf of itself and the Holders (and in the case of an actual or perceived conflict of interest, one additional separate counsel on behalf of the Holders) and, if deemed advisable by such counsel, local counsel, and the Company shall pay the reasonable fees and expenses of such separate counsel and local counsel.

 

(c) Successor Trustee Petition Right. If an instrument of acceptance by a successor Trustee required by Section 7.08 or 7.09 of the Indenture has not been delivered to the Trustee within 30 days after the giving of a notice of removal, the Trustee being removed, at the expense of the Company, may petition any court of competent jurisdiction for the appointment of a successor Trustee with respect to the Securities of such series.

 

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(d) Trustee as Creditor. If and when the Trustee shall be or become a creditor of the Company (or any other obligor upon the Securities), the Trustee shall be subject to the provisions of the Trust Indenture Act regarding the collection of claims against the Company (or any such other obligor).

 

(e) Reports by the Company. The parties hereto acknowledge and agree that delivery of such reports, information, and documents to the Trustee pursuant to the provisions of Section 4.05 of the Indenture is for informational purposes only and the Trustee’s receipt of such shall not constitute actual or constructive knowledge or notice of any information contained therein or determinable from information contained therein, including the Company’s compliance with any of its covenants hereunder (as to which the Trustee is entitled to rely exclusively on Officer’s Certificates). The Trustee shall have no duty to monitor or confirm, on a continuing basis or otherwise, the Company’s or any other Person’s compliance with any of the covenants under the Indenture and this Eighth Supplemental Indenture, to determine whether such reports, information or documents are available on the SEC’s website (including the EDGAR system or any successor system,) the Company’s website or otherwise, to examine such reports, information, documents and other reports to ensure compliance with the provisions of this Indenture, or to ascertain the correctness or otherwise of the information or the statements contained therein.

 

(f) Statements by Officers as to Default. In addition to the Company’s obligations pursuant to the Indenture, the Company agrees as follows:

 

(i) Annually, within 120 days after the close of each fiscal year beginning with the first fiscal year during which the Notes remain outstanding, the Company will deliver to the Trustee an Officer’s Certificate (one of which Officers signatory thereto shall be the Chief Executive Officer, Chief Financial Officer or Chief Corporate and Strategy Officer of the Company) as to the knowledge of such Officers of the Company’s compliance (without regard to any period of grace or requirement of notice provided herein) with all conditions and covenants under the Indenture, this First Supplemental Indenture and the Notes and, if any Event of Default has occurred and is continuing, specifying all such Events of Defaults and the nature and status thereof of which such Officers have knowledge.

 

(ii) The Company shall, so long as any of the Notes remain outstanding, deliver to the Trustee, as soon as practicable and in any event within 30 days after the Company becomes aware of any Event of Default, an Officer’s Certificate specifying such Events of Default, its status and the actions that the Company is taking or proposes to take in respect thereof.

 

(g) Further Instruments and Acts. Upon request of the Trustee, the Company will execute and deliver such further instruments and perform such further acts as may be reasonably necessary or proper to carry out more effectively the purposes of the Indenture and this Eighth Supplemental Indenture.

 

(h) Expense. Notwithstanding anything in the Indenture to the contrary, any actions taken by the Trustee in any capacity shall be at the Company’s reasonable expense.

 

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Section 2.20. SATISFACTION; DISCHARGE. The Indenture and this Eighth Supplemental Indenture will be discharged and will cease to be of further effect with respect to the Notes (except as to any surviving rights expressly provided for herein and in the Transaction Documents (as defined in the Securities Purchase Agreement)), and the Trustee, at the expense of the Company, shall execute proper instruments acknowledging satisfaction and discharge of the Indenture and this Eighth Supplemental Indenture with respect to the Notes, when all outstanding amounts under the Notes shall have been paid in full (and/or converted into shares of Common Stock or other securities in accordance therewith) and no other obligations remain outstanding pursuant to the terms of the Notes, this Eighth Supplemental Indenture, the Indenture and/or the other Transaction Documents, as applicable, which have not been paid in full by the Company, and when the Company has delivered to the Trustee an Officer’s Certificate and an Opinion of Counsel, each stating that all conditions precedent herein provided for relating to the satisfaction and discharge of the Indenture and this Eighth Supplemental Indenture with respect to the Notes have been complied with. Notwithstanding the satisfaction and discharge of the Indenture and this Eighth Supplemental Indenture, the obligations of the Company to the Trustee under Section 7.06 of the Indenture shall survive.

