ENER-CORE, Inc. (OTCMKTS:ENCR) Files An 8-K Entry into a Material Definitive AgreementItem 1.01
On June 5, 2018, the Company and certain investors holding Convertible Junior Notes executed Third Amendments to such Convertible Junior Notes (the “Convertible Junior Notes Amendments”) to adjust certain definitions to allow for issuance of the Convertible Senior Notes, to adjust the conversion price to $0.25 per share of Common Stock and to provide for the payment in kind of interest accrued and unpaid through June 30, 2018 with recommencement of accrual of interest payable in cash on July 1, 2018. The Convertible Junior Notes Amendments are binding upon the holders of all of the issued Convertible Junior Notes to the terms thereof.
The forms of Purchase Agreement, Termination Agreement, Third Amendment to September Subordination Agreement and Security Amendment Agreement are attached as Exhibits 10.1, 10.2, 10.3 and 10.4, respectively, to this Current Report on Form 8-K and are incorporated herein by reference. The forms of Convertible Senior Note, Warrant, 2015 Amendment Agreement, 2016 Amendment Agreement, Bridge Amendment Agreement and Convertible Junior Note Amendment are attached as Exhibits 4.1, 4.2, 4.3, 4.4, 4.5 and 4.6, respectively, to this Current Report on Form 8-K and are also incorporated herein by reference. The foregoing descriptions of these agreements and instruments do not purport to be complete and are qualified in their entirety by reference to such exhibits.
| Item 3.02 | Unregistered Sales of Equity Securities. |
As more fully described in Item 1.01 above, which disclosure regarding the Convertible Senior Notes and Warrants is incorporated by reference herein, on June 5, 2018, the Company agreed to issue the Convertible Senior Notes and the Warrants to the Investors to the Purchase Agreement. The issuance of the Convertible Senior Notes is, and upon conversion of the Convertible Senior Notes in accordance with their terms, the issuance of the Conversion Shares will be, and the issuance of the Warrants is, and upon exercise of the Warrants in accordance with their terms, the issuance and sale of the Warrant Shares will be, exempt from registration to an exemption afforded by Section 4(a)(2) of the Securities Act and Rule 506(b) of Regulation D, based on representations of the Investors, which included, in pertinent part, that each recipient is an “accredited investor” as that term is defined in Rule 501 of Regulation D, who is acquiring such Convertible Senior Note and Warrant for investment purposes for its own account and not as nominee or agent, and not with a view to the resale or distribution thereof, and that such investor understands that the Convertible Senior Note and Warrant may not be sold or otherwise disposed of without registration under the Securities Act or an applicable exemption therefrom.
| Item 5.02 | Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers. |
On June 5, 2018, in connection with the previously announced separation of Alain J. Castro to the terms of that certain Separation Agreement and General Release of All Claims, dated December 17, 2017, Company’s Board of Directors (the “Board”) appointed Domonic J. Carney, Chief Financial Officer of the Company, as Interim President of the Company. In such capacity, Mr. Carney will assume the duties of the Company’s principal executive officer on an interim basis. The Board intends to review the compensation arrangements for Mr. Carney in an upcoming meeting of the Board or the Compensation Committee of the Board. Mr. Carney does not have any relationship with the Company that would require disclosure to Item 404(a) of Regulation S-K.
Mr. Carney was appointed as the Company’s Chief Financial Officer, Secretary and Treasurer effective on August 25, 2014. Until his appointment, Mr. Carney was an independent consultant providing finance, accounting and business strategy services. From March 30, 2012 to October 2012, Mr. Carney served as the chief financial officer for T3 Motion, Inc. (TTTM.PK), an electric vehicle technology company. From March 2005 to February 2012, Mr. Carney served as Chief Financial Officer for Composite Technology Corporation (CPTC.OB), a manufacturer of high efficiency carbon composite electric transmission conductors and renewable energy wind turbines. Mr. Carney has a Masters in Accounting from Northeastern University and a Bachelor’s Degree in Economics from Dartmouth College.
| Item 9.01 | Financial Statements and Exhibits. |
(d) Exhibits.
| Exhibit Number | Description |
| 4.1 | Form of Convertible Senior Secured Promissory Note |
| 4.2 | Form of Warrant |
| 4.3 | Form of 2015 Amendment Agreement, effective as of June 5, 2018 |
| 4.4 | Form of 2016 Amendment Agreement, effective as of June 5, 2018 |
| 4.5 | Form of Bridge Amendment Agreement, effective as of June 5, 2018 |
| 4.6 | Form of Third Amendment to Convertible Unsecured Promissory Notes issued in September 2016, effective as of June 5, 2018 |
| 10.1 | Form of Securities Purchase Agreement, dated June 5, 2018, by and among Ener-Core, Inc. and certain investors set forth therein, including the form of Guaranty of Ener-Core Power, Inc. |
| 10.2 | Form of Termination Agreement, by and among Ener-Core, Inc., Ener-Core Power, Inc., Anthony Tang and Empery Tax Efficient, LP, effective as of June 5, 2018 |
| 10.3 | Form of Third Amendment to Subordination and Intercreditor Agreement, dated September 1, 2016, by and among Ener-Core, Inc., Ener-Core Power, Inc., Longboard Capital Advisors LLC, Anthony Tang and Empery Tax Efficient, LP, effective as of June 5, 2018 |
| 10.4 | Form of Fourth Amendment to Pledge and Security Agreement, dated April 23, 2015, by and among Ener-Core, Inc., Ener-Core Power, Inc. and Empery Tax Efficient, LP, effective as of June 5, 2018 |
Ener-Core, Inc. ExhibitEX-4.1 2 f8k060518ex4-1_enercore.htm FORM OF CONVERTIBLE SENIOR SECURED PROMISSORY NOTE Exhibit 4.1 [FORM OF SENIOR SECURED NOTE] NEITHER THE ISSUANCE AND SALE OF THE SECURITIES REPRESENTED BY THIS CERTIFICATE NOR THE SECURITIES INTO WHICH THESE SECURITIES MAY BE CONVERTIBLE HAVE BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933,…To view the full exhibit click here
About ENER-CORE, Inc. (OTCMKTS:ENCR)
Ener-Core, Inc. designs, develops, manufactures and has commercially deployed products based on technologies that generate base-load, clean power from polluting waste gases that are otherwise destroyed or vented into the atmosphere by a range of industries. The Company also designs its technologies to provide power generation solutions with reduced air emissions. Its Power Oxidation technology offers an alternative to traditional methods of destroying gaseous pollution, by simultaneously enabling industrial facilities. Its commercial products include Ener-Core Powerstation EC250 (EC250) and Ener-Core Powerstation EC333 (EC333), which combine its Power Oxidizer with an approximately 250 kilowatt (kW)and over 333 kW gas turbine, respectively. It is also engaged in developing a product, which is called the KG2-3GEF/PO (KG2 with Power Oxidizer (KG2/PO)). It has over two powerstations in operation at a landfill site in the Netherlands and at the University of California, Irvine.