TESI 8-K
Titan Environmental Solutions Inc. (TESI)
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, DC 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
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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) | |
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Securities registered pursuant to Section 12(b) of the Act:
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Name of each exchange on which registered | ||
| N/A | N/A | N/A |
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).
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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. ☐
Item 1.01 Entry into a Material Definitive Agreement.
Entry into Binding Letter of Intent
On June 6, 2025, Titan Environmental Services, Inc. (“Titan”) entered into a binding letter of intent (the “LOI”) for the potential acquisition (the “Acquisition”) of Titan by the Windtree Therapeutics, Inc., a publicly traded Delaware corporation which trades on The Nasdaq Capital Market under the symbol “WINT” (“Windtree”). The LOI provides that the Windtree and Titan contemplate negotiating definitive documentation to effect the Acquisition by way of a purchase of all the issued and outstanding securities of Titan.
The proposed terms of the Acquisition, pursuant to the LOI include consideration of $35 million of Windtree’s preferred stock (the “Acquisition Shares”). Windtree will also purchase three notes, pursuant to the LOI, in the principal amounts of $750,000, with respect to the first note, and $500,000 with respect to the second and third notes. The first note will be issued after the signing of the LOI, the second on the 30th day following execution of the LOI, and the third note will be issued on the 60th day following execution of the LOI. The LOI also proposes that Titan will select two members of the Windtree’s board of directors following the Acquisition.
The LOI grants the Company a 60-day exclusivity period (the “Exclusivity Period”) during which Titan may not pursue any transaction as an alternative to the Acquisition. The LOI expires at the end of the Exclusivity Period. Pursuant to the terms of a side letter agreement between Windtree and Titan, in the event that Titan does not complete the Acquisition pursuant to the LOI, Titan will pay Windtree a break-up fee of $8 million.
The foregoing description of the LOI is not complete and are qualified in its entirety by reference to the full text filed as Exhibit 10.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 2.03 Creation of a Direct Financial Obligation or an Obligation under an Off-Balance Sheet Arrangement of a Registrant.
June 5, 2025 Senior Note
On June 5, 2025, the Company’s wholly-owned subsidiary, Standard Waste Services, LLC (“Standard”) was issued a senior note in the principal amount of $6,617,857 (the “Note”), with an original issuance discount of $1,985,357. The Company plans to use the proceeds of the Standard Note, when received, for the repayment of certain outstanding debt and general working capital.
The Note matures on the earlier of (i) January 15, 2026 and (ii) the initial time of the Company’s consummation of the acquisition of all of the issued and outstanding equity of the Company by Windtree. The Note does not accrue interest. If an Event of Default occurs, as defined in the Note, then Windtree may (i) declare all outstanding principal and other sums payable to be immediately due and payable and (ii) exercise any and all of its other rights under applicable law. The Company may prepay the Standard Note but anticipates repayment of the Note through the adjustment of the Acquisition Shares.
The foregoing description of the Note is not complete and are qualified in its entirety by reference to the full text filed as Exhibit 4.1 to this Current Report on Form 8-K and incorporated herein by reference.
Item 9.01 Financial Statements and Exhibits
(d) Exhibits
The following exhibits are being filed herewith:
Exhibit No. |
Document | |
| 4.1 | Form of Senior Note issued to Standard Waste Services, LLC on June 5, 2025 | |
| 99.1 | Letter of Intent entered into with Windtree Therapeutics, Inc. | |
| 104 | Cover Page Interactive Data File (embedded within the Inline XBRL document). |
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, thereunto duly authorized.
| Titan Environmental Solutions, Inc. | ||
| By: | /s/ Glen Miller | |
| Name: | Glen Miller | |
| Title: | Chief Executive Officer | |
Date: June 12, 2025
Exhibit 4.1
EXECUTION VERSION
THE ISSUANCE AND SALE OF THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR APPLICABLE STATE SECURITIES LAWS. THIS NOTE MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED OR ASSIGNED (I) IN THE ABSENCE OF (A) AN EFFECTIVE REGISTRATION STATEMENT FOR THE SECURITIES UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR (B) AN OPINION OF COUNSEL TO THE HOLDER (IF REQUESTED BY THE COMPANY), IN A FORM REASONABLY ACCEPTABLE TO THE COMPANY, THAT REGISTRATION IS NOT REQUIRED UNDER SAID ACT OR (II) UNLESS SOLD OR ELIGIBLE TO BE SOLD PURSUANT TO RULE 144 OR RULE 144A UNDER SAID ACT. NOTWITHSTANDING THE FOREGOING, THIS NOTE MAY BE PLEDGED IN CONNECTION WITH A BONA FIDE MARGIN ACCOUNT OR OTHER LOAN OR FINANCING ARRANGEMENT SECURED BY THE SECURITIES. ANY TRANSFEREE OF THIS NOTE SHOULD CAREFULLY REVIEW THE TERMS OF THIS NOTE, INCLUDING SECTION 9(a) HEREOF.
THIS NOTE HAS BEEN ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”). PURSUANT TO TREASURY REGULATION §1.1275-3(b)(1), A REPRESENTATIVE OF THE COMPANY HEREOF WILL, BEGINNING TEN DAYS AFTER THE ISSUANCE DATE OF THIS NOTE, PROMPTLY MAKE AVAILABLE TO THE HOLDER UPON REQUEST THE INFORMATION DESCRIBED IN TREASURY REGULATION §1.1275-3(b)(1)(i). SUCH REPRESENTATIVE MAY BE REACHED AT TELEPHONE NUMBER (844) 266-4622.
