Exhibit 1.1
5E Advanced Materials, Inc.
$15,000,000
EQUITY DISTRIBUTION AGREEMENT
March 28, 2024
Canaccord Genuity LLC
One Post Office Square, 30th Floor
Suite 3000
Boston, Massachusetts 02109
D.A. Davidson & Co.
757 3rd Ave.
New York, New York 10017
Ladies and Gentlemen:
5E Advanced Materials, Inc., a Delaware corporation (the “Company”), confirms its agreement (this “Agreement”) with Canaccord Genuity LLC (“Canaccord”) and D.A. Davidson & Co. (“Davidson” and together with Canaccord, the “Sales Agents” and each a “Sales Agent”), as of the date first written above, as follows:
The Company has prepared and filed, or will prepare and file, as the case may be, in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations thereunder (collectively, the “Securities Act”), with the Securities and Exchange Commission (the “Commission”) a “shelf” registration statement on Form S-3 under the Securities Act, including a base prospectus, relating to the securities registered pursuant to such registration statement, which registration statement incorporates by reference documents which the Company has filed, or will file, in accordance with the provisions of the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder (collectively, the “Exchange Act”).
Except where the context otherwise requires, “Registration Statement,” as used herein, means the registration statement, as amended, at the time of such registration statement’s effectiveness for purposes of Section 11 of the Securities Act, and at each deemed effective date with respect to the Sales Agents pursuant to Rule 430B(f)(2) under the Securities Act (the “Effective Time”), including (i) all documents filed as a part thereof or incorporated or deemed to be incorporated by reference therein, (ii) any information contained or incorporated by reference in a prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act, to the extent such information is deemed, pursuant to Rule 430B or Rule 430C under the Securities Act, to be part of the registration statement at the Effective Time, and (iii) any registration statement filed to register the offer and sale of Placement Shares (as defined below) pursuant to Rule 462(b) under the Securities Act.
Except where the context otherwise requires, “Base Prospectus,” as used herein, means any such base prospectus and any base prospectus furnished to you by the Company and attached to or used with the Prospectus Supplement (as defined below).
Except where the context otherwise requires, “Prospectus Supplement,” as used herein, means the final prospectus supplement, relating to the Placement Shares, filed by the Company with the Commission pursuant to Rule 424(b) under the Securities Act in the form furnished by the Company to you for use by you in connection with the offering of the Placement Shares.
Except where the context otherwise requires, “Prospectus,” as used herein, means the Prospectus Supplement together with the Base Prospectus attached to or used with the Prospectus Supplement.
The Sales Agents have not offered or sold and will not offer or sell, without the Company’s consent, any Placement Shares by means of any “free writing prospectus” (as defined in Rule 405 under the Securities Act) that is required to be filed by the Sales Agents or the Company with the Commission pursuant to Rule 433 under the Securities Act.
“Issuer Free Writing Prospectuses,” as used herein, means each “issuer free writing prospectus” (as defined in Rule 433(h)(1) under the Securities Act), if any, relating to the Placement Shares.
“Disclosure Package,” as used herein, means, with respect to any Placement Shares (including the public offering price of such Placement Shares), the Prospectus and any Issuer Free Writing Prospectuses issued at or prior to the Applicable Time.
“Applicable Time,” as used herein, means, with respect to any Placement Shares, the time of sale of such Placement Shares pursuant to this Agreement.
Any reference herein to the Registration Statement, any Base Prospectus, the Prospectus Supplement, or the Prospectus shall be deemed to refer to and include the documents, if any, incorporated by reference, or deemed to be incorporated by reference, therein (the “Incorporated Documents”), including, unless the context otherwise requires, the documents, if any, filed as exhibits to such Incorporated Documents. Any reference herein to the terms “amend,” “amendment” or “supplement” with respect to the Registration Statement, any Base Prospectus, the Prospectus Supplement, or the Prospectus shall be deemed to refer to and include the filing of any document under the Exchange Act on or after the initial effective date of the Registration Statement, or the date of such Base Prospectus, the Prospectus Supplement, or the Prospectus, as the case may be, and deemed to be incorporated therein by reference.
