UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

WASHINGTON, DC 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):  June 1, 2015

 

HPEV, INC.

(Exact Name of Registrant as Specified in Its Charter)

  

Nevada

(State or Other Jurisdiction of Incorporation)

 

000-53443

 

75-3076597

(Commission File Number)

 

(IRS Employer Identification No.)

 

8875 Hidden River Parkway, Suite 300, Tampa, Florida 33637

(Address of Principal Executive Offices, Zip Code)

 

(813) 975-7567

(Registrant's telephone number, including area code)

 

____________________________________________________

(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))

 

 

 

Section 1. Registrant’s Business and Operations

 

Item 1.01 Entry into a Material Definitive Agreement.

 

On June 1, 2015, HPEV, Inc. (the “Company”) executed a First Amendment to Settlement Agreement (the “Amendment”) with Spirit Bear Limited (“Spirit Bear”) and the parties identified as the assignees of Spirit Bear who are signatories to the Amendment. As described below, the Amendment amends certain provisions of the Settlement and Release Agreement (the “Release”) dated May 1, 2015 (which was previously filed and described in the Current Report on Form 8-K dated May 1, 2015 as filed by the Company with the Securities and Exchange Commission on May 5, 2015).

 

In accordance with the terms of the Amendment, Spirit Bear agreed that Jay Palmer, Carrie Dwyer and Donica Holt, the Spirit Bear holdover directors, will tender their resignation letters from the Board of Directors of the Company as of the effective date, to be delivered to the Company on or before June 3, 2015. Spirit Bear also agreed that it will no longer have any rights to appoint nominees to the Board of Directors.

 

Pursuant to the Amendment, the Company agreed to file a registration statement on Form S-1 covering an aggregate of 14,028,385 shares of common stock, preferred stock and warrants on behalf of Spirit Bear and its assignees (the “Registration Statement”) no later than July 15, 2015. The Company agreed to issue replacement warrants for certain previously-issued warrants, which will be canceled in connection with the replacement issuance. 

 

Within 10 business days of June 1, 2015, the parties agreed to dismiss all of the pending litigation between and among them.

 

The foregoing description of the Amendment is qualified in its entirety by reference to the full text of the Amendment, a copy of which is attached hereto as Exhibit 10.49, which is incorporated herein in its entirety by reference.

 

Spirit Bear also executed an Indemnification Agreement on June 1, 2015 indemnifying the Company from any claim, exposure, cost, expense, or liability related to the previously-issued warrants or to a lien filed by Spirit Bear’s previous attorneys.

 

Item 9.01 Financial Statements and Exhibits.

 

(d)   Exhibits

 

Exhibit No.

 

Description

     

10.49

 

First Amendment to Settlement and Release Agreement effective as of May 1, 2015 by and between Spirit Bear Limited and its Assignees and HPEV, Inc.

 

 
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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. 

 

 

HPEV, Inc.

 
       
Date: June 4, 2015   By: /s/ Timothy Hassett  
  Name: Timothy Hassett  
  Title:

Chairman and Chief Executive Officer

 

 

 

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EXHIBIT 10.49

 

FIRST AMENDMENT TO SETTLEMENT AGREEMENT

 

This “First Amendment to Settlement Agreement” (hereinafter, the “ FASA” ) shall be effective as of May 1, 2015 (the “ Effective Date” ) by and between SPIRIT BEAR LIMITED (“Spirit Bear”) and its Assignees, and HPEV, INC. (“HPEV”); each of Spirit Bear and its Assignees and HPEV, individually a “ Party ” or collectively, the “ Parties ”.

 

WHEREA S , the Parties are signatories to that certain Settlement and Release Agreement, effective as of May 1, 2015 (the “May 1 SRA”), to resolve with finality all issues related to and arising directly and indirectly from previous agreements between them and litigations in connection therewith;

 

WHEREA S , the Parties wish to amend certain provisions of the May 1 SRA, as provided herein below;

 

NOW , THEREFORE , in consideration of good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereto agree as follows:

 

* * * * *

 

1.

Section 1.2-1 shall be replaced in its entirety to read as follows:

 

1.2-1

HPEV will, by the twenty-second (22nd) business day following the Effective Date, deliver warrants to Spirit Bear and Lorenzo, as provided in Table 1.2-1 below (the “Warrants”). Except as otherwise provided in the separate indemnification agreement executed contemporaneously herewith (the “Indemnification Agreement”), such Warrants shall be delivered to Spirit Bear’s counsel as provided in Section 3.6 hereof (the date of delivery being the “Delivery Date”). For the purpose of clarity, all such Warrants belonging to Lorenzo may be immediately delivered to Lorenzo; and such Warrants belonging to Spirit Bear may be immediately delivered to Spirit Bear, except for the 1,800,000 Warrants to be held pursuant to the Indemnification Agreement. On the Delivery Date, HPEV shall cancel and direct HPEV’s transfer agent to reflect as cancelled any and all still outstanding and unexercised Warrants previously issued or recorded as being held by Spirit Bear and/or Lorenzo at any time (the “Prior Warrants,” as that term is defined in the Indemnification Agreement). Spirit Bear agrees to return the Prior Warrants to HPEV consistent with the terms of the Indemnification Agreement. HPEV agrees that the existence of the Lien (as defined in the Indemnification Agreement) shall not excuse it from any obligation to cooperate with Spirit Bear’s and Lorenzo’s exercise of the Warrants.