Standard waste services, llc
Senior Note
| Issuance Date: June 5, 2025 | Original Principal Amount: U.S. $6,617,857 Purchase Price: $4,632,500 |
FOR VALUE RECEIVED, Standard Waste Services, LLC, a Michigan limited liability corporation (the “Company”), hereby promises to pay to the order of Windtree Therapeutics Inc. or its registered assigns (“Holder”) the amount set forth above as the Original Principal Amount (the “Principal”) when due, whether upon the Maturity Date (as defined below), or upon acceleration or otherwise (in each case in accordance with the terms hereof). All cash payments on this Senior Note (this “Note”) when due and payable hereunder, shall be made by check or wire transfer of immediately available funds or as otherwise determined by the Company to such account as the Holder may from time to time designate by written notice in accordance with the provisions of this Note. Certain capitalized terms used herein are defined in Section 21.
1. PAYMENTS OF PRINCIPAL. On the Maturity Date, the Company shall pay to the Holder an amount in cash representing all outstanding Principal and any other amounts payable hereunder. The Company may prepay any portion of the outstanding Principal at any time without penalty.
2. INTEREST. No interest shall accrue on the unpaid Principal balance of this Note.
3. EVENTS OF DEFAULT. If any of the following shall occur (each an “Event of Default”):
(a) the Company fails to pay, when due, all or any part of any Principal or other payment required to be made hereunder;
(b) bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings for the relief of debtors shall be instituted by or against the Company or any Subsidiary and, if instituted against the Company or any Subsidiary by a third party, shall not be dismissed within thirty (30) days of their initiation;
(c) the commencement by the Company or any Subsidiary of a voluntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or of any other case or proceeding to be adjudicated a bankrupt or insolvent, or the consent by it to the entry of a decree, order, judgment or other similar document in respect of the Company or any Subsidiary in an involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or to the commencement of any bankruptcy or insolvency case or proceeding against it, or the filing by it of a petition or answer or consent seeking reorganization or relief under any applicable federal, state or foreign law, or the consent by it to the filing of such petition or to the appointment of or taking possession by a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any substantial part of its property, or the making by it of an assignment for the benefit of creditors, or the execution of a composition of debts, or the occurrence of any other similar federal, state or foreign proceeding, or the admission by it in writing of its inability to pay its debts generally as they become due, the taking of corporate action by the Company or any Subsidiary in furtherance of any such action or the taking of any action by any Person to commence a Uniform Commercial Code foreclosure sale or any other similar action under federal, state or foreign law;
(d) the entry by a court of (i) a decree, order, judgment or other similar document in respect of the Company or any Subsidiary of a voluntary or involuntary case or proceeding under any applicable federal, state or foreign bankruptcy, insolvency, reorganization or other similar law or (ii) a decree, order, judgment or other similar document adjudging the Company or any Subsidiary as bankrupt or insolvent, or approving as properly filed a petition seeking liquidation, reorganization, arrangement, adjustment or composition of or in respect of the Company or any Subsidiary under any applicable federal, state or foreign law or (iii) a decree, order, judgment or other similar document appointing a custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official of the Company or any Subsidiary or of any substantial part of its property, or ordering the winding up or liquidation of its affairs, and the continuance of any such decree, order, judgment or other similar document or any such other decree, order, judgment or other similar document unstayed and in effect for a period of thirty (30) consecutive days;
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(e) other than as specifically set forth in another clause of this Section 3, the Company or any Subsidiary breaches any representation or warranty, in any material respect (other than representations or warranties subject to material adverse effect or materiality, which may not be breached in any respect) or any covenant or other term or condition of this Note, except, in the case of a breach of a covenant or other term or condition that is curable, only if such breach remains uncured for a period of five (5) consecutive Business Days;
then, the Holder may (i) declare all outstanding Principal hereof and all other sums payable hereunder to be immediately due and payable, whereupon the sum of (x) the outstanding Principal of this Note and (y) any other amounts outstanding hereunder shall become and shall be forthwith due and payable, without diligence, presentment, demand, protest or other notice of any kind, all of which are hereby expressly waived, and (ii) exercise any and all of its other rights under applicable law and/or hereunder.
4. NONCIRCUMVENTION. The Company hereby covenants and agrees that the Company will not, by amendment of its certificate of incorporation and bylaws, in each case as amended and as in effect on the date hereof, or through any reorganization, transfer of assets, consolidation, merger, scheme of arrangement, dissolution, issue or sale of securities, or any other voluntary action, avoid or seek to avoid the observance or performance of any of the terms of this Note, and will at all times in good faith carry out all of the provisions of this Note and take all action as may be required to protect the rights of the Holder of this Note.
5. VOTING RIGHTS. The Holder shall have no voting rights as the holder of this Note, except as required by law and as expressly provided in this Note.
6. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company represents and warrants to the Holder that, as of the date hereof:
(a) Organization and Qualification. The Company is an entity duly organized and validly existing and in good standing under the laws of the jurisdiction in which it is formed, and has the requisite power and authority to own its properties and to carry on its business as now being conducted and as presently proposed to be conducted. The Company is duly qualified as a foreign entity to do business and is in good standing in every jurisdiction in which its ownership of property or the nature of the business conducted by it makes such qualification necessary, except to the extent that the failure to be so qualified or be in good standing would not reasonably be expected to have a Material Adverse Effect (as defined below). Other than as set forth on Exhibit 21.1 filed with the Registration Statement (as defined below), the Company has no Subsidiaries.
(b) Authorization; Enforcement; Validity. The Company has the requisite power and authority to enter into and perform its obligations under this Note and to issue this Note in accordance with the terms hereof and thereof. The execution and delivery of this Note by the Company, and the consummation by the Company of the transactions contemplated hereby (including, without limitation, the issuance of this Note) have been duly authorized by the Company’s board of directors or other governing body, as applicable, and (other than the filing with the SEC of one or more registration statements, a Form D with the SEC and any other filings as may be required by any state securities agencies) no further filing, consent or authorization is required by the Company, its board of directors or its stockholders or other governing body. This Note has been duly executed and delivered by the Company, and constitutes the legal, valid and binding obligations of the Company, enforceable against the Company in accordance with its terms, except as such enforceability may be limited by general principles of equity or applicable bankruptcy, insolvency, reorganization, moratorium, liquidation or similar laws relating to, or affecting generally, the enforcement of applicable creditors’ rights and remedies and except as rights to indemnification and to contribution may be limited by federal or state securities law.