 

Section 2.21. CONTROL BY SECURITYHOLDERS. The Required Holder shall have the right to direct the time, method and place of conducting any proceeding for any remedy available to the Trustee, or exercising any trust or power conferred on the Trustee with respect to the Notes; provided, however, that such direction shall not be in conflict with any rule of law. Subject to the provisions of Section 7.01 of the Indenture and this Eighth Supplemental Indenture, the Trustee shall have the right to decline to follow any such direction if the Trustee in good faith shall determine that the proceeding so directed would involve the Trustee in personal liability. The Notes may be amended, modified or waived, as applicable, in accordance with Section 18 of the Notes. Upon any waiver of any term of the Notes, the default covered thereby shall be deemed to be cured for all purposes of the Indenture, this Eighth Supplemental Indenture, the Notes and the Company, the Trustee and the Holders of the Notes shall be restored to their former positions and rights hereunder, respectively; but no such waiver shall extend to any subsequent or other default or impair any right consequent thereon.

 

ARTICLE III

 

Expenses

 

Section 3.1. PAYMENT OF EXPENSES. In connection with the offering, sale and issuance of the Notes, the Company, in its capacity as issuer of the Notes, shall pay all reasonable, documented out-of-pocket costs and expenses relating to the offering, sale and issuance of the Notes and compensation and expenses of the Trustee under the Indenture in accordance with the provisions of Section 7.06 of the Indenture.

 

Section 3.2. PAYMENT UPON RESIGNATION OR REMOVAL. Upon termination of this Eighth Supplemental Indenture or the Indenture or the removal or resignation of the Trustee, unless otherwise stated, the Company shall pay to the Trustee all reasonable, documented out-of-pocket amounts, fees and expenses (including reasonable attorney’s fees and expenses) accrued to the date of such termination, removal or resignation.

 

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ARTICLE IV

 

Miscellaneous Provisions

 

Section 4.1. TRUSTEE NOT RESPONSIBLE FOR RECITALS. The recitals herein contained are made by the Company and not by the Trustee, and the Trustee assumes no responsibility for the correctness thereof. The Trustee makes no representation as to the validity or sufficiency of this Eighth Supplemental Indenture.

 

Section 4.2. ADOPTION, RATIFICATION AND CONFIRMATION. The Indenture, as supplemented and amended by this Eighth Supplemental Indenture, is in all respects hereby adopted, ratified and confirmed.

 

Section 4.3. CONFLICT WITH INDENTURE; TRUST INDENTURE ACT. Notwithstanding anything to the contrary in the Indenture, if any conflict arises between the terms and conditions of this Eighth Supplemental Indenture (including, without limitation, the terms and conditions of the Notes) and the Indenture, the terms and conditions of this Eighth Supplemental Indenture (including the Notes) shall control; provided, however, that if any provision of this Eighth Supplemental Indenture or the Notes limits, qualifies or conflicts with a provision of the Trust Indenture Act that is required thereunder to be a part of and govern this Eighth Supplemental Indenture, the latter provisions shall control. If any provision of this Eighth Supplemental Indenture modifies or excludes any provision of the Trust Indenture Act that may be so modified or excluded, the latter provisions shall be deemed to apply to the Indenture as so modified or excluded, as the case may be.

 

Section 4.4. AMENDMENTS; WAIVER. This Eighth Supplemental Indenture may be amended by the written consent of the Company and the Required Holder; provided however, no amendment shall adversely impact the rights, duties, immunities or liabilities of the Trustee without its prior written consent. Notwithstanding anything in any other Transaction Document to the contrary, no amendment to any Transaction Document that adversely impact the rights, duties, immunities or liabilities of the Trustee hereunder, pursuant to the Indenture and/or the Notes, as applicable, shall be effective without the Trustee’s prior written consent. No provision hereof may be waived other than by an instrument in writing signed by the party against whom enforcement is sought.

 

Section 4.5. SUCCESSORS. This Eighth Supplemental Indenture shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, including any purchasers of the Notes.

 

Section 4.6. SEVERABILITY; ENTIRE AGREEMENT. If any provision of this Eighth Supplemental Indenture shall be invalid or unenforceable in any jurisdiction, such invalidity or unenforceability shall not affect the validity or enforceability of the remainder of this Eighth Supplemental Indenture in that jurisdiction or the validity or enforceability of any provision of this Eighth Supplemental Indenture in any other jurisdiction. The Indenture, this Eighth Supplemental Indenture, the Transaction Documents and the exhibits hereto and thereto set forth the entire agreement and understanding of the parties related to this transaction and supersedes all prior agreements and understandings, oral or written.

 

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Section 4.7. COUNTERPARTS. This Eighth Supplemental Indenture may be executed in any number of counterparts, each of which shall be an original, but such counterparts shall together constitute but one and the same instrument.