As used in this Agreement, “business day” shall mean any day other than Saturday, Sunday or a day on which the Nasdaq Global Select Market (the “Nasdaq”) is open for trading. The terms “herein,” “hereof,” “hereto,” “hereinafter” and similar terms, as used in this Agreement, shall in each case refer to this Agreement as a whole and not to any particular section, paragraph, sentence or other subdivision of this Agreement. The term “or,” as used herein, is not exclusive.
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In addition, any certificate signed by any officer of the Company and delivered to the Sales Agents or counsel for the Sales Agents in connection with the offering of the Placement Shares shall be deemed to be a representation and warranty by the Company, as to matters covered thereby, to the Sales Agents.
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Notwithstanding the foregoing, if the Company subsequently decides to sell Placement Shares following a Representation Date when the Company relied on such waiver and did not provide the Sales Agents with an Officer’s Certificate under this Section 7(p), then before the Company delivers the Placement Notice or the Sales Agents sell any Placement Shares, the Company shall provide the Sales Agents with an Officer’s Certificate, dated the date of the Placement Notice.
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Canaccord Genuity LLC
One Post Office Square, 30th Floor
Suite 3000
Boston, Massachusetts 02109
Attention: General Counsel
and:
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D.A. Davidson & Co.
757 3rd Ave.
New York, New York 10017
Attention: atmexecution@dadco.com
with a copy to:
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
One Financial Center,
Boston, Massachusetts 02111
Attention: John Rudy, Esq. & Sahir Surmeli, Esq.
E-mail: jrudy@mintz.com & ssurmeli@mintz.com
or if sent to the Company, shall be delivered to:
5E Advanced Materials, Inc.
9329 Mariposa Road, Suite 210
Hesperia, CA 92344
Attention: Paul Weibel, Chief Financial Officer
Email: pweibel@5eadvancedmaterials.com
with a copy to:
Latham & Watkins LLP
650 Town Center Drive, 20th Floor
Costa Mesa, CA 92626-1925
Attention: Drew Capurro
Email: Drew.Capurro@lw.com
Each party to this Agreement may change such address for notices by sending to the other party to this Agreement written notice of a new address for such purpose. Each such notice or other communication shall be deemed given (i) when delivered personally on or before 4:30 P.M., New York City time, on a business day or, if such day is not a business day, on the next succeeding business day, (ii) on the next business day after timely delivery to a nationally-recognized overnight courier, and (iii) on the business day actually received if deposited in the U.S. mail (certified or registered mail, return receipt requested, postage prepaid).
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If the foregoing accurately reflects your understanding and agreement with respect to the matters described herein, please indicate your agreement by countersigning this Agreement in the space provided below.
[Remainder of Page Intentionally Left Blank]
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If the foregoing correctly sets forth the understanding among the Company and the Sales Agents, please so indicate in the space provided below for that purpose, whereupon this letter shall constitute a binding agreement among the Company and the Sales Agents.
Very truly yours,
5E ADVANCED MATERIALS, INC.
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By: | /s/ Susan Brennan |
| Name: Susan Brennan |
| Title: Chief Executive Officer |
ACCEPTED as of the date first-above written:
CANACCORD GENUITY LLC
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By: | /s/ Daniel Coyne |
| Name: Daniel Coyne |
| Title: Co-Head of U.S. Investment Banking |
D.A. DAVIDSON & CO.
