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 30, 2014
EUROSITE POWER INC.
(Exact name of registrant as specified in
its charter)
Delaware
(State of incorporation)
000-54484
(Commission file number)
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27-5250881
(IRS Employer Identification
No.)
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45 First Avenue
Waltham, Massachusetts
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02451 |
(Address of principal executive offices) |
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(Zip Code) |
(781) 522-6000
(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:
¨
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)
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
| Item 1.01. | Entry into a Material Definitive Agreement. |
On December 30,
2014, EuroSite Power Inc., or the Company, amended and restated an existing promissory note with John Hatsopoulos, the Chairman
of the Company’s board of directors. The Amended and Restated Promissory Note, or the Note, is for the principal sum of $3,000,000
and accrues interest at a rate of 1.85% per annum. The Note is due upon the occurrence of a substantial capital raise, or upon
a change of control of the Company.
The Note provides for
events of default by the Company, including failure to pay principal, interest or fees when due, failure to comply with provisions
of the Note, subject to cure, and certain events of bankruptcy or insolvency.
The foregoing description
of the Note is qualified in its entirety by reference to the full text of the Note, which is attached as Exhibit 10.1 to this Current
Report on Form 8-K and incorporated by reference into this Item 1.01.
| Item 9.01. | Financial Statements and Exhibits. |
(d)
Exhibits.
Exhibit No. |
Description |
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10.1 |
Amended and Restated Promissory Note issued to John Hatsopoulos, dated December 30, 2014. |
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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EUROSITE POWER INC. |
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By: |
/s/ Gabriel Parmese |
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Gabriel Parmese, |
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Chief Financial Officer |
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Dated: December
30, 2014
Exhibit 10.1
AMENDED
AND RESTATED PROMISSORY NOTE
U.S. $3,000,000 |
December 30, 2014 |
FOR VALUE RECEIVED, EuroSite Power Inc.,
a corporation organized under the laws of Delaware (“Borrower”), 45 First Avenue, Waltham, Massachusetts 02451, agrees
to pay to John Hatsopoulos (“Lender”), 3 Woodcock Lane, Lincoln, Massachusetts 01773, or order, the principal
sum of Three Million U.S. Dollars($3,000,000), after a substantial capital raise, on or before September 19, 2019, or immediately
upon a Change of Control, as such term is defined herein, of Borrower. Prepayment of principal may be made at any time without
penalty. Interest hereon shall accrue from October 3, 2014 at the rate of one point eight five percent (1.85%) per annum.
In the event that any amount of principal
hereof, or (to the extent permitted by applicable law) any interest hereon or any other amount payable hereunder is not paid in
full when due (whether as scheduled, on demand, by acceleration or otherwise), Borrower shall pay interest (after as well as before
entry of judgment thereon to the extent permitted by law) on such unpaid amount to Lender, from the date such amount becomes due
until the date such amount is paid in full, payable on demand of Lender at a rate per annum equal at all times to twelve percent
(12%) per annum (the “Default Rate”). Additionally, and without limiting the foregoing, following the occurrence and
during the continuance of any Event of Default (as defined below), at the option of Lender, the interest rate shall be the Default
Rate. Such interest on overdue amounts shall be payable on demand. All computations of interest shall be made on the basis of a
year of 360 days for the actual number of days (including the first day but excluding the last day) occurring in the period for
which such interest is payable. Each determination by Lender of any applicable rate of interest, and of any change therein, in
the absence of manifest error shall be conclusive and binding on the parties hereto.
Principal payment shall be made in lawful
tender of the United States unconditionally in full without set-off, counterclaim or, to the extent permitted by applicable law,
other defense, all of which rights of Borrower are hereby expressly waived by Borrower. All payments hereunder shall be made to
Lender at his address set forth above (or to such other place as Lender shall designate in a written notice to Borrower), and,
unless Borrower has obtained Lender’s written consent to another form of payment, such payment shall be made by wire transfer
of immediately available funds by no later than 12:00 noon (Boston time) on the due date of the payment, in accordance with Lender’s’
payment instructions.
Whenever any payment hereunder shall be
stated to be due, or whenever any interest payment date or any other date specified hereunder would otherwise occur, on a day other
than a Business Day (as defined below), then such payment shall be made, and such interest payment date or other date shall occur,
on the next succeeding Business Day, and such extension of time shall in such case be included in the computation of payment of
interest hereunder. As used herein, “Business Day” means a day (i) other than Saturday or Sunday, and (ii) on which
commercial banks are open for business in Boston, Massachusetts.
Upon a Change in Control of the Borrower
the this Note, including any unpaid interest thereon, shall become immediately due and payable. For purposes of this Note, “Change
in Control” means:
| (i) | Change in Ownership of Borrower. The acquisition by any one person, or more than one person acting as a group, not including
the current stockholders of the Borrower of ownership (taking into account the stock ownership attribution rules of § 318(a)
of the Internal Revenue Code of 1986, as amended) of more than fifty percent (50%) of either (a) the then outstanding shares of
common stock of the Borrower or (b) the total combined voting power of the then outstanding voting securities of the Borrower entitled
to vote generally in the election of directors, whether such acquisition occurs by purchase of outstanding stock, issuance of stock
by the Borrower, merger or otherwise; or |
| (ii) | Change in Ownership of Substantially All Assets of the Borrower. All or substantially all of the assets of the Borrower
are sold or otherwise disposed of. A transfer of the Borrowers’s assets to an “affiliate” of the Borrower
(as defined in Rule 12b-2 promulgated under the Securities Exchange Act of 1934, as amended) shall not constitute a Change in Control
under this Note. |
Borrower represents and warrants to Lender
that:
(i) Organization and Powers. Borrower
is a corporation duly organized, validly existing and in good standing under the laws of the State of Delaware, and has all requisite
power and authority to own its assets and carry on its business and to execute, deliver and perform its obligations under this
Note.