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(c) Issuance of Note. The issuance of this Note is duly authorized and upon issuance in accordance with its terms, this Note shall be validly issued, fully paid and non-assessable and free from all preemptive or similar rights, mortgages, defects, claims, liens, pledges, charges, taxes, rights of first refusal, encumbrances, security interests and other encumbrances (collectively “Liens”) with respect to the issuance thereof. The offer and issuance by the Company of this Note is exempt from registration under the 1933 Act.
7. COVENANTS. Until all of this Note has been redeemed or otherwise satisfied in accordance with their terms:
(a) Rank. All payments due under this Note shall rank (i) pari passu with all other Indebtedness of the Company and its Subsidiaries.
(b) Disclosure of Transaction and Other Material Information. The Company shall, on or before 9:00 a.m., New York City time, on or prior to the first (1st) Business Day after the date of this Note, file a Current Report on Form 8-K describing the terms of the transactions contemplated hereby in the form required by the 1934 Act and attaching the form of Note, to the extent they are required to be filed under the 1934 Act, that have not previously been filed with the SEC by the Company as exhibits to such filing (including all attachments, the “8-K Filing”). From and after the filing of the 8-K Filing, the Company shall have disclosed all material, non-public information (if any) provided up to such time to the Holder by the Company or any of its Subsidiaries or any of their respective officers, directors, employees or agents. In addition, effective upon the filing of the 8-K Filing, the Company acknowledges and agrees that any and all confidentiality or similar obligations under this Note or as otherwise disclosed in the 8-K Filing, 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 any of the Holder or any of their affiliates, on the other hand, shall terminate. The Company shall not, and the Company shall cause each of its Subsidiaries and each of its and their respective officers, directors, employees and agents not to, provide the Holder with any material, non-public information regarding the Company or any of its Subsidiaries from and after the date hereof without the express prior written consent of the Holder (which may be granted or withheld in the Holder’s sole discretion). To the extent that the Company delivers any material, non-public information to the Holder without the Holder’s consent, the Company hereby covenants and agrees that the Holder shall not have any duty of confidentiality with respect to, or a duty not to trade on the basis of, such material, non-public information. Neither the Company, its Subsidiaries nor the Holder shall issue any press releases or any other public statements with respect to the transactions contemplated hereby; provided, however, the Company shall be entitled, without the prior approval of the Holder, to make a press release or other public disclosure with respect to such transactions (i) in substantial conformity with the 8-K Filing and contemporaneously therewith or (ii) as is required by applicable law and regulations (provided that in the case of clause (i) the Holder shall be consulted by the Company in connection with any such press release or other public disclosure prior to its release). Without the prior written consent of the Holder (which may be granted or withheld in the Holder’s sole discretion), except as required by applicable law, the Company shall not (and shall cause each of its Subsidiaries and affiliates to not) disclose the name of the Holder in any filing, announcement, release or otherwise (other than in the exhibit of this Agreement attached to the 8-K Filing). Notwithstanding anything contained in this Agreement to the contrary and without implication that the contrary would otherwise be true, the Company expressly acknowledges and agrees that the Holder shall not have (unless expressly agreed to by the Holder after the date hereof in a written definitive and binding agreement executed by the Company and the Holder), any duty of confidentiality with respect to, or a duty not to trade on the basis of, any material, non-public information regarding the Company or any of its Subsidiaries.[1]
1 Can be replaced with MNPI language if preferred
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8. TRANSFER OR RESALE. The Holder understands that: (i) this Note has not been and is not being registered under the 1933 Act or any state securities laws, and may not be offered for sale, sold, assigned or transferred unless (A) subsequently registered thereunder, (B) the Holder shall have delivered to the Company (if requested by the Company) an opinion of counsel, in a form reasonably acceptable to the Company, to the effect that this Note to be sold, assigned or transferred may be sold, assigned or transferred pursuant to an exemption from such registration, or (C) the Holder provides the Company with an opinion of counsel reasonably acceptable to the Company that this Note can be sold, assigned or transferred pursuant to Rule 144 or Rule 144A promulgated under the 1933 Act (or a successor rule thereto) (collectively, “Rule 144”); (ii) any sale of this Note made in reliance on Rule 144 may be made only in accordance with the terms of Rule 144, and further, if Rule 144 is not applicable, any resale of this Note under circumstances in which the seller (or the Person through whom the sale is made) may be deemed to be an underwriter (as that term is defined in the 1933 Act) may require compliance with some other exemption under the 1933 Act or the rules and regulations of the SEC promulgated thereunder; and (iii) neither the Company nor any other Person is under any obligation to register this Note under the 1933 Act or any state securities laws or to comply with the terms and conditions of any exemption thereunder. Notwithstanding the foregoing, this Note may be pledged in connection with a bona fide margin account or other loan or financing arrangement secured by this Note and such pledge of this Note shall not be deemed to be a transfer, sale or assignment of this Note hereunder, and the Holder effecting a pledge of this Note shall not be required to provide the Company with any notice thereof or otherwise make any delivery to the Company pursuant to this Note, including, without limitation, this Section 8.
9. REISSUANCE OF THIS NOTE.
(a) Transfer. If this Note is to be transferred, the Holder shall surrender this Note to the Company, whereupon the Company will forthwith issue and deliver upon the order of the Holder a new Note (in accordance with Section 9(d)), registered as the Holder may request, representing the outstanding Principal being transferred by the Holder and, if less than the entire outstanding Principal is being transferred, a new Note (in accordance with Section 9(d)) to the Holder representing the outstanding Principal not being transferred. The Holder and any assignee, by acceptance of this Note, acknowledge and agree that, following redemption of any portion of this Note, the outstanding Principal represented by this Note may be less than the Principal stated on the face of this Note.