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By: | /s/ James Keckler |
| Name: James Keckler |
| Title: Managing Director |
[Signature Page to Equity Distribution Agreement]
SCHEDULE 1
FORM OF PLACEMENT NOTICE
Via Email Only
(No Facsimile / No Voicemail)
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From: |
| 5E Advanced Materials, Inc. |
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To: |
| Canaccord Genuity LLC |
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| D.A. Davidson & Co. |
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Attention: |
| [ ] [ ] |
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Date: |
| _______, _________ |
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Subject: |
| Equity Distribution Agreement – Placement Notice |
Ladies / Gentlemen:
Pursuant to the terms and subject to the conditions contained in the Equity Distribution Agreement among 5E Advanced Materials, Inc., a Delaware corporation (“Company”), and Canaccord Genuity LLC and D.A. Davidson & Co. (the “Sales Agents”) dated March 28, 2024 (the “Agreement”), the Company hereby requests that the Sales Agents sell up to [_____] shares of common stock, $0.01 par value per share, of the Company, at a minimum market price of $[___] per share. Sales should begin on the date of this Placement Notice and shall continue until [Date] / [all shares are sold].
SCHEDULE 2
NOTICE PARTIES
5E Advanced Materials, Inc.
Susan Brennan
sbrennan@5eadvancedmaterials.com
Paul Weibel
pweibel@5eadvancedmaterials.com
Sales Agents
Canaccord Genuity LLC
Jennifer Pardi
jpardi@cgf.com
Brian O’Connor
boconnor@cgf.com
Dan Coyne
dcoyne@cgf.com
D.A. Davidson & Co.
Timothy Monfort
tmonfort@dadco.com
James Keckler
jkeckler@dadco.com
SCHEDULE 3
SUBSIDIARIES
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Name |
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| Jurisdiction |
American Pacific Borates Pty Ltd. |
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| Australia |
5E Boron Americas, LLC |
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| Delaware |
SCHEDULE 4
MATERIAL PROPERTIES
SCHEDULE 5
DUE DILIGENCE PROTOCOLS
Set forth below are guidelines for use by the Company and the Sales Agents in connection with the Sales Agents’ continuous due diligence efforts in connection with the sale and distribution of the Placement Shares pursuant to the Agreement. For the avoidance of doubt, the Company has agreed that no sales under the Agreement will be requested or made at any time the Company is, or could be deemed to be, in possession of material non-public information with respect to the Company.
1. On or immediately prior to each Representation Date, in addition to the documents provided pursuant to Section 7(p), Section 7(q), Section 7(r), and Section 7(s) of the Agreement, as applicable, the Sales Agents expect to conduct a “bring-down” due diligence call with the appropriate business, financial, and legal representatives of the Company and representatives of the Company’s independent accountants.
The foregoing is an expression of current intent only, and shall not in any manner limit the Sales Agents’ rights under the Agreement, including the Sales Agents’ right to require such additional due diligence procedures as the Sales Agents may reasonably request pursuant to the Agreement.
EXHIBIT A
OFFICER’S CERTIFICATE
[date]
I, [ ], the Chief Executive Officer of 5E Advanced Materials, Inc., a Delaware (the “Company”), do hereby certify in such capacity and on behalf of the Company pursuant to Section 7(p) of the Equity Distribution Agreement dated March 28, 2024 (the “Distribution Agreement”) among the Company and Canaccord Genuity LLC and D.A. Davidson & Co. Inc., to the best of my knowledge that:
1. The representations and warranties of the Company in Section 6 of the Distribution Agreement (A) to the extent such representations and warranties are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect, are true and correct on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof, except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date, and (B) to the extent such representations and warranties are not subject to any qualifications or exceptions, are true and correct in all material respects as of the date hereof as if made on and as of the date hereof with the same force and effect as if expressly made on and as of the date hereof except for those representations and warranties that speak solely as of a specific date and which were true and correct as of such date.
2. The Company has complied with all agreements and satisfied all conditions on its part to be performed or satisfied pursuant to the Distribution Agreement at or prior to the date hereof.
All capitalized terms used herein and not otherwise defined shall have the respective meanings assigned to them in the Distribution Agreement.
[Signature page follows]
IN WITNESS WHEREOF, the undersigned has executed this certificate as of the date first set forth above.
By:
Name:
Title:
[Signature Page to EDA Officer’s Certificate]