(ii) Authorization; No Conflict.
The execution, delivery and performance by Borrower of this Note have been duly authorized by all necessary corporate action of
Borrower and do not and will not (A) contravene the terms of the constitutional documents of Borrower; or (B) result in a breach
of or constitute a default under any material lease, instrument, contract or other agreement to which Borrower is a party or by
which it or its properties may be bound or affected; or (C) violate any provision of any law, rule, regulation, order, judgment,
decree or the like binding on or affecting Borrower.
(iii) Binding Obligations. This Note
constitutes the legal, valid and binding obligation of Borrower, enforceable against Borrower in accordance with its terms.
(iv) Consents. No authorization,
consent, approval, license, exemption of, or filing or registration with, any governmental authority or agency, or approval or
consent of any other person or entity is required for the due execution, delivery or performance by Borrower of this Note.
Any of the following events which shall
occur shall constitute an “Event of Default”:
(a) Payments. Borrower shall fail
to pay when due any amount of principal hereof, or interest hereon or other amount payable hereunder, and such failure shall continue
unremedied for five (5) days.
(b) Representations and Warranties.
Any representation or warranty by Borrower under or in connection with this Note shall prove to have been incorrect in any material
respect when made or deemed made.
(c) Insolvency. (i) Borrower shall
(A) admit in writing its inability to, or shall fail generally or be generally unable to, pay its debts (including its payrolls)
as such debts become due, (B) make a general assignment for the benefit of creditors, (C) be dissolved, liquidated, wound up or
cease its corporate existence, or (D) commence any voluntary proceeding or case seeking to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, intervention, suspension of payments, or composition of it or its debt under
any law relating to bankruptcy, insolvency, suspension of payments or reorganization or relief of debtors, or seeking appointment
of a receiver, trustee, intervenor or liquidator, or other similar official for it or for any substantial part of its property,
(ii) an involuntary proceeding or case shall be commenced against Borrower seeking any of the foregoing relief and remain undismissed
for a period of 30 days; (iii) an order for relief or other order or adjudication shall be entered against Borrower under any such
bankruptcy, insolvency or similar law; (iv) any receiver, trustee, or other official or person shall be appointed to take possession
of any property of Borrower; or (v) Borrower shall take any corporate action to authorize, or shall consent to, any of the actions
or events set forth above in this paragraph.
If any Event of Default shall occur and
be continuing, Lender may, by notice to Borrower, declare the entire unpaid principal amount of this Note, all interest accrued
and unpaid hereon and all other amounts due hereunder to be forthwith due and payable, whereupon the principal hereof, all such
accrued interest and all such other amounts shall become and be forthwith due and payable, without presentment, demand, protest
or further notice of any kind, all of which are hereby expressly waived by Borrower, provided that if an event described in paragraph
(c) above shall occur, the result which would otherwise occur only upon giving of notice by Lender to Borrower as specified above
shall occur automatically, without the giving of any such notice.
Borrower agrees to pay on demand the costs
and expenses of Lender, and fees and disbursements of Lender’s counsel, in connection with any Event of Default, the enforcement
or attempted enforcement of, and preservation of any rights or interests under, this Note, and any out-of-court workout or other
refinancing or restructuring or any bankruptcy or insolvency case or proceeding.
No single or partial exercise of any power
under this Note shall preclude any other or further exercise of such power or exercise of any other power. No delay or omission
on the part of Lender in exercising any right under this Note shall operate as a waiver of such right or any other right thereunder.
All notices and other communications provided
for hereunder shall, unless otherwise stated herein, be in writing and mailed, sent or delivered to the respective parties hereto
at or to their respective addresses set forth herein, or at or to such other address as shall be designated by any party in a written
notice to the other party hereto. All such notices and communications shall be effective (i) if delivered by hand, when delivered;
(ii) if sent by overnight courier service, when delivered; and (iii) if sent by mail, upon the earlier of the date of receipt or
five Business Days after deposit in the mail, first class (or air mail, with respect to communications to be sent to or from the
United States), postage prepaid.
This Note shall be binding on Borrower and
its successors and assigns, and shall be binding upon and inure to the benefit of Lender, any future holder of this Note and their
respective successors and assigns. Borrower may not assign or transfer this Note or any of its obligations hereunder without Lender’s
prior written consent.
This Note shall be governed by and construed
in accordance with the laws of the Commonwealth of Massachusetts.
Borrower hereby (a) submits to the non-exclusive
jurisdiction of the courts of the Commonwealth of Massachusetts and the Federal courts of the United States sitting in the District
of Massachusetts (collectively, the “Massachusetts Courts”), for the purpose of any action or proceeding arising out
of or relating to this Note, (b) irrevocably waives (to the extent permitted by applicable law) any objection which it now or hereafter
may have to the laying of venue of any such action or proceeding brought in any of the Massachusetts Courts, and any objection
on the ground that any such action or proceeding in any Massachusetts Court has been brought in an inconvenient forum, and (c)
agrees that (to the extent permitted by applicable law) a final judgment in any such action or proceeding brought in a Massachusetts
Court shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner permitted by
law.
IN WITNESS WHEREOF, Borrower signing below
by its duly authorized legal representative(s) has executed this Note as of the date first above mentioned.
EUROSITE POWER INC. |
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By: JOHN HATSOPOULOS |
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/s/ Gabriel Parmese |
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/s/ John Hatsopoulos |
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By: Gabriel Parmese, Chief Financial Officer |
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