(b) Lost, Stolen or Mutilated Note. Upon receipt by the Company of evidence reasonably satisfactory to the Company of the loss, theft, destruction or mutilation of this Note (as to which a written certification and the indemnification contemplated below shall suffice as such evidence), and, in the case of loss, theft or destruction, of any indemnification undertaking by the Holder to the Company in customary and reasonable form and, in the case of mutilation, upon surrender and cancellation of this Note, the Company shall execute and deliver to the Holder a new Note (in accordance with Section 9(d)) representing the outstanding Principal.
(c) Note Exchangeable for Different Denominations. This Note is exchangeable, upon the surrender hereof by the Holder at the principal office of the Company, for a new Note or Notes (in accordance with Section 9(d) and in principal amounts of at least $1,000) representing in the aggregate the outstanding Principal of this Note, and each such new Note will represent such portion of such outstanding Principal as is designated by the Holder at the time of such surrender.
(d) Issuance of New Notes. Whenever the Company is required to issue a new Note pursuant to the terms of this Note, such new Note (i) shall be of like tenor with this Note, (ii) shall represent, as indicated on the face of such new Note, the Principal remaining outstanding (or in the case of a new Note being issued pursuant to Section 9(a) or Section 9(c), the Principal designated by the Holder which, when added to the principal represented by the other new Notes issued in connection with such issuance, does not exceed the Principal remaining outstanding under this Note immediately prior to such issuance of new Notes), (iii) shall have an issuance date, as indicated on the face of such new Note, which is the same as the Issuance Date of this Note, (iv) shall have the same rights and conditions as this Note, and (v) shall only become effective upon the physical surrender to the Company of the Note being exchanged for such new Note.
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10. REMEDIES, CHARACTERIZATIONS, OTHER OBLIGATIONS, BREACHES AND INJUNCTIVE RELIEF. The remedies provided in this Note shall be cumulative and in addition to all other remedies available under this Note at law or in equity (including a decree of specific performance and/or other injunctive relief), and nothing herein shall limit the Holder’s right to pursue actual and consequential damages for any failure by the Company to comply with the terms of this Note. No failure on the part of the Holder to exercise, and no delay in exercising, any right, power or remedy hereunder shall operate as a waiver thereof; nor shall any single or partial exercise by the Holder of any right, power or remedy preclude any other or further exercise thereof or the exercise of any other right, power or remedy. In addition, the exercise of any right or remedy of the Holder at law or equity or under this Note or any of the documents shall not be deemed to be an election of Holder’s rights or remedies under such documents or at law or equity. The Company covenants to the Holder that there shall be no characterization concerning this instrument other than as expressly provided herein. Amounts set forth or provided for herein with respect to payments, redemptions and the like (and the computation thereof) shall be the amounts to be received by the Holder and shall not, except as expressly provided herein, be subject to any other obligation of the Company (or the performance thereof). The Company acknowledges that a breach by it of its obligations hereunder will cause irreparable harm to the Holder and that the remedy at law for any such breach may be inadequate. The Company therefore agrees that, in the event of any such breach or threatened breach, the Holder shall be entitled, in addition to all other available remedies, to specific performance and/or temporary, preliminary and permanent injunctive or other equitable relief from any court of competent jurisdiction in any such case without the necessity of proving actual damages and without posting a bond or other security. The Company shall provide all information and documentation to the Holder that is requested by the Holder to enable the Holder to confirm the Company’s compliance with the terms and conditions of this Note.
11. CONSTRUCTION; HEADINGS. This Note shall be deemed to be jointly drafted by the Company and the initial Holder and shall not be construed against any such Person as the drafter hereof. The headings of this Note are for convenience of reference and shall not form part of, or affect the interpretation of, this Note. Unless the context clearly indicates otherwise, each pronoun herein shall be deemed to include the masculine, feminine, neuter, singular and plural forms thereof. The terms “including,” “includes,” “include” and words of like import shall be construed broadly as if followed by the words “without limitation.” The terms “herein,” “hereunder,” “hereof” and words of like import refer to this entire Note instead of just the provision in which they are found. Unless expressly indicated otherwise, all section references are to sections of this Note.
12. FAILURE OR INDULGENCE NOT WAIVER. No failure or delay on the part of the Holder in the exercise of any power, right or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such power, right or privilege preclude other or further exercise thereof or of any other right, power or privilege. No waiver shall be effective unless it is in writing and signed by an authorized representative of the waiving party.
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13. NOTICES; CURRENCY; PAYMENTS.
(a) Notices. Any notices, consents, waivers or other communications required or permitted to be given under the terms of this Note must be in writing and will be deemed to have been delivered: (i) upon receipt, when delivered personally; (ii) upon receipt, when sent by electronic mail (provided that such sent email is kept on file (whether electronically or otherwise) by the sending party and the sending party does not receive an automatically generated message from the recipient’s email server that such e-mail could not be delivered to such recipient); or (iii) one (1) Business Day after deposit with an overnight courier service with next day delivery specified, in each case, properly addressed to the party to receive the same. The mailing addresses and e-mail addresses for such communications shall be:
If to the Company:
Standard Waste Services LLC
8701 Grinnell Avenue
Detroit, MI 48213
| Telephone: | 313-571-1212 | |
| Attention: | Glen Miller | |
| Chief Executive Officer |
E-Mail: [email protected]
If to the Holder:
Company Name: Windtree Therapeutics Inc.
