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): September 11, 2014
EVOLUCIA INC.
(Exact name of registrant as specified in its charter)
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Nevada
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000-53590
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98-0550703
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(State or Other Jurisdiction of Incorporation)
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(Commission File Number)
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(IRS Employer Identification Number)
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7040 Professional Parkway East, Sarasota, Florida 34240
(Address of principal executive offices) (zip code)
941-751-6800
(Registrant's telephone number, including area code)
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
Item 2.03 Creation of a Direct Financial Obligation or an Obligation Under an Off-Balance Sheet Arrangement of aRegistrant
On July 1, 2013, Evolucia Inc. (the "Company") and its current landlord, 7040, LLC (the "Landlord"), entered into that certain lease dated July 1, 2013 (the “Lease”) in connection with the rental by the Company of 7040 Professional Parkway East, Sarasota, Florida 34240 from the Landlord.
On September 11, 2014, the Company and the Landlord entered into a Settlement Agreement (the "7040 Agreement") pursuant to which the Company and the Landlord settled all past due amounts and amounts owed for the term of the Lease in consideration for the Company issuing the Landlord an 8% Secured Promissory Note in the amount of $1,100,000 (the “7040 Note”). The Landlord agreed to return to the Company the Common Stock Option to acquire 12,000,000 shares of common stock of the Company (the “7040 Option”) which was previously issued to the Landlord in conjunction with the Lease. In addition, the parties released each other from any and all future legal claims. The 7040 Note is a debt obligation arising other than in the ordinary course of business which constitutes a direct financial obligation of the Company.
The foregoing information is a summary of each of the agreements involved in the transactions described above, is not complete, and is qualified in its entirety by reference to the full text of those agreements, each of which is attached an exhibit to this Current Report on Form 8-K. Readers should review those agreements for a complete understanding of the terms and conditions associated with this transaction.
Item 9.01 Financial Statements and Exhibits
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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EVOLUCIA INC.
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Date: September 15, 2014
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By:
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/s/ Thomas Seifert
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Name: Thomas Seifert
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Title: Interim Chief Executive Officer
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Exhibit 4.1
THIS NOTE HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED, OR ANY STATE SECURITIES LAWS. THIS NOTE MAY NOT BE SOLD, OFFERED FOR SALE, PLEDGED OR HYPOTHECATED IN THE ABSENCE OF AN EFFECTIVE REGISTRATION STATEMENT UNDER SUCH SECURITIES ACT AND ANY APPLICABLE STATE SECURITIES LAW OR AN OPINION OF COUNSEL REASONABLY SATISFACTORY TO THE ISSUING CORPORATION THAT SUCH REGISTRATION IS NOT REQUIRED.
| Principal Amount $1,100,000 |
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Effective Date: August 1, 2014 |
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Issue Date: September 11, 2014 |
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SECURED PROMISSORY NOTE
FOR VALUE RECEIVED, Evolucia Inc., a Nevada corporation (“Borrower”), hereby promises to pay to the order of 7040, LLC, a Florida limited liability company (the "Holder"), without demand, the sum of ONE MILLION ONE HUNDRED THOUSAND AND 00/XX Dollars ($1,100,000.00), on September 10, 2018 (the "Maturity Date"), if not retired sooner as set forth below. The principal amount is to be paid in 36 equal installments of THIRTY THOUSAND FIVE HUNDRED FIFTY FIVE AND 56/00 ($30,555.56), which shall be reduced to NINETEEN THOUSAND FOUR HUNDRED AND 44/00 ($19,444.44) in the event the Principal Reduction Event (as defined below) occurs, commencing on August 31, 2015 and continuing thereafter for 35 months on the last business day of each month. Borrower further promises to pay interest on the unpaid principal balance hereof at the rate of eight percent (8%) per annum, beginning on February 1, 2015, such interest to be paid at maturity. Interest shall be calculated on the basis of a 360 day year and actual days elapsed. In no event shall the interest charged hereunder exceed the maximum permitted under the laws of the State of Florida In the event the Holder or its affiliates sell, assign or transfer 7040 Professional Parkway East, Sarasota, Florida 34240 prior to March 31, 2014 for a net purchase price (i.e. after deduction of closing costs and customary expenses incurred by Holder in the sale) equal to or greater than THREE MILLION NINE HUNDRED TWENTY THOUSAND AND 00/00 dollars ($3,920,000), then the principal due hereunder shall be reduced by FOUR HUNRED THOUSAND AND 00/00 dollars ($400,000) (the “Principal Reduction Event”).