 

Section 4.8. GOVERNING LAW. This Eighth Supplemental Indenture and the Indenture shall each be construed and enforced in accordance with, and all questions concerning the construction, validity, interpretation and performance of this Note shall be governed by, the internal laws of the State of Delaware, without giving effect to any choice of law or conflict of law provision or rule (whether of the State of Delaware or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of Delaware. Except as otherwise required by Section 25 of the Notes, the Company hereby irrevocably submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware, for the adjudication of any dispute hereunder or in connection herewith or with any transaction contemplated hereby or discussed herein, 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. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein shall be deemed to limit in any way any right to serve process in any manner permitted by law. Nothing contained herein (i) shall be deemed or operate to preclude any Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to such Holder, to realize on any collateral or any other security for such obligations, or to enforce a judgment or other court ruling in favor of such Holder or (ii) shall limit, or shall be deemed or construed to limit, any provision of Section 25 of the Notes. THE COMPANY HEREBY IRREVOCABLY WAIVES ANY RIGHT IT MAY HAVE TO, AND AGREES NOT TO REQUEST, A JURY TRIAL FOR THE ADJUDICATION OF ANY DISPUTE HEREUNDER OR IN CONNECTION WITH OR ARISING OUT OF THIS EIGHTH SUPPLEMENTAL INDENTURE OR ANY TRANSACTION CONTEMPLATED HEREBY.

 

Section 4.9. U.S.A. PATRIOT ACT. The parties hereto acknowledge that in accordance with Section 326 of the U.S.A. PATRIOT Act, the Trustee is required to obtain, verify, and record information that identifies each person or legal entity that establishes a relationship or opens an account with the Trustee. The parties to this Supplemental Indenture agree that they shall provide the Trustee with such information as it may reasonably request in order for the Trustee to satisfy the requirements of the U.S.A. PATRIOT Act.

  

[The remainder of the page is intentionally left blank]

 

11

 

 

IN WITNESS WHEREOF, the parties hereto have caused this Eighth Supplemental Indenture to be duly executed on the date or dates indicated in the acknowledgments and as of the day and year first above written.

 

	WORKHORSE GROUP INC.
	By:
	Name:
	Title:

 

 

 

 

	U.S. BANK TRUST COMPANY, NATIONAL ASSOCIATION, as Trustee
	By:
	Name:
	Title:

 

 

 

 

EXHIBIT A

 

(FORM OF NOTE)

 

 

 

 

 

 

Exhibit 10.2

 

Execution Version

 

LIMITED WAIVER

 

This Limited Waiver (this “Waiver”) is entered into as of October 16, 2024 (the “Effective Date”), by and between Workhorse Group Inc., a Nevada corporation with offices located at 3600 Park 42 Drive, Suite 160E, Sharonville, Ohio 45241 (the “Company”) and the investor signatory hereto (the “Investor”), with reference to the following facts:

 

A. The Company and the Investor are parties to that certain Securities Purchase Agreement, dated as of March 15, 2024, by and among the Company and the Investor (as the same may be amended from time to time, the “Securities Purchase Agreement”), pursuant to which the Company has previously issued to the Investor (i) senior secured convertible notes (the “Notes”), which are convertible into shares of common stock of the Company, $0.001 par value per share (the “Common Stock”), and (ii) Warrants (as defined in the Securities Purchase Agreement), which are exercisable for shares of Common Stock, in accordance with the terms thereof. Capitalized terms not defined herein shall have the meaning as set forth in the Securities Purchase Agreement.

 

B. The Company and certain of its subsidiaries (the “Sellers”) and an affiliate of the Investor (the “Purchaser”) are also parties to that certain Asset Purchase Agreement, dated as of June 6, 2024, by and between Company and the other parties signatory thereto (as the same may be amended, restated or otherwise modified, the “APA”), pursuant to which, among other things, the Purchaser agreed to pay, perform or otherwise discharge obligations with respect to the Ohio Lease (as defined in the APA) after the closing of the transactions contemplated by the APA (the “Continuing Ohio Lease Obligations”).