Attention: Jed Latkin
| Address: | 2600 Kelly Road Suite 100 | |
| Warrington, PA 18976 |
E-Mail: [email protected]
or to such other mailing address and/or e-mail address and/or to the attention of such other Person as the recipient party has specified by written notice given to each other party five (5) days prior to the effectiveness of such change. Written confirmation of receipt (A) given by the recipient of such notice, consent, waiver or other communication, (B) mechanically or electronically generated by the sender’s e-mail containing the time, date and recipient’s e-mail or (C) provided by an overnight courier service shall be rebuttable evidence of personal service, receipt by e-mail or receipt from an overnight courier service in accordance with clause (i), (ii) or (iii) above, respectively.
(b) Currency. All dollar amounts referred to in this Note are in United States Dollars (“U.S. Dollars”), and all amounts owing under this Note shall be paid in U.S. Dollars. All amounts denominated in other currencies (if any) shall be converted into the U.S. Dollar equivalent amount in accordance with the Exchange Rate on the date of calculation. “Exchange Rate” means, in relation to any amount of currency to be converted into U.S. Dollars pursuant to this Note, the U.S. Dollar exchange rate as published in the Wall Street Journal on the relevant date of calculation (it being understood and agreed that where an amount is calculated with reference to, or over, a period of time, the date of calculation shall be the final date of such period of time).
(c) Payments. Whenever any amount expressed to be due by the terms of this Note is due on any day which is not a Business Day, the same shall instead be due on the next succeeding day which is a Business Day.
14. CANCELLATION. After all Principal and other amounts at any time owed on this Note has been paid in full, this Note shall automatically be deemed canceled, shall be surrendered to the Company for cancellation and shall not be reissued.
15. WAIVER OF NOTICE. To the extent permitted by law, the Company hereby irrevocably waives demand, notice, presentment, protest and all other demands and notices in connection with the delivery, acceptance, performance, default or enforcement of this Note.
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16. GOVERNING LAW. This Note shall 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 New York, without giving effect to any provision of law or rule (whether of the State of New York or any other jurisdictions) that would cause the application of the laws of any jurisdictions other than the State of New York. Each party hereby irrevocably submits to the exclusive jurisdiction of the United States District Court for the District of New York (or, if such courts lack subject-matter jurisdiction, in the Supreme Court of the State of New York), 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 shall be deemed or operate to preclude the Holder from bringing suit or taking other legal action against the Company in any other jurisdiction to collect on the Company’s obligations to the 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 the Holder. EACH PARTY 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 NOTE OR ANY TRANSACTION CONTEMPLATED HEREBY.
17. JUDGMENT CURRENCY.
(a) If for the purpose of obtaining or enforcing judgment against the Company in any court in any jurisdiction it becomes necessary to convert into any other currency (such other currency being hereinafter in this Section 17 referred to as the “Judgment Currency”) an amount due in U.S. dollars under this Note, the conversion shall be made at the Exchange Rate prevailing on the Business Day immediately preceding:
(i) the date actual payment of the amount due, in the case of any proceeding in the courts of Delaware or in the courts of any other jurisdiction that will give effect to such conversion being made on such date: or
(ii) the date on which the foreign court determines, in the case of any proceeding in the courts of any other jurisdiction (the date as of which such conversion is made pursuant to this Section 17(a)(ii) being hereinafter referred to as the “Judgment Conversion Date”).
(b) If in the case of any proceeding in the court of any jurisdiction referred to in Section 17(a)(ii) above, there is a change in the Exchange Rate prevailing between the Judgment Conversion Date and the date of actual payment of the amount due, the applicable party shall pay such adjusted amount as may be necessary to ensure that the amount paid in the Judgment Currency, when converted at the Exchange Rate prevailing on the date of payment, will produce the amount of US dollars which could have been purchased with the amount of Judgment Currency stipulated in the judgment or judicial order at the Exchange Rate prevailing on the Judgment Conversion Date.
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(c) Any amount due from the Company under this provision shall be due as a separate debt and shall not be affected by judgment being obtained for any other amounts due under or in respect of this Note.
18. SEVERABILITY. If any provision of this Note is prohibited by law or otherwise determined to be invalid or unenforceable by a court of competent jurisdiction, the provision that would otherwise be prohibited, invalid or unenforceable shall be deemed amended to apply to the broadest extent that it would be valid and enforceable, and the invalidity or unenforceability of such provision shall not affect the validity of the remaining provisions of this Note so long as this Note as so modified continues to express, without material change, the original intentions of the parties as to the subject matter hereof and the prohibited nature, invalidity or unenforceability of the provision(s) in question does not substantially impair the respective expectations or reciprocal obligations of the parties or the practical realization of the benefits that would otherwise be conferred upon the parties. The parties will endeavor in good faith negotiations to replace the prohibited, invalid or unenforceable provision(s) with a valid provision(s), the effect of which comes as close as possible to that of the prohibited, invalid or unenforceable provision(s).
19. MAXIMUM PAYMENTS. Nothing contained herein shall be deemed to establish or require the payment of a rate of interest or other charges in excess of the maximum permitted by applicable law. In the event that the rate of interest required to be paid or other charges hereunder exceed the maximum permitted by such law, any payments in excess of such maximum shall be credited against amounts owed by the Company to the Holder and thus refunded to the Company.
20. AMENDING THE TERMS OF THIS NOTE. The prior written consent of the Holder shall be required for any change, waiver or amendment to this Note.
21. CERTAIN DEFINITIONS. For purposes of this Note, the following terms shall have the following meanings:
(a) “1933 Act” means the Securities Act of 1933, as amended, and the rules and regulations thereunder.
(b) “1934 Act” means the Securities Exchange Act of 1934, as amended, and the rules and regulations thereunder.