The following terms shall apply to this Secured Promissory Note (“Note”):
ARTICLE I
GENERAL PROVISIONS
1.1 Certain Definitions. As used herein, the following terms shall have the meanings set forth in this Section 1.
(a) “Collateral” means the collateral in which the Borrower is granted a security interest herein and which shall include the following, subject to all existing liens, whether presently owned or existing or hereafter acquired or coming into existence unless otherwise secured, and all additions and accessions thereto and all substitutions and replacements thereof, and all proceeds, products and accounts thereof, including, without limitation, all proceeds from the sale or transfer of the Collateral and of insurance covering the same and of any tort claims in connection therewith:
(i) All goods of the Borrower, including, without limitations, all machinery, equipment, computers, motor vehicles, trucks, tanks, boats, ships, appliances, furniture, special and general tools, fixtures, test and quality control devices and other equipment of every kind and nature and wherever situated, together with all documents of title and documents representing the same, all additions and accessions thereto, replacements therefor, all parts therefor, and all substitutes for any of the foregoing and all other items used and useful in connection with the Borrower’s businesses and all improvements thereto (collectively, the “Equipment”); and
(ii) All inventory of the Borrower; and
(iii) All of the Borrower’s contract rights and general intangibles, including, without limitation, all partnership interests, stock or other securities, licenses, distribution and other agreements, computer software development rights, leases, franchises, customer lists, quality control procedures, grants and rights, goodwill, trademarks, service marks, trade styles, trade names, patents, patent applications, copyrights, deposit accounts, and income tax refunds (collectively, the “General Intangibles”); and
(iv) All Receivables of the Borrower including all insurance proceeds, and rights to refunds or indemnification whatsoever owing, together with all instruments, all documents of title representing any of the foregoing, all rights in any merchandising, goods, equipment, motor vehicles and trucks which any of the same may represent, and all right, title, security and guaranties with respect to each Receivable, including any right of stoppage in transit; and
(v) All of the Borrower’s documents, instruments and chattel paper, files, records, books of account, business papers, computer programs and the products and proceeds of all of the foregoing Collateral set forth in clauses (i)-(iv) above.
(b) “Obligations” means all of the Borrower’s obligations herein, in each case, whether now or hereafter existing, voluntary or involuntary, direct or indirect, absolute or contingent, liquidated or unliquidated, whether or not jointly owed with others, and whether or not from time to time decreased or extinguished and later decreased, created or incurred, and all or any portion of such obligations or liabilities that are paid, to the extent all or any part of such payment is avoided or recovered directly or indirectly from the Secured Party as a preference, fraudulent transfer or otherwise as such obligations may be amended, supplemented, converted, extended or modified from time to time.
(c) “UCC” means the Uniform Commercial Code, as currently in effect in the State of Florida.
1.2 Payment Grace Period. The Borrower shall have a three (3) day grace period to pay any monetary amounts due under this Note. Failure to make any payment within such grace period shall result in a one-time late charge equal to five percent (5%) of the amount due.
3 Time of the Essence. Time is of the essence as to any time period provided for under this Note.
ARTICLE II
EVENT OF DEFAULT
The occurrence of any of the following events of default ("Event of Default") shall, at the option of the Holder hereof, make all sums of principal and interest then remaining unpaid hereon and all other amounts payable hereunder immediately due and payable, upon demand, without presentment, protest,further notice or any grace period, all of which hereby are expressly waived, except as set forth below:
2.1 Failure to Pay Principal. The Borrower fails to pay any installment of Principal Amount due under this Note when due and such failure continues for a period of thirty (30) days after written notice to the Borrower from the Holder.
