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 31, 2018

 

ENER-CORE, Inc.

(Exact name of registrant as specified in its charter)

 

Delaware   001-37642   45-0525350
(State or other jurisdiction
of incorporation)
  (Commission File Number)   (I.R.S. Employer
Identification No.)

 

30100 Town Center Dr, Suite O-209

Laguna Niguel, California 92677

(Address of principal executive offices) (Zip Code)

 

(949) 732-4400

(Registrant’s telephone number, including area code)

 

8965 Research Dr., Suite 100

Irvine, California 92618

(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))

 

Indicate by check mark whether the registrant is an emerging growth company as defined in 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).

 

Emerging growth company ☒

 

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 1.01Entry into a Material Definitive Agreement.

 

2015 and 2016 Amendment Agreements and Waivers

 

Effective as of December 31, 2018, Ener-Core, Inc. (the “Company”) and certain investors holding convertible senior secured notes issued in April and May 2015 (the “2015 Notes”) and December 2016 (the “2016 Notes”) executed amendment agreements and waivers (the “2015 Amendment Agreements” and “2016 Amendment Agreements”, respectively, and together, the “Amendment Agreements”). The Amendment Agreements (i) amend and waive the application of certain provisions of the securities purchase agreements dated as of April 22, 2015 and May 7, 2015, pursuant to which the Company issued the 2015 Notes and 2016 Notes, respectively, as well as certain provisions of the 2015 Notes and 2016 Notes, in order to allow for issuance of additional convertible senior secured promissory notes in the aggregate principal amount of up to $4,444,445 (the “Additional Notes”) and related warrants to purchase up to an aggregate of 22,222,223 shares of the Company’s common stock (the “Additional Warrants”); (ii) waive any events of default occurring under the 2015 Notes and 2016 Notes from December 31, 2017 through December 31, 2018; (iii) extend the maturity date of the 2015 Notes and 2016 Notes to January 31, 2019; (iv) extend the deadline set forth in the securities purchase agreements pursuant to which the Company issued the 2015 Notes and 2016 Notes, respectively, for the Company to commence trading of its common stock on a national securities exchange to January 31, 2019 (the “Listing Requirement); (v) amend the optional redemption provisions set forth in the 2015 Notes and 2016 Notes, respectively, to provide that at any time from and after February 1, 2019 and provided that the Company has not received either (x) initial deposits for at least eight 2 megawatt (MW) Power Oxidizer units or (y) firm purchase orders totaling not less than $3,500,000 and initial payment collections of at least $1,600,000 by January 31, 2019 (inclusive), a holder has the right to require that the Company redeem all or any portion of his, her or its 2015 Note or 2016 Note, respectively (the “Redemption Requirement”); and (vi) amend the definition of “Eligible Market” in each of the 2015 Notes and 2016 Notes to correspond to the extension of the Company’s deadline to commence trading of its common stock on a national securities exchange to January 31, 2019.

 

Notwithstanding the foregoing, effective upon the issuance by the Company of Additional Notes for aggregate gross proceeds of at least $2,000,000, the Amendment Agreements will (i) remove the Listing Requirement; (ii) remove the Redemption Requirement and the associated definitions; (iii) remove the Listing Requirement deadline set forth in the definition of “Eligible Market” in each of the 2015 Notes and 2016 Notes; and (iii) extend the maturity date of the 2015 Notes and 2016 Notes to December 31, 2020.

 

The Amendment Agreements are binding upon the holders all of the 2015 Notes and 2016 Notes and the parties to the related securities purchase agreements pursuant to the terms thereof.

 

Bridge Notes Amendment Agreements and Waiver

 

Effective as of December 31, 2018, the Company and certain investors that holds convertible senior secured notes issued in September 2017, November 2017, December 2017, January 2018, and March 2018 (the “Bridge Notes”) executed amendment agreements and waivers (the “Bridge Notes Amendment Agreement”), which (i) amend and waive the application of certain provisions of the securities purchase agreement dated as of September 19, 2017, pursuant to which the Company issued the Bridge Notes, as well as certain provisions of the Bridge Notes, in order to allow for issuance of the Additional Notes and Additional Warrants; (ii) waive any events of default occurring under the Bridge Notes from December 31, 2017 through December 31, 2018; (iii) extend the maturity date of the Bridge Notes to January 31, 2019 and, upon the issuance by the Company of Additional Notes for aggregate gross proceeds of $2,000,000, further extend the maturity date of the Bridge Notes to December 31, 2020; and (iv) amends the Redemption Requirement set forth in the Bridge Notes to correspond to the amendments set forth in the Amendment Agreements, including the removal of the Redemption Requirement upon the issuance by the Company of Additional Notes for aggregate gross proceeds of at least $2,000,000. The Bridge Notes Amendment Agreement is binding upon the holders all of the Bridge Notes pursuant to the terms thereof.

 

1

 

 

Convertible Notes Amendment Agreements and Waivers

 

Effective as of December 31, 2018, the Company and certain investors that hold convertible senior secured notes issued in June 2018 (the “June 2018 Notes”) executed amendment agreements and waivers (the “June 2018 Notes Amendment Agreement”), which (i) amend and waive the application of certain provisions of the securities purchase agreement dated as of June 5, 2018, pursuant to which the Company issued the June 2018 Notes, as well as certain provisions of the June 2018 Notes, in order to allow for issuance of the Additional Notes and Additional Warrants; (ii) waive any events of default occurring under the June 2018 Notes from the date of issuance through December 31, 2018; (iii) extend the maturity date of the June 2018 Notes to January 31, 2019 and, upon the issuance by the Company of Additional Notes for aggregate gross proceeds of $2,000,000, further extend the maturity date of the June 2018 Notes to December 31, 2020; and (iv) amends the Redemption Requirement set forth in the June 2018 Notes to correspond to the amendments set forth in the Amendment Agreements, including the removal of the Redemption Requirement upon the issuance by the Company of Additional Notes for aggregate gross proceeds of at least $2,000,000. The June 2018 Notes Amendment Agreement is binding upon the holders all of the June 2018 Notes pursuant to the terms thereof.

 

The forms of 2015 Amendment Agreement, 2016 Amendment Agreement, Bridge Notes Amendment Agreement and June 2018 Notes Amendment Agreement are attached as Exhibits 4.1, 4.2, 4.3 and 4.4, 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 9.01Financial Statements and Exhibits.

 

(d) Exhibits.

 

Exhibit Number   Description
4.1   Form of 2015 Amendment Agreement, effective as of December 31, 2018
4.2   Form of 2016 Amendment Agreement, effective as of December 31, 2018
4.3   Form of Bridge Notes Amendment Agreement, effective as of December 31, 2018
4.4   Form of June 2018 Notes Amendment Agreement, effective as of December 31, 2018

 

2

 

 

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.

 

  ENER-CORE, Inc.
     
Dated: January 3, 2019 By: /s/ Domonic J. Carney
    Domonic J. Carney
    Chief Financial Officer

 

3

 

 

EXHIBIT INDEX

 

Exhibit Number   Description
4.1   Form of 2015 Amendment Agreement, effective as of December 31, 2018
4.2   Form of 2016 Amendment Agreement, effective as of December 31, 2018
4.3   Form of Bridge Notes Amendment Agreement, effective as of December 31, 2018
4.4   Form of June 2018 Notes Amendment Agreement, effective as of December 31, 2018

 

4