(c) “Business Day” means any day other than Saturday, Sunday or other day on which commercial banks in The City of New York are authorized or required by law to remain closed; provided, however, for clarification, commercial banks shall not be deemed to be authorized or required by law to remain closed due to “stay at home”, “shelter-in-place”, “non-essential employee” or any other similar orders or restrictions or the closure of any physical branch locations at the direction of any governmental authority so long as the electronic funds transfer systems (including for wire transfers) of commercial banks in The City of New York generally are open for use by customers on such day.
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(d) “Common Stock” means the Company’s shares of common stock, $0.001 par value per share.
(e) “Contingent Obligation” means, as to any Person, any direct or indirect liability, contingent or otherwise, of that Person with respect to any Indebtedness, lease, dividend or other obligation of another Person if the primary purpose or intent of the Person incurring such liability, or the primary effect thereof, is to provide assurance to the obligee of such liability that such liability will be paid or discharged, or that any agreements relating thereto will be complied with, or that the holders of such liability will be protected (in whole or in part) against loss with respect thereto.
(f) “Indebtedness” of any Person means, without duplication (A) all indebtedness for borrowed money, (B) all obligations issued, undertaken or assumed as the deferred purchase price of property or services, including, without limitation, “capital leases” in accordance with United States generally accepted accounting principles consistently applied for the periods covered thereby (other than trade payables entered into in the ordinary course of business consistent with past practice), (C) all reimbursement or payment obligations with respect to letters of credit, surety bonds and other similar instruments, (D) all obligations evidenced by notes, bonds, debentures or similar instruments, including obligations so evidenced incurred in connection with the acquisition of property, assets or businesses, (E) all indebtedness created or arising under any conditional sale or other title retention agreement, or incurred as financing, in either case with respect to any property or assets acquired with the proceeds of such indebtedness (even though the rights and remedies of the seller or bank under such agreement in the event of default are limited to repossession or sale of such property), (F) all monetary obligations under any leasing or similar arrangement which, in connection with United States generally accepted accounting principles, consistently applied for the periods covered thereby, is classified as a capital lease, (G) all indebtedness referred to in clauses (A) through (F) above secured by (or for which the holder of such Indebtedness has an existing right, contingent or otherwise, to be secured by) any mortgage, deed of trust, lien, pledge, charge, security interest or other encumbrance of any nature whatsoever in or upon any property or assets (including accounts and contract rights) with respect to any asset or property owned by any Person, even though the Person which owns such assets or property has not assumed or become liable for the payment of such indebtedness, and (H) all Contingent Obligations in respect of indebtedness or obligations of others of the kinds referred to in clauses (A) through (G) above.
(g) “Material Adverse Effect” means any material adverse effect on (i) the business, properties, assets, liabilities, operations (including results thereof), condition (financial or otherwise) or prospects of the Company or any Subsidiary, individually or taken as a whole, (ii) the transactions contemplated hereby or any other agreements or instruments to be entered into in connection herewith or therewith or (iii) the authority or ability of the Company or any of its Subsidiaries to perform any of their respective obligations under any of this Note.
(h) “Maturity Date” shall mean the earlier of (i) January 15, 2026, and (ii) the initial time of consummation of the acquisition of all the issued and outstanding equity of Titan Environmental Services, Inc. by Windtree Therapeutics Inc.
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(i) “Permitted Indebtedness” means (i) Indebtedness evidenced by this Note and (ii) Indebtedness set forth on Schedule A attached hereto.
(j) “Person” means an individual, a limited liability company, a partnership, a joint venture, a corporation, a trust, an unincorporated organization, any other entity or a government or any department or agency thereof.
(k) “SEC” means the United States Securities and Exchange Commission or the successor thereto.
(l) “Subsidiaries” means any Person in which the Company, directly or indirectly, (I) owns any of the outstanding capital stock or holds any equity or similar interest of such Person or (II) controls or operates all or any part of the business, operations or administration of such Person, and each of the foregoing, is individually referred to herein as a “Subsidiary.”
22. ABSENCE OF TRADING AND DISCLOSURE RESTRICTIONS. The Company acknowledges and agrees that the Holder is not a fiduciary or agent of the Company and that the Holder shall have no obligation to (a) maintain the confidentiality of any information provided by the Company or (b) refrain from trading any securities while in possession of such information in the absence of a written non-disclosure agreement signed by an officer of the Holder that explicitly provides for such confidentiality and trading restrictions. In the absence of such an executed, written non-disclosure agreement, the Company acknowledges that the Holder may freely trade in any securities issued by the Company, may possess and use any information provided by the Company in connection with such trading activity, and may disclose any such information to any third party.
[signature page follows]
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IN WITNESS WHEREOF, the Company has caused this Note to be duly executed as of the Issuance Date set out above.
Standard Waste Services, LLC | ||
| By: | /s/ Glen Miller | |
| Name: | Glen Miller | |
| Title: | Chief Executive Officer | |
| Agreed and Accepted: | ||
| Windtree Therapeutics Inc. | ||
| By: | /s/ Jed Latkin | |
| Name: | Jed Latkin | |
| Title: | Chief Executive Officer | |
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SCHEDULE A
Permitted Indebtedness
None.
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Exhibit 99.1
June 6, 2025
Titan Environmental Services, Inc.
300 E. Long Lake Road
Suite 100A
Bloomfield Hills, MI 48304
Attn: Glenn Miller, CEO
| Re: | Potential Acquisition of Titan Environmental Services, Inc. |
Ladies and Gentlemen:
This letter of intent will confirm the agreement by and among Windtree Therapeutics, Inc., a Delaware corporation (“WINT”) and Titan Environmental Services, Inc., a corporation formed under the laws of Nevada (“TESI”), concerning the acquisition by WINT of all of the issued and outstanding securities of TESI. The terms of our agreement are set forth below.