 

C. The Company desires (i) to sell up to an additional $16,000,000 in aggregate principal amount of Notes, subject to the satisfaction of certain terms and conditions set forth in the Securities Purchase Agreement, to the Investor at one or more additional closings (each, an “Additional Closing”) pursuant to the terms of the Securities Purchase Agreement and to also obtain a waiver, in part, of Section 1(b)(ii)(3) of the Securities Purchase Agreement to permit any such Additional Closing without the requirement by the Company to issue any Additional Warrants in connection therewith (the “Requested Warrant Waiver”) and (ii) to obtain a waiver, in part, of Sections 4(m), (p) and (q) of the Securities Purchase Agreement and such relevant sections of the Notes and Warrants, outstanding from time to time, solely to permit the sale, during the period commencing on the date hereof and ending on and including October 16, 2025 (the “Waiver Period”), by the Company of up to an aggregate amount of $5 million in shares of Common Stock pursuant to an at-the-market share purchase agreement with a bona fide broker-dealer (and not pursuant to an equity-line of credit or any other type of Subsequent Placement), and all shares of Common Stock sold thereunder shall be Excluded Securities for all purposes under the Securities Purchase Agreement, the Notes and the Warrants (and for purposes of clarity, such sales shall not be included as issuances under a Permitted ATM for purposes of the Securities Purchase Agreement, the Notes and the Warrants) (the “Requested ATM Waiver”, and together with the Requested Warrant Waiver, the “Requested Waivers”) and the Company is willing to assume the Continuing Ohio Lease Obligations as consideration for the Requested Waivers in accordance with that certain First Amendment to Asset Purchase Agreement, in the form attached hereto as Exhibit A (the “APA Amendment”).

 

NOW, THEREFORE, in consideration of the foregoing premises and the mutual covenants hereinafter contained, the parties hereto agree as follows:

 

1. Waivers. Effective upon the due execution and delivery by the Sellers of the APA Amendment (eliminating the Purchaser’s prior agreement to pay, perform or otherwise discharge obligations with respect to the remaining Continuing Ohio Lease Obligations), the Investor hereby grants the Requested Waivers.

 

 

 

 

2. Ratifications. Except as otherwise expressly provided herein, the Securities Purchase Agreement and each other Transaction Document (as defined in each of the Securities Purchase Agreement) is, and shall continue to be, in full force and effect and is hereby ratified and confirmed in all.

 

3. Disclosure; Confidentiality. The Company shall, on or before 9:30 a.m., New York time, on the Effective Date, file a Current Report on Form 8-K, in a form reasonably acceptably to the Investor, disclosing all material non-public information with respect to this Waiver, the APA Amendment and the transactions contemplated hereby or thereby (the “Form 8-K”), and following the filing of the Form 8-K, the Company will have disclosed all material, non-public information provided to the Investor by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents in connection with this Waiver, the APA Amendment or the transactions contemplated hereby or thereby. The Company acknowledges and agrees that no confidentiality or similar obligations under any agreement, whether written or oral, between the Company, any of its Subsidiaries or any of their respective officers, directors, affiliates, employees or agents, on the one hand, and the Investor or any of its affiliates, on the other hand, exists as of the date hereof. Notwithstanding anything contained in this Waiver to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that the Investor shall not have (unless expressly agreed to by the Investor after the date hereof in a written definitive and binding agreement executed by the Company and the Investor), any duty of confidentiality with respect to any material, non-public information regarding the Company or any of its Subsidiaries.

 

4. Capitalized Terms. Capitalized terms used but not defined herein have the meanings set forth in the Securities Purchase Agreement, or if not defined therein, in the Notes.

 

5. Miscellaneous Provisions. Section 9 of the Securities Purchase Agreement is hereby incorporated by reference herein, mutatis mutandis.

 

[The remainder of the page is intentionally left blank]

 

2

 

 

IN WITNESS WHEREOF, the Investor and the Company have executed this Waiver as of the date set forth on the first page of this Waiver.

 

	COMPANY:
	WORKHORSE GROUP INC.
	By:
		Name:	Robert M. Ginnan
		Title:	Chief Financial Officer
	INVESTOR:
	[*]
	By:
		Name:
		Title:

 

 

 

3

 

 

Cover	Oct. 16, 2024
Cover [Abstract]
Document Type	8-K
Amendment Flag	false
Document Period End Date	Oct. 16, 2024
Entity File Number	001-37673
Entity Registrant Name	WORKHORSE GROUP INC.
Entity Central Index Key	0001425287
Entity Tax Identification Number	26-1394771
Entity Incorporation, State or Country Code	NV
Entity Address, Address Line One	3600 Park 42 Drive
Entity Address, Address Line Two	Suite 160E
Entity Address, City or Town	Sharonville
Entity Address, State or Province	OH
Entity Address, Postal Zip Code	45241
City Area Code	888)
Local Phone Number	646-5205
Written Communications	false
Soliciting Material	false
Pre-commencement Tender Offer	false
Pre-commencement Issuer Tender Offer	false
Title of 12(b) Security	Common Stock, $0.001 par value per share
Trading Symbol	WKHS
Security Exchange Name	NASDAQ
Entity Emerging Growth Company	false

---