Current Report Filing (8-k)
December 19 2017 - 4:16PM
Edgar (US Regulatory)
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 17, 2017
ENER-CORE,
Inc.
(Exact
name of registrant as specified in its charter)
Delaware
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001-37642
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45-0525350
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(State
or other jurisdiction
of incorporation)
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(Commission
File Number)
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(I.R.S.
Employer
Identification No.)
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8965
Research Dr., Suite 100
Irvine, California 92618
(Address
of principal executive offices) (Zip Code)
(949)
616-3300
(Registrant’s
telephone number, including area code)
Not
Applicable
(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
5.02
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Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain
Officers.
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On
December 17, 2017, Ener-Core, Inc. (the “Company”) and Alain J. Castro entered into a Separation Agreement and General
Release of All Claims (the “Separation Agreement”), pursuant to which the Company and Mr. Castro mutually agreed to
terminate Mr. Castro’s employment with the Company, as well as his position as Chief Executive Officer of the Company, along
with any officer, director or employee positions with the Company’s subsidiaries and affiliates, effective as of a date
no later than May 31, 2018 (the “Termination Date”). Mr. Castro will remain employed and will continue to serve as
both Chief Executive Officer and a member of the Company’s board of directors (the “Board”) during the six-month
notice period, beginning on December 1, 2017 and ending on the Termination Date (the “Notice Period”), subject to
the following conditions: (i) if the Company hires a new chief executive officer during the Notice Period, Mr. Castro will continue
to remain employed by the Company as a special advisor for the remainder of the Notice Period and will perform duties under the
direction of the Board; (ii) Mr. Castro will resign as a member of the Board at the request of the Board at any time during
the Notice Period; (iii) during the Notice Period, the Company will pay Mr. Castro a base salary of $20,000 per month, the
Company will continue to reimburse Mr. Castro for certain out-of-pocket expenses and Mr. Castro may continue to participate in
the Company’s health and insurance plans; and (iv) the options awarded to Mr. Castro on or about April 6, 2017 and November
28, 2014 and the restricted stock awarded to Mr. Castro on or about April 6, 2017 will accelerate and be fully vested on the effective
date of the Severance Agreement and General Release of All Claims (the “Severance Agreement”) that Mr. Castro has
agreed to execute upon effectiveness of his termination. In addition, the November 28, 2014 option will remain exercisable through
November 28, 2020, and the April 6, 2017 option will be exercisable for a period of five years following his departure from the
Company pursuant to the terms of the Separation Agreement. During the Notice Period, Mr. Castro may spend a reasonable amount
of time searching for alternate employment, and in the event he leaves to begin full time employment elsewhere during the Notice
Period, he will forfeit any additional compensation due under the Separation Agreement.
The
Separation Agreement provides that Mr. Castro will be entitled to a cash payment of $40,000 to be paid upon termination of
his employment, provided that (a) Mr. Castro complies with his obligations under both the Separation Agreement and that certain
Executive Employment Agreement, dated April 25, 2013, by and between Mr. Castro and Flex Power Generation, Inc. (the “Employment
Agreement”), (b) Mr. Castro complies with Company policies and (c) Mr. Castro signs and does not revoke the Severance Agreement
on his termination date. The Separation Agreement includes an acknowledgment that the money and benefits described therein are
greater than the amount that Mr. Castro would have received under the Company’s policies or the Employment Agreement.
The
Separation Agreement also includes, among other things, a release of all claims by Mr. Castro and a release of claims against
Mr. Castro by the Company, and provides that Mr. Castro remains obligated to comply with his post-employment obligations set forth
in the Employment Agreement. The Separation Agreement also imposes certain confidentiality and non-disclosure obligations on Mr.
Castro.
Pursuant to the terms thereof, Mr. Castro may revoke the Separation Agreement for up to seven calendar days following
the execution thereof. Absent such revocation by Mr. Castro, the Company expects that the Separation Agreement will become effective
on December 25, 2017.
The
Separation Agreement is attached as Exhibit 10.1 to this Current Report on Form 8-K and is incorporated herein by reference. The
foregoing description of this agreement does not purport to be complete and is qualified in its entirety by reference to such
exhibit.
Item
7.01
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Regulation
FD Disclosure.
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On
December 19, 2017, the Company issued a press release regarding the execution of the Separation Agreement with Mr. Castro, which
is attached as Exhibit 99.1 to this Current Report on Form 8-K and incorporated herein by reference.
As
provided in General Instruction B.2 of Form 8-K, the information in this Item 7.01 of Current Report on Form 8-K (including Exhibit
99.1) shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended (the
“Exchange Act”), or otherwise subject to the liabilities of that section, nor shall it be incorporated by reference
into any registration statement or other document filed under the Securities Act of 1933, as amended, or the Exchange Act, except
as shall be expressly set forth by specific reference in such filing.
Item
9.01
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Financial
Statements and Exhibits.
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(d)
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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ENER-CORE,
Inc.
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Dated:
December 19, 2017
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By:
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/s/
Domonic J. Carney
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Domonic
J. Carney
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Chief
Financial Officer
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EXHIBIT
INDEX
3