1. Acquisition of All Outstanding Securities. WINT and TESI, desire that WINT acquire all of the issued and outstanding securities of TESI on the terms set forth in Exhibit “A” annexed hereto (“Acquisition”) including the remittance of bridge financing to TESI (the “Bridge Financing”) Any outstanding debt (convertible or otherwise), preferred stock, options, warrants or other rights to acquire equity securities of TESI are detailed on Form 10-K filed with the Securities and Exchange Commission (the “SEC”) on 3/31/25 for the period end date 12/31/24 and supplemented from time to time as necessary.
2. Negotiation of Definitive Agreements. The parties contemplate negotiating the definitive agreement providing for the Acquisition (the “Acquisition Agreement”) and the other agreements contemplated by the Acquisition Agreement with the aim of completing such agreements as soon as possible, but in no event later than 60 days following execution of this LOI (“LOI Effective Period”), failing which this letter of intent may be extended upon the agreement of both parties, and in the absence of such agreement shall terminate with immediate effect. The parties further contemplate that TESI will (i) complete and deliver to WINT, PCAOB audited financial statements for the two years ended December 31, 2023 and 2024 and reviewed, PCAOB-compliant, financial statements for the three-month period ended March 31, 2025, by no later than June 15, 2025 and for the three-month period ended June 30, 2025 by no later than August 15, 2025 (collectively, such audited and reviewed financial statements being referred to herein as the “PCAOB Financial Statements”) and (ii) will enter into binding agreements (and delivered to WINT true and correct copies thereof) providing for the Acquisition Financing referred to in Exhibit A, by no later than August 1, 2025.
3. Filings. TESI agrees to fully cooperate with WINT in the preparation of all documents required to be filed with the SEC (including all exhibits and amendments thereto), or any other regulatory body, in connection with the transactions contemplated hereby, and to provide all information requested by the SEC or any other regulatory body.
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4. Due Diligence. TESI agrees to facilitate WINT’s due diligence investigation by, among other things, complying promptly with due diligence requests of WINT and/or its legal and financial counsel.
5. Exclusivity. In order to induce WINT and TESI to undertake the actions necessary to evaluate the Acquisition and to incur additional costs and expenses associated therewith, TESI hereby agrees that, for the period (the “Exclusive Period”) beginning upon the execution and delivery of this letter of intent by (the “Effective Date”) and ending on the earliest of (i) 11:59 pm Eastern Time on the final date of the LOI Effective Period (or such later date as may be agreed in writing by the parties hereto), (ii) the date that either WINT or TESI has advised the other party in writing that it does not wish to pursue the Acquisition, and (iii) the date the Acquisition Agreement is entered into, such party will not, and it will cause its Representatives not to, directly or indirectly: (a) solicit, initiate, knowingly encourage (including by means of furnishing or disclosing information), facilitate, discuss or negotiate, directly or indirectly, any inquiry, proposal or offer (written or oral) with respect to a an alternate acquisition transaction involving either WINT or TESI other than the Acquisition; (b) furnish or disclose any non-public information to any person or entity in connection with or that could reasonably be expected to lead to an alternate acquisition of either WINT or TESI other than the Acquisition; (c) enter into any agreement, arrangement or understanding regarding an alternate acquisition of either WINT or TESI other than the Acquisition; or (d) otherwise cooperate in any way with, or assist or participate in, or knowingly facilitate or knowingly encourage any effort or attempt by any person or entity to do or seek to do any of the foregoing.
TESI further agrees to immediately terminate any existing discussions, negotiations and contacts regarding a TESI Acquisition Proposal.
For purposes of this letter of intent, (a) the term “Representatives” of a party means (i) any of such party’s or its affiliates’ respective equityholders, representatives, officers, directors, agents, employees or advisors.
6. No Circumvention. During the Exclusive Period, (i) TESI shall not issue, or agree or commit to issue, any securities of TESI or any of its subsidiaries or affiliated entities and (ii) the Stockholders shall not cause or permit, or agree to cause or permit, any sale, pledge, hypothecation, assignment or other transfer or disposition of any of their respective securities of TESI, and (iii) each of TESI and WINT shall not otherwise enter into any agreement or arrangement or engage in any transaction, directly or indirectly, that would be inconsistent with the provisions or intent of paragraph 5 above.
7. Access. Each party agrees, upon reasonable prior notice, to give the other party and its representatives, accountants and counsel access to the property, records, financial statements, internal and external audit reports, regulatory reports and all other documents and other information concerning the other party.
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8. Miscellaneous.
(a) Confidentiality. The non-disclosure agreement previously executed remains in full force and effect.
(b) Injunctive Relief. TESI agrees that, in view of the fact that WINT will be irreparably damaged and will not have an adequate remedy at law in the event that the provisions of this letter of intent have not been performed in accordance with its terms, WINT shall be entitled to injunctive relief, without posting a bond, including specific enforcement, to enforce the provisions of this letter of intent, in addition to any other remedy to which WINT may be entitled at law. TESI agrees that if any action should be brought by WINT in equity to enforce any of the provisions of this letter of intent, TESI shall not raise the defense that there is an adequate remedy at law.
(c) Disclosures; Public Statements. Except as required by law or regulation, no public announcements, press releases or other public statements (including in any press conference, trade publication, marketing materials or otherwise) with respect to the subject matter of this letter of intent shall be made without the consent of each of the parties hereto.
(d) Nature of this Agreement. This letter of intent shall be binding upon and inure to the benefit of the parties hereto and their respective successors and permitted assigns. The rights and obligations of any party hereto may not be assigned to any other entity without the consent of the other party hereto.
(e) No Trading. From and after the date first written above, neither TESI nor any of its respective officers, directors, affiliates, employees, agents or representatives shall use any material non-public information of WINT (including the existence and terms of this letter of intent) to purchase, sell, make any short sale of, loan, grant any option for the purchase of, or otherwise transfer, dispose of any securities of WINT.