 

 

 

The warrant positions of Spirit Bear and Lorenzo as of the Effective Date is as follows, without regard to the existence or possession of earlier-issued warrants (all of which shall be deemed void as of the Delivery Date):

 

 
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Table 1.2-1

 

Warrants/Holder

  Quantity to Deliver to Holder     Quantity to
Escrow 		    Strike
Price 		 

Expiration
Date

 

Series A - Spirit Bear

 

1,800,000

   

0

   

$

0.25

 

1/29/2017

 

Series B - Spirit Bear

   

1,800,000

     

0

   

$

0.25

 

1/29/2017

 

Series C - Spirit Bear

   

0

     

1,800,000

   

$

0.25

 

1/29/2017

 

Series A - Lorenzo

   

200,000

     

0

   

$

0.25

 

1/29/2017

 

Series B - Lorenzo

   

200,000

     

0

   

$

0.25

 

1/29/2017

 

Series C - Lorenzo

   

200,000

     

0

   

$

0.25

 

1/29/2017

 

Penalty Warrants – Spirit Bear

   

1,000,000

     

0

   

$

0.25

 

12/14/2015

 

 

2.

Section 1.3-1 shall be replaced in its entirety to read as follows:

 

1.3-1

HPEV shall, by not later than July 15, 2015, file (and do all that it can to perfect as necessary or appropriate) with the SEC a new S-1 Registration Statement applicable to the Shares (the “Registration Statement”; and the date upon which HPEV shall file the Registration Statement being sometimes referred to hereinafter as the “Registration Filing Date”), and shall take all such actions as shall be required of it to have such registration statement declared effective by the SEC (recognizing that the SEC is not subject to the control of HPEV) as soon as possible (including, but not limited to, submitting a request for acceleration of effectiveness at the earliest possible date). HPEV also is hereby authorized by the Board of Directors (specifically including the SBL Holdover Directors), at its discretion, to include in the Registration Statement up to a maximum of Two Million Five Hundred Thousand (2,500,000) additional common shares (such additional shares being limited to newly issued shares sold by HPEV only during the period from the Effective Date through the Registration Filing Date). HPEV agrees that it will not file a new form S-1 registration statement, or seek to amend an existing S-1 registration statement, prior to filing the Registration Statement.

 

 

 

HPEV shall thereafter maintain the Registration Statement in effect continuously and at all times subject to the approval of the SEC (recognizing that the SEC is not subject to the control of HPEV) for so long as Spirit Bear shall own any Shares. In addition, for so long as Spirit Bear shall own any Shares, HPEV shall refrain from any action which may result in the Registration Statement not being in effect for any period exceeding three (3) trading days.

 

 
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3.

Section 1.3-3 shall be replaced in its entirety to read as follows:

 

1.3-3

Spirit Bear agrees that, as of the Effective Date, it shall have no further rights to designate nominees to the Board of Directors of HPEV under the Securities Purchase Agreement, the Bylaws of HPEV, or otherwise.

 

 

4.

Section 2.1-1 shall be replaced in its entirely to read as follows:

 

 

2.1-1

 Board of Directors members Palmer, Holt and Dwyer (the “SBL Holdover Directors”) shall each tender his or her written resignation from the HPEV Board of Directors within three (3) days following the Effective Date, which resignation shall state that it is effective as of the Effective Date. The SBL Holdover Directors shall deliver their resignations to Spirit Bear’s counsel to be held in escrow until the Delivery Date, upon which date the resignation letters shall be delivered to HPEV through its counsel or as otherwise directed. The obligations of this paragraph shall be enforceable by injunctive relief or specific performance without bond as against the SBL Holdover Directors.

 

 

5.

Section 2.4 shall be replaced in its entirety to read as follows:

 

2.4 Lawsuits:

 