2.2 Breach of Covenant. The Borrower breaches any material covenant or other term or condition of this Note in any material respect and such breach, if subject to cure, continues for a period of thirty (30) days after written notice to the Borrower from the Holder.
2.3 Breach of Representations and Warranties. Any material representation or warranty of the Borrower made herein, in the Note or in any agreement, statement or certificate given in writing pursuant hereto or in connection herewith or therewith shall be false or misleading in any material respect as of the date made subject to written notice of such breach to the Borrower from the Holder and such breach continues for a period of thirty (30) days after written notice to Borrower by Holder.
2.4 Receiver or Trustee. The Borrower or any Subsidiary of Borrower shall make an assignment for the benefit of creditors, or apply for or consent to the appointment of a receiver or trustee for them or for a substantial part of their property or business; or such a receiver or trustee shall otherwise be appointed.
2.5 Bankruptcy. Bankruptcy, insolvency, reorganization or liquidation proceedings or other proceedings or relief under any bankruptcy law or any law, or the issuance of any notice in relation to such event, for the relief of debtors shall be instituted by or against the Borrower or any Subsidiary of Borrower.
2.6 Transfer of Collateral. In the event Borrower conveys, transfers, assigns, further encumbers or otherwise disposes of its right, title or interest in the Collateral without the prior written consent of Holder.
ARTICLE III
MISCELLANEOUS
3.1 Security. As an inducement for the Holder to enter the Note and to secure the complete and timely payment, performance and discharge in full, as the case may be, of all of the Obligations under the Note, the Borrower hereby, unconditionally and irrevocably, pledges, grants and hypothecates to the Holder, a continuing security interest in, a continuing lien upon, an unqualified right to possession and disposition of and a right of set-off against, in each case to the fullest extent permitted by law, all of the Borrower’s right, title and interest of whatsoever kind and nature in and to the Collateral subject to existing liens (the “Security Interest”).
3.2 Failure or Indulgence Not Waiver. No failure or delay on the part of Holder hereof 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. All rights and remedies existing hereunder are cumulative to, and not exclusive of, any rights or remedies otherwise available.
3.3 Notices. All notices, demands, requests, consents, approvals, and other communications required or permitted hereunder shall be in writing and, unless otherwise specified herein, shall be (i) personally served, (ii) deposited in the mail, registered or certified, return receipt requested, postage prepaid, (iii) delivered by reputable air courier service with charges prepaid, or (iv) transmitted by hand delivery, telegram, or facsimile, addressed as set forth below or to such other address as such party shall have specified most recently by written notice. Any notice or other communication required or permitted to be given hereunder shall be deemed effective (a) upon hand delivery or delivery by facsimile, with accurate confirmation generated by the transmitting facsimile machine, at the address or number designated below (if delivered on a business day during normal business hours where such notice is to be received), or the first business day following such delivery (if delivered other than on a business day during normal business hours where such notice is to be received) or (b) on the second business day following the date of mailing by express courier service, fully prepaid, addressed to such address, or upon actual receipt of such mailing, whichever shall first occur. The addresses for such communications shall be: (i) if to the Borrower to: Evolucia Inc., 7040 Professional Parkway East, Sarasota, Florida 34240, with a copy by telecopier only to Fleming PLLC, 49 Front Street, Suite 206, Rockville Centre, New York 11570, telecopier number: (516) 977-1209, and (ii) if to the Holder, to 7040, LLC, 5969 CattleRidge Blvd., Suite 200, Sarasota, Florida 34232, Attn: Fred Starling, Managing Member.
3.4 Amendment Provision. The term "Note" and all reference thereto, as used throughout this instrument, shall mean this instrument as originally executed, or if later amended or supplemented, then as so amended or supplemented.
3.5 Assignability. This Note shall be binding upon the Borrower and its successors and assigns, and shall inure to the benefit of the Holder and its successors and assigns. The Borrower may not assign any of its obligations under this Note without the consent of the Holder.
3.6 Cost of Collection. If default is made in the payment of this Note, Borrower shall pay the Holder hereof reasonable costs of collection, including reasonable attorneys' fees.
