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): December 2,
2009
Energy Recovery,
Inc.
(Exact
Name of Registrant as Specified in its Charter)
Delaware
(State or
Other Jurisdiction of Incorporation)
|
001-34112
|
01-0616867
|
|
(Commission
File Number)
|
(I.R.S.
Employer Identification No.)
|
1717 Doolittle
Dr. San Leandro, CA 94577
(Address
if Principal Executive Offices)(Zip Code)
510-483-7370
(Registrant’s
telephone number, including area code)
N/A
(Former
Name or Former Address, if Changed Since Last Report)
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))
Item
1.01 Entry
into a Material Definitive Agreement
On
December 2, 2009, Energy Recovery, Inc. (“ERI”) entered into an Agreement and
Plan of Merger (the “Merger Agreement”) with Pump Engineering LLC (“PEI”), CFE
Acquisition Corporation, a wholly-owned subsidiary of ERI (“Merger Sub”), Roy
Radakovich in his capacity as the Company Representative, and U.S. Bank National
Association, in its capacity as the Escrow Agent, pursuant to which, subject to
satisfaction or waiver of the conditions of the Merger Agreement, PEI will merge
with and into Merger Sub (the “Merger”), with Merger Sub being the surviving
entity (the “Surviving Entity”).
Pursuant
to the Merger Agreement, all the property, rights, privileges, powers and
franchises of PEI and Merger Sub shall vest in the Surviving Entity, and all
debts, liabilities and duties of PEI and Merger Sub shall become the debts,
liabilities and duties of the Surviving Entity.
Pursuant
to the Merger Agreement, the consideration to be paid by ERI for the Merger will
consist of the following: (i) an initial cash payment of Fourteen Million Five
Hundred Thousand Dollars ($14,500,000), subject to adjustment as set forth in
the Merger Agreement; (ii) up to One Million (1,000,000) shares of ERI’s Common
Stock; (iii) Three Million Five Hundred Thousand Dollars ($3,500,000) to be
deposited by ERI in an escrow account which will be paid to the
owners of PEI upon the achievement of certain milestones; and (iv) Two Million
Dollars ($2,000,000) to be deposited by ERI in an second escrow account, which
amount, less those amounts paid to ERI pursuant to the indemnification
provisions of the Merger Agreement, will be paid to the owners of PEI eighteen
(18) months after the closing of the Merger.
The
consummation of the Merger is subject to closing conditions, which include,
among other things (i) approval of the holders representing more than fifty
percent (50%) of the outstanding voting equity of PEI, and (ii) compliance with
certain covenants.
The
parties currently expect the Merger to be consummated in December
2009. There can be no assurances that the Merger will be consummated
in that time period.
The
foregoing description of certain terms of the Merger Agreement does not purport
to be complete, and is qualified in its entirety by reference to the full text
of such agreement, a copy of which is attached hereto as Exhibit
2.1.
The
representations and warranties of each party set forth in the Merger Agreement
have been made solely for the benefit of the other parties to the Merger
Agreement. In addition, such representations and warranties (i) have been
qualified by disclosures made to the other parties in connection with the Merger
Agreement, (ii) at closing, must only be true and correct subject to the
standards contained therein, which may differ from what may be viewed as
material by investors and (iii) were made only as of the date of the Merger
Agreement, the date the Merger may be consummated, or such other date as is
specified in the Merger Agreement.
Item
3.02 Unregistered
Sales of Equity Securities
Upon
consummation of the Merger, up to one million (1,000,000) shares of ERI's Common
Stock, which may be issued as consideration for the Merger, will be issued in a
transaction exempt from registration under the Securities Act of 1933, as
amended (the “Act”), by reason of Section 4(2) of the Act and/or Regulation D
promulgated under the Act.
Item
8.01 Other
Events
On
December 2, 2009, ERI issued a press release, a copy of which is attached hereto
as Exhibit 99.1, announcing that it had entered into the Merger
Agreement. The press release is incorporated herein by
reference.
Item
9.01 Financial
Statements and Exhibits
The
following exhibits are being furnished with this Current Report on Form
8-K:
|
2.1
|
Agreement
and Plan of Merger dated as of December 2, 2009, by and among Pump
Engineering LLC, CFE Acquisition Corporation, Roy Radakovich and U.S. Bank
National Association (without schedules and
exhibits)*.
|
|
99.1
|
Press
release dated December 2, 2009.
|
* The
schedules and exhibits to this agreement, as set forth in the agreement, have
not been filed herewith pursuant to Item 601(b)(2) of Regulation
S-K. ERI agrees to furnish supplementally a copy of any omitted
schedule to the Securities and Exchange Commission up request.
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.
|
|
|
ENERGY RECOVERY,
INC.
|
|
|
|
|
(Registrant)
|
|
|
|
|
|
|
|
|
|
|
|
|
Date:
|
12/07/09
|
|
/s/
Thomas Willardson
|
|
|
|
|
Thomas
Willardson
|
|
|
|
|
(Chief
Financial Officer)
|
|
INDEX
TO EXHIBITS
|
Exhibit
Number
|
|
Description
|
|
2.1
|
|
Agreement
and Plan of Merger Dated December 2, 2009
|
|
99.1
|
|
Press
Release Dated December 2,
2009
|
5