(f) Communications. All notices and other communications required or permitted by this letter of intent shall be in writing and submitted via facsimile to the parties hereto at the respective numbers set forth above. This letter of intent may only be amended by a written instrument executed by each of the parties hereto.
(g) Governing Law; Consent to Jurisdiction. This letter of intent shall be governed by and construed in accordance with the internal laws of the State of New York applicable to contracts made and to be performed in that State.
(h) Counterparts. This letter of intent may be executed in one or more counterparts, each of which shall be deemed to be an original of the party or parties executing the same and all of which, taken together, shall be deemed to constitute one and the same document.
(i) Termination. This letter of intent shall terminate and be deemed of no further effect immediately following the expiration of the Exclusive Period, provided that the provisions of this paragraph 8 shall survive the termination or expiration of this letter of intent.
[signature pages follow]
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Please execute a copy of this letter of intent to signify your agreement with the foregoing.
| Sincerely, | ||
| WINDTREE THERAPEUTICS, INC. | ||
| By: | /s/ Jed Latkin | |
| Name: | Jed Latkin | |
| Title: | CEO | |
Agreed to as of this 6th day of June, 2025:
TITAN ENVIRONMENTAL SERVICES, INC.
| By: | /s/ Glen Miller | |
| Name: | Glen Miller | |
| Title: | CEO |
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CONFIDENTIAL
Exhibit “A”
Summary of Terms
For the Acquisition by
WINDTREE THERAPEUTICS, INC.
of
TITAN ENVIRONMENTAL SERVICES, INC.
This Exhibit sets forth in general terms the provisions under which Windtree Therapeutics, Inc. proposes to acquire all the outstanding securities of Titan Environmental Services, Inc., as contemplated by that certain letter of intent dated as of June 6, 2025 (“LOI”), of which this Exhibit “A” is a part. Capitalized terms set forth in this Exhibit “A” shall have the respective definitions assigned to them in the LOI. The principal terms relating to the Acquisition are as follows:
| Structure: | WINT will acquire 100% of the outstanding equity securities of TESI from its stockholders. | |
| Consideration: | $35.0 million in the form of Series E Preferred Stock (“Preferred Stock”), each with a stated value of $1,000.00 per share. The certificate of designation for Preferred Stock shall contain rights and preferences on par with the currently designated Series D Preferred Stock of WINT. | |
| Bridge Financing: | WINT shall provide initial bridge financing to TESI in the form of senior subordinated convertible promissory notes in an amount not to exceed Seven Hundred Fifty Thousand Dollars ($750,000.00) (the “Bridge Notes”). The terms and conditions of the Bridge Notes shall contain terms mutually agreed upon by WINT and TESI. And two additional Five Hundred Thousand Dollars ($500,000) bridge notes to be delivered on the 30 day anniversary and 60 day anniversary of the signing of a binding term sheet. | |
| Ancillary Agreements: | WINT’s willingness to enter into the Acquisition is conditioned upon obtaining non-disclosure, non-competition and non-solicitation agreements from certain key personnel to be agreed upon, and employment agreements between WINT and certain key personnel to be agreed upon. |
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| Company Debt: | At closing, TESI will have no more than $9.3 million (does not include any of the Michaelson Notes Payable) in indebtedness (not including trade payables and permitted liens) (the “Existing TESI debt”). The Existing TESI debt may be exchanged for Preferred Stock in conjunction with the closing and shall be value with an exchange premium of 120%. | |
| No Dividends or Certain Other Payments: | From the date of the LOI, TESI will not declare or distribute any cash or other dividends or distributions to any Stockholders or any bonus to any employee. | |
| Transaction Expenses: | TESI, on the one hand, and WINT, on the other hand, will each be responsible for and pay its own costs and expenses incurred in connection with the transactions contemplated hereby, including the Acquisition; provided however, that if the Acquisition is consummated, all such costs shall be borne by the combined company and paid in full at closing. For the purpose of clarification, WINT shall bear all proxy solicitation expenses, For the purpose of further clarification, any amounts payable to any broker, agent, finder, consultant or other person or entity based upon any agreement made by any party in connection with any of the transactions contemplated hereby will be paid solely by the party entering into such agreement with such person or entity, and such party will indemnify the other party or parties hereto with respect to such amounts; provided however, that if the Acquisition is consummated, all such amounts shall be borne by the combined company and paid in full at closing. | |
| Audit Requirement: | TESI must complete and deliver PCAOB audited financial statements for the two years ended December 31, 2023 and 2024 and reviewed, PCAOB-compliant, financial statements for the three-month periods ended March 31, 2025 and June 30, 2025. | |
| Board of Directors: | TESI will select two people to join the combined company’s Board of Directors at the closing of the transaction. At the next annual meeting the going forward composition of the board will be decided. | |
| Company Operations: | The Agreements will include covenants related to the continued operation and preservation of TESI’s business and assets in the ordinary course from the date of the LOI until closing, including, without limitation, payment of accounts payable and collection of accounts receivable, and absence of changes in business practice. | |
| Closing Conditions: | Each of the parties’ obligation to complete the Acquisition will be conditioned upon the continued accuracy of representations and warranties, normal and customary for a transaction of this type, in the Agreements (which will survive the closing for indemnification purposes) made by each party and the absence of material adverse changes to, or material liabilities of, TESI. Notwithstanding the foregoing, it shall be a condition to closing that the combined company shall meet the equity standard for listing on the Nasdaq Stock Market. | |
| Other Provisions: | The Agreements will contain customary terms and conditions including representations and warranties, closing conditions, covenants, indemnities and non-compete agreements, and such other terms and conditions as the parties shall agree. | |
| Lock-up: | The stockholders of TESI and its directors, officers and employees who hold Shares will enter into a six-month lock-up at the closing of the Acquisition. | |
| Governing Law: | The Agreements will be governed by and construed in accordance with the internal laws of Delaware. |
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