Within ten (10) business days of the date of this FASA, and as to the matter styled HPEV, Inc. v. Spirit Bear Limited, Palmer and Olins 14-cv-9175 (PGG) (S.D.N.Y.) (the “SDNY Matter”) by no later than June 1, 2015, HPEV and Spirit Bear, and the assignees and representatives of each, agree to dismiss (or, as with respect to the Interpleader Action, cause to be dismissed) without prejudice the Lawsuits (including to the extent permissible by law the Shareholder Derivative Claims as addressed in Exhibit A), each Party to bear its own costs, expenses and attorneys’ fees in connection therewith. Such dismissal will be without prejudice to the right of either party, within seventy-five days, to re-file or reopen the action if the Registration Date does not occur before the expiration of such time period. In the event that the Court in the SDNY Matter does not enter an order of dismissal with an express right to reopen within 75 days, then the Parties agree and acknowledge that all limitations and other applicable periods are tolled, and all positions and defenses are preserved, such that the Parties’ rights in any action re-filed in the ensuing 75-day period will be as they existed as of the date of initial filing of the SDNY Matter. The Parties hereby stipulate and agree that as of the Effective Date, to the fullest extent of their ability, any and all discovery or other deadlines in or associated with the Lawsuits are and shall be treated as stayed or held in abeyance until such time as the Lawsuits are dismissed, all discovery (including third-party discovery) is and shall be withdrawn, and that they shall make any such court filings as are appropriate in furtherance of effecting a complete standstill of all litigation related to the Lawsuits; and, with the exception that both parties recognize that HPEV has filed with the United States Securities and Exchange Commission (the “SEC”) Preliminary Proxy Statements dated December 24, 2014, and January 21, 2015, in which notice for a shareholders’ meeting has been provided, no annual meeting or special meeting of the shareholders shall be publicly noticed, scheduled or held, or any action of any nature taken by HPEV (including its management, management directors, advisory board members, and all HPEV Related Persons) with respect to the filing with the SEC of a Definitive Proxy Statement and/or the composition of the HPEV Board of Directors, until, at the earliest, June 1, 2015, regardless of a demand from any shareholder, specifically including Mark Hodowanec, for an earlier meeting.

 

 
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6.

Section 3.6 shall be replaced in its entirety to read as follows:

 

3.6

Notices

 

Spirit Bear’s counsel for receipt of notices and other performance as specified in this Agreement shall be:

 

Aaron Zerykier, Esq.
Farrell Fritz PC
1320 RXR Plaza

Uniondale, NY 11556-1320 

Telephone: 1-516-227-0621
Email: azerykier@farrellfritz.com

 

HPEV’s counsel for receipt of notices and other performance as specified in this Agreement shall be:

 

Jason R. Scherr 

Morgan Lewis & Bockius LLP
2020 K Street, NW
Washington, DC 20006 

Telephone: 1-202-373-6709 

Email: jr.scherr@morganlewis.com

 

SIG N AT UR E S ON FOLLOWING PAGES

 

 
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IN WITNESS WHEREOF, the Parties have each caused this Agreement to be executed by their duly authorized respective representatives.

 

 

SPIRIT BEAR LIMITED

 

HPEV INC.

         

By:

/s/ Jay Palmer

 

By:

/s/ Timothy Hassett

 

Name:

Jay Palmer

 

Name:

Timothy Hassett

 

Title:

President

 

Title:

CEO

 

         

SPIRIT BEAR LIMITED
Representative

 

HPEV INC.

         

By:

/s/ Robert Alan Olins

 

By:

/s/ Theodore Banzhaf

 

Name:

Robert Alan Olins

 

Name:

Theodore Banzhaf

 

     

Title:

President

 

         

ROBERT ALAN OLINS

Individually

 

HPEV INC.

         

By:

/s/ Robert Alan Olins

 

By:

/s/ Quentin D. Ponder

 

Name:

Robert Alan Olins

 

Name:

Quentin D. Ponder

 

     

Title:

CFO

 

         

SPIRIT BEAR LIMITED
Representative

 

HPEV INC.

         

By:

/s/ Carrie Dwyer

 

By:

/s/ Judson Bibb

 

Name:

Carrie Dwyer

 

Name:

Judson Bibb

 

Title:

HPEV Director

 

Title:

Vice President and Secretary

 

         

SPIRIT BEAR LIMITED
Representative

 

MARK HODOWANEC

Individually (as to §§ 2.3-1 and 2.4)

         

By:

/s/ Donica Holt

 

By:

/s/ Mark Hodowanec

 

Name:

Donica Holt

 

Name:

Mark Hodowanec

 

Title:

HPEV Director

     

 

 
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SPIRIT BEAR LIMITED
Assignee

THEODORE BANZHAF

Individually (as to §§ 2.3-1 and 2.7)

 

   

By:

/s/ Robert Knoll

By:

/s/ Theodore Banzhaf

 

Name:

Robert Knoll

Name:

Theodore Banzhaf

 

         

SPIRIT BEAR LIMITED
Assignee

TIMOTHY HASSETT
Individually (as to § 2.3-1)

 
         

By:

/s/ Laurel Brown

By:

/s/ Timothy Hassett

 

Name:

Laurel Brown

Name:

Timothy Hassett

 
         

SPIRIT BEAR LIMITED
Assignee

QUENTIN D. PONDER
Individually (as to § 2.3-1)

 
         

By:

/s/ Leonora Lorenzo

By:

/s/ Quentin D. Ponder

 

Name:

Leonora Lorenzo

Name:

Quentin D. Ponder

 
         
         

SPIRIT BEAR LIMITED
Assignee

JUDSON W. BIBB III
Individually (as to § 2.3-1)

 
         

By:

/s/ Michael Kahn

By:

/s/ Judson W. Bibb III

 

Name:

Michael Kahn

Name:

Judson W. Bibb III

 
         

SPIRIT BEAR LIMITED
Assignee

     
         

By:

/s/ Ray Adams

     

Name:

Ray Adams

     

 

 

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