3.7 Governing Law. This Note shall be governed by and construed in accordance with the laws of the State of Florida. Any action brought by either party against the other concerning the transactions contemplated by this Agreement shall be brought only in the state courts of Florida or in the federal courts located in the State of Florida, County of Sarasota. Both parties and the individual signing this Agreement on behalf of the Borrower agree to submit to the jurisdiction of such courts. The prevailing party shall be entitled to recover from the other party its reasonable attorney's fees and costs.
3.8 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 Borrower to the Holder and thus refunded to the Borrower.
3.9 Collateral. Borrower certifies that Borrower is the owner of the Collateral, subject to existing liens, and that this secures payment of all indebtedness evidenced by this Promissory Note and Security Agreement and this instrument is binding upon Borrower, its successors, assigns and heirs and constitute a lien upon the Collateral described herein.
3.10 Costs. All parties liable for the payment of this Note agree to pay the Holder all costs incurred by it in connection with the collection of this Note. Such costs include, without limitation, fees for the services of counsel and legal assistants employed to collect this Note, whether or not suit be brought, and whether incurred in connection with collection, trial, appeal or otherwise. All such parties further agree to indemnify and hold the Holder harmless against liability for the payment of state documentary stamp taxes, intangible taxes or other taxes (including interest and penalties, if any), excluding income or service taxes of the Holder, which may be determined to be payable with respect to this transaction.
3.11 UCC. Borrower authorizes Holder to file any UCC filings, financing statements or documents reasonably necessary to perfect Holder’s rights in the Collateral.
3.12. Remedies. In the event of a default under this Note, Holder shall have all rights and remedies in and to the Collateral as provided under the Uniform Commercial Code or otherwise by law subject to any existing lien holders rights. Borrower agrees to execute any documents necessary to transfer Borrower’s rights in the Collateral, and hereby appoints Borrower as its attorney in fact to execute any such documents on its behalf to effect the remedies of Holder in the Collateral.
WAIVER OF JURY TRIAL. BORROWER AND HOLDER HEREBY KNOWINGLY, VOLUNTARILY, AND INTENTIONALLY WAIVE ANY RIGHT THEY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON THIS NOTE, OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS OR ANY AGREEMENT CONTEMPLATED TO BE EXECUTED IN CONNECTION WITH THIS NOTE, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY WITH RESPECT HERETO. THIS PROVISION IS A MATERIAL INDUCEMENT FOR HOLDER'S ACCEPTING THIS NOTE FROM BORROWER
IN WITNESS WHEREOF, Borrower has caused this Note to be signed in its name by an authorized officer as of the 11th day of September, 2014.
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Evolucia Inc
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By:
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/s/ |
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Name: Thomas Seifert
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Title: Chief Executive Officer
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Exhibit 10.1
SETTLEMENT AGREEMENT
This Settlement Agreement ( the “Agreement”) is dated September 11, 2014 and is made by and between EVOLUCIA INC., a Nevada corporation ( the “Company”), and 7040, LLC, a Florida Limited Liability Company located at 5969 CattleRidge Blvd., Suite 200, Sarasota, Florida 34232 ( the "Landlord”).
WHEREAS, the Company and the Landlord entered into that certain lease dated July 1, 2013 (the “Lease”) in connection with the rental by the Company of 7040 Professional Parkway East, Sarasota, Florida 34240 from the Landlord;
WHEREAS, under the terms of the Lease the Landlord is owed by the Company $673,696 for construction costs, rent, late fees and maintenance costs for the period of July 1, 2013 through July 31, 2014, (the “Past Due Period”) and could potentially owe $3,101,355.36 for the period of August 1, 2014 through June 30, 2019 (the “Current Period” and with the Past Due Period, the “Period”), which such amounts total $3,564,941.60 (the “Rent Amount”);
WHEREAS, the Company and the Landlord have agreed to settle the Rent Amount owed to the Landlord by the Company;
WHEREAS, under the terms of the Agreement, the Company will issue to the Landlord an 8% Secured Promissory Note in the amount of $1,100,000 (the “Note”) a form of which is attached hereto as Exhibit A;
WHEREAS, under the terms of the Agreement, the Landlord will return to the Company the unexecuted Common Stock Option to acquire 12,000,000 shares of common stock of the Company (the “Option”) which was issued to the Landlord in conjunction with the Lease;
NOW, THEREFORE, in consideration of the mutual conditions and covenants contained in this Agreement, and for other good and valuable consideration, the sufficiency and receipts of which is hereby acknowledged, it is hereby stipulated, consented to and agreed by and between the Company and Landlord as follows:
1. In lieu of a cash payment to the Landlord of the Rent Amount, the Company hereby agrees to issue the Landlord the Note.
