Attached files
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| EX-10.1 - ENER1 INC | v208512_ex10-1.htm |
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
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Date
of Report (Date of Earliest Event Reported):
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January
17, 2011
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Ener1,
Inc.
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Florida
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001-34050
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59-2479377
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(State
or other jurisdiction
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(Commission
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(I.R.S.
Employer
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of
incorporation)
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File
Number)
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Identification
No.)
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1540
Broadway, Suite 25C, New York,
New
York
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10036
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code:
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(212)
920-3500
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Not
Applicable
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:
¨ 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))
Item
1.01 Entry into a Material Definitive Agreement.
On
January 17, 2011, Ener1, Inc. ("Ener1") entered into a joint venture agreement
(the “Agreement”) with Wanxiang EV Co. Ltd. ("Wanxiang"), the electric vehicle
division of Wanxiang Group. Under the Agreement, Ener1 and Wanxiang
will form a joint venture company (the “Joint Venture”) to design, manufacture,
sell and service lithium-ion battery cells and lithium-ion battery packs,
primarily in China, Hong Kong, Taiwan and Macau (the
“Territory”). The Joint Venture will be based in Hangzhou,
China. The Joint Venture will be established upon receipt of certain
governmental approvals from China, which we anticipate will be received within
90 days from the date of the Agreement.
The
parties have agreed to invest approximately $120,000,000 in equity in the Joint
Venture, with Wanxiang contributing 60% and Ener1 contributing 40% of the
investment amount. The equity investment will be made in two
installments, with the first 50% being made within 60 days of the establishment
of the Joint Venture, and the remaining 50% being made over a two-year period
after the establishment of the Joint Venture. Wanxiang will make the
first installment of its equity investment through the contribution of property
and plant to the Joint Venture. The assets so contributed will be
subject to appraisal, and Wanxiang will fund any shortfall between the appraised
value of these assets and the amount required to be invested by Wanxiang through
the contribution of cash. Ener1’s
funding obligations for the Joint Venture comprise 40% of the $120,000,000 in
registered capital, for a total of $48,000,000. Of the $48,000,000, $8,000,000
will be designated for battery pack manufacturing and will be funded with equity
in two tranches. The first funding date is within 60 days of the signing of the
Agreement and the second funding date is within two years of the signing of the
Agreement. The remaining $40,000,000 will be designated for cell manufacturing
and will be financed with non-recourse debt secured by Ener1’s equity stake in
the Joint Venture as collateral. All other equity investments to be
made by Ener1 and Wanxiang will be in cash. The parties anticipate
that the Joint Venture will obtain up to $175,000,000 of bank financing in order
to fund additional capital needs.
It is
anticipated that Wanxiang and Ener1 will own a 60% and 40% equity stake in the
Joint Venture, respectively. Although these percentages may change
based on future equity contributions made by the parties or by any new investor
in the Joint Venture, Wanxiang must always maintain at least a 51% equity stake
in the Joint Venture. Neither party may transfer its interest in the
Joint Venture without the other party’s consent. A new investor may
not be brought in to the Joint Venture without the consent of both Wanxiang and
Ener1.
Wanxiang
will, through its equity interest and board representation, exercise majority
control over the Joint Venture. The Joint Venture is prohibited,
however, from taking certain actions, including, but not limited to, raising
additional equity capital, making distributions to the equity holders, effecting
a business combination, effecting acquisitions or dispositions of material
assets, entering into any material contracts, selling or licensing any
intellectual property, permitting the transfer of any equity interests in the
Joint Venture, or incurring material indebtedness, without the consent of Ener1
and its board representatives. Wanxiang will designate the Joint
Venture’s chief executive officer and chief operating officer, and Ener1 will
designate the Joint Venture’s chief financial officer and chief technology
officer.
At all
times while the parties remain equity holders in the Joint Venture, and for a
period of six months thereafter, the parties will generally be prohibited
from manufacturing or selling products and services that compete with the
Joint Venture’s business within the Territory, although Ener1 will be permitted
to continue its existing business in Taiwan. Conversely, the Joint
Venture will not engage in any business that competes with either party outside
of the Territory without the consent of both parties.
The
parties have granted to the Joint Venture exclusive, royalty-free licenses of
their respective intellectual property to make, use, sell, copy, import, modify
and further develop their respective cell and pack technologies within the
Territory, and have further granted such licenses to the Joint Venture on a
non-exclusive basis outside the Territory, but limited to sale, importation and
repair. These licenses include improvements both parties may
make to their respective technologies, and will cease upon the termination of
the Joint Venture. Each party will receive royalty-free and permanent
licenses to any new technology and any improvements made by the Joint Venture
(or by a party in collaboration with the Joint Venture) and, upon the
termination of the Joint Venture, any new technology and improvements will be
jointly owned by the parties subject to payment of patent costs and restrictions
on licensing to third parties. A party’s license to the Joint Venture
to make, use, sell, copy, import and further develop its cell and pack
technology within the Territory will become non-exclusive and will exclude
improvements if that party transfers its equity in the Joint
Venture.
The term
of the Joint Venture is 30 years, unless terminated earlier by the mutual
agreement of the parties. The Joint Venture may also be terminated by
either party due to a “force majeure” (such as a natural disaster, war and major
changes in laws), a material breach that remains uncured, sustained financial
losses incurred by the Joint Venture, the insolvency or dissolution of a party,
or the failure to obtain necessary governmental approvals to conduct business as
contemplated under the Agreement within 90 days after the establishment of the
Joint Venture.
The above
description of the Joint Venture and the Agreement is intended as a summary
only; it is, therefore, not complete and is qualified in its entirety by the
full text of the Agreement, which is filed as Exhibit 10.1 to this Form
8-K.
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Item
9.01 Financial Statements and Exhibits.
Exhibit
10.1 Sino-Foreign Equity Joint Venture Contract between Ener1, Inc. and Wanxiang
EV Co., Ltd., dated as of January 17, 2011.
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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.
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Ener1,
Inc.
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January
21, 2011
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By:
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/s/
Charles Gassenheimer
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Name:
Charles Gassenheimer
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Title:
Chief Executive
Officer
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Exhibit Index
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Exhibit No.
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Description
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10.1
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Exhibit
10.1 Sino-Foreign Equity Joint Venture Contract between Ener1, Inc. and
Wanxiang EV Co., Ltd., dated as of January 17,
2011.
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