2. In consideration for the issuance of the Note by the Company and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Landlord hereby agrees to return the Option to the Company for cancellation within 72 hours of the Landlord executing this Agreement.
3. In consideration for the terms and conditions contained in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto, , on their own behalf and on behalf of their subsidiaries, successors, administrators and assigns, do hereby release and discharge each other and theirs respective officers, directors, affiliates, agents, counsel and employees and its respective administrators, successors and assigns from any and all actions, causes of action suits, debts, sums of money, accounts, reckonings, notes, bonds, warrants, bills, specialties, covenants, contracts, controversies, agreements, liabilities, obligations, undertakings, promises, damages, claims, compensation and demands whatsoever, in law, admiralty or equity which against them or any of them either party and its affiliates, executors, administrators, successors and assigns ever had, now have or may in the future can, shall or may have against the the other party and affiliate of them, for upon or by reason or any matter, cause or thing whatsoever from the beginning of the world to the date of this release.
4. Each party warrants and represents that no other person or entity has any interest in the matters released herein, and that they have not assigned or transferred, or purported to assign or transfer, to any person or entity all or any portion of the matters released herein.
5. Landlord warrants and represents that it will not use or disclose to third parties (i) any of the Company’s confidential, proprietary or trade secret information relating to the Company’s respective business, products, technologies and processes or (ii) the existence of this Agreement. Each party agrees that they shall not at any time engage in any form of conduct, nor make any statements or representations, that disparage or otherwise impair the reputation, goodwill or interests of the other party, its agents, officers, directors or employees.
6. Each party shall be responsible for their own attorneys’ fee and costs.
7. Each party acknowledges and represents that: (a) they have read the Agreement; (b) they clearly understand the Agreement and each of its terms; (c) they fully and unconditionally consent to the terms of this Agreement; (d) they have had the benefit and advice of counsel of their own selections; (e) they have executed this Agreement, freely, with knowledge, and without influence or duress; (f) they have not relied upon any other representations, either written or oral, express or implied, make to them by any person; and (g) the consideration received by them has been actual and adequate.
8. This Agreement contains the entire agreement and understanding concerning the subject matter here of between the parties and supersedes and replaces all prior negotiations, proposed agreement and agreements, written or oral. Each of the parties hereto acknowledges that neither any of the parties hereto, no agents or counsel of any other party whomsoever, has made any promise, representation or warranty whatsoever, express or implied, not contained herein concerning the subject hereto, to induce it to execute this Agreement and acknowledges and warrants that it is not executing this Agreement in reliance on any promise, representation or warranty not contained herein.
9. This Agreement may not be modified or amended in any manner except by an instrument in writing specifically stating that it is a supplement, modification or amendment to the Agreement and signed by each of the parties hereto.
10. Should any provision of this Agreement be declared or be determined by any court or tribunal to be illegal or invalid, the validity of the remaining parts, terms or provisions shall not be affected thereby and said illegal or invalid part, term or provison shall be severed and deemed not to be part of this Agreement.
11. This Agreement may be execute in facsimile counterparts, each of which, when all parties have executed at least one such counterpart, shall be deemed an original, with the same force and effect as if all signatures were appended to one instrument, but all of which together shall constitute one and the same Agreement.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the date first indicated above.
EVOLUCIA INC.
By:____________________________
Name: Thomas Seifert
Title: Chief Executive Officer
7040, LLC
By: ____________________________
Name: Fred Starling
Title: Managing Member
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